SFPH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 874

SFPH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 874 (14 April 2021)

Division:GENERAL DIVISION

File Number(s):      2021/0433

Re:SFPH

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member C. J. Furnell

Date:14 April 2021  

Place:Melbourne

The Tribunal affirms the decision under review. 

.........................[SGD]..............................................
Senior Member

Catchwords

MIGRATION – mandatory cancellation of Global Special Humanitarian (Class BA) (Subclass 202) visa – Afghanistan – substantial criminal record – applicant does not pass character test – whether there is another reason why mandatory cancellation should be revoked – Direction 79 – primary and other considerations – decision affirmed

Legislation

Migration Act 1958 (Cth)

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)

Cases

AJL20 v Commonwealth of Australia [2020] FCA 1305

Ali v Minister for Immigration and Border Protection [2018] FCA 650

Ali v Minister for Home Affairs [2020] FCAFC 109

AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27

Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132

BDQ19 v Minister for Home Affairs [2019] FCA 1630

BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94

CRI026 v The Republic of Nauru [2018] HCA 19

DLJ18 v Minister for Home Affairs [2019] FCAFC 236

DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576

DYY18 v Minister for Home Affairs [2019] FCA 1901

Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216

FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124

Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250

FYBR v Minister for Home Affairs (2019) 374 ALR 601

Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337

GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [31]

Hernandez v Minister for Home Affairs [2020] FCA 415

Hughes v R [2017] HCA 20

Kayo Rerekura and Minister for Home Affairs [2019] AATA 153

Minister for Home Affairs v Buadromo (2018) 267 FCR 320

Minister for Home Affairs v Omar [2019] FCAFC 188

Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Minister for Immigration and Border Protection v Makasa [2021] HCA 1

Minister for Immigration and Citizenship v Anochie [2012] FCA 1440

MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35

PNLB and Minister for Immigration and Border Protection [2018] AATA 162

PQSM v Minister for Home Affairs [2019] FCA 1540

R v Verdins [2007] VSCA 102

Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56

Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Sowa v Minister for Home Affairs [2019] FCAFC 111

Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146

Vargas and Minister for Home Affairs [2019] AATA 3409

Secondary Materials

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)

Convention Relating to the Status of Refugees, opened for signature 28 July 1951,189 UNTS 150 (entered into force 22 April 1954)

Department of Foreign Affairs and Trade, ‘Afghanistan’ (travel advisory, as at 13 April 2021)

Department of Foreign Affairs and Trade, Country of Origin Information Services Section, “Return and Relocation Afghanistan”

Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

‘Foundation House: The Victorian Foundation for Survivors of Torture’ (Web Page, 2020)

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)

Boer, DP, SD Hart, PR Kropp and CD Webster, Sexual Violence Risk-20 (SVR-20) (1997)

REASONS FOR DECISION

Senior Member C. J. Furnell

14 April 2021

1. In this proceeding, the issue before the Tribunal is whether a discretion conferred by the Migration Act 1958 (the Act) to revoke a decision to cancel the Applicant’s Global Special Humanitarian (Class BA) (Subclass 202) visa should be exercised. For reasons that follow I have decided that it should not be.

2. The hearing was held in Melbourne on 6 and 7 April 2021 by audio visual link. The Applicant was represented by Mr Aleksov of counsel, instructed by Bardo Lawyers. The Minister was represented by Mr Barrington of counsel, instructed by Mills Oakley Lawyers.

   BACKGROUND

3. On 10 December 2018, the Applicant’s visa was subject to mandatory cancellation.[1]

   [1] G23. References to “G” are references to documents provided by the Respondent under s 501G of the Act.

4. The cancellation was mandatory because, under s 501(3A) of the Act, a delegate of the Minister was satisfied that the Applicant:

   (a)did not pass the character test set out in s 501 of the Act because he had a substantial criminal record,[2] having been sentenced to a term of imprisonment of 12 months or more;[3] and;

   (b)was then serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of an Australian State.

   [2] As defined in the Act, s 501(7).

   [3] Act s 501(7)(c)-see G4- See also sentencing Remarks of Her Honour Judge Fox of County Court of Victoria at G5.

5. The Applicant made representations about revocation of that visa cancellation decision in response to, and in accordance with, the requisite invitation to do so.[4]

   [4] Act, s501CA(3).

6. As a result, the Respondent could then have revoked the decision to cancel the Applicant’s visa if satisfied that he passed the character test or that there was another reason why the visa cancellation decision should be revoked.[5]   On 25 January 2021, however, a decision was made by a delegate of the Respondent not to revoke the visa cancellation decision.[6]

   [5] Act, s 501CA(4).

   [6] G3

7. The Applicant applied to the Tribunal for review of that decision on 27 January 2021.[7]

   [7] G2.

8. In conducting this review, the Tribunal performs the same function and exercises the same power as the primary decision-maker.[8] As recently described by the High Court in Makasa,[9] the role of the Tribunal on review is:

   “’to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision maker for the purpose of making the decision under review’. The function of the AAT, in other words, is ‘to do over again’ that which was done by the primary decision maker.”

   [8] Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [14], [15] and [51].

   [9] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], quoting with evident approval two earlier decisions, Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51] and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 315 [100].

9. In this proceeding, the shoes the Tribunal is stepping into are those of the delegate who decided not to revoke the visa cancellation decision. As such, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that the Applicant passes the relevant character test or that there is another reason why the visa cancellation decision should be revoked.[10]

   [10] I note that, if I were to be so satisfied, the decision would have to be revoked. I would not have any residual discretion to nevertheless refuse revocation: Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 at [38]; Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [21].

10. The Applicant accepts that he does not pass the character test.[11] He submits, however, that there is another reason why the visa cancellation decision should be revoked. 

    [11] Applicant’s statement of Facts, Issues and Contentions of 5 March 2021 (A SFIC) [5].

11. As is apparent from my decision in this matter, I have not accepted that submission. 

    MATERIAL BEFORE THE TRIBUNAL

12. In arriving at that decision, I have had regard to the submissions made and evidence adduced at the hearing of this proceeding from the Applicant, his brother, sister and mother, as well as a psychologist, Ms Ferrari. I have also had regard to extensive documentary material lodged with the Tribunal prior to the hearing.

13. That documentary material comprised:

    (a)Documents provided by the Respondent under s 501G of the Act (which I refer to as the “G” documents and being Exhibit R1).

    (b)Further, supplementary, documents provided by the Respondent under s 501G of the Act (which I refer to as the “SG” documents and being Exhibit R2).

    (c)The Applicants statement of facts, issues and contentions of 5 March 2021 (A SFIC).

    (d)The Respondent’s statement of issues, facts and contentions of 19 March 2021 (R SFIC).

    (e)The Applicant’s submissions in reply dated 25 March 2021.

    (f)The Respondent’s note dated 31 March 2021.

    (g)The Applicant’s handwritten statement of 2 March 2021 (Exhibit A1).

    (h)A report of 18 March 2021 of Ms Carla Ferrari, psychologist (Exhibit A2).

    (i)A statement of 4 March 2021 of the Applicant’s mother (Exhibit A3).

    (j)A statement of 4 March 2021 of the Applicant’s sister (Exhibit A4).

    (k)A statement of 25 March 2021 of the Applicant’s brother.

    (l)A report of 25 February 2021 of Dr Mary Murray, the Applicant’s mother’s psychologist.

    (m)Four European Asylum Support Office Country of Origin Information Reports:

    (i)Afghanistan: State Structure and Security Forces (August 2020)

    (ii)Afghanistan: Anti-Government Elements (AGEs) (August 2020)

    (iii)Afghanistan: Security Situation (September 2020) (EAO security report)

    (iv)Afghanistan: Key Socio-Economic Indicators: Focus on Kabul City, Mazar-e Sharif and Herat City (August 2020) (EAO economic report).

    (n)The Australian Government, Department of Foreign Affairs and Trade’s DFAT Country Information Report: Afghanistan (17 June 2019) (the DFAT report).

    (o)The United States, State Department’s Afghanistan 2019 Human Rights Report.

    (p)The United Nations Assistance Mission in Afghanistan’s news update, ‘Afghanistan Peace Talks Fail to Slow Civilian Casualty Toll’ (27 October 2020).

    (q)A copy of the Government of Canada’s travel advice webpage ‘Afghanistan’ (valid as of 11 February 2021).

    (r)A copy of the online news article: ‘Afghan Deportations Continue Despite Security Threats’, DW (17 December 2020).

    (s)The journal article: Muhammad Tariq, Muhammad Rizwan and Manzoor Ahmad, ‘US Withdrawal from Afghanistan: Latest Development and Security Situation’ (2020) 3(2) Sir Syed Journal of Education & Social Research 290.

    (t)Human Rights Watch, World Report 2020: Afghanistan: Events of 2019 (together with various news reports attached by the Applicant).

    (u)University of New South Wales, Andrew & Renata Kaldor Centre for International Refugee Law Factsheet, ‘The Cost of Australia’s Asylum and Refugee Policies’ (5 May 2020).

    (v)Summons material provided by the County Court of Victoria on 25 February 2021.

    (w)Summons material provided by Victoria Police on 26 February 2021,
    4 March 2021, and 31 March 2021.

    (x)Summons material provided by the Magistrates’ Court of Victoria on 4 March 2021.

14. I have also had regard to certain additional material published by the Department of Foreign Affairs and Trade, being a travel advisory published as at 13 April 2021 and a Country of Origin Information Services Section publication effective from 23 October 2020 entitled “Return and Relocation Afghanistan” (the COISS report).

    BACKGROUND FACTS[12]

    [12] These facts are largely derived from a personal circumstances form apparently completed by the Applicant in December 2018-G7, p55-72, as well as a statutory declaration made by the Applicant on 13 September 2019-G10.

15. The Applicant is aged 35 having been born in Kabul in Afghanistan in 1986. As with a number of seemingly random aspects of the factual context, when in 1986 he was born is unclear, with material before me suggesting it was in January[13] while, in his oral evidence, the Applicant stated that it was in late 1986.

    [13] G7, p55.

16. The Applicant would appear to have left Afghanistan in around 1996 aged nine or 10[14] after several members of his family (including his father and a brother) were murdered. He then spent around seven years in a refugee camp in Pakistan.[15]

    [14] The Applicant consistently claims to have spent around seven years in Pakistan suggesting he departed Afghanistan in 1996. In his oral evidence the Applicant accepted this. I therefore do not accept that aspect of the Applicant’s statement of 2 March 2021 stating that he left Afghanistan aged five. 

    [15] G7, p44.

17. He arrived in Australia in 2003 aged 17[16] and was granted a Global Special Humanitarian (Class BA) (Subclass 202) visa.

