RJFB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 40
•7 January 2021
RJFB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 40 (7 January 2021)
Division:GENERAL DIVISION
File Number(s): 2020/6446
Re: RJFB
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Senior Member Damien O’Donovan
Date of Decision: 7 January 2021
Date of Written Reasons: 22 January 2021
Place:Canberra
The Tribunal affirms the Delegate’s decision not to revoke the visa cancellation decision made under s 501(3A) of the Migration Act 1958.
MIGRATION – non-revocation of mandatory cancellation of visa –where visa was cancelled under s 501(3A) because applicant did not pass the character test – substantial criminal record under s 501(7) – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 79 – risk of re-offending – the protection and expectations of Australian community – consideration of non-refoulement obligations – strength nature and duration of ties – impediments to establishing and maintaining basic living standards if applicant removed – giving meaningful consideration to risk of harm – decision affirmed
Migration Act 1958 (Cth)
Ali v Minister for Home Affairs [2020] FCAFC 109
AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27
BHL19 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCAFC 94
CWY20 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2020] FCA 1855
DKXY v Minister for Home Affairs [2019] FCA 495
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar [2019] FCAFC 188
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Secretary to the Department of Justice and Regulation v LLG [2018] VSCA 155
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2015] HCA 151951 Convention relating to the Status of Refugees as amended by the 1967 Protocol
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Department of Foreign Affairs, DFAT Country Information Report – Afghanistan, 27 June 2019
Department of Home Affairs, Procedures Advice Manual 3: Act - Compliance and Case Resolution - Case resolution - Minister’s powers – Minister's detention intervention powerInternational Covenant on Civil and Political Rights and its Second Optional Protocol
REASONS FOR DECISION
22 January 2021
INTRODUCTION
RJFB (the applicant), a citizen of Afghanistan, was born in Mashad, Iran in 1998. His family lived in Iran because his parents’ families had fled Afghanistan in the early 1980s. From then on the families lived in Iran as refugees. The applicant’s parents met in Iran, married and had four children there.
The life the family lived in Iran was characterised by deprivation and struggle. The applicant was forced by circumstances to contribute to the support of his family from a very young age. When he was eight years old his father died of diabetes and heavy responsibility for the support of the family fell upon his shoulders.
In 2013 the applicant’s mother was granted a sub-class 204 Women at Risk Visa and the applicant as a dependent child was also granted that visa. He arrived in Australia with his mother, two younger brothers and older sister on 11 March 2014.
On 7 March 2015 the applicant committed two rape offences. He was convicted on both counts in the District Court of Queensland on 1 December 2017. Due to an error concerning his date of birth he was sentenced as an adult to a six-year term of imprisonment for each count, to be served concurrently.
As a result of being sentenced to serve a term of imprisonment on a full-time basis for a period of 12 months or more, the Minister was obliged to cancel the applicant’s visa under section 501 of the Migration Act 1958 (‘Act’). A decision to cancel his visa was made on 12 March 2019. On 21 March 2019 the applicant submitted a request for revocation of the mandatory visa cancellation.
On 24 June 2020 the applicant was resentenced in the District Court of Queensland to a term of two years on each count of rape, to be served concurrently, on the basis that he was actually 16 years old at the time of his offending.
On 14 October 2020 a delegate made a decision not to revoke the mandatory cancellation under section 501CA(4).
The applicant seeks review of that decision.
There are two grounds on which the visa cancellation can be revoked pursuant to section 501CA(4). The first is that the applicant passes the character test. Given his criminal record, the applicant does not pass the character test. It is not suggested by the applicant that he does.
The other ground specified in the subsection is whether there is another reason why the cancellation decision should be revoked. The applicant contends that there is another reason.
The decision to be made is a difficult one. On the one hand the applicant has committed very serious offences very soon after arriving in Australia. On the other, if his visa is cancelled he may at some point be sent to Afghanistan – a country which he has never lived in, where he has no family or friendship connections and where he will be exposed to risks associated with the civil unrest which plagues that country.
I have made this decision because of the very serious nature of the applicant’s offending. I am satisfied that there is a risk that the applicant will re-offend in a similar way. These conclusions carry very significant weight. Consequently, I have decided not to revoke the cancellation of the applicant’s visa and the decision under review is affirmed.
MATERIAL BEFORE THE TRIBUNAL
The applicant applied for review by the Administrative Appeals Tribunal (‘Tribunal’) on 16 October 2020.
G Documents were prepared by the respondent and filed with the Tribunal on 30 October 2020, which included all of the material before the delegate. I have marked these documents as marked as “Exhibit T1”. Following the listing of the application for hearing, the applicant filed:
(a)a statement of facts issues and contentions dated 14 November 2020;
(b)a bundle of material, and then an updated bundle of documents, which I have marked as “Exhibit T2”, consisting of:
(i)Psychologist Report of Dr J Yoxall dated 10 October 2020;
(ii)Letter of Instruction to Dr J Yoxall dated 13 April 2020;
(iii)Letter to Onshore Protection NSW encl. application for protection visa and enclosures, dated 30 October 2020;
(iv)Letter confirming receipt of application for protection visa dated 13 November 2020;
(v)Email regarding attempts to provide trauma counselling dated 25 September 2020;
(vi)Reality Check: Afghanistan’s Neglected Healthcare Crisis from Medicins sans Frontieres dated March 2020;
(vii)Australian Citizenship Certificate of FM dated 6 July 2020;
(viii)Australian Citizenship Certificate – HM dated 15 September 2019;
(ix)Australian Citizenship Certificate – KM dated 19 November 2019;
(x)Referral to QPASST dated 13 January 2020;
(xi)Letter regarding QPASST Services dated 17 November 2020;
(xii)File Note of phone call with HKM dated 3 December 2020;
(xiii)Prison Program History dated 5 November 2020;
(xiv)Community Sentencing Options dated October 2010;
(xv)Completion Certificate – DO IT Program dated 21 November 2018;
(xvi)Relapse Prevention Plan of applicant, undated;
(xvii)DO IT Exit Report, dated 28 November 2018;
(xviii)Statement of Attainment - Perform routine gas metal arc welding dated 2 June 2019;
(xix)Statement of Attainment – Use basic strategies in work-related learning dated 2 June 2019;
(xx)Statement of Attainment – Various units dated 20 March 2020;
(xxi)Prison Employment History dated 6 November 2020;
(xxii)Affidavit re applicant date of birth dated 19 November 2016;
(xxiii)QP9 Court Brief – Rape committed 7 March 2015 dated 20 April 2015;
(xxiv)QP9 Court Brief – Breach of Bail committed 10 August 2015 dated 11 August 2015;
(xxv)QP9 Court Brief – Breach of Bail committed 18 November 2016 dated 18 November 2016;
(xxvi)QP9 Court Brief – Possession of knife committed on 3 January 2017 dated 10 January 2017;
(xxvii)Solicitors Office Report Details – Speeding on 12 June 2017 dated 12 June 2017; and
(xxviii)Statement of applicant dated 4 December 2020.
The respondent filed a Statement of Facts, Issues and Contentions dated 27 November 2020. The respondent also filed a large bundle of material which had been produced under summons. Only two documents in the bundle were tendered:
(a)Decision Making Record Report of the Queensland Corrective Services completed on 20 March 2020, which I have marked as “Exhibit T3”; and
(b)Incident Report at Wolston Correctional Centre dated 19 March 2020, which I have marked as “Exhibit T4”.
Prior to the hearing the Tribunal provided to both parties a document prepared by the Department of Home Affairs entitled Afghanistan – Return and Relocation dated 23 October 2020.
The matter was heard on 9 and 10 of December 2020 using video conferencing software. The applicant appeared from Christmas Island Immigration Detention Centre and gave evidence on his own behalf consistent with a written statement dated 4 December 2020 which had been served on the respondent.
Oral evidence was also given by the following members of the applicant’s family:
(a)FM, the applicant’s sister;
(b)HM, the applicant’s younger brother;
(c)KYM, the applicant’s mother;
(d)HKM, the applicant’s uncle.
KYM gave evidence using an interpreter.
HKM gave telephone evidence from Iran over the telephone using an interpreter. The respondent objected to the receipt of oral evidence from HKM on the basis that section 500(6H) of the Migration Act had not been complied with.
That subsection provides:
If:
(a)an application is made to the Tribunal for review of a decision under section 501; and
(b)the decision relates to a person in the migration zone;
the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.
The applicant contended that it had complied with requirements of the provision and so could lead oral evidence from HKM. He relied upon a file note of a telephone conversation between the his representative and HKM which recorded the details of the evidence the witness was proposing to give. He also relied on a statutory declaration by Hassan Ghulman dated 17 April 2020, which also recorded the contents of a discussion with HKM.
The respondent contended that these records were an inadequate form of presenting the evidence for the purposes of meeting the requirements of section 500(6H). The respondent submitted that a statement signed by the witness and then translated would meet the requirements of the section, but a file note of the conversation relayed through an interpreter would not.
I am satisfied that the documents meet the description of a ‘written statement given to the Minister at least 2 business days before the Tribunal holds a hearing’. Accordingly, to the extent that the witness’s oral evidence conveyed information in the file note I am entitled to have regard to it. Further, I can have regard to any information elicited from the witness by my questioning and the questioning of the respondent.[1]
[1] Uelese v Minister for Immigration and Border Protection [2015] HCA 15.
