SPQM and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 262

SPQM and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 262 (15 January 2025)
Applicant/s:  SPQM
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/8571

Tribunal:Senior Member N Manetta
Place:Adelaide
Date:15 January 2025

Date of Written reasons: 29 January 2025
Decision:The Tribunal affirms the decision under review.
Written reasons for this decision will be provided within a reasonable time of the date hereof.
...................................[sgnd]...................................
Senior Member N Manetta

Catchwords
MIGRATION – applicant committing three separate acts of rape on minor – applicant very low risk of recidivism – applicant has strong family ties to Australia – Direction 110 speaks strongly against offending of this type – applicant will most likely receive bridging visa (pending removal) if decision under review affirmed – applicant and family would then face ongoing stress given uncertain prospect of his removal – Direction speaks strongly against the applicant’s crime – prolonged attack on minor – decision under review affirmed
Legislation
Migration Act, 1958 (Cth)
Sex Offenders Registration Act, 2004 (Vic)
Cases
Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 415 ALR 254; 97 ALJR 1005.
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)
Statement of Reasons

When I delivered my decision on 15 January 2025, I was clear as to the result and my reasons, but time had not permitted me to prepare settled written reasons.[1] I indicated that written reasons for my decision would be published within a reasonable time. I now publish my written reasons.
[1] The final oral submissions of the parties were heard the day before; namely, on 14 January 2025.
This is an application by ‘SPQM’, a person whose identity has been anonymised in the interests of confidentiality, and to whom I shall refer in these reasons as ‘the applicant’. The applicant seeks a review in this Tribunal of a decision by a delegate of the respondent not to revoke the cancellation of the applicant’s visa. The cancellation of the applicant’s visa had taken place earlier, and mandatorily so, under section 501(3A) of the Migration Act, 1958 (Cth) (‘the Act’) following the applicant’s conviction of a very serious offence. He received a head sentence exceeding eight years for the offence, and part of this sentence had to be served on a full-time basis in jail.
I shall describe the offending in due course. For present purposes, it is sufficient to note that there is no doubt that the conviction and jailing of the applicant in these circumstances required the cancellation of his visa under section 501(3A) of the Act.
The applicant made a timely application for internal review of the cancellation decision. The internal-review delegate had two questions to consider under s 501CA(4) of the Act. The first question was whether the applicant passed the so-called ‘character test’ under section 501(6) and (7). The answer to this question was clearly ‘no’, given his lengthy term of imprisonment. The second question, which arose if the first question was answered in the negative, was whether there was ‘another reason’ for the cancellation decision to be revoked. In this regard, the delegate was required to apply any direction issued under section 499 of the Act. The delegate applied Direction 110 (‘the Direction’).[2] Having weighed the various considerations arising under the Direction, the delegate concluded that on balance the cancellation decision ought to stand. The delegate formally concluded that in light of this conclusion, the jurisdiction to revoke the visa cancellation for ‘another reason’ under s 501CA(4)(b) did not arise, and the delegate formally declined to revoke the cancellation.
[2] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024).
TRIBUNAL’S TASK
I must address the same two questions as the delegate. I have already indicated that the delegate decided the first question correctly. I make the following prefatory remarks[3] in respect of the second question. In a case like this, the Tribunal hears the matter afresh on the evidence before it. It does not merely review the delegate’s decision for error, but reaches the correct or preferable decision on the evidence adduced before it.[4] It hears evidence and oral submissions and receives written documents and written submissions. It follows that the Tribunal may set aside the decision under review notwithstanding the absence of any error in the delegate’s reasons if that is the correct or preferable decision on the evidence before it; equally, the Tribunal may affirm the decision under review notwithstanding the presence of a clear error in the delegate’s reasoning if that is the correct or preferable decision on the evidence before it.
[3] What follows in the balance of this paragraph is a series of standard observations that I include in all my decisions.
[4] See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51].
STATEMENT OF CONCLUSION
I have decided to affirm the decision under review. I set out the background facts and the reasons for this conclusion below.
BACKGROUND FACTS
Certain background facts may be summarised in very brief terms as follows. The applicant is a citizen of Pakistan. He was born there on 8 July 1973. He entered Australia in 2013 and eventually became the holder of a permanent protection visa. It is accepted that he is owed non-refoulement obligations and cannot be refouled to Pakistan. He is married with two children. One child has just turned 18 (a son) and the other is still only 15 (a daughter). His mother, a widow with significant health challenges, also lives in Australia. The applicant gave evidence that his father was murdered in Pakistan by the Taliban and that his wife lost their child (in utero) as a result of an attach upon them. The applicant has been recognised as being owed non-refoulement obligations. The applicant has an extended family living here.