    [16] G9, p88.

18. The Applicant’s mother, brother, sister, sister-in-law, two nephews and a niece live in Australia, as well as four aunts and four uncles each of whom “have four or five kids”.  The Applicant also has a daughter who was apparently born in 2013 but who he has never met (albeit that he states that he has spoken to her once on the telephone).

19. The Applicant has no family in Afghanistan.

20. The Applicant finished year 11 at high school in Melbourne before commencing a TAFE panel beating course in around 2006 or 2007.

21. While he did not complete his apprenticeship as a panel beater it would appear that the Applicant nevertheless worked a panel beater for eight years, with some time off after losing his job due to injuries suffered in a knife attack.[17] In addition, the Applicant restored and sold cars and at the time of his remand in April 2017 he is said to have been “halfway through a building and design architecture course”. 

    [17] Certain material before the Tribunal suggests that this attack may have occurred in 2012 but at the hearing the Applicant stated that it might have occurred in 2010 but in any event prior to 2012.

22. The Applicant’s engagement as a panel beater was, apparently, on a contract basis, permitting flexible work hours. This, according to the Applicant, enabled him to act as a “full time” carer for his mother,[18] which, according to her, entailed him taking “time off work to take me to doctors, shopping, general appointment, etc”[19]. The mother is said to suffer from PTSD, depression and chronic pain.[20]

    [18] G7, p67.

    [19] Mother’s statutory declaration of 4 March 2021

    [20] G8; G19 (Report of Dr Smith 28 August 2019). See also report of 25 February 2021 of Dr Murray.

23. The Applicant bought his own home in 2017.

24. The Applicant claims to suffer from PTSD, depression, anxiety, stress and persistent depressive disorder,[21] claims which are essentially corroborated by evidence from a psychologist, Ms Ferrari. I will elaborate on her evidence later.

    [21] G7, p69, as well as, possibly, bipolar affective disorder [G10, p92].

25. The Applicant has been in prison or detention since April 2017.

26. The Applicant has an extensive history of offending,[22] commencing relatively shortly after his arrival in Australia. The Applicant claimed to have little memory of the details of much of his offending, albeit that, in large part, he did not dispute the description of it in material before the Tribunal to which he was taken in cross examination.

    [22] G4, p32-34-(Australian Criminal Intelligence Commission, Check Results Report of 31 October 2018).

27. In the period between July 2004 and October 2008, he appeared before the Dandenong Magistrates Court on four occasions. He was charged with and found guilty of a variety of offences for which he was generally fined, without conviction. The charges included soliciting prostitution, four counts of failing to answer bail, intentionally causing injury and theft of a motor vehicle. In addition, the Applicant committed multiple (around 14) driving offences.[23] The:

    (a)Solicitation charge involved the Applicant approaching a school aged girl in March 2004 (some nine months or so after arriving in Australia). He is said to have offered her cigarettes and money in return for oral sex.[24] At the hearing the Applicant suggested that he would have had difficulty doing so given his then difficulty with English.

    (b)Intentionally causing injury charge involved the Applicant assaulting his uncle in September 2005. The uncle was hospitalised with a fractured nose.[25]   While the Applicant denied that this incident caused family tension, I note that some five years later, in 2010, when the Applicant attended at another uncle’s residence, that other uncle called the police.[26]

    (c)Driving offences included multiple charges of unlicensed driving, driving while disqualified and driving with a blood alcohol limit exceeding the prescribed concentration.

    [23] SG2, p417,418.

    [24] SG2, p518.

    [25] SG2, p514.

    [26] SG2, p477.

28. In the decade commencing in October 2008, the Applicant appeared before the courts on around 12 occasions, again charged with (but this time convicted of) a variety of offences. They entailed:

    (a)In October 2008, two charges of driving while disqualified for which the Applicant was sentenced to imprisonment for two months (wholly suspended).

    (b)In May 2009, a charge of behaving in an offensive manner in a public place for which the Applicant was fined.

    (c)In June 2011, charges of obtaining property by deception and making a false document, for which the Applicant was given a community-based order. This apparently entailed the Applicant altering a cheque given him by an employer by adding a “1” in front of the dollar amount involved, increasing the amount from $650 to $1650.[27]

    [27] SG2, p512.

    (d)In August 2011, charges of unlicensed driving, stating a false name, exceeding the prescribed concentration of alcohol in blood and fraudulently altering a notice, for which the Applicant was given a community-based order and his licence was cancelled for two years. Pursuant to that order the Applicant underwent an assessment and treatment for addiction and submitted to psychological assessment.[28] As for the latter assessment, the Applicant stated that he attended one or two sessions with a psychologist.

    [28] SG2, p445.

    (e)In April 2012, a charge of contravening the August 2011 community-based order, for which the Applicant was fined and given another community-based order.

    (f)In February 2014, charges of recklessly causing injury, attempt to commit an indictable offence and criminal damage by fire, for which the Applicant was given a community correction order. As to:

    (v)The latter two charges, they involved events of 5 October 2012 which would appear to have entailed, essentially, an attempted insurance fraud, damaging by fire a car owned and heavily insured by the Applicant’s then girlfriend.[29]

    [29] SG2, p507-509.

    (vi)The recklessly causing injury charge, it involved that Applicant, some 10 days after being interviewed in relation to the attempted insurance fraud (ie, on 15 October 2012), punching an acquaintance repeatedly in the face and upper body in an unprovoked attack.[30]

    [30] SG2, p510.

    (vii)The community correction order, pursuant to it the Applicant was again required to undergo both a medical health and mental health assessment, as directed.[31] The Applicant stated that, pursuant to this order, he attended three or four sessions with a psychologist. The order also required that the Applicant be considered for referral to Foundation House, said by the Respondent to provide a specialist refugee trauma service.[32] Indeed, the Applicant stated that, in addition to his other sessions with a psychologist, he saw a psychologist at Foundation House but could not remember the number of sessions he undertook with “the lady”.  I infer from the Applicant’s comments about the need to book appointments to “see the lady” that he did not attend many sessions with her.

    [31] SG2, p443.

    [32] This is consistent with Foundation House’s current mission statement said to be “… to advance the health, wellbeing and human rights of people from refugee backgrounds who have experienced torture or other traumatic events.” See September 2014, charges of burglary, theft, unlicensed driving and failing to answer bail, for which the Applicant was given a community correction order.

    (h)In October 2015, a charge of criminal damage for which the Applicant was fined and required to pay compensation. This apparently involved the Applicant damaging a car owned by a panel beating customer of the Applicant.[33]

    (i)In December 2016, charges of driving while suspended, failing to wear a seatbelt, breaching an alcohol interlock condition, driving in breach of a licence condition, stating a false name, contravening a community correction order (two charges), making a threat to kill, assault, stalking and contravening an interim intervention order, for which the Applicant was given a community correction order. As to:

    (i)The threat to kill and stalking charges, these involved the Applicant, in a public place, threatening to “chop… [the] head off” a female employee of a pharmacy.[34] The Applicant’s evidence was to the effect that the girl concerned was responsible for him receiving threatening phone calls from a member of the “Comancheros”.

    (ii)The community correction order, pursuant to it the Applicant was again required to undergo assessment and treatment for drug abuse or dependency and mental health assessment and treatment, as directed.  This was accompanied by a further referral to Foundation House.[35] Pursuant to that referral, the Applicant attended one session with a psychologist.

    (j)In May 2018, a charge of contravening a community correction order, for which the Applicant was given a community correction order.

    (k)In September 2018, charges of robbery, assault (two charges), sexual assault and indecent assault, for which the Applicant was sentenced to an aggregate term of imprisonment of three years and ten months (and placed on a register of sex offenders for eight years).

    [33] SG2, p506.

    [34] SG2, p503.

    [35] SG2, p436.

1. As described by Her Honour Judge Fox in her sentencing remarks,[36] the September 2018 convictions for sexual assault and indecent assault involved two incidents.

   [36] G5, p35-49.

2. The first occurred in June 2014 when the Applicant was 28 years old. It involved a girl aged 16, albeit that she had told the Applicant that she was 17. It essentially entailed an attempt to force oral sex, without consent. The victim was the sister of the mother of the Applicant’s daughter.

3. The second incident occurred in March 2016 involving another girl, this time aged 18. Again, the Applicant endeavoured to force the girl into non-consensual oral sex. When she refused the Applicant punched her several times in the face. According to a victim impact statement provided by her, as a consequence of the Applicant’s conduct, she suffered “stress, depression and other mental health effects…together with physical injury from being punched in the face.”

4. When interviewed by police in relation to the first incident, the Applicant made no comment. As for the second incident, when interviewed, the Applicant essentially denied doing what he was eventually found by Her Honour to have done.

5. As for the robbery conviction in September 2018, the factual matrix is quite complex. An acquaintance (possibly, an uncle) of the Applicant purchased a car for $6000 in December 2016. The Applicant attended at the sale. Several days later the Applicant (in company) approached the vendor at his home, punched him in the face, complained about the quality of the car that had been sold and demanded a refund of the purchase price. The Applicant threatened to kill the vendor if he went to the police. The Applicant then left. The vendor contacted a friend but, before the friend arrived, the Applicant returned to the vendor’s home (again in the company of others), again punched the vendor in the face and again threatened to kill him if the price of the car was not refunded within 15 minutes. The vendor’s friend then arrived but as he approached the vendor’s house, the Applicant and others, each holding a knife, chased him away. The vendor then gave the Applicant $6000. The Applicant’s response was to suggest that “we will kill everyone” if the vendor went to the police. Despite the purchase price of the car having been refunded, the car was not returned to the vendor.  According to a victim impact statement provided by the vendor, as a consequence of the Applicant’s conduct, he suffered physically, emotionally, financially and socially, feeling fearful and nervous in crowds.

6. When interviewed, the Applicant denied knowing the purchaser of the car and denied any involvement in the offending.

7. I note that the conduct resulting in the conviction for robbery occurred just 10 days after the Applicant had been placed on a community correction order.[37]

   [37] G7 ,p46.

8. In addition to his history of offending I note that:

   (a)In August 2013, an intervention order was taken out against the Applicant by a former girlfriend of the Applicant with whom the Applicant apparently had a relationship for about two months in 2013.[38]

   (b)In February 2014, an intervention order was taken out against the Applicant by his former long-term girlfriend.[39]

   (c)In January 2014, the Applicant was said, in relation to another former girlfriend, to have threatened to get her and rape her. I note that the Applicant was not convicted of any offence in relation to this incident and the Applicant, as was his right, declined to answer questions about it. [40]  

   (d)In November 2014, the Applicant’s brother is said to have called the police after engaging in a verbal argument with the Applicant[41] (albeit that at the hearing of this proceeding the brother stated that he could not remember having done so).