The purpose of the provision is to ensure that the Minister has notice of what any witness is likely to say. The documents relied on stated the evidence that the witness would give orally. I am satisfied that they met the requirements of subsection 500(6H). Given that the witness was living in Iran and spoke no English, it is difficult to identify a better form in which the information could have been presented.
Oral evidence was also given by Dr Jacqui Yoxall, a forensic psychologist. Her views were detailed in a report dated 10 October 2020 and she was questioned about that report by the Tribunal and the respondent.
Both parties made oral submissions at the conclusion of the evidence.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which relevantly provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations [about the revocation] in accordance with the invitation [proffered under subsection (3)]; 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.
The applicant made the representations required by s 501CA(4)(a). As outlined at paragraph [6] of this decision, in relation to his two rape offences the applicant was given two two-year sentences to be served concurrently. Consequently, he does not pass the character test.[2] The only substantial issue to be determined on this review is whether the power to revoke the mandatory cancellation should be exercised in the applicant’s favour because there is another reason the decision should be revoked.
[2] A person will not pass the character test if they have a ‘substantial criminal record’: Migration Act 1958 (Cth) ss 501(6)(a). A substantial criminal record includes if a person has been sentenced to a term of imprisonment of 12 months or more (section 501(7)(c)).
In considering that question, I approach the matter consistently with the observations made in Gaspar v Minister for Immigration and Border Protection:[3]
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked...[4]
[3] [2016] FCA 1166; (2016) 153 ALD 337, at [38].
[4] cited with approval by the Full Court in Minister for Home Affairs v Buadromo [2018] FCAFC 151. See also Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
Accordingly, I will consider whether there is another reason why the original decision should be revoked following an assessment and evaluation of relevant factors.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in section 501CA(4) of the Act, the Tribunal is bound, in accordance with s 499(2A) of the Migration Act, to comply with any lawful directions made under the Act. In this case Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (’the Direction’) applies.
Paragraph 6.2 of the Direction provides general guidance in relation to the exercise of the discretion. It relevantly provides:
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…reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
Paragraph 6.3 of the Direction relevantly provides:
(1)…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…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 cancel [non-citizens’] 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 women or children should generally expect to forfeit the privilege of staying in Australia.
(4)…
(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)…
(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 the non-citizen’s visa should be cancelled…
The Direction requires that, informed by the principles set out in paragraph 6.3 of the Direction and summarised in the paragraph above, I must take into account the considerations in Part C of the Direction in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[5] Part C commences at paragraph 13. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.[6]
[5] The Direction, paragraph 7(1)(b).
[6] Ibid at paragraph 13(2)(a)-(c).
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.[7]
[7] Ibid at paragraph 14(a)-(e).
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Tribunal notes the significance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[8]
…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 [now Direction 79] does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 [now Direction 79] does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 [now Direction 79] concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[9]
FACTUAL FINDINGS
[8] [2018] FCA 594 at [23].
[9] Ibid at [23].
Fact finding principles
Set out below are my findings of fact. The evidence on which they are based is as cited. Before I set out those findings it is necessary to explain some of the principles I have applied in making these findings.
Direction 79 requires me to form a view about the applicant’s likelihood of re-offending. Consequently, it has been necessary to make a number of findings about the applicant’s criminal past.
RJFB was convicted at trial on two counts of rape. He was found guilty of one rape offence for the crime he personally committed and for a second on the grounds that by his presence, he encouraged and aided the rape committed by one of his companions on the night in question.[10] The applicant was sentenced twice. On the first occasion he was sentenced as an adult, on the second, after establishing that there had been an error concerning his date of birth, on the basis that he was 17 at the time he committed the offence.
[10] Exhibit T1, G2, folio 40.
The sentencing remarks made on both occasions formed part of the evidence before me. The applicant at the hearing also gave evidence to the Tribunal about the circumstances of his crimes.
The evidence the applicant gave, particularly under cross-examination, was inconsistent with him having committed the crime of rape or encouraging or aiding the crime of rape by his companion. His evidence was entirely inconsistent with the basis on which he was sentenced. On the version of events given by the applicant, the victim of the two rapes wanted to be taken to a remote location to ‘have fun’.[11] The victim was ‘happy’ and did ‘nothing to make us think she [was] not happy’.[12] His friend (after having sex with the victim) told him ‘she wants to go with you’.[13]
[11] Transcript of Proceedings, 9 December 2020, 34.
[12] Transcript of Proceedings, 9 December 2020, 35.
[13] Transcript of Proceedings, 9 December 2020, 35.
Before having sex with the victim, the applicant testified that he asked ‘me you happy?’[14] The applicant maintained in his evidence that the victim wanted to have sex with him.
[14] Transcript of Proceedings, 9 December 2020, 35.
This evidence is entirely contrary to the findings of the sentencing judge who found:[15]
At the secluded place the driver and the applicant got out of the car, the co-accused child raped the complainant. There was no particular violence involved but the sexual intercourse was clearly without the complainant’s consent. She repeatedly swore at the offenders saying she wanted to go home. After the co-accused child had sex with the complainant he got out of the car and the applicant got in and put his penis in her vagina. Again this was over her protests that she wanted to go home but there was no particular other violence involved.
[15] Exhibit T1, G2, folio 51.
In reaching my findings on the primary facts I must apply the principle, clarified by the Full Court of the Federal Court in HZCP v Minister for Immigration and Border Protection, that ‘…relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error’.[16] The Court made clear that a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as ‘another reason’ why the original decision to cancel should be revoked.[17]
[16] [2019] FCAFC 202 at [68].
[17] Ibid at [195].
I do note however that the applicant is entitled, subject to some qualifications, to seek different findings from the Tribunal in relation to any criminal convictions which did not form the basis of the decision to cancel his visa. The principles to be applied by the Tribunal when considering evidence of this nature were comprehensively summarised by Justice Bromberg in HZCP v Minister for Immigration and Border Protection.[18] These principles are pithily summarised in the following passage from Secretary to the Department of Justice and Regulation v LLG [2018] VSCA 155 at [42], cited with approval by Justice Bromberg:
The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the convictions are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
[18] [2018] FCA 1803 at [41] - [77].
Accordingly, in relation to the offences committed in 2015 it is not open to me to depart from the Judge’s sentencing remarks and the facts on which they were based. In relation to the applicant’s other convictions I can depart from the relevant findings, but the applicant has a heavy onus to discharge before I would do that.
In applying these principles there is clearly a restraint on the findings I can make in relation to the 2015 offences. I cannot, contrary to the rape convictions and the express findings of the sentencing judge, find that the victim did consent to the sexual intercourse she had with the applicant and that she communicated that consent to him.
Equally, I must accept that the applicant was a minor when he committed the offence as that was the basis on which he was ultimately sentenced.
The sentencing remarks also include statements about the applicant’s likelihood of offending again in the future and the sentencing judge made comments consistent with a view that re-offending was unlikely and complete rehabilitation could be expected. I do not consider myself bound by those remarks. For me to be bound by them they must amount to the essential factual basis of the conviction (or sentence, as the case may be) which underpins the decision to cancel.[19] The opinions expressed by the sentencing judge are not in any sense findings of fact. They are an attempt to predict the future based on the evidence available to the judge. There is no principle of law which would require me to adopt those opinions. Indeed, because the applicant’s likelihood of re-offending is an issue which I must determine[20] based on the evidence before me, it would be inappropriate to simply adopt the views expressed in earlier proceedings based on different evidence.
[19] Secretary to the Department of Justice and Regulation v LLG [2018] VSCA 155 at [42]
[20] Direction 13.1.2(1)(a).
Comments on the reliability of witnesses
In making my findings of fact I have approached the matter on the basis that the applicant is truthful on matters of broad detail but gave self-serving accounts on important matters where he felt it was in his interests to do so. His account of the communication of consent by the complainant on the night of the rape is the clearest example.
Consequently, there are a number of points where I have preferred the factual picture which emerges from the documents or other accounts of events over the account given by the applicant in his evidence.
Evidence was also given on behalf of the applicant by his uncle, HKM, who lives in Iran. He gave evidence about the family’s refugee history and the risks for the applicant if he returned to Afghanistan. His evidence was provided in three forms. First, Hassan Gulman, an elder of the Afghani and Hazara communities in South East Queensland spoke to him on the telephone on 3 January 2020. Mr Ghulman prepared a statutory declaration describing what he was told on that phone call on 17 April 2020.[21] Second, the applicant’s lawyer spoke to HKM on 3 December 2020 and used the applicant’s sister FM as an interpreter. He prepared a file note of that conversation.[22] Third, HKM then gave oral evidence on the telephone from Iran with the assistance of an interpreter.
[21] Exhibit T1, G2, folio 157.
[22] Exhibit T2, 149.
I formed the view that the evidence of HKM was unreliable. Each time he gave his account of events it differed in an important respect. The first time he gave his account, he said that his family was originally from Gul Darakht in the Pule Khomri district of Baghlan Province in Afghanistan. He said that two years prior he had secretly returned to the Gul Darakht area, but couldn’t stay more than two days and even then he was hiding his identity. When he gave his account to the applicant’s lawyer he said that in about 2018 he returned to Afghanistan. He flew into Kabul and took steps to conceal his identity while there. He did not leave Kabul and after two days felt it was too risky to remain in Afghanistan and returned to Iran. He did not travel to the Baghlan province because it was too great a risk.