Criminal offending
I now turn to the applicant’s criminal offending. I had the Court’s sentencing remarks before me.[5] I also had the prosecutor’s opening on plea,[6] and it is recorded in the sentencing remarks that the prosecutor’s opening was an agreed opening by the applicant’s counsel.[7]
[5] Hearing Book (‘HB’), *********************************.
[6] Ibid, ************************************.
[7] Ibid, *********************************.
The applicant had been employed as a part-time security guard at the time of the offending in question. In January 2016, the applicant was doing a night shift. He was driving about, checking various buildings as part of his duties. The applicant pulled up in his vehicle when he happened to see the victim, a 15-year old female minor. She said to him that she needed to get back home, and he agreed to drive her there. She was concerned about her family[8] worrying about her at such a late hour – it was approximately 3:00 am – and she agreed to get into the car. The applicant told her that he had a few more jobs to do before he could take her home.
[8] she was in a new foster care placement are but the court records that the applicant was not to know that she was in care.
The sentencing remarks refer to the applicant raping the victim on three separate occasions over the course of about an hour. She had informed the applicant that she was only 15, she resisted him and told him to stop.
Three separate acts of intercourse were forced upon the victim: there is no question of the victim having consented to any of them. One act comprised digital penetration of the victim’s vagina; the second comprised a forced act of fellatio; and the third consisted of unprotected penile-vaginal intercourse.
These three acts were charged as a single count of rape. I note the Court found it unusual for the conduct to have been charged as a single count. Notwithstanding the single count, it is clear the Court treated the crime as ‘three separate modes of penetration, not merely a single act’.[9] The Court further refers to the fact that the offending spanned approximately one hour.[10]
The applicant was arrested soon after his offending. He fled Australia in January 2016, but voluntarily returned in December of that same year. In so doing, he knew he would be taken into custody. The applicant was sentenced on a guilty plea in the County Court of Victoria on 25 July 2017. The Court noted that the guilty plea had been entered at a relatively early stage. The Court was prepared to find some ‘limited remorse’ in this circumstance. The Court accepted that the applicant had reasonable prospects of rehabilitation. The Court was more guarded about his future risk of re-offending in the absence of an expert opinion.
The Court referred to the applicant’s condition of bilateral hip necrosis, which had necessitated two separate bouts of surgery.[11] The applicant confirmed in his evidence to me that he has had, in fact, two hip replacement operations. I accept this evidence.
The Court referred to the fact that the offending was the only instance of criminal offending in the applicant’s record. This is confirmed by the criminal history before me.
The Court assessed the offending as having arisen from a spontaneous meeting. The applicant had not planned to attack the victim. The Court decided, however, that the offending assumed the character of a premeditated attack given the persistence and duration of the conduct. This was said to have reflected a submission made by the applicant’s own counsel.
[11]
The Court referred to the vulnerability of the victim. The applicant knew the victim was only 15, and she had told him that she was trying to get home. The Court was satisfied beyond reasonable doubt that the applicant had no positive belief in the victim’s consent.[12] The Court referred to rape as always being a serious offence. In assessing the nature and gravity of that serious offence in the case before it, the Court took into account the three sexual acts committed the victim, and her age. They were committed over a ‘not insignificant’ period of time.[13] The Court found the rape to be a very serious example of the crime of rape.[14]
[12]
[13]
[14]
18.The Court sentenced the applicant to eight-and-a-half years’ imprisonment and fixed six years as a non-parole period. The applicant was given credit for the 211 days he had already spent in custody. It was noted by the Court that the applicant would be subject to the Victorian Sex Offenders Registration Act 2004 for a period of 15 years following his release.
19.As at the time of the hearing before me, the applicant had spent some eight years in jail. He gave evidence, which I accept, that he has been ineligible to be considered for parole because the cancellation of his visa entailed a serious consequence for him; namely, that his parole, if granted, would have to be served in immigration detention. The parole authorities were not prepared to countenance that possibility. Otherwise, the applicant has apparently been a good candidate for parole: nothing has been put to me that suggests he ought not to be paroled. His head sentence will expire in May of this year.
REASONS
The Direction
In matters like this, I usually set out certain standard remarks I have drafted in respect of the Direction. I do so again, and they appear below as paragraphs [21] to [24].
The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in subparagraphs numbered (1) to (8). I set out some of the salient features of these principles.
First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, the safety of the Australian community is the highest priority of the Australian Government. Accordingly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia, and the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct may, however, be afforded to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may prove insufficient justification (to warrant not cancelling the visa, not refusing the visa, or revoking a mandatory cancellation), and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight ‘generally’ to the protection of the Australian community over other primary considerations, and it also provides that primary considerations should ‘generally’ be given greater weight over ‘other’ considerations.
Applying the Direction
25.I turn now to apply the Direction, as I am legally bound to do. I must first consider the protection of the Australian community. Paragraph 8.1(1) requires me to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct. In this regard, I should have particular regard to the principle that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are and have been law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
26.Subparagraph (2) requires me to give consideration to 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.