   (e)In December 2015, the Applicant’s sister called the police as a result of which a limited intervention order was issued against the Applicant. The Applicant, in the course of an argument with his sister, was said to have threatened to “burn the house down” if ownership of the house was not sorted out. Before the Tribunal, however, both the Applicant and his sister deny that such a threat was made.

   (f)In July 2016, a person who stated that she was in a relationship with the Applicant for several months in 2016 made a statement to police making certain allegations against the Applicant. I note that the Applicant was not convicted of any offence in relation to these allegations and the Applicant, as was his right, declined to answer questions about them. 

   (g)In February 2017, a person who I understand from the Applicant’s evidence at the hearing to be the Applicant’s former long-term girlfriend stated, amongst other things, that she had, in relation to the Applicant, “…moved house and changed to get away from him. I am scared that when the police contact him he may do something like physically harm me or my family.”[42]

   [38] SG2, p474.

   [39] SG2, p482.

   [40] SG2, p467.

   [41] SG2, p466.

   [42] SG2, p384.

9. I do not attribute any material weight to the allegations with respect to which the Applicant exercised his right to decline to answer questions or to the untested allegations made by his former girlfriend in February 2017 other than to note that their making is consistent with a pattern of complaints made by former girlfriends (as reflected in the intervention orders made against him).   

10. The Applicant was remanded into custody in April 2017 and has either been imprisoned or in detention since then. Hence the various convictions and incidents previously outlined were in respect of conduct occurring in a period of roughly 14 or so years.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

11. I am not satisfied that the Applicant passes the character test.

12. Under s 501 of the Act, a person does not pass the character test if, amongst other things, the person has a substantial criminal record.[43] The Applicant has such a record. He has been sentenced to a term of imprisonment of 12 months or more[44] (noting that, as is apparent from the Applicant’s history of offending, in September 2018 he was sentenced to an aggregate term of imprisonment of three years and ten months).               

    [43] s 501(6)(a) Act.

    [44] s 501(7) Act.

    IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?

13. I am not satisfied that there is another reason why the decision to cancel the Applicant’s visa should be revoked.

14. In so deciding I have sought to (as I am required by s 499 of the Act to) comply with a written direction of the Respondent found in a document entitled “Direction No 79 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under

    
    

    s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79).[45]

    [45] Direction 79 imposes requirements that are a precondition for the making of a valid decision: PQSM v Minister for Home Affairs [2019] FCA 1540 at [22] per Colvin J.

15. Compliance with Direction 79 requires that I consider whether to revoke the decision to cancel the Applicant’s visa “given the specific circumstances of the case.”[46] It also requires that I take certain considerations (where relevant)[47] into account, informed by certain principles.[48]

    [46] Direction 79, cl 6.1(3) and 13(1).

    [47] Direction 79, cl 8(1).

    [48] Direction 79, cl 7(1).

16. Those principles are:[49]

    6.3      Principles

    (1)      Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)       The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)       A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4)       In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5)       Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6)       Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7)       The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

    [49] Direction 79, cl 6.3.

17. These principles not only inform the process by which I take the relevant considerations into account, they also provide a framework within which I should approach the Tribunal’s task in this proceeding.[50]

    [50] Direction 79, cl6.2(3).

18. I turn now to the considerations which I am required by Direction 79 to take into account.

    PART C CONSIDERATIONS - OVERVIEW

19. The relevant considerations are those set out in Part C of Direction 79.

20. Part C is divided into primary considerations and other considerations. 

21. The primary considerations are protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and expectations of the Australian community.[51] 

    [51] Direction 79, cl13(2).

22. The other considerations include (but are not limited to) international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed.[52]

    [52] Direction 79, cl14(1).

23. The primary considerations are generally to be given more weight than the other considerations[53] and one or more primary considerations may outweigh other primary considerations.[54] 

    [53] Direction 79, cl8(4).

    [54] Direction 79, cl8(5).

24. While affording to primary considerations more weight than the other considerations is generally the case, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration (so that, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations).[55]

    [55] Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303 at [32].

    Protection of the Australian community

25. The protection of the Australian community from criminal or other serious conduct consideration is one that requires that regard be had to the Australian Government’s commitment to the protection of the Australian community from harm as a result of such conduct by non-citizens.[56]

    [56] Direction 79, cl13.1(1).

26. As applied in context, this means that I must have regard to a commitment which encompasses protection of the Australian community from harm as a result of criminal conduct by the Applicant, a non-citizen.

27. Taking this primary consideration into account requires that regard be had to two subsidiary considerations being, in the circumstances: the nature and seriousness of the Applicant’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct.[57]

    [57] Direction 79, cl13.1(2).

    Nature and seriousness of conduct

28. In summary, application of the factors which Direction 79 requires be taken into account in considering the nature and seriousness of a person’s conduct results in a characterisation of the Applicant’s offending to date as very serious. At the hearing of this proceeding, the Applicant did not contend otherwise.[58] 

    [58] On behalf of the Applicant it was accepted that his conduct to date involved offending which was serious, at times very serious.

29. I need, however, to go beyond a simple characterisation of the Applicant’s offending as very serious in the context of this matter where (as will be seen later) there are non-refoulement obligations owed in respect of the Applicant. This is because, under Direction 79, there is a requirement to carefully weigh non-refoulement obligations against the seriousness of offending.[59]

    [59] Direction 79, cl14.1(6).

30. In this regard, there are gradations of very serious offending.  Where on the spectrum of very serious offending a person’s offending lies depends very much on the nature of the offending and the context in which it occurs.  Here, the Applicant’s offending has been sustained over a long period, commencing shortly after his arrival in Australia. It has affected a broad range of victims (girls, a family member, acquaintances, general members of the community). It has also been broad in character (entailing crimes of violence and property offences), with convictions for, amongst other things, sexual assault, indecent assault, assault, recklessly causing injury, making threats to kill and robbery.  The Applicant’s conduct in relation to both the sexual assault in March 2016 and the robbery in December 2016, as described by Her Honour Judge Fox, was deplorable. 

31. As I see it, offending such as this (whether when considered in aggregate in context or by reference to certain of its components) ought to be placed towards the upper end of the spectrum of very serious offending.

32. I turn now to the factors which Direction 79 requires that I take into account in considering the nature and seriousness of the Applicant’s conduct.

    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously.[60]

    [60] Direction 79 cl13.1.1(1)(a).

33. Given his convictions for a number of “violent and/or sexual crimes”, the Applicant’s offending is required by Direction 79 to be, and is, viewed very seriously.

34. As some of the Applicant’s offences are very serious, two expectations arise under the second and third general principles that form part of the framework within which I should, under Direction 79, approach my task.

35. The first is of the Australian community and it is that the Australian government should cancel the visa of a non-citizen if the non-citizen commits serious crimes. The second is of non-citizens such as the Applicant. It is that they should generally expect to forfeit the privilege of staying in Australia if they commit a serious crime of a violent nature, “particularly against women”. This latter expectation brings us to the next factor to be taken into account in considering the nature and seriousness of the Applicant’s conduct.

    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.[61]

    [61] Direction 79 cl13.1.1(1)(b).

36. Given his conviction for sexual assault and that the victim of the Applicant’s indecent assault conviction was a minor, again, the Applicant’s offending is required by Direction 79 to be, and is, viewed very seriously.

37. So viewed, it aligns with an aspect of the third general principle that forms part of the framework within which I should, under Direction 79, approach my task which, as just mentioned, involves a general expectation that non-citizens who commit serious crimes of a violent nature against women or children forfeit the privilege of staying in Australia.

    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.[62]

    [62] Direction 79 cl13.1.1(1)(c).

38. It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.

    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes.[63]

    [63] Direction 79 cl13.1.1(1)(d).

39. In this matter, as was the case in Bartlett and Minister for Immigration & Border Protection[64], the Applicant “…contrived to continue his offending in circumstances where he … received multiple warnings and/or concessions from the sentencing courts in the form of community service orders, grants of bail…”

    [64] [2017] AATA 1561 at [32].

40. Despite these warnings and concessions, the Applicant ended up being sentenced to imprisonment for quite a lengthy term. This is objective evidence of the seriousness of the offences involved. In this regard, “…[c]ustodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s)…”,[65] noting that sentences “…involving terms of imprisonment are the last resort in the sentencing hierarchy…”.[66]

    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness.[67]

    [65] Vargas and Minister for Home Affairs [2019] AATA 3409 at [34].

    [66] PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22].

    [67] Direction 79 cl13.1.1(1)(e).

41. As revealed by his convictions, the Applicant’s offending has been frequent, sustained and repetitive, and, in terms of sexual offences, suggests a trend of increasing seriousness (noting that, unlike the indecent assault of June 2014, the victim of the sexual assault of March 2016 endured significant physical violence at the hands of the Applicant).

42. Moreover, the Applicant’s offending reflected what I see as a fundamental lack of respect for Australia’s law enforcement framework (of relevance to that general principle that forms part of the framework within which I should, under Direction 79, approach my task, being the principle that refers to an expectation of the Australian community that non-citizens will respect important institutions, such as Australia’s law enforcement framework). The Applicant would not appear to have been compliant with any of the multiple community correction or community-based orders imposed on him, has failed to answer bail on a number of occasions and found to have repeatedly driven a motor vehicle when not licensed to do so.

    The cumulative effect of repeated offending.[68]

    [68] Direction 79 cl13.1.1(1)(f).

43. As I see it, the sustained and repetitive offending of the Applicant would, cumulatively, have resulted (and clearly did result) in a significant and increasing amount of community resources being consumed, as well as a greater adverse community impact. Moreover, the more he offended, the more members of the community came to be directly and adversely affected by his conduct.

    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending.[69]

    [69] Direction 79 cl13.1.1(1)(g).

44. It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.

    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).[70]

    [70] Direction 79 cl 13.1.1(1)(h).

1. It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.

   Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.[71]

   [71] Direction 79 cl 13.1.1(1)(i).

2. It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.

   The risk to the Australian community

3. I turn now to the second matter to which consideration ought to be given in the context of the protection of the Australian community; the risk to the community should the Applicant commit further offences or engage in other serious conduct.

4. In considering that risk, I am required by Direction 79 to have regard, cumulatively, to the nature of harm to individuals or the Australian community should the Applicant engage in such conduct and the likelihood of him doing so (taking into account available information and evidence on the risk of the non-citizen re-offending).[72]

   [72] Direction 79 cl13.1.2(1).

