QJTT and Minister for Home Affairs (Migration) - [2019] AATA 152

QJTT and Minister for Home Affairs (Migration) [2019] AATA 152 (13 February 2019)
Division:GENERAL DIVISION
File Number:2018/6933
Re:QJTT
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans
Date:13 February 2019
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated
21 November 2018 not to revoke the mandatory cancellation of the Applicant’s Visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.
..........................sgd.............................................
Senior Member Dr M Evans
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record - Direction no. 65 – primary and other considerations – protection of the Australian community – best interests of minor children – expectations of the Australian community – international non-refoulement obligations – strength, nature and duration of ties to Australia – extent of impediments if returned to Afghanistan – meaning of “trend of increasing seriousness” – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43
Migration Act 1958 (Cth) – s 195A, s 499, s 499(1), s 499(2A), s 500, s 500(1)(ba),
s 500(6B), s 500(6H), s 500(6J), s 500(6L), s 501, s 501(1), s 501(3A), s 501(6),
s 501(6)(a), s 501(7), s 501(7)(c), s 501(7)(d), s 501(7A), s 501CA, s 501CA(4), s 501E,
s 501G(1)
Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No. 2) (Cth)
CASES
Afu and Minister for Home Affairs [2018] FCA 1311
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
PRHR and Minister for Immigration and Border Protection [2017] AATA 2782
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
SECONDARY MATERIALS
Direction no. 65 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under
s 501CA – paras 6.1, 6.2, 6.3, 7, 8, 12, 13, 14, Part B, Part C
Department of Foreign Affairs and Trade, DFAT Thematic Report: Hazaras in Afghanistan (18 September 2019)
United Nations High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan
(30 August 2018)
REASONS FOR DECISION
Senior Member Dr M Evans
13 February 2019
BACKGROUND

The Applicant is a 39-year-old man who was born in Afghanistan. He arrived in Australia, unaccompanied, when he was 20 years of age (Exhibit A1, paragraph [6]) in March 2001 (G4, page 50). The Applicant initially held a number of Temporary Protection Visas, before he was granted a Permanent Resolution of Status Visa (Visa) on 4 December 2008 (Exhibit R3, paragraph [3]; G4, page 180).
In a letter to the Applicant from the Department of Immigration and Border Protection dated 20 May 2015 (G4, page 50), the Applicant was advised that, on 5 May 2015 his Visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act). This was because the Applicant failed the character test due to having a substantial criminal record, and because he was serving a full-time sentence of imprisonment, as defined by

s 501(6)(a) and s 501(7) of the Migration Act.
Upon his release from prison on 14 May 2015 the Applicant was taken into immigration detention (G4, page 155).
The Applicant sought revocation of the mandatory cancellation decision of 5 May 2015 in June 2015 (G4, page 50). On 29 November 2016, the Assistant Minister personally decided not to revoke the cancellation of the Applicant’s Visa (Exhibit R3, paragraph [5]).
The Assistant Minister’s decision of 29 November 2016 was set aside by a consent order of the Full Court of the Federal Court of Australia dated 23 February 2018 on the basis that the Assistant Minister’s decision was affected by the same jurisdictional error as that described in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448. The Full Court issued a writ of certiorari to quash the decision of the Respondent dated

29 November 2016 and a writ of mandamus directing the Respondent to determine the Applicant’s request for revocation of the decision under s 501(3A) according to law

(G4, pages 210-211).
After considering further representations made by the Applicant, a delegate of the Minister decided not to revoke the mandatory cancellation decision of 21 November 2018 (Reviewable Decision). This is the Reviewable Decision that is currently before the Tribunal (G2, page 8).
The Applicant’s legal representative lodged an application to the General Division of the Administrative Appeals Tribunal on 28 November 2018 to review the Reviewable Decision (G1, pages 1-7).
ISSUES
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the mandatory cancellation decision (that is, the Reviewable Decision) should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Direction no. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction no. 65).
JURISDICTION
This application is made pursuant to s 500(1)(ba) of the Migration Act. This section allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent under s 501CA(4) of the Migration Act not to revoke a decision to cancel a visa.
The Reviewable Decision of 21 November 2018 was communicated to the Applicant’s legal representative on the same date, and his legal representative lodged his application for review on 28 November 2018 (G1, page 1). The Applicant is in immigration detention, and is in the migration zone. He therefore lodged his application for review by the Tribunal within the nine-day period after he received the decision in accordance with s 501G(1) and s 500(6B) of the Migration Act.
The Tribunal is therefore satisfied that the application was lodged within time, and that the Tribunal has jurisdiction to review the Reviewable Decision.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Wednesday 30 January 2019. The Applicant was represented by Mr Lochore, who was assisted by his instructing solicitor Ms Langbien.
The Respondent was represented by Ms Jackson.
The Applicant gave evidence with the assistance of an interpreter and was cross-examined. Both the Mr Lochore and Ms Jackson made oral submissions.
The Tribunal admitted the following documents into evidence at the hearing:
(a)the Applicant’s Statement of Facts, Issues and Contentions, dated 11 January 2019 (Exhibit A1);
(b)statutory declaration of the Applicant dated 8 January 2019 (Exhibit A2);
(c)
letter from the Applicant’s 14 year old daughter dated 7 January 2019

(Exhibit A3);
(d)Department of Foreign Affairs and Trade, DFAT Thematic Report: Hazaras in Afghanistan (18 September 2017) (although this is a secondary material it was put into evidence as Exhibit A4 for ease of reference);
(e)United Nations High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan (30 August 2018) (as with Exhibit A4 above, this was also put into evidence as Exhibit A5 for ease of reference);
(f)Applicant’s Submissions in Reply dated 23 January 2019 (Exhibit A6);
(g)further Statutory Declaration of the Applicant dated 22 January 2019 with five pages of attachments (Exhibit A7);
(h)the s 501 documents (G documents) numbered from G1 to G4 and comprising 297 pages (Exhibit R1);
(i)Supplementary s 501 documents (Supplementary G documents) numbered from SG1 to SG4 and comprising 14 pages (Exhibit R2); and
(j)the Respondent’s Statement of Facts, Issues and Contentions, dated 21 January 2019 (Exhibit R3).
At the Tribunal hearing, the Tribunal requested the following documents which were then requested under summons by the Respondent. The parties were given the opportunity to make submissions on these documents prior to handing down this decision, which the Tribunal has taken into account:
(a)Western Australia Police History for Court – Traffic and Criminal of the Applicant. This document was requested by the Tribunal because it shows the offence date, as well as the court date. The National Criminal History (G4, page 38) only shows the Court date;
(b)The Violent Offending Program Completion Report for the Applicant, who completed the program in Casuarina Prison on 24 September 2014 (see certificate at G4, page 109).
Subsequent to the hearing, the parties consented to these documents being put into evidence as Exhibit R4.
The Tribunal has also considered the following written submissions from the parties with respect to Exhibit R4, which were filed subsequent to the hearing:
(a)Applicant’s Submissions on Further Materials dated 4 February 2019; and
(b)Respondent’s Submissions on Further Materials dated 6 February 2019.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Migration Act provides that:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)
the person has a substantial criminal record (as defined by

subsection (7)…
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)
the person has been sentenced to a term of imprisonment of

12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more…
(Original emphasis.)
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
(Original emphasis.)
DIRECTION NO. 65
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 22 December 2014, the Minister for Immigration and Border Protection made Direction no. 65 under s 499 of the Migration Act.
Paragraph 6.1 of Direction no. 65 sets out the “Objectives” of the Migration Act, with paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction no. 65 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction no. 65 sets out principles which must be taken into account by persons making decisions under s 501CA(4), including the Tribunal:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the principles set out in paragraph 6.3 of Direction no. 65, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction no. 65, with regard to the specific circumstances of the case (paragraph 13(1) of Direction no. 65). Specifically, paragraph 13(2) of Direction no. 65 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 14 of Part C of Direction no. 65 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Paragraph 7(1)(b) of Direction no. 65 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)…
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Further guidance as to how a decision-maker is to apply the considerations in Direction no. 65 can be found in paragraph 8 of Direction no. 65 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?

Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
On 15 January 2014, the Applicant was convicted of two offences of “unlawfully wounded in circumstances of aggravation”. He was sentenced to a term of 14 months imprisonment for one offence, and a term of two months cumulative imprisonment for the other offence. Consequently, the Applicant does not pass the character test

(s 501(6)(a) and s 501(7)(c) of the Migration Act).
The Applicant concedes that he does not pass the character test (Exhibit A1, paragraph [3]), and so the Tribunal must now consider whether there was “another reason” why the Reviewable Decision should be revoked.
IS THE TRIBUNAL SATISFIED THAT THERE IS ANOTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community (paragraph 13.1 of Direction no. 65)
Paragraph 13.1(1) of Direction no. 65 provides that:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community…
Paragraph 13.1(2) of Direction no. 65 then provides:
Decision makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paragraph 13.1.1(1) of Direction no. 65)
Paragraph 13.1.1(1) of Direction no. 65 further provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c)The sentence imposed by the courts for a crime or crimes;
(d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(e)The cumulative effect of repeated offending;
(f)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(h)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
To date, the Applicant has a Court and Traffic history comprising a total of 42 offences (G4, page 38-40). These are comprised of:
(a)Offences involving violence:
(i)“assault occasioning bodily harm (2 charges)” (23 November 2005);
(ii)“common assault (2 charges)” (8 December 2006);
(iii)Two convictions for “unlawfully wounded in circumstances of aggravation” (15 January 2014);
(b)Driving and traffic offences:
(i)“no motor driver’s licence”, “exceed .08” and “fail to stop when called upon” (13 May 2005);
(ii)“no motor driver’s licence – under suspension” and , “no motor driver’s licence – under suspension (2 charges)” (27 July 2005);
(iii)
“no motor driver’s licence – under suspension” and “unlicensed vehicle”

(24 April 2006);
(iv)
“exceed speed limit” and “no motor driver’s licence – under suspension”

(8 December 2006);
(v)“no authority to drive – disqualified/suspended” (24 December 2008);
(c)drug offences:
(i)“possess a prohibited drug” (24 February 2006);
(ii)“possess a smoking utensil” (19 December 2008);
(iii)“possess a prohibited drug (methylamphetamine)” (31 January 2014);
(d)breaches of court imposed orders and police orders:
(i)“breach of bail granted” (13 May 2005);
(ii)“breach of suspended sentence” (24 April 2006);
(iii)
“breach of protective bail granted conditions” (3 charges)

(8 December 2006);
(iv)“breach of police order” (8 December 2006 and 22 February 2007);
(v)three convictions for “breach of police order” (27 August 2012);
(e)offences involving public officers:
(i)“resist arrest” (13 May 2005);
(ii)“fail to comply with request to give police personal details” (23 June 2006);
(f)public order offences:
(i)“disorderly conduct” (13 January 2005);
(ii)“disorderly behaviour in public” (24 April 2006, 8 December 2006 and 20 December 2006);
(g)other offences:
(i)“possessed a controlled weapon” (23 November 2005);
(ii)“carried an article with intent to injure (disable)” (20 December 2006);
(iii)“left a public passenger transport service” (23 June 2006);
(iv)“unlawful damage” (8 December 2006);
(v)“trespass (2 charges)” (8 December 2006)
(Dates cited are conviction dates.)
Paragraph 13.1.1(1)(a) of Direction no. 65 provides that offences involving violence may be considered serious. The Tribunal has noted the Applicant’s convictions involving violence in paragraph [39] above. His most recent violent offending convictions were on 15 January 2014 for “unlawfully wounded in circumstances of aggravation”. The facts relating to the offending, as found by Magistrate Roth, were that the Applicant had a confrontation at a party during which he swung a Stanley knife or box cutter, resulting in two persons being cut. One person suffered from a cut described by the Magistrate as “very deep” and “severe” (G4, page 76), and which Magistrate Roth further described as follows (G4, page 77):
The wound in relation to [name omitted], as I’ve indicated, is an extremely serious wound. It is obvious from the photograph she suffered. She had to go to Perth, apparently, to have an operation. There were those who were worried that internal organs would simply spill out of the wound, given the nature and the extent of the wounding. You used a box cutter or a Stanley knife, whichever one it may have been, to inflict these wounds and anybody using a sharp implement like that; it has got to be expected they are going to do very severe damage to someone.
The Applicant claimed that he was acting in self-defence, which was rejected by the Magistrate (G4, page 76). These offences, involving a weapon, were, in the Tribunal’s opinion, serious, as indicated by the sentencing remarks of Magistrate Roth

(G4, page 77):
They are serious offences. They are very serious. Unlawful wounding is always a serious offence and, in my view, this is a very serious example. Your Counsel suggests it’s perhaps above normal, as it were, or above the tariff I consider or above the average in terms of its severity, but I consider it to be some great deal above the norm and it’s at the upper end of severity, in my view.
Paragraph 13.1.1(1)(b) of Direction no. 65 provides that offences against officials in the performance of their duties are also serious, which would include the offence of resist arrest and (albeit to a far lesser extent) fail to comply with request to give police personal details.
Paragraph 13.1.1(1)(b) of Direction no. 65 also states that offences against vulnerable members of the community are serious. Counsel for the Respondent submitted that the three breaches of police order were of a serious nature because they were in place to protect the Applicant’s partner from domestic violence, and that women who are subjected to gendered violence are vulnerable members of the community, citing Deputy President Kendall (now His Honour Judge Kendall) in XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 at [45]. The Immigration Report dated 14 May 2014

(at G4, page 132) notes that the relevant Statement of Material Facts states that the Applicant, “is subject to recidivist domestic violence order”, that the police order was issued, “as a result of a family domestic violence incident”, and that the Applicant breached this order by being in his partner’s rear yard, walking past her house and contacting her by telephone. Police orders are put in place to protect victims, and even though the nature of these breaches is relatively minor, the three terms of imprisonment (for four, two and one month respectively) which were suspended for 12 months, suggest the seriousness of these types of breaches.
Applying paragraph 13.1.1(1)(c) of Direction no. 65, on 15 January 2014, the Applicant was convicted of two offences of “unlawfully wounded in circumstances of aggravation”, and was sentenced to imprisonment for 14 months and imprisonment for two months, to be served cumulatively. The sentencing Magistrate stated that the seriousness of the offending warranted a term of imprisonment. The Magistrate explained that the maximum term of imprisonment was two years, and imposed a term of 14 months because the offending was at the “upper end” of the scale (G4, page 77).
The Applicant has previously been sentenced to shorter terms of imprisonment on