27.In paragraph 8.1.1(1), a number of principles are set out in paragraphs (a) to (i), to assist me in determining the nature and seriousness of the applicant’s criminal offending. A crime of a violent or sexual nature against a child is always to be considered very serious regardless of the sentence imposed.
28.I am also to have regard to the impact of the offending on the victim. I have no up-to-date information before me concerning any ongoing impact of the offending on the victim, and I leave that matter to one side, therefore.
29.I am to have regard to the frequency of the applicant’s offending. I note that this is the only instance of criminal offending.
30.I turn now to consider the question of risk as required by the Direction. Paragraph 8.1.2 requires decision-makers to bear in mind the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that may be repeated may be unacceptable.
31.As this principle applies in this case, I shall explain how I have interpreted it. In my opinion, the principle does not require me to assess the seriousness of the potential harm in isolation from other factors under the Direction. It merely requires me to bear in mind that a risk of potential future harm arising from conduct, even if the risk of recidivism is low, may be unacceptable (i.e., even after other countervailing factors arising under other parts of the Direction are weighed applied). I do not believe I am required to isolate the question of the risk to the community and ask myself whether any risk of recurrence is ‘unacceptable’ without regard to other matters in the applicant’s favour. That does not seem to me to be the correct approach. I need to weigh all matters before reaching a final conclusion under the Direction. Nevertheless, the principle is important in reminding a decision-maker that even where there is a low risk of recurrence of very serious harm, it may be appropriate not to revoke the visa cancellation decision, notwithstanding the presence of other countervailing factors. This is, it seems to me, the more generous interpretation of the provision for the applicant, and I shall act on it.
32.I am required to have regard to the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal conduct and the likelihood of his so doing. I am to have regard to these matters ‘cumulatively’; that is, in conjunction with one another.[15]
[15] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92.
33.Should the applicant reoffend in a similar way, the consequences for the applicant’s victim would be extremely serious self-evidently. Rape is a very serious crime as the sentencing court pointed out. There can be ongoing physical and psychological difficulties for a victim of rape.
34.So far as the likelihood of the applicant re-engaging in further criminal conduct is concerned, I regard the risk as very low. I bear in mind that the applicant has served some eight years in jail for the offending and is now in his early fifties. He has a good record in jail. The applicant will be aware that any reoffending of this type will lead to a further long jail sentence and I believe this is a very serious deterrent for this particular applicant who impressed me as intelligent.
35.It is not clear to me why the applicant chose to assault the victim in the way he did. I do not have a comprehensive psychiatric evaluation before me. The applicant refers[16] to a PTSD diagnosis and his personal struggles at the time of the offending. He has reported disturbing symptoms to a psychiatric nurse.[17] He has said that he was seeing a psychiatrist at Foundation House at the time of the offending.[18] In my view, however, the offending, which consisted of three separate acts of forced intercourse over approximately one hour against a minor, cannot be explained simply by reference to these factors.
[16] In his personal statement at HB,3.
[17] HB, 435.
[18] HB, 3.
36.The applicant did not demonstrate convincing remorse for his victim before me. He said in his oral evidence that he was very sorry for his victim, and that he had decided to return to Australia to give her closure; but he also denied the substance of the offending before me in his oral evidence. He explicitly claimed that he did not know the victim was only 15, and that from his perspective, the intercourse that took place was entirely consensual. I do not accept that evidence was honestly given by him. The applicant was represented before the sentencing Court, and the plea that was taken and the agreed prosecutor’s opening reflected, in my view, an agreed position to be put to the Court on sentencing.
37.I do not believe that I ought to give the applicant credit for genuine remorse for his victim when he has failed to acknowledge the substance of his sexual offending before me. Often applicants make the mistake of seeking to downplay their offending in the hope that it will give them a better opportunity of persuading the Tribunal in their favour. That motivation is understandable. But in this case I do not believe I have a secure basis for concluding that the applicant has indeed developed real empathy for his victim in respect of the harm he perpetrated upon her. Nevertheless, I have had regard to the early guilty plea which the sentencing found did indicate a degree of remorse, if limited, and I have borne that in mind.
38.In any event, I am required under the Direction to address the question of risk, not remorse per se. The relevant question before me is how likely it is the applicant will reoffend, not whether he regrets harming his victim or has empathy for her. I do not doubt, moreover, that the applicant is extremely remorseful in the sense of regretting his actions on account of the impact upon himself and his family. That insight adds to a reduction of his risk level in my opinion.
39.I believe the risk of this applicant reoffending is very low. There has only been one offence: otherwise the applicant’s record is clear of offending. And I doubt very strongly that the applicant will re-engage in this type of offending given the very lengthy period of jail he has experienced. This conclusion appears to be consistent with the decision taken not to include the applicant in an offenders’ rehabilitation program (because his assessed risk of future offending was low).[19]
[19] Cf HB, 30.