In his statement to the applicant’s lawyer, HKM reported that his brother Jumar was murdered in Tehran and his body was set alight and this was done by the same rival tribe which had travelled from Afghanistan to Iran for the purpose of murdering Jumar. In his oral evidence HKM said his brother was killed in a remote town doing his security job.
HKM also gave accounts of the killing of one of the applicant’s cousins after deportation to Afghanistan from Turkey. In the first two versions given, only one cousin was killed. In his oral evidence HKM said two cousins were killed after they were deported from Turkey.
In light of the inconsistencies in the various versions given by HKM, I am not prepared to accept his evidence on any significant matter. Even allowing for the difficulties with interpretation and translation, the versions of events recorded in English are too contradictory to be accepted.
My findings of fact are as follows.
Applicant’s history
In the late 1970’s or early 1980’s the applicant’s extended family was forced to leave their homes and flee to Iran because of tribal conflict, blood feuds, and political associations which were problematic as a result of the Soviet invasion.[23]
[23] Exhibit T1, G2, 157.
The applicant’s parents at that point were still young children.
In the years which followed, the applicant’s parents met and married in Iran. They had four children. Dari is the language spoken by the family. The family are Shia Muslims and ethnically Pashtun. The family belongs to the tribe of Malik Zaiei a sub-tribe of Ahmad Zaiei Pashtun. The family was originally from Gul Darakht in the Pule Khomri district of Baghlan Province Afghanistan.[24]
[24] Exhibit T1, G2, 157.
The picture which emerges of the applicant’s childhood in Iran is a bleak one. From the age of four he was on the streets of Mashad scavenging through rubbish to find things of value which could be sold to help provide for his family.[25] Initially he did this alone but when his younger brother Hassan turned four, he helped the applicant to do this.[26]
[25] Exhibit T1, G2, 106.
[26] Ibid.
In the period in between starting to scavenge on the streets and being joined by his brother, the applicant was sexually abused.[27] The abuse lasted for a period of six months and involved the applicant going to a man’s house where he would be molested and afterwards was given articles of value or money. The applicant stopped the visits when his younger brother began helping him scavenge to ensure that he was not exposed to the same treatment.[28]
[27] Exhibit T2, 195.
[28] Exhibit T2, 195.
The applicant went to school from the age of 6 but was bullied because he was Afghani.[29]
[29] Exhibit T2, 196.
When the applicant was about eight years old his father died.[30] He had been diagnosed with diabetes many years before but could not afford the medication to treat it properly. He was unable to work, eventually lost his eyesight and finally passed away in his sleep.[31]
[30] Exhibit T2, 196.
[31] Exhibit T2, 10.
When the applicant’s father died a doctor said to the applicant’s mother that he wanted to put the family on a United Nations list for possible repatriation on humanitarian grounds.
When the applicant turned 13 he left school and began working in the construction industry. He had been doing that for over two years when the applicant’s mother received a ‘woman at risk’ visa and the family moved to Australia.[32]
[32] Exhibit T2, 196.
When he arrived in Australia they moved to Brisbane and the applicant attended Woodridge High School.[33] At the time the applicant did not speak, read or write any English. After arriving in Australia he made friends with other Dari-speaking Afghanis in school.[34] They included the two friends who were with him on the night of the rapes.
[33] Exhibit T2, 196.
[34] Exhibit T2, 196.
On 6 March 2015 the applicant received a call from one of these friends, G, who was a few years older than the applicant.[35] He had bought a car a few days earlier and he asked the applicant if he wanted to go to the Gold Coast. At about 6pm, the applicant, G, another friend W, who was younger than the applicant, drove to the Gold Coast. They drank a bottle of spirits during the trip. After spending time on the Gold Coast and smoking shisha together G was persuaded to drive the applicant home. As the applicant was getting out of the car his friends made fun of him for being a virgin and said they should go and meet some girls. The applicant got back into the car. The parties are in dispute as to the reasons why the applicant got back into the car at that point, but it is not necessary to make a finding on that question. His state of mind when he made that decision is not critical in relation to any decision I have to make.
[35] Exhibit T2, 196.
At this point the three friends began driving around Woodbridge.[36] As they neared Woodbridge station they saw a woman. G told W and the applicant to talk to her while he did a U-turn. W and the applicant approached the woman. W spoke to the woman in English but the applicant did not. At that time his English was very poor.[37]
[36] Ibid.
[37] Exhibit T2, 197.
The woman, who became the complainant in the rape trial, was F.[38] She had left a club or bar very late in the evening and was walking towards her brother’s home in Logan. She had had a considerable amount to drink. After speaking to the three men for a period, she entered their car voluntarily. The complainant’s belief at this point was that the plan was to take her home.[39] That was not where she was taken.
[38] Exhibit T1, G2.
[39] Exhibit T1, G2, folio 39.
When it became clear to the complainant that she was not being taken home, she wanted to get out.[40] She asked to be let out, but her requests were ignored. The car continued to move and the three males in the car continued to speak in a language which she did not understand. Eventually the car stopped after driving down a dirt road to a dark bush area. At this point the complainant said she wanted to go home.
[40] Exhibit T1, G2, folio 39.
The request was ignored and the applicant and G got out of the car. W moved the complainant’s legs onto the seat of the car and removed her skirt. She said that she ‘wanted to go the fuck home’ but this request was ignored. W proceeded to rape the complainant. When W was finished the applicant entered the car and raped the complainant.
In his sentencing remarks Justice Devereaux found:
There was no particular violence involved but the sexual intercourse was clearly without the complainant’s consent. She repeatedly swore at the offenders saying she wanted to go home. After [W] had sex with the complainant he got out of the car and [the applicant] got in and put his penis in her vagina. Again this was over her protests that she wanted to go home but there was no particular violence involved.[41]
[41] Exhibit T1, G2, folio 51.
In his written statement the applicant said ‘it is clear to me now that I did not have her consent to have sex with her and neither did W. I did not do enough to make sure that the woman wanted to have sex with me before I had sex with her.’[42] The account he gave orally when cross examined was quite different. He positively asserted that the complainant was ‘happy in the car, they [she and W] wanted to have sex. She was happy. Nothing to make us think she is not happy…My friend got out of car. He said she wants to go with you…can remember she pulled my pants down. I say ‘me you happy’.’[43] In short, in his oral evidence, the applicant positively asserted that the complainant wanted to have sex with him. I do not accept that evidence.
[42] Exhibit T2, 197.
[43] Transcript of proceedings, 9 December 2020, 35-36.
After the applicant had sex with the complainant, G told the complainant to put her clothes on, told her she was safe and dropped her at the front of her brother’s unit.[44] She complained immediately and the police were called. A few days after the incident the police came to the applicant’s house early in the morning and took the applicant to the police station.[45] He was interviewed with a Dari interpreter. The applicant denied driving to bushland with G and W and denied having sex with any woman.[46]
[44] Exhibit T1, G2, folio 39-40.
[45] Exhibit T2, 197.
[46] Exhibit T2, 197.
Two weeks later the police came to the applicant’s high school and took him to the police station for another interview.[47] At that interview he told police through an interpreter that he was with G and W in the bushland but that he could not remember what happened. A week later he was arrested and charged.[48] He was released on bail from 8 April 2015 until he was convicted at trial on 1 December 2017.[49] During that period the applicant committed two breaches of his bail conditions. Both were minor and I have treated them as insignificant for the purposes of considering whether to revoke the cancellation of his visa.
[47] Exhibit T2, 197.
[48] Exhibit T2, 198.
[49] Exhibit T2, 198.
While awaiting trial the applicant ceased going to school and stayed at home and looked after his mother who was becoming ill.[50] He started to self-harm by making cuts on his chest.[51] He began using marijuana and tried smoking ice on two occasions.[52]
[50] Exhibit T2, 198.
[51] Exhibit T2, 198.
[52] Exhibit T2, 198.
The applicant was charged with possession of a knife in a public place on 3 January 2017. The circumstances of the offence were as follows. At about 4.30 pm on 3 January 2017, police were called to assist in locating a suspect in an assault matter.[53] Whilst conducting patrols police located the applicant who matched the description of the suspect. The applicant was arrested who volunteered that he had a knife on his person. The applicant showed the police a folding knife with a 10cm blade. The defendant stated that the knife was for protection.[54]
[53] Exhibit T2, 190.
[54] Exhibit T2, 190.
In September 2017 the applicant was stabbed in the leg during a dispute at a shopping centre carpark.[55] As a result of the stabbing the applicant lost nearly 3 litres of blood and had to have an artery surgically repaired.
[55] Exhibit T2, 199.
When the rape charges went to trial the applicant pleaded not guilty to four charges. He was found guilty of two counts of rape.[56] He was not sentenced immediately and was held on remand at Arthur Gorrie Correctional Centre for about a year.[57] At the centre he was given employment and completed some training courses. He completed two substance use courses – the Lives Lived Well DO IT program and the Artius OPTIONS program.[58]
[56] Exhibit T2, 199.