5. As to the nature of harm to individuals should the Applicant commit further offences or engage in other serious conduct, based on his history of serious offending, it would be significant and not narrowly confined, affecting a broad range of individuals suffering various categories of harm. In this regard, victims of the Applicant’s conduct have included family members, women and girls that the Applicant has dated, associates and random members of the community. The harm that has been caused to them includes physical harm through acts of violence, psychological harm consequent on those acts and financial harm.  I note that when individual members of the community are harmed., the community is harmed. I also refer to the comments I made earlier in the context of considering the cumulative effect of the Applicant’s repeated offending. It is clear that significant community resources have been deployed in the past to deal with the Applicant’s offending.

6. As to the likelihood of the Applicant committing further offences or engaging in other serious conduct, while the Applicant personally contended that there was no risk that he would re-offend,[73] on his behalf it was accepted that there was such a risk, albeit one characterised as low to moderate. The Respondent submitted, however, that the risk is moderate.

   [73] I note that as Justice Mathews, then a Deputy President of the Tribunal, observed in Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51] “[o]nce a person has shown a disregard for the law, it can never be said that there is no risk of re-offending.”

7. As I see it, it is not unlikely that the Applicant would commit further offences or engage in other serious conduct were he to be released into the community. In terms adopted by the parties, I see the risk of him re-offending on release into the community as moderate.

   Risk assessment

8. In coming to that view of the risk of the Applicant re-offending, I am not free simply to speculate. Any view I arrive at as to that likelihood (or risk) ought to be based on probative material.

9. That probative material includes, but does not comprise, the Applicant’s history of offending. This is because, as was said in Guo “… proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence.”[74]

   [74] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 574.

10. There is, however, no direct analytical bridge between a finding that past conduct has been criminal and a conclusion that there is a risk of re-offending.   Establishing that a particular type of conduct has been engaged in by a person is not a sufficient basis for a finding that there is a risk of that type of conduct again being engaged in by the person. [75]  According to Mortimer J in Splendido[76] a “bare recitation of what a person has done in the past” is an insufficient basis for a finding as to the person’s likely future conduct. More needs to be shown, if over-valuing personality-based explanations and under-valuing situational based explanations for conduct is to be avoided.[77].

    [75] See Kayo Rerekura and Minister for Home Affairs [2019] AATA 153 at [65] “the mere commission of offences or offending conduct in the past is not, of itself, sufficient.”

    [76] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 (Splendido) at [77] per Mortimer J, Moshinsky J agreeing.

    [77] See Hughes v R [2017] HCA 20 (Hughes) at [70-72] per Gageler J (in dissent).

11. What that “more” includes is revealed by decisions in cases such as Guo.

12. In Guo it was said that “…[t]he extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.”[78]

    [78] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575.

13. In Hughes,[79] the High Court grappled with the application of tendency evidence in the context of an individual charged with sexual offences against minors. In that context, Nettle J (albeit in dissent) stated at [154] that  … “[e]vidence that an accused has committed an offence is not, of itself, significantly probative of the accused having committed another offence …To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case, or about the victim of each offence, which rationally affects to some significant degree the assessment of the probability that the accused committed the offence…”.

    [79] Hughes v R [2017] HCA 20 at [154].

14. In Splendido,[80] Mortimer J said that “[t]he nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.”

    [80] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [78].

15. Hence, facts need to be identified about the Applicant’s circumstances, or about the nature and circumstances of his past conduct, that rationally support the assessment of the risk of the Applicant re-offending as significant.  I now endeavour to do so.

16. The circumstances of the Applicant’s past offending suggest an ingrained disregard of the law.

17. This disregard is reflected in the Applicant’s frequent, repetitive and persistent offending over a long period. It is offending which commenced relatively shortly after his arrival in Australia and has continued, largely without break, until the Applicant was incarcerated in 2017.

18. The Applicant’s disregard of the law is also reflected in his repeated community correction and community-based order contraventions, driving offences and failures to answer bail. 

19. The explanations offered by the Applicant for the more (if not the most) serious of his offending afford little comfort concerning the risk of recidivism.

20. In this regard, in a declaration made by him in September 2019,[81] the Applicant stated that:

    (a)At “…the time of those offences, I was feeling like I was under extreme pressure. I had a lot of responsibilities on me and had suffered the loss of people I was very close to. I had financial pressures in taking care of my mother and trying to service the mortgage on her house. I was doing community work and trying to save to buy my own house…”.[82]

    (b)“The second time, my long-term girlfriend had Just broken up with me. I was very distressed as this was my second long-term relationship. My first relationship of eight years had broken down because my girlfriend's parents did not-like that I was Muslim. I thought I was safe from rejection this time because I was dating an Afghan girl, but it still fell apart. Three of my cousins had been killed in a suicide bombing, I had just been in a car crash, and had lost the car, which was uninsured.”

    [81] G10.

    [82] G8, p93.

21. Insofar as the factual circumstances adverted to in these explanations are true, there is little reason to think that they would not again come into play if the Applicant was released into the community. He would again be likely to face financial pressures. He would again be likely to be involved in his mother’s care (as he has stated).

22. As for:

    (a)The Applicant having done community work, there is no material before me suggestive of this other than the Applicant’s assertion.

    (b)The Applicant having just broken up with his long-term girlfriend at the time of the March 2016 sexual assault, on the material before me I find this to be unlikely.[83]

    (c)Three of his cousins having been killed in a suicide bombing, on the material before me it would appear that the Applicant would only have become aware of this in November 2016, ie, after the sexual assault in March 2016.[84]

    [83] G13, p103; G14, p112; suggesting the Applicant had one long-term girlfriend his relationship with whom ended in or around 2011—see also Ms Ferrari’s report of 18 March 2021 which suggests that the Applicant may have had two long term relationships, the last of which ended in or around 2014.

    [84] G5, p44; G5,p46; G13, p102; G15, p111.

23. On the Applicant’s behalf it was contended that his risk of recidivism is mitigated because:

    (a)He has insight into, and has remorse for, his offending

    (b)He has taken meaningful steps to rehabilitation.

    (c)He has strong family support.

    (d)He has good employment prospects.

    (e)His experience with detention and his knowledge of the potential consequences of loss of his visa is such as to provide a material incentive “to live according to the law as to not jeopardise his visa and his right to stay in Australia with his remaining family and child.” [85]

    [85] A SFIC [15].

24. As for the Applicant’s insight this appeared largely to reflect a submission concerning the Applicant’s awareness of “triggers” to his offending and his willingness to take steps to address those triggers.

25. There are three components to this proposition.

26. The first is that the Applicant suffers from PTSD and other mental disorders. In August 2018, a psychologist, Ms Ferrari, diagnosed the Applicant as suffering from PTSD, depression and anxiety,[86] a diagnosis which she essentially repeats in her report of March 2021 (albeit that, in addition to PTSD, Ms Ferrari describes the Applicant’s condition as involving persistent depressive disorder and generalised anxiety disorder).[87]

    [86] G7, p45.

    [87] March 2021 report [80], [82].

27. The second component of the Applicant’s insight proposition is that the Applicant’s more serious offending in 2016 was “… due to retriggering of his PTSD symptoms following an assault in 2012 in which he was stabbed, and the subsequent development of a methamphetamine problem.”[88]  I have several difficulties with this component of the Applicant’s proposition. In particular, I note that:

    (a)The event that allegedly resulted in the “retriggering” occurred well before the Applicant’s significant offending in 2016 in a context where he is said to have been generally experiencing stable psychosocial circumstances.[89]

    (b)The Applicant’s use of methamphetamine is said to have stopped around 12 to 18 months after the stabbing incident in 2012, with a short relapse in December 2016.[90] In other words, he was not using at the time of the March 2016 sexual assault.

    (c)No causal link between the Applicant’s PTSD and his offending in 2016 was taken into account when the Applicant was sentenced for that offending. Her Honour Judge Fox stated that Counsel had not placed “…any reliance on Verdins, and it is difficult to see any link between any pre-existing mental health issues and these offences before me.”[91]

    [88] G15, p120; Psychologist report of 3 October 2019.

    [89] G15, p120; Psychologist report of 3 October 2019.

    [90] G13, p103 and 105.

    [91] G5, p46-Under principles expressed in R v Verdins [2007] VSCA 102 a causal nexus between a person’s mental health disorder and the person’s offending might be taken into account in sentencing.

28. The third component of the Applicant’s proposition involves his willingness to take steps to address his PTSD and other mental disorders if released into the community. According to the Applicant, the “…  big difference this time around is that I am open to getting proper help for mental health issues…”[92] such that his  “…focus for the future will be on getting my life in order, starting with getting treatment for my PTSD and on learning techniques to handle emotionally charged situations better.”[93]

    [92] G10, p95.

    [93] G10, p97.

29. There are suggestions in the material before me that the Applicant only became aware of his PTSD in 2016. I am not satisfied that this is the case. In her October 2019 report Ms Ferrari states that the Applicant was “reportedly” diagnosed with PTSD in 2016.[94] The report of that diagnosis is not before the Tribunal.  I note, however, that (given the terms of the community correction orders then made against him) the Applicant was the subject of psychological assessment at least in or around both 2011 and 2014. On his evidence he attended at least five to seven sessions with psychologists before 2016.

    [94] G14, p112 [38].

30. It is hard to reconcile the Applicant’s expressed desire to obtain treatment for his PTSD and his apparent failure in the past to have taken full advantage of several opportunities afforded to him to obtain treatment for psychological issues (noting, for instance, an apparent unwillingness to have arranged further sessions with a psychologist from Foundation House, due to the need to book appointments). As reflected in the outline of the Applicant’s offending history, such opportunities have been made available to the Applicant since at least 2011.

31. Consistently with the Applicant not having been keen in the past to obtain psychological treatment, I note that in a statement made by him in September 2019 he said that:

    (a)He had “… seen a few psychologists in the past few years to try to deal with my issues but have not made much headway as my focus has been less on dealing with underlying trauma and more on getting mentally fit for work.”

    (b)He knew “…that my attitude towards seeking help for my mental health issues, and my tendency to turn to violence when I am hurt is harmful to myself and others.[95]

    [95] G10, p94.

32. Hence, insofar as the Applicant’s offending is due to a retriggering of his PTSD, while I might hope that he would obtain and maintain treatment for it if released into the community, his history suggests that there is a significant risk of him not doing so.

33. This significant risk of the Applicant not obtaining and maintaining treatment for his PTSD and other mental disorders is a particular concern given Ms Ferrari’s opinion that there is a:

    (a)High risk of future mental state deterioration in relation to the Applicant (albeit that this opinion was expressed in terms of this being the case “particularly in the scenario that his deportation is upheld”).[96]

    (b)Significant risk of further mental state deterioration should the Applicant’s mental health issues remain untreated.[97]

    [96] March 2021 report [78].