8 December 2006 for offences including “common assault (2 charges)” for which he received a term of two months cumulative imprisonment, “trespass (2 charges)” for which he received a term of one month concurrent imprisonment, and “breach of protective bail granted conditions (3 charges)” for which he received a further one month concurrent imprisonment.
He was also sentenced to a seven month suspended term of imprisonment on entering a good behaviour bond for five months on 24 April 2006, and also sentenced to imprisonment for five months for “no motor drivers licence - under suspension” on the same date.
Sentences of imprisonment are usually imposed by the courts as a last resort, and do tend to indicate the seriousness of the offending.
With respect to the frequency of the Applicant’s offending, the trend of increasing seriousness and the cumulative effect of repeated offending (paragraph 13.1.1(1)(d) and (e) of Direction no. 65), the Applicant has committed 42 offences over approximately a nine year period. The Tribunal has considered the following submission made by Counsel for the Applicant at the Tribunal hearing with respect to the meaning of “trend of increasing seriousness” (transcript, page 85):
Of course the direction uses the word "trend". A trend is, by definition, a regular change in data over time. I'll say that again. It is, by definition, a regular change in data over time. This means that a trend cannot be identified from a single change from one point to another point. Conceptually trend requires a minimum of three points. I've already said it's accepted that there were three points. The applicant's SOFIC has said there are three points that could be said to be serious and violent, but they don’t form a trend.
You see, there were the offence of common assault and damage property in June - I beg your pardon, the first one - step back, sorry. It's true that the applicant's unlawful wounding offending in October 2012 is worse than his assault occasioning bodily harm in March 2005, so if we were - if it was conceptually possible to say two data points, the second is worse than the first - trend - sure, that'd be met, but it's not. The other observation is 7.5 years later. In the intervening period there were offences of common assault and damage property in June 2006, and another assault in September 2006, but these are less serious than the AOBH charge.
So, the fundamental flaws with the respondent's submission that it's a clear trend of increasing seriousness are, firstly, there are three data points - could be labelled 1, 2 and 3. The offences involving violence occurred at point 2 are less serious that those at point 1, so the change from point 1 to 2 is in the downward direction. The change between data points 2 and 3 is increasing in seriousness. Therefore, there is no consistent direction.
With respect, the Tribunal is of the opinion that this approach is overly technical and mathematical, and that the correct approach is for the Tribunal to look at the totality of the non-citizen’s offending history. With this in mind, it is the Tribunal’s opinion that the Applicant’s offending has increased in seriousness, as indicated by the recent convictions for “unlawfully wounded in circumstances of aggravation”. The cumulative effect of this type of offending is to place a burden on the resources of police, corrective services, and the courts.
With respect to whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending (paragraph 13.1.1(1)(f) of Direction no. 65), when re-entering Australia on 3 June 2009 and 29 December 2009 from Pakistan, on each occasion the Applicant did not tick either the “yes” or “no” box for the question, “Do you have any criminal convictions” (G4, page 93-94) on his incoming passenger card. That is, the answer was left blank. Neither the Applicant’s Counsel, nor the Respondent’s Counsel questioned the Applicant about this at the Tribunal hearing. The Applicant gave evidence at the Tribunal hearing that he cannot read, and Counsel for the Applicant explained that the Applicant had asked another passenger to complete his incoming passenger card for him. The Tribunal does not draw an adverse inference from the Applicant’s failure to answer these questions as it is likely that due to his inability to read and write that he would have asked for help in completing the form. Also, the Applicant’s failure to answer this question is not necessarily indicative of an intention to mislead.
Paragraph 13.1.1(1)(g) of Direction no. 65 is not applicable because the Applicant has not previously received any warning that further offending may affect his migration status.
Paragraph 13.1.1(1)(h) of Direction no. 65 is also not applicable because the Applicant has not committed any crime in immigration detention. There have been reported incidents involving the Applicant’s whilst he has been in immigration detention (SG1), but these are in the nature of allegations by immigration detention staff (and not offences for which the Applicant was convicted of by a court). These incidents are relevant to discuss with respect to the Applicant’s rehabilitation, and likelihood of reoffending, and will therefore be discussed with respect to paragraph 13.1.2 below.
On balance, the Tribunal finds that the nature of the Applicant’s offending, which includes offences that can be regarded as serious, weighs against the revocation of the cancellation of the Applicant’s Visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2 of Direction no. 65)
A decision-maker should also have regard to the following principle, described in paragraph 13.1.2(1) of Direction no. 65 as follows:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 13.1.2(2) of Direction no. 65 further provides:
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 304 ALR 535;

[2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.
The Tribunal finds that there is a likelihood of the Applicant re-offending if he were permitted to remain in the Australian community (paragraph 13.1.2(2)(b) of Direction

no. 65). This is, in part, based on his history of offending of 42 offences, which began in approximately October 2004 (R4, page 5) with his last offence being committed on

19 June 2013, and which has escalated in seriousness, as demonstrated by the two offences of “unlawfully wounded in circumstances of aggravation”, committed on

9 October 2012 (the Western Australia Police History for Court – Criminal and Traffic in Exhibit R4 has an offence date of 19 October 2012, however at G4, page 65 the sentencing Magistrate states the offences were committed on 9 October 2012), for which the Applicant was convicted of on 15 January 2014. The Applicant initially received fines and driving disqualifications for his offending, however, the Courts began to impose terms of imprisonment more frequently commencing in April 2006, and yet the Applicant reoffended, resulting in him being sentenced to further terms of imprisonment in December 2006, February 2007, August 2012, and January 2014 and 2006 onwards. It therefore appears that prison sentences did not have a deterrent effect on the Applicant. The Applicant has also been convicted of offences which demonstrate a disrespect for lawful authority including failing to comply with court imposed orders and police orders on 6 occasions (as set out in paragraph [39(d)] above).

With respect to the Applicant’s insight into his offending, when asked under

cross-examination about his convictions for driving without a licence, the Applicant stated that he was driving to work to maintain his job and feed his children, and not to go to parties or to have a good time (transcript, page 36; Exhibit A2, paragraph [5]). He further said that he had only recently arrived in Australia and was adjusting to the new laws and culture (transcript, page 36). The Applicant also claimed that, with respect to the offence of “possess a prohibited drug (methylamphetamine)” that the drug was not his, and rather that he had borrowed a friend’s jumper which contained the drug (transcript, page 31; Exhibit A1, paragraph [21]). However, the Sentencing Magistrate found that the “only inference” was that the drugs came out of the pants that the Applicant was wearing

(G4, page 60). However, regardless of whether the drugs were in the Applicant’s pants or jumper, the Sentencing Magistrate was satisfied, beyond reasonable doubt, that the Applicant had knowledge and control and that he was in possession of the methylamphetamine. Whilst it was submitted that the Applicant accepted responsibility (transcript, page 87; Exhibit A6, paragraph [18]) for causing harm to the two victims with respect to his two convictions for “unlawfully wounded in circumstances of aggravation”, the Applicant has consistently claimed that he was acting in self-defence

(transcript, page 42). It was submitted by Counsel for the Applicant that the plea of self-defence was made by the Applicant on the advice of his legal Counsel, and that “the tribunal ought to be cognisant of his reliance upon the advice of counsel when attributing responsibility to the applicant for decisions made at trial.” (transcript, page 77; A6, paragraph [14]). However, despite any decisions made by the Applicant or his legal Counsel at trial, the Magistrate did not accept the Applicant’s argument of self-defence and stated that, “beyond a reasonable doubt [it was] the accused who initiated the physical confrontation” (G4, page 74). Accordingly, the Tribunal is concerned that the Applicant has tried to minimise or deny aspects of his offending, which shows a lack of insight into his offending.
A psychiatric assessment of the Applicant was undertaken by Dr Kym Jenkins, Consultant Psychiatrist, following an examination of the Applicant on 10 July and 12 July 2018