[57] Exhibit T2, 199.
[58] Exhibit T2, 199.
The applicant was sentenced following an unsuccessful appeal of his conviction, on 7 December 2018.[59] Initially he was sentenced as an adult and received a sentence of 6 years imprisonment on each count.
[59] Exhibit T2, 200.
He was then held at Wolston Correctional Centre.[60]
[60] Exhibit T2, 200.
While remanded in custody and serving his term of imprisonment the applicant completed accredited units in gas metal arc welding and basic strategies for work-related learning and 9 units towards a Certificate 2 in Logistics.[61] He was also employed in various jobs while incarcerated including as a Senior Cleaner, Kitchen Hand and Senior Industry Worker (Ferrous Metal). While serving his term of imprisonment the applicant’s visa was cancelled. He was notified of this on 12 March 2019. On 21 March 2019 the applicant submitted a Request for Revocation of a Mandatory Visa Cancellation. In that request he admitted that he did not pass the character test but submitted that:[62]
…the mandatory cancellation should be revoked as the reasons for revocation outweigh the factors weighing against. Specifically:
1. The best interests of my young brother;
2. The harm I am likely to suffer if I am removed to my country of citizenship (Afghanistan);
3. The adverse effect on my mother and siblings;
all weigh against revocation.
[61] Exhibit T2,166-169
[62] Exhibit T1, G2, 66.
In relation to the question requesting an outline of factors you believe help explain your offending the applicant responded:
It is difficult to respond to this question. I accept that a jury found me guilty after trial and that in the eyes of the law I am convicted and guilty. But I maintain that the sex with the complainant was consensual and that I did not rape her. I was drunk (for the first and only time) when the incident occurred but I don’t think being drunk provides any excuse or explanation for raping a woman.[63]
[63] Exhibit T1, G2, 78.
The applicant also started the ‘Getting Started Preparatory Program’ which is a rehabilitation program for adult sex offenders.[64] However the applicant was unable to complete the program because he made an application to have his sentenced re-opened so that he could be sentenced as a minor.[65]
[64] Material Produced Under Summons, SM1, 667.
[65] Transcript of Proceedings, 10 December 2020, 121.
On 15 August 2019 the applicant was ‘breached’ for damaging a TV set in the common area, which I am satisfied was accidental.[66] There were other incidents and allegations while the applicant was incarcerated, but nothing of any significance for the determination of this application occurred.
[66] Exhibit T2, 200.
At some point during his incarceration, the applicant disclosed to his lawyer his past history of sexual abuse and he asked to be referred for specialist refugee trauma counselling with Queensland Program of Assistance to Survivors of Torture and Trauma (QPASTT).[67] QPASTT took steps to commence its program with the applicant but before it could do so the applicant was transferred out of Queensland.[68] If the applicant were returned to Queensland, he would be eligible to access the counselling at QPASTT to assist him to address the impact of his experiences on him.
[67] Exhibit T1, G2, folios 106-109.
[68] Exhibit T2, 17.
In March 2020 a fellow prisoner alleged that the applicant was involved in a sexual assault on him.[69] I am satisfied that there is no substance to that allegation.
[69] Exhibit T2, 201.
On 24 June 2020 the District Court of Queensland allowed an application to re-open the sentencing proceeding and he was resentenced as a minor to two years imprisonment to be served concurrently.[70]
[70] Exhibit T2, 201.
He was released into immigration detention immediately following that decision.[71] Due to COVID the applicant ended up being held at the Meriton Hotel in Brisbane. He was transferred to Yongah Hill Immigration Detention Centre in October 2020 and then later to Christmas Island. The applicant was given his non-revocation decision on 15 October 2020. He then applied for a protection visa.[72]
[71] Exhibit T2, 201.
[72] Exhibit T2, 201.
The applicant identifies the following concerns as motivating his family’s departure from Afghanistan and the cause of his concerns about being returned to Afghanistan.[73]
[73] Exhibit T2, 201.
His family and sub-tribe is ethnically Pashtun but religiously Shia Muslim. Almost all Pashtuns are Sunni Muslims. Part of the reason his family members were killed was because other Pashtuns didn’t like that the family was Shia. The applicant does not speak Pashto – his mother tongue is Dari.
The applicant claims that a cousin of his was killed recently in Afghanistan after being deported from Turkey.[74] The applicant’s knowledge of that event is hearsay. An uncle who lives in Iran gave evidence about the incident. He had no direct knowledge of the incident and his evidence was inconsistent and unconvincing. I am not satisfied that any of the applicant’s relatives have been killed recently in Afghanistan. The applicant also claims, based on what he has been told, that family enemies in Afghanistan crossed the border into Iran to kill his uncle in Tehran.[75] I am satisfied that no such event occurred and that the applicant’s uncle died in Iran (but not Tehran) doing his job as a security guard.
[74] Exhibit T2, 202.
[75] Exhibit T2, 202.
The applicant is also concerned that as a Shia he will be the target of attacks in Afghanistan.
If the applicant is allowed to stay in Australia he plans to move back in with his mother. He plans to seek counselling at QPASST to address issues from his childhood in Iran.[76]
[76] Exhibit T2, 202.
The applicant believes that if he does not get his visa back he will die in Afghanistan. There is nothing for him there and the move will have a deleterious effect on his mother’s health. The applicant is concerned that it will literally kill her if he is sent back.
Expert evidence
In addition to the documents filed and the evidence from lay witnesses, the Tribunal also had the benefit of a Psychologist’s Report prepared by forensic psychologist Dr Jacqui Yoxall.[77]
[77] Exhibit T2, 4-31.
Dr Yoxall prepared a report dated 10 October 2020. She was cross examined in relation to its conclusions by the respondent’s representative and answered the Tribunal’s questions.
Dr Yoxall was an impressive witness. She considered her answers carefully and made appropriate concessions. Dr Yoxall administered a number of psychological risk assessment tools. The key findings from those tools were as follows.
Sex Offender Risk of Reoffending (SORAG)
Using the Sex Offender Risk of Reoffending (SORAG), a total score of 2 was calculated for the applicant. Within an average of 7 years after release 23% in this category re-offend. Within an average of 10 years after release approximately 59% of the offenders in this category commit a sexual offence.[78]
Sexual Violence Risk-20
[78] See page 23 of Dr Yoxall’s report. That is not the wording of her report but at page 80 of the transcript Dr Yoxall explained that there is no such thing as a non-violent sexual offence in the literature because every sexual offence is violent so it is preferable to refer to it as sexual offending.
Dr Yoxall described this instrument in the following terms:
The Psychosocial Adjustment section includes 11 risk factors: sexual deviation, victim of child abuse, psychopathy, major mental illness, substance use problems, suicidal/homicidal ideation (ideas), relationship problems, employment problems, past non-sexual violent offences, past non-violent offences, and past supervision failure… [RJFB] is a survivor of childhood sexual abuse. He presented with a history of substance use problems and has a history of undiagnosed PTSD and current Adjustment Disorder with Mixed Anxiety and Depressed Mood. There are no prior patterns of relationship or employment problems (although his age needs to be considered) or other non-sexual violent offences. He does have a history of nonviolent offending and breaches.
The Sexual Offences section includes seen risk factors…[RJFB] did not present with these risk factors. He was on bail for 2.5 years before he was taken into custody and did not engage in reoffending in regard to sex offences.
The Future Plans section includes two factors: lacks realistic plans, and negative attitude toward intervention. [RJFB] appears to have realistic plans for his future and a positive attitude towards intervention…Prediction of risk is summarized using a rating of low to moderate…If [RJFB]’s vulnerability to substance misuse is managed and he is treated for the PTSD and Adjustment Disorder (the latter of which would resolve if he returned to community in Australia), then his overall risk of reoffending would be substantially reduced and I would consider his risk of reoffending to be low.
Level of Service Inventory – Revised (LSI-R)
Dr Yoxall also administered the Level of Service Inventory – Revised (LSI-R) which is described as ‘the most empirically evidenced and widely used fourth generation risk assessment’.[79] The primary goal of the measure is to identify dynamic risk/needs variable that can potentially be changed so as to reduce the risk of reoffending.
[79] Exhibit T2, 26.
Dr Yoxall described the applicant’s performance in the following terms:
On review of [RJFB]’s records and what he revealed in interview, it appears that he is motivated to engage in recommended treatment to address his psychological and mental health needs and to ensure that his risk of general reoffending is reduced. His score on the LSI-R was 13 and is related to static (historical and unchangeable) risk factors, and dynamic (changeable) risk factors. North American norms are commonly used in Australia for this measure. A score of or below 13 indicates a low risk of general reoffending and a low level of general rehabilitation needs. In the normative sample, approximately 11.7% who scored in this range reoffended (and were re-incarcerated) within 12 months.
Dr Yoxall’s overall conclusion was expressed in the following terms:
Overall, it is my assessment that if [RJFB]’s vulnerability to substance misuse is managed and he is treated for the PTSD and Adjustment Disorder (the latter of which would resolve if he returned to community in Australia), then his overall risk of sexual reoffending and general reoffending would be substantially reduced and I would consider his risk of reoffending to be low.