    [97] Ibid at [87].

34. Given the causal relationship identified by Ms Ferrari between the Applicant’s mental health disorders and his offending, the significant risk of him not obtaining and maintaining treatment for those disorders were he to be released into the community suggests a material exacerbation of the risk of reoffending. Indeed, I note that in her report of August 2018 Ms Ferrari stated in relation to the Applicant that should “…he not address his trauma history, he is at risk of further mental state decompensation and is likely to continue to moderate his anger and distress through acting out behavior which will see him continue to come to the attention of the judicial system.”[98]

    [98] G13, p109.

35. As for the Applicant’s remorse for his offending, he repeatedly asserts that he is remorseful. As I see it, however, bare assertions of remorse are not a basis on which I can confidently conclude that the risk of recidivism is ameliorated.  It might be contended that the Applicant’s assertions are, in a sense, corroborated by his pleas of guilty to the offences of which he has been charged.  In this regard, I note that Her Honour Judge Fox concluded that the Applicant’s pleas of guilty to the charges of which he was convicted in September 2018 were “… evidence of some remorse…” and that they “ …also show an acceptance of responsibility by you for your offending and a willingness in you to facilitate the course of justice.”[99] “ Her Honour’s view about remorse was tempered somewhat by her finding in relation to the Applicant that “…you have some remorse, but you have not accepted the full extent of your offending. Ms Ferrari’s opinion was that you appear to have some difficulty taking full responsibility for your actions, and I accept that opinion.”

    [99] G7, p43.

36. While the Applicant’s pleas of guilty might reflect some remorse I note that when initially interviewed in relation to the offences dealt with by Her Honour the Applicant either denied them or made no comment and the pleas ultimately arrived at would appear to have been a result of negotiations in a context where the prosecution had, I infer, agreed not to pursue more serious charges; “…the offences to which you pleaded guilty were very different to the more serious charges on the trial indictment.”[100]

    [100] Ibid.

37. As for meaningful steps to rehabilitation, the Applicant says he has undertaken a number of courses while in prison or detention, including a six month “good life program”.[101] In oral evidence the Applicant appeared to be particularly taken with that program which he characterised as being “mainly for sex offences.” 

    [101] See Exhibit A1 [8]-[9].

38. On the material before me, however, I am not satisfied that the Applicant has undertaken programs to an extent and of a type likely to materially affect his risk of recidivism. In this regard:

    (a)No program completion certificates of a type often seen in proceedings such as this one were before the Tribunal. This was so despite the Applicant stating in a personal circumstances form of December 2018 that copies of certificates would be “forthcoming”.[102]   

    (b)In a October 2019 report, Ms Ferrari, psychologist, reported that the Applicant had, while in custody, “… completed a number of vocational courses including Occupational Health and Safety, Cleaning Operations, courses in hospitality and beverages, and he has also commenced Maths and English classes to improve his numeracy and literacy”[103] and was due shortly to commence a “better life program”.[104] The same psychologist in a report of August 2018 noted, however, that an “…area of concern … is that …[the Applicant] has not engaged in any of the mental health or AOD courses available to him in prison.”[105] In the psychologist’s report of March 2021 she simply stated that she understood that the Applicant had, while in custody, completed several courses related to family violence and sexual offending but that she had not seen any files evidencing this. 

    [102] G7, p68.

    [103] G14, p112.

    [104] G14, p113.

    [105] G13,p108 Ms Ferrari went on to note that the Applicant had sought psychological intervention of his own volition in the community but there is no material before the Tribunal that corroborates this, as opposed, say, to the compulsory psychological assessment and treatment provided for in the various community correction orders imposed on the Applicant.

1. As for the Applicant’s strong family support, according to the Applicant, his family has always been strongly supportive. As for the Applicant’s good employment prospects, in the September 2018 sentencing remarks, Her Honour Judge Fox noted that the Applicant had a good history of stable employment.[106] 

   [106] G5, p44.

2. As both these factors are not of recent origin it is not clear why I should consider that they are likely to be more successful in the future in addressing the Applicant’s offending than they have been in the past.

3. As for the incentive to abstain from offending which imprisonment, detention and the risk of loss of a visa affords, I find that the Applicant is alive to the potential consequences for his right to remain in Australia were he to be released into the community and continue to engage in criminal conduct. As such, I consider that this is a factor which ameliorates the risk of him reoffending, an amelioration which I have taken into account in assessing that risk. I note, however, that this incentive will only have an ameliorating effect on the risk of offending undertaken in circumstances of conscious, reasoned, decision-making. 

4. I note that in her sentencing remarks in September 2018 Her Honour Judge Fox found the Applicant to have “have reasonable prospects of rehabilitation.”[107] As I see it, however, there is no inconsistency between a finding that rehabilitation prospects are reasonable and a finding that the risks of reoffending are moderate.

   [107] G5, p46.

5. In the psychologist’s report of March 2021, Ms Ferrari assesses the Applicant’s risk of recidivism in relation to both sexual offending and general offending to be low to moderate.

6. I find that Ms Ferrari’s assessment understates that risk.

7. In terms of sexual offending, the risk assessment was arrived at by applying

   
   

   “SVR-20”, a checklist of 20 risk factors.[108] Ms Ferrari rated the Applicant as high in relation to four of the factors, moderate in relation to six of the factors and low in relation to ten of the factors, leading to an overall assessment of low to moderate. As for:

   (a)Six of the factors rated as moderate, in Ms Ferrari’s report, two are expressed to relate to a person other than the Applicant. Ms Ferrari characterised this as a typographical error. That may well be the case albeit that a factual statement made in relation to one of the two factors was clearly incorrect insofar as it applied to the Applicant.[109]

   (b)Ms Ferrari acknowledged that she might have characterised one of the moderate factors as “high” if she had been aware of the various intervention orders taken out against the Applicant by females with whom he had relationships. Indeed, Ms Ferrari had, in her report of October 2019, stated that the Applicant and his former long-term girlfriend had a healthy and stable relationship. This was, presumably, based on statements made to Ms Ferrari by the Applicant. Ms Ferrari made no mention (and, I infer, was unaware) of that girlfriend having obtained an intervention order against the Applicant.

   (c)One of the factors assessed as low by Ms Ferrari was based on the proposition that there had not been any escalation in severity of the Applicant’s sex offences. When asked how this conclusion was arrived at given that the most recent sexual offence involved significant violence, Ms Ferrari’s response was, in effect, that she had relied on the Applicant’s description of the offence (which, as he had described it to her in relation to preparation of her 2018 report, essentially involved consensual kissing).

   (d)Another factor assessed as low by Ms Ferrari was based on the proposition that the Applicant does not engage in minimisation of his offences. Ms Ferrari acknowledged, however, that, at least in terms of preparation of her report in 2018, the Applicant had engaged in some offence minimisation. 

   [108] Sexual Violence Risk-20 (SVR-20; Boer, Hart, Kropp & Webster, 1997).

   [109] The statement was that “his” last non-violent offending occurred in 2012.

8. In terms of general offending, the basis for Ms Ferrari’s risk assessment is unclear. Mention is made of a number of risk factors. The assessment is then expressed to have been made on the basis of those factors.[110]  Then a number of statements are made as to the circumstances that will apply should the Applicant be free in the community, such as he will have strong family support. It is also stated that he has positive friendships and activities within the Afghan community.  Ms Ferrari acknowledged she did not have specific details in relation to certain of these statements but had simply relied on what she had been told by the Applicant. Moreover, the circumstances that are the subject of those statements would, in large measure, appear to have applied when the Applicant was offending so that it is unclear why they would operate to prevent the Applicant from offending when, in the past, they did not do so.

   [110] March 2021 report [102].

9. Ms Ferrari goes on to state that the Applicant “…does not present with an antisocial personality or criminal attitude; his offending history is more reflective of his untreated mental health issues and attempts at self-medication through substance use. He is open to engaging in further treatment and specific programs for his mental health and substance use if able to return to the community and remain in Australia.”[111] In light of this statement it would appear that, in terms of the risk of general offending, much depends on the Applicant obtaining and maintaining treatment for his mental health issues were he to be released into the community. As I indicated earlier, as I see it, there is a significant risk that he would not do so. In her assessment of the risk of recidivism, Ms Ferrari does not appear to address the impact on that risk of a failure of the Applicant to obtain and maintain treatment.

   [111] March 2021 report [104].

10. I note that in 2018 Ms Ferrari opined that, while at low risk of sexually based recidivism, from “…a violence perspective, he would be considered a moderate risk based on his prior history. It should be noted however, that this only commenced after he was violently attacked himself in 2012…”.[112] Quite apart from the fact that the risk of recidivism in relation to violent crime was then assessed by Ms Ferrari as moderate, I note that she would appear to have been unaware of a number of incidents, including incidents of violence, involving the Applicant that pre-date 2012. I note that in October 2019 Ms Ferrari provided an overall assessment of the recidivism risk as low to moderate,[113] consistently with her opinion in March 2021.

    [112] G13, p109 [88].

    [113] G14, p120 [98].

    Conclusion

11. I have found that the Applicant’s offending has been very serious, frequent, repetitive and sustained. 

12. Should he commit further offences or engage in other serious conduct, the likely harm would entail loss of property, psychological harm and physical harm to a broad range of individuals, and to the community at large.

13. As to the likelihood of him committing further offences or engaging in other serious conduct, I am not satisfied that it is unlikely. I am, however, satisfied that the risk of him

    
    

    re-offending is moderate.

14. The result of this is that the protection of the Australian community consideration weighs heavily against me being satisfied that there is another reason to revoke the decision to cancel the Applicant’s visa.

    The best interests of minor children in Australia

15. The second primary consideration which I am required by Direction 79 to take into account is the best interests of minor children in Australia. I am required to determine in relation to each relevant child whether revocation of the visa cancellation decision is in his or her best interests.

16. In this proceeding, the only children whose best interests the Tribunal was being asked to take into account are: a daughter of the Applicant (around eight years old)[114] and two nephews (around five years old and eight or nine months, respectively) and a niece of the Applicant (around three years old).

    [114] Applicant’s oral testimony.

17. I note in passing that I reject the Respondent’s submission to the effect that I ought not be satisfied that the Applicant is a parent of a daughter. There is not much in the material before me about her but there is material from several sources (some of which is identified below) that is consistent with the Applicant being a father.

18. On the Applicant’s behalf it is said that, if his visa cancellation decision is not revoked, the interests of each relevant child will be adversely affected by being deprived of an opportunity of having a relationship with their father or uncle (as applicable).  It is said that the daughter would be deprived of the opportunity of getting to know the Applicant, her heritage and his side of her family.[115]

    [115] G7, p66.