(G4, page 256). Dr Jenkins stated that the Applicant’s history, interview and mental state examination were consistent with a current diagnosis of major depression with significant anxiety and some post-traumatic stress disorder symptoms. Dr Jenkins stated his opinion that the Applicant’s “mental health problems have not only been exacerbated by his time in detention but been caused by it” (G4, page 260). Dr Jenkins stated that the Applicant needs ongoing psychiatric care including antidepressant and anxiety medications and ongoing psychotherapy and counselling (G4, page 260). Dr Jenkins included the following statement which is relevant to the Applicant’s insight into his offending:
[The Applicant] gave me his own account of events that led to his charges and subsequent imprisonment. He clearly demonstrated regret and remorse about that occasion by his comments, which indicated he would turn the clock back if he could. He stated that in the future he hopes he would be able to walk away and not react as he did on that occasion.
The psychiatric assessment report of Dr Jenkins does not, however, contain any assessment regarding the rehabilitation of the Applicant and his likelihood of reoffending.
Whilst in Casuarina Prison serving his most recent term of imprisonment for the two offences of “unlawfully wounded in circumstances of aggravation”, the three offences of “breach of police order” and the offence of “possess a prohibited drug (methyl amphetamine)”, the Applicant completed the Violent Offending Treatment Program (VOTP), an intensive program for 310 hours which “aims to address violent behaviour in offenders” (Exhibit R4, page 1 of Report). The VOTP commenced on 23 April 2014 and concluded on 24 September 2014. The VOTP completion report states that the Applicant’s “participation at the commencement of the program was considered unsatisfactory”, including expressing the belief that he had “no choice” with respect to the unlawfully wounding offences, and that:
He held some antisocial and ‘victim stance’ attitudes, whereby he extended blame to his current and historical violent offending to factors such as the environment; other people making racial taunts; and unfair justice system, and lack of alternative options.
The VOTP Completion report stated that the Applicant accepted very little responsibility for his offending, particularly in the beginning of the VOTP but noted that: “By conclusion of the program, [the Applicant’s] demonstration of resistant behaviours was reduced and he regularly put effort into large group work, small group activities, log book entries, and reflective listening tasks” (Exhibit R4, Report page 3).
Under the heading of “Emotional Awareness and Regulation”, the VOTP Completion Report stated (Exhibit R4, Report, page 6):
Some Unit Offices described [the Applicant] as being relatively quiet; however, they claimed he had a tendency to act ‘surly’ when things didn’t go his way. At times, this behaviour was also demonstrated in group, namely when he received unfavourable news or when his expectations were not met in the unit or prison. For example, upon return to group from an Individual Management Plan Case Conference meeting, [the Applicant] was visibly angry. He used unnecessary profanity and made inappropriate comments in group, both in general and about the officers; seemingly because the outcome of the meeting did not meet his expectations and also due to him being asked procedural questions. [The Applicant] was spoken to in private later that day and he apologised for his inappropriate and aggressive behaviour. The techniques presented in the VOTP to address anger management and emotional regulation… were reminded to [the Applicant] and he spoke of his intention to use these methods in the future. It is noted that this incident occurred towards the end of the VOTP, and therefore further practice in improving emotional regulation skills would be beneficial to [the Applicant].
The VOTP Completion Report further stated that (Exhibit R4, Report, page 7):
[The Applicant] is considered to have made gains with regards to improved problem-solving and decision-making skills, however, a potential hindrance for him would be his deficits in emotional regulation. Although [the Applicant] is cognisant of the links between thoughts, feelings, and behaviours, he needs to strengthen his emotional regulation skills and utilise techniques such as timeout, breathing exercises, and distracting himself, so to minimise the risk of making impulsive decisions and actions. [The Applicant] is aware of this shortfall and cited the aforementioned techniques as a way to address emotional regulation in the future.
Additionally, VOTP Completion Report stated (Exhibit R4, Report page 7):
[The Applicant] completed a safety plan that outlined his high risk situations and the pro-social skills he would use to reduce risk of reoffending. He identified the environment…; Using alcohol and/or illicit drug use; and responding to racial taunts or abuse as the factors that would impact his goal of refraining from violence. His plan to prepare for these high-risk situations and triggers is to move to [suburb name omitted], utilise timeout, evaluate all situations, and consider the consequences before acting. The strategy is a positive and practical, however, it remains to be seen whether [the Applicant] will be able to follow through with this plan when returned to the community.
The program facilitators also made a number of suggestions to make the Applicant’s post program risk management plan more effective including completing the substance use offending program called “Pathways”. The VOTP Completion Report confirms that at the conclusion of the program, the Applicant had outstanding treatment needs with respect to substance misuse. The Report stated as follows (Exhibit R4, Report page 8):
The disinhibiting effects of substance use on one’s violent behaviour were discussed in the VOTP. [The Applicant] minimised the extent of his substance use throughout the program, however, he was recommended to partake in the Pathways program by the Treatment Course Planning Assessor in March 2014. Participation in this program is supported by facilitators due to his acknowledgement of using methylamphetamines prior to his current unlawful wounding offences; his admissions of alcohol use which has been linked with historical violence; and his connections with drug using peers. Substance misuse remains a treatment need.
With respect to the treatment gains made by the Applicant in the VOTP, the Completion Report stated (Exhibit R4, Report pages 8-9):
The VOTP addressed interpersonal and relationship skills, including communication and perspective taking. [The Applicant] demonstrated an improvement in his assertive communications during the VOTP, however, he was encouraged to continue to practice assertiveness regularly, as he would isolate between assertive and aggressive communication throughout the program. In particular, [the Applicant] conveyed as aggressive and ‘surly’ when situations/events don’t go his way. There was some improvement in [the Applicant’s] perspective taking skills by conclusion of the program, specifically with regards to insight into the harm on to the victims of his unlawful wounding offences, however, he continued to minimise his domestic violence history throughout the VOTP and he struggled to empathise with victims of domestic violence. As such, further practice in perspective taking is warranted. Additional intervention to strengthen [the Applicant’s] interpersonal and relationship skills are recommended.
The VOTP explored emotions, in general, and how they can influence offending behaviour. There were improvements in [the Applicant’s] emotional awareness, particularly with regards to naming his feelings and understanding the connection between thoughts, emotions, and behaviour. Emotional regulation was also a treatment need for [the Applicant] and he was presented with various techniques to de-escalate his emotions and assist with anger management. As mentioned previously, [the Applicant] had a tendency to display aggression or act ‘surly’ when situations/events didn’t go his way, and therefore further assistance in improving emotional regulation skills would be beneficial to [the Applicant].
The Tribunal is of the opinion that although some treatment gains were made by the Applicant in the areas of problem-solving, effective decision-making, and consequential thinking (Exhibit R4, Report page 9) at the completion of the VOTP, the Applicant still had some outstanding treatment gains with respect to emotional regulation and aggression, as well as in the area of substance misuse, for which completion of the Pathways program was recommended. Although the program facilitators did not make an assessment at the conclusion of the program as to the Applicant’s likelihood of reoffending, given these outstanding treatment gains, there is still a risk of the Applicant reoffending in the future.
Although the Applicant has stated that he learnt a lot from the VOTP and that, “since I did that course I have not hit or hurt anybody” (Exhibit A2, paragraph [22]), the Tribunal is concerned about the number of incidents involving the Applicant which have been recorded whilst he has been in immigration detention. Specifically, a Serco Security Risk Assessment records the Applicant as being the subject of 64 recorded incidents during his time in immigration detention. These include 21 incidents of “abusive/aggressive behaviour”, four incidents of “assault – minor” and 13 “use of force” incidents