In cross-examination Dr Yoxall conceded that the complex and long-standing PTSD that the applicant suffers from ‘is very hard to treat’.[80] She was also asked by the Tribunal what her assessment would be if the applicant’s PTSD was not successfully treated, if he in fact denied his sexual offences and was unable to manage his substance use upon release. Dr Yoxall indicated that her assessment of his risk of reoffending would go up and that it would be reasonable to call it a moderate risk of re-offending.[81]
[80] Transcript of Proceedings, 10 December 2020, 72.
[81] Transcript of Proceedings, 10 December 2020, 79.
PRIMARY CONSIDERATIONS
As noted above, in determining whether there is another reason why the original decision should be revoked I am obliged to take into account the considerations outlined in Part C of the Direction. Those considerations are divided into Primary Considerations and Other Considerations. The Primary Considerations are:
(a)Protection of the Australian community (which includes other considerations within it);
(b)Best interests of minor children in Australia affected by the decision; and
(c)Expectations of the Australian community.
The other considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments the applicant will face to establishing themselves and maintaining basic living standards if removed.
This is a non-exhaustive list of relevant considerations.
Primary Consideration A: The protection of the Australian Community
Paragraph 13.1 (1) notes that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Paragraph 13.1(2) of the Direction further provides that decision-makers should 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.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Amongst those factors are:
(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 of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)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 immigration status…
In relation to the seriousness of the conduct, the applicant accepted that his committing two counts of rape on 7 March 2015 cannot be described as anything other than extremely serious. In the applicant’s Statement of Facts, Issues and Contentions the applicant accepted[82] that:
(a)he personally had non-consensual sex with the complainant; and
(b)was an accessory to a co-offender’s offending of the same nature.
and therefore, committed two offences of rape.
[82] Although similar acceptance was not borne out in his oral evidence.
Sexual crimes, against a woman are viewed very seriously. A two-year custodial sentence imposed on a minor reflects the objective seriousness of the offence.
It is in the applicant’s favour that there is no trend of increasing seriousness in the crimes he has committed. The possession of a knife offence is far less serious than the rape offences he committed. While his crimes occurred very soon after his arrival in Australia, no pattern of entrenched criminality emerged in the more than two years he was free in the community after the rapes. There is no suggestion that the applicant provided false or misleading information to the Department by failing to disclose prior criminal offending. There is no evidence that any of his offending occurred after a formal warning about the effect of offending on his immigration status.
Nature of the offence
In relation to the nature of the offence, as noted by the sentencing judge there was no additional violence beyond the acts of rape themselves. The applicant in his Statement of Facts, Issues and Contentions seeks to cast the acts as ones which arose because of his limited grasp of the English language and his level of intoxication such that he struggled to negotiate the issue of the complainant’s consent which he understood was required. This characterisation is at odds with the findings of the sentencing judge. Intercourse occurred ‘over [the complainant’s] protests that she wanted to go home’. Accordingly, the nature of the offence was one in which the applicant proceeded to have sex with the complainant in circumstances where it was clear that she did not consent.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) of the Direction provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)Paragraph 13.1.2(1)(a) requires the Tribunal to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)Paragraph 13.1.2(1)(b) requires the Tribunal to consider 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 reoffending.
The applicant accepted that framework that the Tribunal.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The applicant accepts that the nature of any further offending would be in the nature of a sexual crime and the harm that would be caused to the victim would be extremely severe.[83]
[83] Applicant’s Statement of Facts, Issues and Contentions at [29]
The likelihood of the non-citizen engaging in further criminal or other serious conduct
However, against the severity of the magnitude of the harm the applicant invites me to find that his risk of reoffending is low. The applicant submits that I should make that finding on the following bases.[84]
[84] Applicant’s Statement of Facts, Issues and Contentions at [30].
First, that the applicant has demonstrated insight into his offending. I cannot accept that that is the case. The applicant gave evidence that he sought and obtained consent prior to having sex with the complainant. The giving of evidence of that nature establishes that the applicant does not accept that he committed a criminal offence. The most that can be said of the applicant’s insight is that he accepts that he was convicted of rape and in that sense, and in that sense only, he is a rapist. That does not represent any insight in relation to his offending. On the contrary on the applicant’s version of events he was wrongly convicted of a crime that he did not commit.
Second, the applicant submits that his offending occurred in a context of a period of cultural and linguistic adaptation that is now ended. While that submission is in some sense descriptive of what was occurring for the applicant at the time of the offence, it does not readily translate into a finding that the applicant’s risk of offending in the future is low. On the applicant’s version of events given to this Tribunal in his statement, he knew at the time of the offence that he needed to obtain consent prior to having sex.[85] Accordingly, there was no deficit in cultural knowledge about the need for consent prior to proceeding to have sex. On the question of linguistic difficulty, the findings of the sentencing judge are clear. Sex occurred over the complainant’s protests that she wanted to go home. I do not accept that the applicant’s greater understanding of Australian culture and the English language mean that he is at a reduced risk of committing a sexual crime of a similar nature in the future.
[85] Exhibit T2, 197 at [24].
Third, the applicant took ‘excellent steps towards [his] own rehabilitation’ since being imprisoned on 1 December 2017 as noted by the sentencing judge when the applicant was first sentenced as an adult. Those steps included enrolment in the program for sex offenders provided by Queensland corrections, drug relapse prevention programs and the undertaking of vocational education while incarcerated. While these efforts deserve acknowledgement, they occurred in an institutional context where his environment is controlled. Prior to his incarceration the applicant did not pursue educational opportunities (although I note his ability to attend school was inhibited to a degree by his bail conditions) and he commenced drug use including trying amphetamines. While the applicant’s efforts while incarcerated give cause for hope, they do not either alone or when viewed in combination with his conduct more generally, provide a satisfactory basis for concluding that the applicant’s risk of re-offending is low.
Fourth, the sentencing judge gave a very optimistic assessment of the likelihood of re-offending.[86] I have had regard to the favourable comments of the sentencing judge in relation to his assessment of the applicant’s prospects of re-offending upon release into the community. I have discounted them significantly for two reasons. First, the sentencing judge did not have before him evidence which strongly indicated that the applicant failed to accept that he raped the complainant on the night in question and evidence that ‘extreme minimisation or denial of sex offences’ is a risk factor in determining sexual violence risk.[87] Secondly, the sentencing judge did not have knowledge of the applicant’s history of sexual abuse which expert evidence before this Tribunal indicates is important to determining an individual’s risk of committing sexual violence.[88]
[86] Which is a short form way of summarising the submissions at para [30] (c)-(h) of the Applicant’s Statement of Facts, Issues and Contentions.
[87] Exhibit T2, 27.
[88] Ibid.
Fifth, the ongoing threat of visa cancellation and removal to Afghanistan, and the burden that would place on his mother’s health, serves as significant incentive to avoid future criminal offending. I accept this submission. In the broader context of the applicant’s history it does not lead to the conclusion that his risk of reoffending is low.
Sixth, the applicant’s drug use occurred after his offending and is therefore in no way implicated in his offending. Further, he has taken steps to address his drug use. I accept that the applicant has taken steps to address his misuse of drugs. However, as noted by Dr Yoxall, the offending ‘occurred in the context of alcohol intoxication…Subsequent to the offending [the applicant] did develop a drug problem (cannabis and methamphetamine) which is now in remission because he has been in a controlled environment of prison or immigration detention since December 2017’.[89] Accordingly it is difficult to assess the extent to which the attempts to address the problem will prove effective if the applicant is released into the community. The applicant had a drug problem prior to being remanded in custody and has had limited opportunity to engage in use of illegal drugs since. Further, Dr Yoxall’s report indicates that substance abuse is a risk factor. It is identified as such in the Sexual Violence Risk – 20 tool she applied. Consequently, notwithstanding that the drug abuse occurred after the offending, it is a risk factor for future offending. I do not accept that it is irrelevant to considering his risk of future offending.
[89] Exhibit T2, 26.
Seventh, the applicant has been accepted into the QPASTT program. I accept that this is a positive step for the applicant in dealing with his past history of trauma and abuse. However, I also have had regard to the fact that Dr Yoxall concedes that longstanding PTSD of the kind the applicant suffers from is very difficult to treat.[90]
[90] Transcript of proceedings, 10 December 2020, 72.
Eighth, Dr Yoxall has assessed the applicant as having a low risk of reoffending. That submission represents an incomplete summary of Dr Yoxall’s conclusions. Her overall assessment is as follows:[91]
…it is my assessment that if [RJFB]’s vulnerability to substance misuse is managed and he is treated for the PTSD and Adjustment Disorder (the latter of which would resolve if he returned to community in Australia), then his overall risk of sexual reoffending and general offending would be substantially reduced and I would consider his risk of reoffending to be low.
[91] Exhibit T2, 31.
This conclusion indicates that any assessment that the applicant’s risk of re-offending is low is contingent upon managing substance misuse and having his PTSD treated. In the absence of those things occurring the risk is higher. In light of Dr Yoxall’s indication that PTSD is very hard to treat and the difficulty in determining whether the applicant will be able to manage substance abuse once outside of the detention environment, I am not prepared to accept that the applicant’s risk of reoffending is low.