19. In taking a minor’s best interests into account, Direction 79 requires that certain factors be considered, where relevant.

    The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact).

20. I attribute no weight to the Applicant’s relationship with his daughter. He has no relationship with her, never having met her. Indeed, any interest in her the Applicant has would appear to have arisen coincidentally with the threat of his removal from Australia.

21. In this regard, I note multiple factual inaccuracies in the material before me concerning the Applicant’s knowledge of his daughter.

22. The Applicant stated in December 2018 that he had only recently become aware of his daughter’s existence and had not been able to establish contact with her.[116]  Consistently with this statement, the Applicant would appear to have told Ms Ferrari that he only found out about his daughter after he was incarcerated (which happened in April 2017),[117] a proposition repeated in the A SFIC (at [18]). In a statutory declaration made in September 2019, the Applicant asserted that he had not known that “she existed for years” and could not see her as he was incarcerated.[118]

    [116] Ibid.

    [117] March 2021 report [31].

    [118] G10, p95.

23. At the hearing of this proceeding the Applicant stated that he had knowledge of the existence of his daughter in around 2013. It was as well that this was acknowledged. In a June 2014 SMS message apparently from the Applicant, expressed in abhorrent language directed to the victim of his indecent assault (who happens to be the aunt of the Applicant’s daughter), reference is made by the Applicant to him being “the father of ur niece”.[119]

    [119] SG1, p171-see also SG1, p207.

24. The Applicant was not incarcerated until April 2017. In the period between his having becoming aware of his daughter’s existence and his incarceration, on the material before me and in light of his oral evidence, the Applicant would appear to have taken no steps directed to playing any role in his daughter’s life, or forming a relationship with her. He did not seek to meet her or offer to pay child support in relation to her.

25. In these circumstances, I give little credence to the Applicant’s profession in December 2018 of a desire to seek “visitation” rights[120] or to his statements in September 2019 that “I want to know her, and I want her to know my family. I want her to know her heritage. I want to be a father to her so badly, since my own father was not around, if I am released, I will play a significant role in her life.”[121]

    [120] G7, p66.

    [121] G10, p95.

26. As for the nephews and niece the Applicant’s relationship with them is non-parental.  Given the Applicant’s incarceration and in the context of his niece and nephews’ ages, there has been no material personal contact with the Applicant, albeit that the older nephew may have had met the Applicant personally when an infant and the two older children may have visited the Applicant while in custody a couple of times. Nevertheless, there has been telephone or skype contact every day according to the Applicant’s brother, or two to three times a week according to the Applicant’s sister in law.

    The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements.

27. In relation to the daughter, were the Applicant be released into the community, I find it to be most unlikely that he would play a parental role, despite the daughter’s young age.

28. Prior to his incarceration, the Applicant would have had ample opportunity to seek to play a role in his daughter’s life and did not do so. Hence, as I stated earlier, I put little credence in his more recent professions of intent to seek such a role.

29. Moreover, I suspect that the daughter’s mother would be unlikely to cooperate should the Applicant seek access to the daughter. While the Applicant asserted that the daughter’s mother would like the Applicant to be a part of the daughter’s life,[122] this seems unlikely given that the Applicant was convicted of indecently assaulting the mother’s sister and given the Applicant’s prior statement in December 2018 that the mother did not want him to “have contact”.[123] 

    [122] G10, p95.

    [123] G7, p66.

30. As for the niece and nephews, the extent to which the Applicant is likely to play a positive role depends, in part, on whether he re-offends. If he were to be released into the community and then re-offend, I see it as unlikely that he would play such a role. In this regard, I note my earlier finding that there is a moderate risk of him re-offending.

31. If, however, the Applicant were to be released into the community and not

    
    

    re-offend, I suspect he would play a positive role in his nieces and nephew’s lives, with the extent of that role being, on the one hand, limited given that it would not be parental and, on the other hand, enlarged given the length of time before both his nieces and nephew turn 18. Any such positive role would only be material from the perspective of his nieces and nephew, however, if the Applicant was able to enhance substantially his currently limited relationship with them.

    The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child.

32. In relation to the daughter, the nature of the impact of a total absence of any relationship depends very much on the circumstances the daughter and her mother find themselves in. If, for instance, the mother is in a stable relationship supportive of both her and her child, the absence of the Applicant would not be negative and might be positive.

33. As for the niece and nephews, insofar as the Applicant’s prior conduct has resulted in him being physically removed from them it ought not to have had a negative impact, given that, the Applicant’s physical presence is not something with which the children were familiar or relied upon.

34. As for the impact of the Applicant’s likely future conduct, it depends very much on whether he is released into the community and then re-offends. If he was to re-offend, that impact is likely to be negative, especially if his re-offending occurred at a time when the nieces and nephew were of an age that enabled them to understand more fully what had occurred.

35. If the Applicant were not to re-offend, however, as I suggested earlier, I suspect that he would have an impact that was positive.

    The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways.

36. When measured against the status quo, the Applicant’s separation from his daughter, his niece and nephews would have no effect.

37. He has had no physical contact with his daughter and no material physical contact with either his niece or nephews. As for the telecommunications contact which the Applicant has with his nephews and niece, it has not been contended that the Applicant could not maintain this from Afghanistan, albeit that different time zones might result in some practical difficulties.

38. When measured against what might otherwise occur were the Applicant to be released into the community, however, his separation from his niece and nephews would, to a large extent, deprive them of the opportunity to have a relationship with their uncle and so deprive them of the potentially positive role he could play in their lives.

39. The same could not be said of the daughter, however. What has deprived her of a relationship with her father has been his failure to seek one.  In circumstances where I put little credence in the Applicant’s professions of intent to now seek a relationship, his removal to Afghanistan would not affect the daughter.

    Whether there are other persons who already fulfil a parental role in relation to the child.

40. It is clear that the Applicant’s brother and sister in law fulfil parental roles in relation to the Applicant’s niece and nephews.

41. As for the daughter, there is little in the material before me on which I could base any finding as to parental roles.

    Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).

42. Apart from the suggestion that they miss the Applicant, the material before me does not reveal the views of his niece and nephews.

43. Nothing is known as to the views of the daughter.

    Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect

44. There is no evidence of this before me.

    Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.   

45. There is no evidence of this before me.

    Conclusion

46. Overall, my determination is that revocation of the Applicant’s visa cancellation decision is in the best interests of each of his niece and nephews. In essence, this is because non-revocation would impair their opportunity to have a potentially positive relationship with their uncle.

47. In relation to the daughter, however, revocation of the Applicant’s visa cancellation decision would have no effect on her interests.

48. Accordingly, the consideration concerning the best interests of minor children in Australia weighs in favour of me being satisfied that there is another reason to revoke the decision to cancel the Applicant’s visa.

49. The weight I attribute to this consideration is, however, not significant. This is because the opportunity being impaired by a non-revocation decision only concerns a relationship that is not, and would not be, parental and one that would, in any event,  need to be substantially enhanced over that which currently subsists in order for the impairment to be material.

50. I note that attributing little weight to this consideration with respect to the Applicant’s  niece and nephews is not inconsistent with the approach he took when completing a personal circumstances form in December 2019.[124]  In that form, the Applicant was asked to identify all minor children in his life. The Applicant’s response was to list only his daughter.

    [124] G7, p65.

    Expectations of the Australian community

51. The third primary consideration which I am required by Direction 79 to take into account is “expectations of the Australian community”.

52. The enquiry which this consideration engenders does not concern what the Australian community expects in fact but, rather, concerns what the government deems the community’s expectations to be. The content of the deemed expectation is to be discerned by construing the relevant clause of Direction 79 (cl 13.3) itself.[125]

    [125] FYBR v Minister for Home Affairs (2019) 374 ALR 601 (FYBR) at [68].

53. In Direction 79, it is said that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of the non-citizen.

1. Returnees to Afghanistan face risks associated with a lack of adequate access to essential services (such as access to potable water[159]). “Vulnerable groups such as returnees and IDP face challenges accessing essential services in Afghanistan. In January 2020, the Internal Displacement Monitoring Centre noted the main difference between returnees and IDP which was just under 90 per cent of returnees interviewed found it difficult to subsist…”.[160]

   [159] COISS report p12.

   [160] COISS report p4.

2. There are risks associated with an inability to access health care. In 2018 it was estimated that 27% of returnees to Afghanistan were unable to access health care.[161] As for mental health care, I mentioned this issue earlier. The problem of access is one compounded by the large number of sufferers of mental health conditions and a limited number of facilities. In this regard, “…a large number of Afghans suffer from psychological disabilities/mental health conditions such as depression, anxiety and post-traumatic stress disorder (PTSD)… With extremely low availability of psychosocial support services and repeated exposure to traumatic shocks, recovery opportunities are likely to be minimal, with people instead resorting to negative coping mechanisms.”[162]

   [161] EAO economic report , p57.

   [162] Ibid, p55.

3. In terms of the Applicant’s mental health should he be returned to Afghanistan I note that, according to Ms Ferrari, the Applicant’s “[s]eparation from his family and returning to a country he has no connection to, and no psychosocial stability or support would cause a severe decline in …[the Applicant’s] mental health and functioning, particularly in an individual already susceptible to a depressive illness and a history of trauma…” and “….will significantly impact …[the Applicant’s] pre-existing symptoms, which are currently severe. He experiences daily suicidal ideation, and has indicated if he is to be deported, he would take his own life due to the likelihood of persecution and violence on his return to Afghanistan; given his level of psychological distress this is a significant risk.”[163]

   [163] March 2021 report [81].

4. As for risks concerning accommodation, according “…to ALCS figures for 2016-17, the large majority (72 %) of Afghanistan’s urban population lives in slums or inadequate housing.”[164]

   [164] EAO economic report-p60. See also the COISS report p10.

5. The foregoing addresses risk to Afghans generally. Those risks are exacerbated in the case of the Applicant. The Applicant’s circumstances on return to Afghanistan would be unlike those of most other Afghans. 

6. As noted earlier, the Applicant would have no access to one of the support structures traditionally offered in Afghan society, a family network. In this regard, (with my emphasis):

   (a)most “…returnees in Kabul City depend on relatives for accommodation and other in-kind support. The importance of social networks is reported as vital for returnees. When originally not from Kabul and without a safety net or extended family in the capital, returnees face difficulties supporting themselves, finding jobs or renting accommodation.”[165]

   (b)The “…2018 Oxfam study revealed that extended family networks were vital for returnees in finding and maintaining employment and housing.”[166]

   [165] EAO economic report-p66.

   [166] Ibid-p31.

7. I find that the bleak outlook confronting the Applicant should he return to Afghanistan is such as to constitute a risk of irreparable harm which is both a necessary and foreseeable consequence of him being refouled to Afghanistan.