(Exhibit R2, SG1, page 298). He has a security assessment as being at a high risk of “aggression/violence”. The Tribunal accepts that these incident reports are notes made by Serco officers, and that they cannot be regarded as conclusive or proven. They are more, as Counsel for the Applicant has submitted, in the nature of allegations (transcript, page 89) and have not resulted in any formal criminal charges. The Tribunal further accepts that the exact meaning of classifications such as “abusive/aggressive behaviour” is unclear as they are not legally or otherwise defined. The Tribunal has also taken into account the Applicant’s explanations for some of these incidents at the Tribunal hearing (transcript, page 23-24 and 58-60). The Tribunal has also considered the written explanations given by the Applicant to some of these incidents, including that he became upset when certain events happened (G4, page 177-179). In the Tribunal’s opinion, whilst some of these allegations could possibly be attributed to misunderstandings, the number and nature of the incidents suggest that the Applicant is not entirely blame free and did, at the very least, on some occasions react in an abusive, angry or aggressive manner towards Serco staff when he “became upset”. This raises some concern about the Applicant’s emotional regulation in that he may react when provoked.
Applying paragraph 13.1.2(2)(a) of Direction no. 65, the nature of harm to individuals or to the Australian community if the Applicant is to reoffend in a violent manner is potentially very serious. Individual victims of this type of offending may suffer physical injuries (ranging from minor injuries, through to life threatening injuries), as well as secondary psychological injuries.
Based on the above discussion, the Tribunal finds that there is a likelihood of the Applicant re-offending should he be given a further chance to be released back into the Australian community. The Tribunal further finds that the Applicant poses an unacceptable risk of harm to individuals in the Australian community and that, in the circumstances, the Australian community would expect that his Visa should remained cancelled. This weighs against the revocation of the cancellation of the Applicant’s Visa.
Second primary consideration: The best interests of minor children in Australia (paragraph 13.2 of Direction no. 65)
Paragraph 13.2 of Direction no. 65 provides:
(1)Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 13.2(4) of Direction no. 65 continues on to outline the factors that a decision-maker must consider when determining the best interests of a child:
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
In 2004, the Applicant commenced a relationship with a woman who is an Australian citizen. It appears that the Applicant and his partner may no longer be in a relationship because the Applicant has not talked to his partner for seven to eight months, and the last time they spoke she was “very angry and upset” with the Applicant. The Applicant gave evidence that he has, however, continued to speak to the children during this time (transcript, page 49).
The Applicant and his former partner have three minor biological children together; two daughters aged 14 years and 11 years, and a son aged 5 years (G4, pages 126-128). The Applicant is not noted as the father on the eldest biological child’s birth certificate (G4, page 126), and he provided the explanation at the Tribunal hearing that he was not present at the child’s birth because he was away working. This was confirmed in a letter from the Applicant’s former partner dated 8 June 2014 (G4, page 115). The Applicant’s partner also had a daughter from a previous relationship, aged 16 years (G4, page 125), whom the Applicant refers to as his step-child.
There is very limited information before the Tribunal regarding the Applicant’s biological children and stepchild, and so it is very difficult for the Tribunal to determine whether their interests differ and to deal with their interests individually. Consequently, the children will be discussed together (paragraph 13.2(3) of Direction no. 65).
There is limited other evidence before the Tribunal as to the Applicant’s relationship with his children and step-child. With respect to the nature and duration of the Applicant’s relationship with these children (paragraph 13.2(4)(a) of Direction no. 65), the Applicant gave evidence at the Tribunal hearing that he had not seen his children in person for approximately three years due to his being in immigration detention, and his former partner having lost her licence so she had difficulty bringing the children to visit him (transcript, page 25). He gave evidence that, when he was in prison, he would see the children every week.
The Applicant gave evidence that he currently speaks to the children on the telephone or via Facebook every two to three days (transcript, pages 24 - 25). Counsel for the Applicant submitted that the Applicant played an active parenting role and support of the children financially prior to his incarceration (Exhibit A1, paragraph [64]). In his evidence at the Tribunal hearing, the Applicant stated that prior to his incarceration he would undertake an activity with his children every weekend. His evidence was that the children are detrimentally affected by his absence because “now, they don’t listen, they talk differently, they don’t want to go to school, they miss school, they misbehave and mentally, they’re in a very bad state” (transcript, page 24).
Applying paragraph 13.2(4)(b) of Direction no. 65, the Tribunal is uncertain as to the parenting role that the Applicant will play in the future. As noted above, there is some doubt as to whether the Applicant is still in a relationship with his partner, who is the primary carer for the children, because he described not having spoken to her for approximately seven or eight months leading up to the Tribunal hearing. The children’s mother did not attend the Tribunal hearing to give evidence about the Applicant’s relationship with the children, nor about any domestic violence by the Applicant, and whether the children were present, which is relevant to whether he will be a positive role model in the future. However, given that the children are under the age of 18 years, it is likely that they would benefit from having their father and stepfather in their lives. This is particularly so for the younger children, aged five and 11 years because there are some years remaining until they attain the age of 18 years, including their formative teenage years.

With respect to paragraph 13.2(4)(c) of Direction no. 65, there is no evidence before the Tribunal with respect to the impact of the Applicant’s prior conduct on the children. If he continues to offend, it may have a negative impact on the children.
Applying paragraph 13.2(4)(d) of Direction no. 65, there is little current evidence before the Tribunal to inform an assessment of the impact of any separation on the children. However, in a hand written letter from the Applicant’s partner dated 8 June 2014