Further, based on the evidence given by the applicant, I am satisfied that he is a person who engages in denial of or extreme minimisation of his sex offences. Dr Yoxall confirmed that such behaviour does contribute to an increase in the risk of sex offending.[92]
[92] Exhibit T2, 24.
In those circumstances I am satisfied that the applicant’s risk of reoffending is higher than low and is better understood as in the low to moderate range depending on how well his mental health and substance use is managed. Both of which are uncertain at this point in time.
This assessment is also more consistent with results of the Sex Offender Risk of Reoffending instrument used by Dr Yoxall which found that approximately 59% of the offenders whose scores were in the same category as the applicant reoffended within 10 years. That finding is not in my view consistent with the view that the applicant is a low risk of reoffending.
Conclusion: Primary Consideration A
The applicant’s offending is very serious and there is a low to moderate risk that he will reoffend depending on how well his mental state and drug use is managed. If the applicant engages in similar criminal conduct in the future, the applicant accepts that the nature of any further offending would be in the nature of a sexual crime and the harm that would be caused to the victim would be extremely severe. Protection of the Australian community favours strongly a non-revocation decision.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a minor child who may be affected by the cancellation of the applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that 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.
This consideration applies only if there is a relevant child, under 18 at the time when the decision to revoke is expected to be made. There is no child in that category. The applicant concedes as much. Consequently, this consideration does not apply.
Primary Consideration C: Expectations of the Australian Community
The final primary consideration is the expectations of the Australian community.
In approaching this consideration, the Tribunal notes the following matters which are relevant to applying this consideration to the applicant:
(a)The expectations of the Australian Community are not matters for evidence. They are expressed normatively and the expectations are what the Government says they are, even though in actual fact, if they were ascertainable, community expectations might be quite different.[93]
(b)Decision makers are bound to have due regard to the Government’s view regarding community values, standards and expectations as set out in the Direction.[94]
(c)The expectations of the Australian community are conclusively expressed (for present purposes) in paragraph 13.3 of the Direction.[95]
(d)There are a spectrum of ways of reading paragraph 13.3 of the Direction and the precise way of expressing the expectation of the Australian community as discernible from paragraph 13.3 is one on which reasonable minds may differ. In its strongest form, the paragraph can be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should not have their visa cancellations revoked.[96] A more flexible expression of that principle is ‘[I]f you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive’.[97]
[93] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [91] per Stewart J (FYBR).
[94] See, for example the Direction, paragraph 6.2 and 6.3; DKXY v Minister for Home Affairs [2019] FCA 495 at [31].
[95] FYBR at [68] per Charlesworth J and at [94] per Stewart J (although noting that those judgments deal with clause 11.3 of the Direction which applies to visa applicants. Paragraph 13.3 is not materially different except that it applies to revocation requests.)
[96] To adapt the words of Justice Charlesworth in FYBR at [75] to present circumstances.
[97] To use the words of Justice Stewart in FYBR at [101].
Whichever expression of community expectations is accepted it is for the Tribunal to determine how much weight should be given to that expectation.
In the present circumstances, it weighs heavily against revocation of the cancellation. The applicant has breached the community expectation that non-citizens will obey the law while in Australia. The seriousness of the rape offences are such that the Australian community would expect that the applicant should not hold a visa. The offences were committed a short time after arriving in Australia. The deemed expectation of the Australian community is that such a person should not hold a visa. While this is not decisive in determining whether the applicant’s visa cancellation should be revoked, it weighs heavily against the applicant.
The applicant has made a number of submissions in relation to this consideration at paragraph 36 of his Statement of Facts, Issues and Contentions. In my assessment, those matters are most sensibly treated as other considerations which must be considered and which may affect the overall weight given to any of the primary or other considerations taken into account. I consider them further below. They do not alter my assessment that the expectations of the Australian Community weigh heavily against the applicant.
OTHER CONSIDERATIONS
It is necessary to consider the Other Considerations listed at paragraph 14(1) of the Direction. I have considered each of the five stipulated subparagraphs (a), (b), (c), (d) and (e). I will address each in turn. In addition, I have considered the matters raised at paragraph 36 of the applicant’s Statement of Facts, Issues and Contentions, and the risk of indefinite detention which the applicant faces.
(a) International non-refoulement obligations
The Applicant contends that Australia owes non-refoulement obligations and that this consideration weighs heavily in favour of revocation.
The Respondent denies that non-refoulement obligations are owed.
For reasons explained further below, I am satisfied that non-refoulement obligations are owed, but a question arises as to what significance that finding carries.
The part of the Direction which canvasses international non-refoulement obligations is to some degree unhelpful. If it were to be applied according to its terms it would lead the Tribunal into jurisdictional error. Accordingly, it is necessary to go through relevant paragraphs of the Direction, identify the unlawful or inaccurate portions and consider what is left. Then, consistent with section 499(2A) of the Act, the Tribunal must comply with whatever remains of the Direction.
Paragraph 14.1(1) begins by more or less accurately identifying the sources of Australia's non-refoulement obligations, though I note that the list is potentially incomplete.[98]
[98] See BHL19 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCAFC 94.
The last sentence of the paragraph says:
The Act reflects Australia's interpretation of those obligations and, where relevant, decision makers should follow the tests enunciated in the Act.
This is not correct. The respondent conceded as much when it asked to delete the following two sentences from its Statement of Facts, Issues and Contentions:
Paragraph 14.1(a) of the Direction provides that the "[t]he Act reflects Australia's interpretation of those obligations and, where relevant, decision makers should follow the tests enunciated in the Act." Paragraph 36(2B)(c) of the Act provides that there is taken not to be a real risk that a non-citizen will suffer significant harm if the Minister is satisfied that 'the real risk is one faced by the population of the country generally and is not by the non-citizen personally.'
The respondent conceded that the criteria for protection claims embodied in the Act were not the appropriate criteria to apply when considering revocation of the cancellation decisions because non-refoulement obligations are distinct from the codified criteria for protection visas. Accordingly, the statement '… decision makers should follow the tests enunciated in the Act' is wrong and if followed could lead a decision maker into jurisdictional error.[99]
[99] Ali v Minister for Home Affairs [2020] FCAFC 109 at 116.
The next paragraph of the Direction states the following:[100]
'The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizens 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.'
[100] Direction, paragraph 14.1(1)
This is an important statement. Provided it accurately reflects Australia’s position then it significantly diminishes the weight that would otherwise attach to a finding that sending the applicant to Afghanistan would breach Australia’s non-refoulement obligations. It essentially directs decision makers to proceed on the understanding that if a non-refoulement obligation is owed, that obligation will be honoured and no return to that country will occur while that is the case. Consequently a finding that a non-refoulement obligation is owed does not significantly advance the applicant's cause to have the visa cancellation revoked because as a practical matter it makes it unlikely that he will be removed to a country that poses such a risk.
There have however been at least two recent Federal Court decision which have brought to light facts which arguably cast doubt on Australia’s commitment to compliance with its non-refoulement obligations.
The Federal Court decision of CWY20 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2020] FCA 1855 describes a decision by the acting Minister[101] which may have led to refoulement contrary to Australia’s international law obligations had it gone unchallenged. In the administrative decision described in that judgment the Acting Minister found:
[108] I accept that my Department has found that [CWY20] is a person in respect of whom Australia has non-refoulement obligations…
[112] In this regard I find that if [CWY20] is removed to Afghanistan, there is a risk that he would suffer the type of harm described in his protection claims, including death at the hands of the Taliban and other extremist groups… I have had regard to the existence of non-refoulement obligations in this case and have carefully weighted this factor against the seriousness of [CWY20] criminal offending in the making of my decision…
I find that the above considerations favouring not setting aside the original decision and refusing to grant [CWY20]'s visa are outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to refuse to grant [CWY20's] application for [the visa] under s501A(2) of the Act.
[101] Albeit one not subject to this Direction, which may be significant.
It is clear from the judgment that this decision by the Acting Minister was made in a context where the Minister had been specifically briefed on the effect of his decision. In particular:
… Refusal of his visa will mean that as soon as reasonably practicable and if the other conditions in a subsection of s198 are satisfied, he must be removed to Afghanistan even though doing so would be in breach of Australia's international non-refoulement obligations… [CWY20 ] could be removed to a country other than Afghanistan but there is currently no known prospect of removal to such a country.
Further, the judgment states that
The Acting Minister indicated that he did not require the department to provide him with further submissions regarding 'alternative arrangement options'. In other words, the Acting Minister accepted that the applicant would be refouled and put at risk of being killed.
Justice Griffiths also identified another Federal Court decision, AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27 where, as he describes it, '… a Minister has proceeded to cancel or refuse a visa notwithstanding that it was understood that the consequence of the decision would be that the affected person would be removed from Australia to their country of origin in breach of Australia's non-refoulement obligations.’
These decisions cast doubt on whether the statement in the Direction that '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' remains accurate. However I do note that in neither case was the decision maker subject to the Direction. This may be an important point of difference. However, the respondent's submission in response to a question asked by the Tribunal was not very reassuring.
When asked whether the respondent accepted that a finding of a non-refoulement obligation meant that the applicant would ultimately be released back into the community, the response did not rule out the possibility of refoulement.
The reason the Tribunal asked the question was because:
(a)The express terms of the Direction ruled out refoulement;
(b)The Federal Court decision in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 ruled out indefinite detention; and
(c)there was no third country option which had been identified.