8. I note that there is the possibility that the Applicant will face other risks because of his particular circumstances. Many of them do not, however, constitute what I would consider to be risks that are both a necessary and foreseeable consequence of refoulement.

9. What I have in mind are risks such as that which might arise by reason of the Applicant being a person whose accent would make it apparent that he spent time in the West. He might, as a result, be perceived as a person who supports or associates with the Government or members of the international community. As such, he may face a high risk of violence.[167]  Further, with a “western accent” the Applicant might be perceived to be wealthy or, at least, have access to foreign wealth.[168] In this regard, “… kidnapping is a major concern for many Kabul citizens. Foreigners and wealthy Afghans are indicated as the main targets.”[169]

   [167] DFAT report-[3.46]. At [4.2]: “Groups particularly vulnerable to targeted killings by AGEs were individuals perceived as supporting or otherwise connected to the government or pro- government armed groups, whether through current or former employment or family ties”

   [168] COISS report p10- “Returnees from the west have been targeted because of perceived wealth.”

   [169] EAO security report-p59.

10. It was also put at the hearing of this proceeding that there is a risk that the Applicant would be murdered in jail, where he would end up as a result of resorting to criminality due to his untreated PTSD and dire financial circumstances. Again, as I see it, such a risk is not a necessary and foreseeable consequence of refoulement. It seems to me to be more speculative than a “necessary” risk.

11. The foregoing is not an exhaustive statement of the potential risks said on behalf of the Applicant to be likely to confront him on a return to Afghanistan.[170]

    Consequences should cancellation decision not be revoked but return to Afghanistan is a breach of non-refoulement obligations?

    [170] Other circumstances were said to engender risk to the Applicant, including by reason of his uncle’s association with a former President of Afghanistan. At the hearing, however, it was acknowledged that risk by reason of that association was unlikely.

12. The Applicant’s return to Afghanistan[171] might be said to be a direct and immediate statutorily prescribed consequence of,[172] a legally proximate consequence of[173] or a legal consequence of which there is a real possibility that it will flow from,[174]  a decision not to revoke his visa cancellation decision.

    [171] Along with him being precluded from returning to Australia under cl 5001(c) of Sch 5 to the Migration Regulations 1994 (Cth) - DLJ18 v Minister for Home Affairs [2019] FCAFC 236 at [28] per Bromberg J.

    [172] Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 at [84]. See also Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 (Robertson, Moshinsky, Bromwich JJ) at [136].

    [173] DLJ18 v Minister for Home Affairs [2019] FCAFC 236 at [5]-[15] per Flick J; [85] per Snaden J and [24] per Bromberg J.

    [174] DYY18 v Minister for Home Affairs [2019] FCA 1901 at [24]-but compare Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216 at [17] per Perram J which suggests that a risk of a consequence need not be addressed.

13. This is because a non-revocation decision will result in the Respondent’s officers becoming obliged under the Act to remove the Applicant from Australia as soon as reasonably practicable.[175]

    [175] Act, s198.

14. In this regard, I note that under the Act:

    (a)On cancellation of his visa, the Applicant became an unlawful non-citizen.[176]

    (b)As an unlawful non-citizen, immigration officers became obliged to detain the Applicant.[177]

    (c)Once detained as a consequence of a cancellation decision under s 501 of the Act, it became a requirement to keep the Applicant in immigration detention until deported or removed from Australia, he is granted a visa[178] or a court determines his detention to be unlawful.[179]

    (d)When the Applicant became an unlawful non-citizen, immigration officers became obliged to remove him from Australia as soon as reasonably practicable (subject to resolution of any protection visa application he might make),[180] with non-refoulement obligations being irrelevant to the obligation to so remove him and the duty of officers to effect that removal arising irrespective of whether such obligations had been assessed.[181]

    (e)The Respondent, personally, might grant the Applicant a visa[182] or allow the Applicant to reside in a place other than an immigration detention centre by way of a “residence determination”[183] (but cannot be compelled to consider doing so).

    [176] Act, s14.

    [177] Act, s189.

    [178] Noting, again that the Applicant is not barred by s501E of the Act from applying for a protection visa.

    [179] Act, s196(4).

    [180] Act, s198.

    [181] Act, s197C.

    [182] Act, s195A.

    [183] Act, ss197AC and 197AE-often called community detention.

15. In light of the foregoing, it would be wrong to assume that the Applicant would not be refouled should his visa cancellation decision not be revoked.[184]

    [184] DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 at [26]-[30].

16. Nevertheless, I do not consider that the Applicant’s removal from Australia would presently be likely should his visa cancellation decision not be revoked, given his capacity to apply for a protection visa.

17. Moreover, while I do not assume that the Applicant would not be refouled, I accept the Applicant’s submission that, as matter of government policy, it is unlikely that he would be.

18. That policy finds expression in a number of places.

19. As to this, I refer to aspects of cl 14.1 of Direction 79 which provide (with my emphasis) that:

    “(2) The existence of a non-refoulement obligation does not preclude non revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.”

    “(6)… Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.”

20. These statements in Direction 79 do not bind the Tribunal.  They do, however, serve to make decision-makers (such as the Tribunal) “… aware that for so long as the subject of a visa revocation decision remains owed non-refoulement obligations by Australia he or she will not be removed to a country where those obligations will be violated because Australia will, by other means legally available to it, adhere to its international obligations not to return him or her to that country.”[185] 

    [185] BDQ19 v Minister for Home Affairs [2019] FCA 1630 at [69].

21. I also refer to extrinsic material associated with the insertion into the Act of the provision which makes non-refoulement obligations irrelevant to the obligation to remove from Australia unlawful non-citizens (s 197C). That provision came into force on enactment of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. The explanatory memorandum for the relevant Bill (at 1142) stated that:

    “Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in section 198 of the Migration Act. For example, Australia’s non-refoulement obligations will be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under sections 46A, 195A or 417 of the Migration Act.”

22. An intention that Australia continue to meet its non-refoulement obligations is also expressed in the Statement of Compatibility with Human Rights set out as Attachment A to that explanatory memorandum. There (at 28) it is said that:

    “[w]hilst on its face the measure may appear to be inconsistent with non-refoulement obligations under the CAT and the ICCPR, as set out in the overview to this Statement, anyone who is found through visa or ministerial intervention processes to engage Australia’s non-refoulement obligations will not be removed in breach of those obligations. There are a number of personal non compellable powers available for the Minister to allow a visa application or grant a visa where this is in the public interest.”[186]

    [186] The obligation to remove an unlawful non-citizen from Australia has been found not to prevent a person remaining in detention in Australia pending consideration of the ministerial non-compellable powers mentioned in that extrinsic material - DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576. I note, however, that there is no material before the Tribunal that suggests an intention that those powers be exercised in the case of the Applicant.

23. A number of judicial decisions appear to recognise the existence of a policy, the operation of which makes refoulement in breach of non-refoulement obligations unlikely. For example, in:

    (a)BDQ19[187] Kerr J stated, in relation to a person in respect of whom non-refoulement obligations are owed, “Australia ultimately will not refoule such a person”.

    (b)Sowa[188] Jagot, Bromwich and Thawley JJ noted that the applicant there had not referred to what was characterised as Australia’s practice of not returning a person to a place if non-refoulement obligations are owed.

    [187] BDQ19 v Minister for Home Affairs [2019] FCA 1630 at [68].

    [188] Sowa v Minister for Home Affairs [2019] FCAFC 111 [43] where it is said “In contrast to the position in the Applicant, there is no reference in the representations to Australia’s practice of not returning a person to a place if non-refoulement obligations are owed and there is the potential consequence of indefinite detention.”

24. I note that the refoulement of the Applicant in the face of refoulement obligations owed in respect of him would reflect a failure by Australia to respect obligations it owes to other nations. As such, it could only affect adversely Australia’s “reputation and standing in the global community”[189] or its “reputational interests.”[190]

    [189] Ali v Minister for Home Affairs [2020] FCAFC 109 at [91].

    [190] Hernandez v Minister for Home Affairs [2020] FCA 415 at [63].

25. If, as I have found, the Applicant’s return to Afghanistan in breach of non-refoulement obligations owed in respect of him is a presently unlikely consequence of a non-revocation decision, what then?

26. Indefinite detention (to my mind, detention with no end as opposed to detention of uncertain duration) would not be a consequence of non-revocation of the Applicant’s visa cancellation decision, as submitted by both the Applicant and Respondent.

27. As a legal matter, it is unnecessary for the Tribunal to consider indefinite detention as such a consequence. It “… was not a possibility. It was not a possibility because… the effect of s 197C was that the appellant was to be refouled notwithstanding that Australia owed the appellant non‐refoulement obligations.”[191] I note that here, as in MNLR,[192]  it has not been contended that the removal of the Applicant from Australia is not reasonably practicable. 

    [191] AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27 at [25]-see also MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 at [158].

    [192] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35.

28. Further, quite apart from the right of the Applicant to seek a protection visa, as I mentioned, the Respondent has certain powers the exercise of which would see the Applicant released into the community which, albeit non-compellable, might well be exercised in implementation of the policy I have found to exist. In addition, I note the decision of Bromwich J in AJL20.[193] His Honour found that a person’s ongoing detention was unlawful where there had been a failure to remove the person from Australia as soon as reasonably practicable due to non-refoulement obligations being engaged.

    [193] AJL20 v Commonwealth of Australia [2020] FCA 1305.

29. The upshot is that, if the Applicant’s visa cancellation decision is not revoked and if a protection visa application by him is refused, then pending any decision by the Respondent concerning the exercise of his non-compellable powers (should the Respondent decide to consider their exercise), the Applicant would be detained. If the Respondent was to refuse to exercise those powers or consider their exercise, the Applicant would either be removed from Australia (an unlikely result given the policy which I have found exists) or released into the community (potentially in reliance on the approach adopted in ALJ20). 

30. Even if (as I have concluded) detention is not indefinite, the Applicant might well remain in detention for some time. That would have adverse consequences. Generally, the Applicant would continue to be denied freedom of movement. His capacity to liaise with family and friends would be constrained (especially in a COVID-19 context), as would his capacity to implement any plans he might have had for his future. Moreover, the Applicant’s detention is likely to have an adverse effect on his mental health due to the pressures associated with detention and to a limited “…capacity to engage in mental health treatment due to reduced availability in custody and detention.”[194]

    [194] March 2021 report [100].

31. In addition to adverse consequences for the Applicant, on his behalf it was contended that his potentially prolonged detention is very costly for the Government and, hence, the Australian community. I accept that submission albeit that, if costs are to be measured, then the prospect of community savings by reason of the Applicant’s detention limiting his capacity to offend ought to be taken into account.