(G4, page 115) she describes the potential impact on the children if the Applicant was returned to Afghanistan:
We have 3 children together 2 girls and 1 boy thou (sic) it is not stated on our first childs (sic) Birth Certificate as he was not present.
I also have a daughter from a previous relationship which he has taken to as his own daughter and she looks to him as her father.
I am asking as a mother and a loving partner not to send [the Applicant] back to his country as myself and the children would suffer terribly from this as the situation has been hard enough on them already knowing that they may never have the chance to see him again as it is not safe would break all our hearts.
I understand he has done things he shouldn’t have but also know he shouldn’t be ripped from his family nor should our children from their father
If the Applicant is removed to Afghanistan, it may still be possible, albeit significantly more difficult, for the children to maintain contact with him by letter, telephone or other electronic means (paragraph 13.2(4)(d) of Direction no. 65). The Tribunal agrees with the submission from Counsel for the Applicant in Exhibit A1, paragraph [70] that it is highly unlikely that the Applicant’s children would be able to travel to Afghanistan to visit the Applicant if he were to return there. Counsel for the Applicant cited the official travel advice from the Australian Department of Foreign Affairs and Trade which is not to travel to Afghanistan “because of the extremely dangerous security situation and the very high threat of terrorist attack” (Exhibit A1, paragraph [70]). The Tribunal agrees that it would be very difficult for the Applicant to maintain a meaningful parental relationship with his children if he were returned to Afghanistan.
The children’s mother fulfils a parenting role in relation to them, and the children live with her (paragraph 13.2(4)(e) of Direction no. 65). She has undertaken this role in the absence of the Applicant for approximately five years.
Regarding the wishes of the Applicant’s children (paragraph 13.2(4)(f) of Direction no. 65), the Tribunal has letters from three of the children, written in approximately 2014. The letter from the Applicant’s step-daughter stating that she misses her father and wants him to come home (G4, page 116). A letter from the Applicant’s eldest biological daughter states that she needs her father to come home because it has been hard without him, she misses him and hopes he will come home every night. She also states that it has been hard on her mother to look after for children without him (G4, page 117). A letter from the Applicant’s son states that he needs his father to come home, that he is unhappy without him, and asks not to take his father away from him (G4, page 118).
There is no evidence before the Tribunal that the Applicant has abused or neglected the children in any way (paragraph 13.2(4)(g) of Direction no. 65).
There is no evidence before the Tribunal that the children have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct (paragraph 13.2(4)(h) of Direction no. 65).
After applying the factors in paragraph 13.2(4) of Direction no. 65, the Tribunal finds that the best interests of the Applicant’s three biological children and step-child will be better served by revoking the decision to cancel the Applicant’s Visa.
Third primary consideration: Expectations of the Australian community (paragraph 13.3 of Direction no. 65)
Paragraph 13.3(1) of Direction no. 65 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Paragraph 6.3(2) of Direction no. 65 states:
The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
The relevant case law regarding the expectations of the Australian community was summarised by Member Burford in Le and Minister for Home Affairs [2018] AATA 4126 at [135]-[138] as follows:
135. In the case of YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY), Mortimer J made the following comments:
[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to ‘tolerance’) the Australian community’s ‘expectations’ are defined only in one particular way: namely, that the Australian community ‘expects’ non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese v Minister for Immigration & Border Protection [2016] FCA 348; 248 FCR 296 at [64]–[66]).
(Emphasis added.)
136. In YNQY the Court was, in part, considering whether the Tribunal erred in failing to make findings and/or take into account as a primary consideration the expectations of the Australian community.
137. The passage referred to by Mortimer J above in Uelese v Minister for Immigration & Border Protection [2016] FCA 348 states as follows:
[64] In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. The language in paragraph 6.3(2) of the Direction, that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia, is found in a list of seven ‘Principles’. There is a further reference to the expectations of the Australian community in paragraph 9.3 of the Direction where the statement is made that the Australian community expects non-citizens to obey Australian laws while in Australia. It states that where a non-citizen has breached, or where there is an unacceptable risk that they will breach, this trust or where the non-citizen has been convicted of offences in Australia, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate, the paragraph states, ‘simply because the nature of the character concerns or offences were such that the Australian community would expect that the person should not continue to hold a visa’. The paragraph ends by stating that decision-makers should have due regard to the Government’s views in this respect.
[65] ..... In my opinion it is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community and for the Tribunal to act on that statement.
138. Deputy President Constance in Zyaran and Minister for Home Affairs [2018] AATA 3785 at [71] and [72] and in Nguyen and Minister for Home Affairs [2018] AATA 3726 applied the reasoning of the Federal Court in YNQY. Deputy President Rayment, QC in the case of Kumeroa and Minister for Home Affairs [2018] AATA 3744 also applied YNQY.
Member Burford further explained, at [139]-[141]:
139. The Tribunal notes that both Direction no. 65 and the relevant authorities make it clear that the Tribunal must take into account the primary and other considerations relevant to the individual case. Direction no. 65 specifically notes that both primary and other considerations may weigh in favour of either to revoke or not to revoke a mandatory cancellation of a visa (Direction no. 65, Cl 8(3)). While the Direction states a primary consideration should generally be given more weight than the other considerations, the authorities make it clear that this will depend on the individual circumstances and will still require the Tribunal to take into account both the primary and other considerations and to give each appropriate weight in reaching a decision.
140. The Federal Court’s decisions in YNQY and Uelese do not raise the expectations of the Australian community to the status of a determinative consideration. The approach outlined by the Federal Court highlights that it is open to the Minister to make a statement of the Government’s views as to the expectations of the Australian community and that Direction no. 65 makes such a statement. Applying YNQY and Uelese, the Minister makes this statement both in the principle expressed in 6.3(2) and in 13.3(1). Applying Uelese, 13.3(1) directs that the Tribunal should have due regard to the Government’s views in this respect.
141. It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view as to the expectations of the Australian community as expressed in 6.3(2) and in 13.3(1) of Direction no. 65. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed by the Minister, they weigh against revocation. However, it remains for the Tribunal to determine, in all the circumstances, what constitutes appropriate weight. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
As noted by the Respondent in Exhibit R3, para [46], in Afu and Minister for Home Affairs [2018] FCA 1311 (Afu) at [85] Bromwich J stated the following:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 reproduced above. The Tribunal was required to give effect to those norms, which is precisely what it did.
Counsel for the Applicant made submissions about what the expectations of the Australian community would be, with respect to the Applicant’s personal circumstances. For example, he submitted that “fair-minded Australians would expect the Applicant to be afforded a chance to demonstrate his commitment to lawful behaviour after losing his liberty for five years” (Exhibit A1, paragraph [77]). His submissions included the submission that Australia’s non-refoulement obligations were relevant to the expectations of the Australian community in that, “a likely breach of non-refoulement obligations would significantly affect the expectations of the Australian community”

(Exhibit A1, paragraph [76]).
With respect, these submissions require an element of speculation on the part of the Tribunal as to what the expectations of the Australian community would be in the Applicant’s circumstances when, as explained by Mortimer J in YNQY, and Bromwich J in Afu, they are expressly set out in Direction no. 65. Although the expectations of the Australian community will often weigh against an Applicant, as explained by Member Burford, the Tribunal can in the exercise of its discretion decide how much weight is to be given to this consideration in the process of weighing up the primary and other considerations. Although primary considerations should generally be given greater weight than other considerations (paragraph 8(4) of Direction no. 65) the Tribunal could, for example, give greater weight to the other consideration of non-refoulement over a primary consideration.
Applying the comments of Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and Bromwich J in Afu, the Tribunal finds that the Australian community would expect the non-revocation of the cancellation of the Applicant’s Visa. In determining the weight to be applied to this consideration, the Tribunal has considered the primary considerations, including the offences committed by the Applicant, his unmet treatment needs with respect to violence, and the unacceptable risk of harm if he were to reoffend.
The Tribunal has balanced these considerations against the best interests of his three biological children and step-child. The Tribunal has also considered the other considerations, which are discussed below, including (but not limited to) Australia’s non-refoulement obligations, the hardship the Applicant would face if he was returned to Afghanistan, and the long duration that he has lived in Australia.
Nevertheless, the Tribunal finds that on balance, the expectations of the Australian community would still be that the Applicant should not hold a visa. This consideration weighs against the revocation of the cancellation of the Applicant’s Visa.
OTHER CONSIDERATIONS
Paragraph 14 of Direction no. 65:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
International non-refoulement obligations
Direction no. 65 relevantly states, in paragraph 14.1:
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude non revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5)If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
Australia owes protection obligations to the Applicant. This has been conceded by the Respondent (Exhibit R3, paragraph [33]. An International Treaties Obligations Assessment dated 6 October 2016 found that Australia has non-refoulement obligations with respect to the Applicant on the basis of his Hazara race and Shia Muslim religion (G4, pages 189-190) and found that he has a real chance of being subject to significant harm should he be returned to Afghanistan (G4, page 205).
As noted by the Respondent in Exhibit R3 (paragraph [34]), if the Tribunal were to affirm the Reviewable Decision, the Applicant would be liable to be removed from Australia due to the operation of s 198 of the Migration Act. Relevantly, s 197C(1) of the Migration Act provides that, “For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.” Further, the Applicant would be liable to be held in immigration detention, pursuant to s 189 of the Migration Act, until he could be removed.
With respect to the effect of s 197C of the Migration Act, the Tribunal notes the following passage from North ACJ in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 (DMH16) at [26]-[27]:
26. The argument for the Minister only needs to be stated to expose its weakness. The reference to indefinite detention must be read in a very different way to the words used in order to have them mean that the detention would be limited to the time taken for the Minister to consider the alternative management options. The Minister’s reasons disclose that he understood that if the protection visa application was refused, the applicant could be detained in Australia for an indefinite period. In fact, by the operation of s 197C, if the protection visa was refused the applicant would either be removed to Syria immediately, or, if the Minister decided to consider alternative management options, be detained for a definite period, namely, until the Minster considered whether to exercise the power under s 195A. Then if the Minister refused to exercise the power, the applicant would be removed to Syria.
27. That view of the Minister’s reasons is supported by the advice provided in the submission to the Minister at [73], which erroneously stated that s 197C does not abrogate, for the purposes of Australia’s domestic laws, Australia’s non-refoulement obligations assumed under international law. That is an incorrect understanding of the operation of s 197C in conjunction with an officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under s 198.