Consequently, there appeared to be only two options left if a non-refoulement obligation was owed and going to be adhered to - either a protection visa would need to be granted or one of Minister's non-compellable discretions would need to be exercised to prevent refoulement occurring.
Rather that accepting that release into the community at some point was the likely result of a finding that a non-refoulement obligation was owed, the respondent focussed attention on the legal consequences of the non-revocation of a visa cancellation. The respondent stated:
… If the tribunal is satisfied, contrary to the respondent's primary submission that [non-refoulement] obligations… are owed , it needs to address the legal consequences of its decision. The primary legal consequence attaching to the applicant's status as an unlawful non-citizen is that he must be removed from Australia as soon as might reasonably be practicable. The fact that the applicant has been found to be - if that is the outcome - a person in respect of whom Australia owes obligation of non-refoulement does not bear on that requirement. To speculate the outcome of the applicant's protection visa, or how long the removal of the applicant might take if his protection visa is refused, is to invite speculation as to what might be in store for the applicant following the tribunal's decision.
There are a number of troubling aspects to this submission. First, it appears to misunderstand the task which the Tribunal is undertaking. The Tribunal is considering whether there is another reason why the original decision should be revoked. The practical consequences for the applicant are relevant to answering that question. What is in store for the applicant if I do not revoke the cancellation is central to the question I must address. The Direction on its face rules out one outcome – refoulement to Afghanistan. DMH16 rules out another – indefinite detention. With the options severely narrowed one could not describe the remaining possible outcomes as speculation.[102]
[102] Which puts the present matter in a very different category to the facts considered in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1.
Second, the respondent's focus on the immediate legal consequences of the decision ie that the applicant must be removed regardless of Australia's non-refoulement obligations as a consequence of sections 197C and s 198 (subject to s198(5A)(b)(ii)), seems to pretend that the Minister has not directed decision makers to decide matters on the basis that '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.' One would have thought that the legal requirement to remove, regardless of non-refoulement obligations, must be understood in light of the Minister's public statement to decision makers in paragraph 14.1(2) and the non-compellable discretionary powers the Minister has which enable him to deliver on that statement.[103] Despite that, the Respondent instead chose to emphasise the immediate legal consequence of a decision not to revoke cancellation even though such an outcome could never happen if the Minister was true to his word as expressed in the Direction.
[103] Section 195A in particular.
Given that his immediate family lives in Australia permanently and how close he is to his mother and siblings the strength, duration and nature of his family links need to be given weight. Other ties to the community are much more tenuous. The witnesses from the community who gave statements in support attest to their assessment of his character but do not give evidence which supports the existence of close ties outside the family.
Given the closeness of the family ties this consideration definitely weighs in favour of revocation of the visa cancellation, but, given how soon after the applicant’s arrival in Australia the crimes were committed, the consideration does not weigh heavily in the applicant’s favour.
Impact on Australian Business Interests
The applicant accepts that this consideration is not relevant to the determination of the Applicant’s request for revocation.
Impact on the victim
The applicant submits that in circumstances where there is no evidence available to the Tribunal of the impact of non-revocation on the victim of the applicant’s most serious offending, that the consideration is not relevant. I accept that submission.
Impediments if removed
The applicant notes that the applicant is not a citizen of Iran notwithstanding that he lived there from his birth in 1997 until the family moved to Australia in 2014.[112] The applicant’s country of citizenship is Afghanistan and it is to there that he will be removed.
[112] Applicant’s Statement of Facts, Issues and Contentions at [50].
The applicant notes:[113]
[113] Applicant’s Statement of Facts, Issues and Contentions at [50].
(a)he has never entered Afghanistan;
(b)his extended family have not re-established a presence in Afghanistan since they fled the Baghlan area in the late 1970s;
(c)The family remain at risk of harm in Afghanistan;
(d)The applicant’s ethnic identity (Pashtun) does not match his religious identity (Shia Muslim) – there is only one Pashtun tribe that observes the Shia Muslim religion, being the Turi tribe in Pakistan;
(e)While the applicant is Pashtun by ethnicity, he does not speak the Pashtun language and relocation to an area that speaks Dari would put him at risk of ethnically-fuelled violence;
(f)The persecution and risk faced by Shia Muslims in Afghanistan remains real and potentially fatal;
(g)The current security situation in Afghanistan is generally poor and the applicant would be at a real and significant risk of harm;
(h)As a person who has not previously entered Afghanistan and who has no social or familial links the applicant is at a specific detriment and risk of harm;
(i)The applicant’s cousins who were deported from Turkey to Afghanistan were killed on return to Afghanistan;
(j)The applicant has been diagnosed with PTSD and an adjustment disorder.
Consequently, this consideration weighs most heavily in favour of revocation.
The respondent’s submissions
The respondent notes that the Direction sets out three factors to take into account when assessing the extent of any impediments the person may face in establishing themselves and maintaining basic living standards if the person is removed from Australia. They are as follows:
(a)The person’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.
The respondent, after noting the applicant’s submissions in his Statement of Facts, Issues and Contentions, accepted that the applicant will face cultural barriers and emotional hardship should he be removed to Afghanistan. The respondent also accepted that there is civil and political unrest in Afghanistan, and that welfare and medical services in Afghanistan are of a lower standard.
The respondent noted that the applicant is 22 years old and has not reported any physical health issues. The respondent acknowledged that the applicant has mental health issues specifically PTSD and an adjustment disorder and that the applicant would receive less support for his mental health in Afghanistan than he would in Australia. However, the respondent contends that the question which must be addressed is whether, and to what extent, the applicant’s mental health will constitute an impediment to the applicant establishing himself and maintaining basic living standards in Afghanistan in the context of what is generally available to other citizens of Afghanistan.
The respondent noted that the applicant speaks Dari, an official language of Afghanistan and was raised by an Afghani family as a Shia Muslim. Consequently, Afghani culture is not entirely foreign to the applicant.
The respondent noted the following in the Country Information Report published by DFAT in relation to Afghanistan, dated June 2019 (DFAT Report) in relation to the treatment of returnees to Afghanistan:[114]
International observers report that the government has cooperated with international agencies and other humanitarian organisations to provide protection and assistance to IDPs, refugees, returnees and other persons of concern.
Afghanistan generally accepts both voluntary and involuntary returns from western countries, but there have been some occasions in recent years in which the government has refused to grant landing permission for incoming flights carrying returnees. Returnees from western countries almost exclusively return to Kabul. Most returnees have been single men rather than family groups. In-country sources report that many returnees choose to remain in Kabul for economic reasons rather than return to their home provinces. There are no tracking mechanisms for those returned to Afghanistan, and it is difficult to assess the conditions they face on return. Amnesty International has reported that there have been cases in which returnees from Europe have been killed after returning to Afghanistan. DFAT has no information to suggest that returnees from western countries attract negative attention from state authorities for having sought and failed to gain asylum, and assesses that these cases are more likely to have related to the highly dangerous general security situation, which affects all Afghans.
DFAT understands that most returnees take measures to conceal their association with the country from which they have returned, and keep a low profile on return. DFAT assesses that people in this situation do not face a significantly higher risk of violence or discrimination from other Afghans with a similar profile.
[114] Respondent’s Statement of Facts, Issues and Contentions at [82].
The respondent contends that the Applicant will be able to access protection and assistance that is provided to returnees, and other persons of concern, upon his arrival in Afghanistan. Accordingly, the respondent contends that there are prospects of support available to the applicant if removed.
The respondent accepts that in circumstances where the applicant arrived in Australia as a refugee, does not appear to have significant social and familial support networks in Afghanistan, and would not have access to comparable social, practical, medical and financial opportunities as he would in Australia, it is open to the Tribunal to find that this consideration weighs in favour of the applicant.
Consideration
The Full Federal Court in the decision of Minister for Home Affairs v Omar[115] emphasised that:
...where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people.[116]
[115] [2019] FCAFC 188.
[116] Ibid at [37].
In order to do that I have considered, in addition to the submissions and evidence provided by the parties, a document prepared by the Country of Origin Information Services Section (COISS) in the Department of Home Affairs dated 23 October 2020 entitled ‘Return and Relocation’. That document was provided to both parties ahead of the hearing of the matter.
The document paints a very grim picture of Kabul, the likely destination for the applicant. Kabul has an estimated population of 4.222 million people. It notes that for returnees from Europe or Australia the most significant challenges once returned are income and networks.[117] Returnees who have no support networks are forced into shared housing where they are questioned by the community about their origins. Although returnees are generally welcome it is difficult to adjust back into Afghan society and returnees are exposed to targeting by Anti-Government Elements (AGE), crime, intercommunal violence and robbery because of a lack of local networks. Other problems identified include:
[117] Return and Relocation – Afghanistan – Country of Origin Information Section (COISS) Effective 23 October 2020, 2.
(a)Returnees in Kabul without family or extended family ties will face difficulties in renting accommodation;
(b)Returnees without some form of connections have difficulty finding employment;
(c)The unemployment rate is more than 53 percent;
(d)The conflict in Afghanistan continues to kill civilians. The civilian death toll in Afghanistan in the first six months of 2020 is 1,282 with targeted killings including mass shootings the leading cause of civilian deaths.