32. I mention that in the reply document lodged on behalf of the Applicant, it is said that “… now is the moment for determining whether the applicant is a refugee.” As I see it, implicit in this is a submission that I ought to now consider the prospects of the Applicant succeeding should he apply for a protection visa. I do not do so. It would be speculative.[195]

    [195] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 at [150] per Perram and Derrington SC JJ citing Flick J in in Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [33]

    Conclusion

33. Non-refoulement obligations are owed in respect of the Applicant. He would be at a risk of irreparable harm, a risk which is both a necessary and foreseeable consequence of him being refouled to Afghanistan.

34. Consistently with submissions made on behalf of the Applicant, I do not consider that the Applicant’s removal from Australia and return to Afghanistan to be a likely consequence of a non-revocation decision, at present. 

35. Instead, the more likely consequence of such a decision is that he would remain in detention. While that detention would not be indefinite, it would nevertheless carry with it a number of adverse consequences for the Applicant.

36. While adverse consequences will flow from a decision not to revoke the Applicant’s visa cancellation decision, therefore, it is not presently likely that his refoulement to Afghanistan will be one of them (as submitted by the Applicant).

37. In the result, this consideration weighs in favour of there being another reason to revoke the Applicant’s visa cancellation decision but does so to a moderate extent.

    Strength, nature and duration of ties

38. In the context of this consideration, Direction 79 requires that regard be had to two further considerations.

    a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

    i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

1. The Applicant has resided in Australia for around 18 years, having arrived here aged 17. This circumstance is suggestive of it being appropriate to accord to the strength, nature and duration of ties consideration more weight than might otherwise have been the case given the general principle which provides for 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 his or her life. 

2. Offset against this, however, is the fact that the Applicant started offending roughly nine months after his arrival in Australia. As Direction 79 states, this circumstance is suggestive of it being appropriate to accord to the strength, nature and duration of ties consideration less weight than might otherwise have been the case

3. In terms of his positive contributions to the Australian community, as  stated earlier, I accept that while in Australia the Applicant has maintained stable employment, working for eight years as a panel beater.[196]  According to Her Honour Judge Fox, when speaking of the Applicant, “You have a good employment history and have held stable employment, apart from one year off due to injury.”[197] The Applicant has also been making a non-employment related contribution, as a carer for his mother.

   [196] G7, p70.

   [197] G7, p43.

4. Again, this circumstance is suggestive of it being appropriate to accord to the strength, nature and duration of ties consideration more weight than might otherwise have been the case. 

5. As for family ties, all of the Applicant’s immediate family are citizens of and reside in Australia. In addition, he has four uncles and four aunts in Australia as well as “many cousins”. He has family members outside of Australia in Europe, the USA and Russia.[198] 

   [198] G7, p67.

6. The Applicant’s family ties with his immediate family are strong.  Both his siblings and his mother provided statements and gave oral evidence in support of the Applicant.  Despite some family disturbances in the past involving the Applicant (as I outlined earlier) it is clear that each of his immediate family members is strongly supportive of the Applicant remaining in Australia and would be adversely affected, at least emotionally (and, potentially, financially),[199] by non-revocation of the Applicant’s visa cancellation decision.

   [199] I note that the Applicant’s mother, in her 4 March 2021, declaration spoke of the Applicant supporting the sister financially, as did the sister in her statement of 4 March 2021 in which she spoke of the Applicant assisting with mortgage payments and everyday expenses.

7. In addition:

   (a)The Applicant’s mother’s apparently fragile mental state has worsened “since the incarceration and potential deportation of her son” and would be put at further risk by the Applicant’s removal to Afghanistan.[200] The care of the mother in particular by the Applicant was said to be “the best mental health approach going forward for” the mother.[201]

   (b)Non-revocation of the Applicant’s visa cancellation decision would impact adversely on the Applicant’s sister. She has had the primary responsibility of caring for her mother in the absence of the Applicant, a burden that was apparently shared with the Applicant when he was free in the community (even if it would be inappropriate to characterise the Applicant as having been a full-time carer of his mother[202]). That is an onerous burden to have to bear for a young adult seeking to make a life for herself given the description of what the mother’s care requires proffered by both the sister and the Applicant and given the description of the mother’s condition provided by Dr Smith.[203]

   (c)The Applicant’s brother is said by his wife to have suffered mental distress due to the Applicant’s ongoing incarceration.[204]

   [200] Report of 25 February 2021 of Dr Murray, clinical psychologist.

   [201] G20, p132 (Dr Mary Murray, St Kilda Psychology, report of 4 October 2019).

   [202] As the Applicant submitted at G8, p82, despite lodging material to the effect that he was in full-time employment as a panel beater.

   [203] The mother “…has anxiety, depression, severe chronic pain, mostly chronic back pain and joint pain. She is unfit to drive and is on significant amounts of sedating medications. She has trouble looking after herself and relies heavily on family to support her, particularly her nominated carer ‘[SFPH]’ and now being helped by her daughter.” G19, p128 (Report of Dr Smith, 28 August 2019).

   [204] G15, p121.

8. These sorts of consequences for the Applicant’s family are not dependent on him being returned to Afghanistan but, rather, simply flow from him not being free in the community. 

9. As for social links, there is little in the material before me about them, suggestive of there being little in the way of such links.

10. In light of the foregoing, the strength, nature and duration of ties consideration weighs in favour of revocation of the Applicant’s visa cancellation decision and does so to a significant extent.

    Impact on Australian business interests

11. Direction 79 requires that I consider the impact on Australian business interests if the Applicant’s visa cancellation decision is not revoked, but notes that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

12. Given the absence of material before me of relevance to this consideration, it neither weighs in favour nor against a conclusion that there is another reason to revoke the decision to cancel the Applicant’s visa. 

    Impact on victims

13. Direction 79 requires that I consider the impact of a decision not to revoke the decision to cancel the Applicant’s visa on members of the Australian community, including victims of his criminal behaviour, and the family members of the victim or victims where that information is available and the Applicant has been afforded procedural fairness.

14. Given the absence of material before me of relevance to this consideration it neither weighs in favour nor against a conclusion that there is another reason to revoke the decision to cancel the Applicant’s visa. 

    Extent of impediments if removed

15. In the circumstances, Direction 79 requires that I consider the extent of any impediments that the Applicant may face if removed from Australia to Afghanistan, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of Afghanistan), taking into account his age and health, whether there are substantial language or cultural barriers, and any social, medical and/or economic support available to him in Afghanistan.

16. If removed from Australia to Afghanistan, the Applicant will face extensive impediments in establishing himself and maintaining basic living standards, given his health issues, likely cultural barriers and the likely paucity of support (be it social, medical or economic) that would be available to him. Those impediments will likely be more severe than those faced by other citizens of Afghanistan given, in particular, the likely lack of any local familial support for the Applicant. In this regard, I refer to and repeat my earlier comments relating to the risks the Applicant will confront were he to be removed to Afghanistan.

17. The Applicant has lived more than half his life in Australia and is unlikely to be culturally attuned to life in Afghanistan.

18. While a young man with what would appear to be employable skills (given his experience as a panel beater and his proficiency with English), there are (as outlined earlier) limited prospects of gainful employment in Afghanistan particularly in the absence of a supportive family.

19. As for the impediments which the Applicant may face because of his PTSD and other mental health disorders, again, I refer to the earlier discussion about the lack of access in Afghanistan to treatment for conditions such as those suffered by the Applicant and the risks to his mental health which his return to Afghanistan would engender.

20. The Applicant’s capacity to establish and maintain basic living standards would seem likely to be severely impaired given that, untreated, the state of his mental health is likely to deteriorate.[205]

    [205] March 2021 report of Ms Ferrari.

21. The effect of the impediments that the Applicant would likely confront on his return to Afghanistan on his capacity to establish himself there and maintain basic living standards all need to be considered in an overall context that is anything but facilitative. As I concluded earlier, on return to Afghanistan the Applicant would face a necessary and foreseeable risk of irreparable harm. The risks are such that Ms Ferrari considers the risk of the Applicant committing suicide to increase significantly were the Applicant removed to Afghanistan.[206] 

    [206] G14, p115.

    Conclusion

22. I find that this consideration as to impediments to be faced by the Applicant in establishing himself and maintaining basic living standards on removal to Afghanistan weighs heavily in favour of a conclusion that there is another reason to revoke the decision to cancel his visa.

    CONCLUSION AS TO OTHER REASON FOR REVOCATION

23. In considering whether there is another reason for revocation of the decision to cancel the Applicant’s visa, my conclusions in relation to the various considerations to which Direction 79 requires that I have regard do not point in a uniform direction.

24. In particular, in the circumstances of this matter:

    (a)The primary considerations as to protection of the Australian community from criminal or other serious conduct and as to expectations of the Australian community weigh heavily in favour of a conclusion that there is not another reason for revocation of the visa cancellation decision.

    (b)The primary consideration concerning the interests of children weighs in favour of a conclusion that there is that there is another reason to revoke the visa cancellation decision but the weight attributed to it is not significant.

    (c)Two of the “other considerations” weigh in favour of a conclusion that there is another reason to revoke the visa cancellation decision, to a significant extent (being the considerations concerning the Applicant’s ties to Australia and extent of impediments if removed to Afghanistan).

    (d)One of the “other considerations” weighs in favour of a conclusion that there is another reason to revoke the visa cancellation decision, to a moderate extent (being the consideration concerning international non-refoulement obligations).

    (e)In weighing, in particular, the consideration concerning non-refoulement obligations against the seriousness of offending, I have found that the Applicant’s offending has been at the upper end of the spectrum of very serious offending.

25. In the result, I am not satisfied that there is another reason for revocation of the visa cancellation decision.  As I see it, there is nothing in the circumstances that warrants displacement of the general position requiring that more weight be given to the primary considerations than that given to the other considerations.

    DECISION 

26. As I stated at the beginning of these reasons, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that the Applicant passes the relevant character test or that there is another reason why the decision to cancel his visa should be revoked.

27. I am not satisfied that the Applicant passes the character test.

28. I am also not satisfied that that there is another reason why the decision to cancel his visa should be revoked.

29. For these reasons, the Tribunal affirms the decision under review. 

266.    I certify that the preceding 265 (two hundred and sixty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member C.J. Furnell

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

Associate

Dated: 14 April 2021

Date of hearing:	6 and 7 April 2021
Advocate for the Applicant:	Mr Angel Aleksov
Solicitors for the Applicant:	Bardo Lawyers
Advocate for the Respondent:	Mr  Jonathan Barrington
Solicitors for the Respondent:	Mills Oakley Lawyers