If the Tribunal were to affirm the Reviewable Decision, the consequences for the Applicant of these provisions of the Migration Act would be that the Applicant would be refouled, unless the Respondent decided to consider alternative management options, such as exercising the power under s 195A of the Act to grant the Applicant a visa. In the latter case the Applicant would be detained until the Minister considered whether or not to grant the Applicant a visa under s 195A. However, Exhibit R3, paragraph [37] states that the Minister is not presently considering the Applicant’s case for intervention under s 195A of the Migration Act.
In light of the decision in DMH16, there is a clear contradiction between the operation of s 197C of the Migration Act and the wording of paragraphs 14.1(2) and 14.1(6). Paragraph 14.1(2) and 14.1(6) refer to the fact that Australia “will not remove” a non-citizen to a country in respect of which the non-refoulement obligation exists, and yet s 197C effectively provides that a non-citizen will be removed regardless of any non-refoulement obligations.
This was discussed by Deputy President Forgie in PRHR and Minister for Immigration and Border Protection [2017] AATA 2782 (PRHR) at paragraphs [142]-[144] with respect to paragraphs 12.1(2) and 12.1(6) of Direction no. 65, which are the equivalent provisions to paragraphs 14.1(2) and 14.1(6). The difference between the paragraphs is that 12.1(2) and 12.1(6) (in Part B of Direction no. 65) are applicable to a non-citizen’s visa application, whereas paragraphs 14.1(2) and 14.1(6) (in Part C of Direction no. 65) are applicable to the cancellation of a visa. As the provisions are equivalent, the comments of Deputy President Forgie are equally applicable to paragraphs 12.1(2) and 12.1(6) of Direction no. 65.
In PRHR at paragraphs [142]-[144], Deputy President Forgie analysed how Direction no. 65 should be read by the Tribunal so as to be consistent with s 197C of the Migration Act as follows:
142. Since the enactment of s 197C, it is clear that the whole of the final sentences in each of paragraphs 12.1(2) and (6) are an incorrect statement of the law. To say, as paragraph 12.1(2) currently does, that Australia “will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists”, is not a correct statement of the law. If the circumstances set out in s 198 apply, s 197C imposes an obligation upon an officer to remove a non-citizen regardless of whether Australia has non-refoulement obligations in respect of him or her. For the reasons I give below, I think that omission of the two sentences is the preferable course to substituting words for those that appear because I have doubts whether Direction No. 65 can be read as if other words were inserted. In case my doubts are unfounded, I will now set out my reasons for concluding that reading cl 12.1(2) as if the word “might” or “may” appeared rather than the word “will” would not plainly solve the inaccuracy of the sentence.
143. To say that Australia “might not remove a non-citizen” in the circumstances described is, I suggest, capable of misleading the reader. The word “might” is the past tense of the word “may”. Whichever is chosen, both are capable of being understood in the sense of expressing permission. If that is the meaning in which they are understood, the amendment suggested to paragraph 12.1(2) would continue to be an incorrect statement of the law. The final sentence would indicate that Australia is not permitted – “may not” or “might not” – remove a non-citizen as a consequence of its non-refoulement obligations. If the word is used to express a possibility, the final sentence suggests that there is a possibility that Australia will not remove a non-citizen as a consequence of its non-refoulement obligations. To say that there is a possibility is true if the Minister is considering whether to exercise power under s 195A and if there were no country that would receive the non-citizen if removed from Australia. The qualifications are not apparent if that is how the word “may” is to be understood. Therefore, I suggest that it should be omitted.
144. The last sentence of paragraph 12.1(6) is incorrect when it begins with the statement that “Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations”. In view of s 197C, it is also incorrect to say that “... the operations of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.” Therefore, I agree with the parties that the whole of the final sentence of paragraph 12.1(6) should not be included.
(Footnotes omitted and emphasis added.)
The Tribunal agrees with the opinion of Deputy President Forgie, with the effect that the final sentences of paragraphs 14.1(2) and 14.1(6) of Direction no. 65 should be omitted. This Tribunal also agrees with the following explanation given by Deputy President Forgie as to the legal basis for reading the Direction no. 65 in that way – that is, so that it does not exceed the statutory powers in the Migration Act (PRHR at paragraphs [153]-[155]):
153. Section 499(2) provides that s 499(1) does not empower the Minister to give directions that would be inconsistent with the Migration Act or with the Regulations. My finding that two passages are inconsistent does not render the whole of Direction No. 65 or even Part B of it null and void. As I have found that it is not a legislation instrument and as it cannot be characterised as rules of court, s 46(2) of the AI [Acts Interpretation] Act requires me to regard Direction No. 65 as if it were an Act of Parliament. Each of its provisions is to be regarded as a section of an Act and it is to be read and construed subject to, in this case, the Migration Act, and so as not to exceed the Minister’s power.
154. Section 46(2) of the AI Act provides:
“If any instrument so made would, but for this subsection, be construed as being in excess of the authority’s power, it is to be taken to be a valid instrument to the extent to which it is not in excess of that power.”
155. This is not a provision that authorises an instrument to be read as if it were rewritten with other words. It provides that, to the extent that it is not in excess of power, the instrument is to be taken as a valid instrument. This is consistent with the approach taken by the Full Court of the Federal Court in Tervonen. The two sentences can be excised from paragraph 12.1 of Direction No. 65 leaving statements that are within power.
(Footnotes omitted and emphasis added.)
Counsel for the Applicant further submitted that the entire paragraph 14.1(2) of Direction no. 65 should be “disregarded entirely” and that “[with] the second sentence removed, the first sentence does not logically stand” (Exhibit A1, paragraph [97]). The Tribunal respectfully disagrees with this submission because the first sentence of 14.1(2) of Direction no. 65 which reads, “The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia” is a correct statement of the law and the Tribunal’s discretion under Direction no. 65, which does not exceed the statutory powers in the Migration Act.
As explained by the Respondent in Exhibit R3 (see also paragraph 14.1(5) of Direction no. 65) due to the operation of s 501E of the Migration Act, if the Applicant remained in Australia, he would not be permitted to make an application for another visa. As stated by s 501E(2)(a) of the Migration Act, he would not, however, be prohibited from making an application for a Protection Visa, but would only be able to do so if the Minister personally gave written notice under s 48B of the Migration Act to determine that s 48A, which provides that a non-citizen whose visa has been cancelled can only apply for particular visas, does not apply. The Respondent explained that the Applicant could only apply for a Bridging R (Class WR) visa after an invitation from the Minister (s 46(2) of the Migration Act and regulation 2.20A of the Regulations). Given that the Minister is not presently considering intervening under s 195A of the Migration Act, it appears unlikely that these other options, which require Ministerial intervention, will be available to the Applicant. Indeed, in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, Buchanan J explained, at paragraph [131], that it is not open to the Tribunal to speculate as to whether or not the Minister may intervene in such a manner in the future:
The Minister did not, at the time of refusal, grant the applicant a visa under s 195A as he might have done. I do not think it is permissible to speculate, much less to proceed upon any form of assumption, that the Minister might change his mind or take a different course at some future time. Such possibilities or assumptions have no relevance to the applicant’s present position.
In conclusion, the Tribunal finds that non-refoulement obligations are owed to the Applicant, and that a decision to affirm the Reviewable Decision would require him to be immediately removed to Afghanistan. Taking these factors into account, on balance, the Tribunal finds that this other consideration weighs strongly in favour of the revocation of the decision to cancel the Applicant’s Visa.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction no. 65 provides:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
As noted above, the Applicant has lived in Australia for approximately 18 years, having arrived when he was 20 years of age in March 2001. He is now 39 years of age. He considers Australia to be his home (A1, paragraph [107]).
He began offending after being in Australia for approximately four years, with his first conviction for disorderly conduct being recorded on 13 January 2005 (G4, page 40).
Although the Applicant has been incarcerated and subsequently in immigration detention for approximately the past five years, he stated in a statutory declaration that he previously engaged in employment including as a farm manager, and in the construction, oil and livestock industries (G4, page 245), during which time he would have contributed to the Australian economy through the payment of income tax. The Applicant also stated that he used to attend Afghan community meetings and would help newly arrived Afghan migrants to settle into the Australian community by helping them to find housing and showing them around the city so they would feel more at home (G4, page 246). However, other than statements from the Applicant, there is no other evidence before the Tribunal of these contributions.
As discussed above, the Applicant has three biological children and one stepchild who are Australian citizens, and who are likely to be adversely impacted if the cancellation of the Applicant’s Visa is not revoked. As noted above, it is unclear whether he is still in a relationship with the children’s mother.
The Tribunal considers these ties to the Australian community to be strong, particularly due to the duration of time that he has lived in Australia and his three Australian children and one Australian stepchild. The Tribunal finds that this consideration weighs in favour of the revocation of the cancellation of the Applicant’s Visa.
Impact on Australian business interests
There is no evidence before the Tribunal that a decision not to revoke the cancellation of the Applicant’s Visa will have a relevant impact on Australian business interests (paragraph 14.3(1), Direction no. 65).
Impact on victims
There is no information available with respect to the impact of a decision not to revoke the decision to cancel the Applicant’s Visa on victims of the Applicant’s offending, or their family members (paragraph 14.4(1) of Direction no. 65).
Extent of impediments if removed
Paragraph 14.5(1) of Direction no. 65 provides:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
As noted in paragraph [101] above, the Applicant has a real chance of being subject to significant harm should he be returned to Afghanistan. This is a major impediment that the Applicant will face if returned.
The Applicant is 39 years of age. With respect to his health, Dr Kym Jenkins, Consultant Psychiatrist, in a report dated 17 July 2018 (G4, pages 256-260), stated that the Applicant suffers from major depression with significant anxiety and some symptoms of post-traumatic stress disorder which were “not only… exacerbated by his time in detention but …[were] caused by it” (G4, page 260). Dr Jenkins further stated that (G4, page 260):
I am unsure of the availability of psychiatric services that would be available to him should he return to Afghanistan but doubt that [the Applicant’s] condition could be adequately treated with our comprehensive psychiatric assessment and ongoing treatment with a multidisciplinary mental health team.
There is a lack of evidence as to whether the Applicant’s mental health issues would significantly improve if he were to be released from immigration detention. Further,