(e)The economy has contracted because of COVID 19 and food prices have spiked;
(f)Returnees have limited access to health care due to geography and a lack of financial means. Returnees said that the healthcare system was bad or very bad.
(g)Many returnees have lost their income and assets and cannot afford the limited health care services available;
(h)Kabul however does present returnees with more economic opportunities than rural areas, and is ethnically diverse; and
(i)Returnees from the west have been targeted for kidnapping and extortion because of perceived wealth.[118]
[118] Ibid, 6-9.
Professor Maley in his letter entitled ‘On the Safety of Return to Afghanistan’[119] also highlights the risk of the applicant ending up destitute or exposed to criminal predation as a consequence of his lack of strong social connections in Afghanistan.
[119] Exhibit T2, 77.
Accordingly, even if the applicant remains in Kabul on his return to Afghanistan, which seems the most likely destination for him, it seems reasonable to conclude that even there he will face very significant obstacles to establishing and maintaining basic living standards.
While he has the benefit of speaking Dari which is an important and useful language in Afghanistan, some understanding of the culture as a result of having lived in an Afghani family, adaptation to life in Afghanistan without social support will be very hard.
The applicant has mental health problems which are likely to go untreated in Afghanistan. However, these conditions have been relatively recently diagnosed and have not been the subject of significant treatment during his time in Australia. There is not strong evidence that they produce symptoms which would constitute a significant impediment to establishing basic living standards in Afghanistan. However, any mental illness is likely to contribute to the problems the applicant will face. The evidence also indicates that the applicant has no social or family network to return to and will receive no governmental economic support on his return. Accordingly, if the applicant is removed to Afghanistan, the impediments to the applicant establishing and maintaining even a basic living standard are very significant.
This consideration weighs heavily in favour of revocation of the cancellation decision.
Risk of Indefinite Detention
The applicant contends that in addition to the other considerations specifically identified in the Direction, the Tribunal should also take into account the risk that the applicant will be indefinitely detained. The applicant submitted that this risk weighed in favour of revocation.
While it is very difficult to be certain what will happen to the applicant if I do not revoke his visa cancellation, I am satisfied that indefinite detention is not an option.
If the applicant is successful in his application for a protection visa he will be released into the community. If the applicant is not granted a protection visa he will be detained and must be removed as soon as is reasonably practicable notwithstanding any non-refoulement obligation.[120] As Justice North determined in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 at [26] if a ‘protection visa was refused the applicant would either be removed…immediately, or, if the Minister decided to consider alternative management options, be detained for a definite period, namely, until the Minister refused to exercise the power under s 195A. Then if the Minister refused to exercise the power, the applicant would be removed…’. Given this statutory framework I am not satisfied that the applicant does face a risk of indefinite detention.
Other considerations
[120] S198 and 197C of the Migration Act 1958.
The applicant also raised other considerations in the context of the expectations of the Australian community criterion.
The matters raised were:
(a) The Applicant’s personal history, including his history of childhood sexual abuse (and in light of the fact that the Applicant has voluntarily sought, but not yet received due to circumstances beyond his control, specialist trauma counselling to address this issue);
(b) That the applicant was a minor at the time of his offending;
(c) The impressive steps the Applicant has taken towards his own rehabilitation (as referred to by Judge Deverearux SC at initial sentencing);
(d) The applicant’s complete absence of any social or familial connection to Afghanistan (his receiving country);
(e) All of the applicant’s immediate family members live in Australia;
(f) The extent of the applicant’s social ties and support in the Australian community;
(g) The likelihood of serious harm, including death, being caused to the applicant if he is forced to relocate to Afghanistan (whether or not this harm attracts Australia’s international obligations).
The applicant specifically raised the adverse effect on his family and his mother in particular in his Request for Revocation.[121]
[121] Exhibit T1, G2, folios 64 and 77.
Before dealing with each of these matters I do want to note some matters about the principles to be applied. The principles in the Direction do not give significant scope for giving weight to the difficulties which a visa holder has experienced in the past. In 6.2(1) of the Direction, the General Guidance is focussed on protecting the Australian community from harm. The principles outlined in 6.3 emphasise that being able to come to or remain in Australia is a privilege conferred in the expectation that a non-citizen will not cause or threaten harm to individuals or the Australian community. The expectation is that a visa will be cancelled if a visa holder commits a serious crime, including of a sexual nature against a woman and the visa holder should generally expect to forfeit the privilege if that occurs. The Direction notes that in some circumstances criminal offending 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 strong countervailing considerations may be insufficient to justify not cancelling the visa. Australia has a low tolerance of any criminal conduct by people who have been participating in and contributing to Australia for only a short period of time.
The focus of these principles is almost without exception on the welfare of the Australian community and not on the specific attributes of the visa holder. These principles do not rule out considering aspects of the life of a visa holder and if certain aspects have been raised, they can and should be considered. But in making an evaluative judgment, if the principles are applied, the weight given to such matters in most circumstances is going to be less than for matters expressly identified as carrying weight in the principles. It is on that basis that I have considered these other matters
I have had regard to the tragic circumstances of the applicant’s childhood and his history of poverty and sexual abuse. Unfortunately, the applicant’s history of sexual abuse is an identified risk factor for re-offending and if anything, the applicant’s traumatic past harms rather than assists his case for having his visa cancellation revoked.
The fact that the applicant was a minor at the time of his offending weighs in his favour. I consider this to be a matter which supports revocation of the visa cancellation.
The steps which the applicant has taken towards his own rehabilitation while in prison also weigh in his favour. But they are most meaningfully considered in the context of his likelihood of re-offending which I have done.
The complete absence of any social or familial connection to Afghanistan weighs in the applicant’s favour. I have considered this matter in the context of the difficulties the applicant will face in maintaining basic living standards in Afghanistan. I also accept that this factor weighs in favour of cancelling the revocation on the basis that such an environment carries with it inevitable loneliness and suffering. I note again though that the primary focus of the principles in the Direction are on community protection rather than shielding visa holders from difficult circumstances.
The fact that the applicant’s immediate family all live in Australia and that he has social ties and support in Australia have both been considered in the context of the strength, nature and duration of his ties to Australia.
The risk of harm if the applicant is returned to Afghanistan is an important consideration which I will turn to now.
In addition to the conditions in Afghanistan creating severe difficulties for the applicant in establishing and maintaining basic living standards, they also create risks that the applicant will suffer physical harm or death in Afghanistan.
There is evidence before the Tribunal that significant civil unrest and violence in Afghanistan continues and there will be risks there that the applicant could face including a risk of being killed by a random act of violence such as a suicide bombing.
While this presents as a risk in a significant way in Afghanistan in a way that it does not in Australia, the evidence suggests that such a thing is possible but remains unlikely. In purely statistical terms, in Afghanistan there is a very low prospect of a random civilian death (1,282 civilians were killed in the first six months of 2020 in a country of more than 36 million people).
While these concerns are genuine and there cannot be any doubt that the applicant will face dangers in Afghanistan that he would not face if he were to remain in Australia, it is important not to overstate them. As previously explained, I do not accept the evidence of the applicant or his uncle concerning the deaths of his cousins on arrival in Afghanistan accordingly I am satisfied that the risks of harm he faces are not specific and immediate. Notwithstanding that, the risk of harm the applicant faces on return weighs in favour of revoking the cancellation.
The applicant also raises the adverse effect that a non-revocation would have on his immediate family. I readily accept that if the applicant’s visa cancellation is not revoked his family will feel the loss of a key member very badly. However, the family has coped without the applicant for a number of years now and will continue to do so if necessary. This consideration does weigh in favour of revocation.
CONCLUSION
Is there another reason to revoke the cancellation of the applicant’s visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the applicant’s visa: either the applicant must be found to pass the character test, or the Tribunal must be satisfied that there is another reason why the original decision should be revoked. In exercising the power, the Tribunal must take into account the considerations in Part C of the Direction and other relevant considerations. As I have noted in my decision, the applicant does not pass the character test. Having regard to the Direction and to the totality of the evidence before me, I am not satisfied that there is another reason for the Tribunal to revoke the cancellation of the applicant’s visa.
Contrary to the expectations of the Australian community, the applicant committed two very serious sexual offences within a very short time after arriving in Australia. I am satisfied that there is a risk of the applicant reoffending and I would not describe that risk as low.
Given the expectations of the Australian community and the need to protect the Australian community from the risk of further offending by the applicant, two primary considerations weigh heavily against revoking the visa cancellation.
The other considerations do not outweigh them. If I was satisfied that the applicant would be removed to Afghanistan in breach of Australia’s international law obligations I would take a different view. But given the clear statement in the Direction that Australia will not do that I am not satisfied that the applicant’s visa cancellation should be revoked.
DECISION
The Tribunal affirms the Delegate’s decision not to revoke the visa cancellation decision made under s 501(3A) of the Migration Act 1958.
I certify that the preceding 249 (two hundred and forty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O’Donovan.
........................................................................
Associate
Dated: 22 January 2021
Dates of the hearing:
Solicitor for the Applicant:
9 and 10 December 2020
Mr Joel McComber, Sentry Law
Solicitor for the Respondent:
Ms Kylie Crawford, Clayton Utz
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