Dr Jenkins is suggesting in the comments above, that the Applicant is likely to require ongoing multidisciplinary mental health care if he were returned to Afghanistan. The Tribunal notes the Department of Foreign Affairs and Trade, DFAT Thematic Report: Hazaras in Afghanistan (DFAT Report), which states that whilst basic medical treatment is free, the overall quality of healthcare remains poor and “specialist care is generally not available” (Exhibit A4, page 5). Consequently, the Tribunal finds that the Applicant’s mental health is likely to be an impediment if he were removed to Afghanistan, and that he is unlikely to be able to access the level of care described by Dr Jenkins as being required.
The Applicant is likely to experience cultural difficulties in readjusting to life in Afghanistan because he has resided in Australia for approximately 18 years. He is also a member of an ethnic minority (transcript, page 96). The Applicant does, however, speak Dari, Hazaraghi and English, so there would be no language barriers for him.
The Applicant’s mother and two sisters live in Afghanistan (transcript, page 69). The Applicant stated at the Tribunal hearing that his mother is elderly, and his two sisters work for the government in Kabul and do not reside in the Applicant’s home province (transcript, page 69). It is unclear whether they may be able to offer him any support if he is returned. It was also submitted by Counsel for the Respondent that his family may disapprove of his westernisation (transcript, page 96), however there is no evidence before the Tribunal as to the views of the Applicant’s family. The Applicant also gave evidence that he has few ongoing ties in Afghanistan because many of his family members, including his father, have died in recent years (Exhibit A1, paragraph [30]).
When asked if he would relocate to Kabul if returned to Afghanistan, the Applicant was evasive (transcript, page 69-70). The Tribunal notes that although “unemployment and underemployment are very high across Afghanistan” (Exhibit A4, page 4) there are “a greater range of employment opportunities” in Kabul (Exhibit A4, page 5). The DFAT Report (Exhibit A4, page 14) also states that “[r]eturnees from Western countries almost exclusively return to Kabul. There are no tracking mechanisms for returnees, so it is difficult to assess the conditions they face.”
Overall, the hardship the Applicant would suffer if he were returned to Afghanistan, particularly with respect to the risk of harm if he is returned, the Applicant’s mental health, and the length of time he has resided in Australia weigh in favour of the revocation of the decision to cancel his Visa.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has also considered whether there is another reason why the mandatory cancellation decision should be revoked, having regard to the primary and other considerations in Direction no. 65.
In relation to the primary considerations, the findings that the Tribunal has made regarding the protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of Direction no. 65), and the expectations of the Australian community (paragraph 13.3 of Direction no. 65) weigh strongly in favour of the Tribunal refusing to revoke the cancellation of the Applicant’s Visa (that is, affirming the Reviewable Decision). With respect to the primary consideration regarding the best interests of the children (paragraph 13.2 of Direction no. 65), the Tribunal has found that the best interests of the Applicant’s three children and step-child are likely to be better served by the revocation of the decision to cancel his Visa.
The other considerations of non-refoulement, the Applicant’s strength, nature and duration of ties to Australia, and the extent of impediments if returned to Afghanistan weigh in favour of the Applicant.
However, the Tribunal is of the opinion that the primary obligations of protection of the Australian community and the expectations of the Australian community outweigh the primary consideration of the best interests of the Applicant’s children and step-child, and the other considerations that are in favour of the revocation of the decision to cancel the Applicant’s Visa.
In summary, having regard to all of the primary considerations, and the other considerations in Direction no. 65, the Tribunal is of the view that it would not be appropriate for the Tribunal to revoke the mandatory cancellation of the Applicant’s Visa. The correct and preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated

21 November 2018
not to revoke the mandatory cancellation of the Applicant’s Visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.

I certify that the preceding 133 (one hundred and thirty - three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans

.........................sgd..............................................
Administrative Assistant Legal
Dated: 13 February 2019

Date of hearing: 30 January 2019

Counsel for the Applicant:
Mr P D Lochore

Solicitors for the Applicant:

Counsel for the Respondent:

Ms J Langbien, Asylum Seeker Resource Centre

Ms Melinda Jackson

Solicitors for the Respondent:

The Australian Government Solicitor

Date of hearing:	30 January 2019
Counsel for the Applicant:	Mr P D Lochore
Solicitors for the Applicant: Counsel for the Respondent:	Ms J Langbien, Asylum Seeker Resource Centre Ms Melinda Jackson
Solicitors for the Respondent:	The Australian Government Solicitor