40.There is no family violence for me to consider.
41.I must consider the strength nature and duration of the applicant’s ties to Australia. These count substantially in the applicant’s favour. I note that he has a devoted wife, a minor daughter and a barely adult son, all of whom value him as a life partner and father respectively. The applicant has very close ties with these family members notwithstanding the lengthy time he has spent in jail, and this has been evidenced in repeated phone calls and visits to him to which he refers in his statement[20] and in his oral evidence to me.
[20] HB, 4.
42.I have considered his wife’s statement.[21] She refers to the emptiness of her life, and her children’s, without him. They are a refugee family having lost everything in Pakistan. She suffers from PTSD. She lost an unborn child at five and a half months because of the violence they suffered. Her father-in-law was murdered in Pakistan. She and her husband have drawn closer together and are in effect committed to their marriage.
[21] HB, 7-9.
43.I accept that the applicant also is the main financial support for his family and that he has in fact sent money from prison to her, rather than the other way around.
44.It is clear that his removal from Australia will involve a very significant burden for her and for the applicant. I note in this connection the letter from the applicant’s wife’s treating psychiatrist, Dr Hiwale.[22] The psychiatrist refers to the applicant’s wife’s ongoing mental health difficulties, stemming from the trauma she experienced in her home country. She suffers from severe anxiety, intrusive reminders of trauma, poor sleep, body aches, and low mood together with PTSD.
[22] HB, 23.
45.I have considered the applicant’s son’s letter of support.[23] That letter refers to the impact upon the son, and there is a specific observation that the uncle, although sympathetic, could not compensate fully for the father’s absence. He refers understandably to his need for his father’s support and stability so that he can overcome his own challenges. I do not doubt that the applicant’s removal from Australia would constitute a very real and heavy blow to the applicant’s son. I note the son refers in his correspondence to the impact upon both his sister and his grandmother.
[23] HB, 10-11.
46.I have also considered the applicant’s daughter’s letter of support.[24] She expresses her feelings of being overwhelmed. She desperately wishes to have her father with her in Australia, and she ahs been caused profound sorrow and a lack of confidence. His absence has proved to be excruciatingly painful for her, especially when she contrasts her own situation with that of other children. He uncle shows her empathy, but cannot be a replacement for her father. She frequently finds herself in tears, and bitterly regrets the situation in which she finds herself. Her particularly difficult situation is referred to by her brother, her mother, and her uncle. She is referred to as ‘emotionally damaged’ by her uncle.[25] Although he is not qualified to make a medical diagnosis, I accept that he feels his niece displays such severe symptoms that they are consistent with a psychological disorder.[26]
[24] HB, 13-14.
[25] HB, 17.
[26] HB, 17-18.
47.The applicant has a good relationship with his younger brother, whose statement I have considered.[27] His younger brother also gave evidence at the Tribunal hearing. I accept that the applicant has shouldered a significant family responsibility since his father’s murder and that he appreciates the applicant’s contribution to the family. The applicant’s brother has had to shoulder being, in effect, a father to his nephew and niece, and assuming sole responsibility for their mother’s welfare. He himself has four children of his own. I accept that it is a very significant burden on him to assume responsibility for his niece, nephew, and sister-in-law. He suffers from PTSD.[28]
[27] HB, 15-19.
[28] HB, 18.
48.He refers also to his mother’s very serious medical conditions,[29] and I accept that her health and sense of wellbeing have been adversely affected by her son’s incarceration, and would be further adversely affected by the uncertain future he would face if I affirmed the decision under review.
[29] HB, 16.
49.I accept also that he has a very close relationship with his mother. As I have said the applicant’s brother gave evidence that their mother is facing very serious health concerns at the present time. I do not doubt that she perceives the applicant’s possible future departure from Australia as a very serious matter. Her own health and sense of well-being are likely to be impacted by an adverse decision in this matter.
50.I have considered her statement.[30] She refers to her son’s absence as having a significant influence on her and that it will exacerbate her illness. It is understandable that she would be particularly concerned at the prosect of his being forcibly removed to Pakistan, or having to spend time in detention at the end of his sentence.
[30] HB, 12.
51.The applicant gave evidence to the effect that his mother was proposing to defer essential surgery if the Tribunal decided against him. The implication here was that the applicant’s mother would choose to die rather than undergo surgery if the applicant were at risk of being removed from Australia. The brother, who gave evidence, indicated that the applicant’s mother was deferring surgery for religious reasons, in that she did not wish to appear naked on an operating table and be handled in that condition. In all the circumstances, I have formed the view that the applicant’s mother will be very affected emotionally and psychologically by a decision by me to affirm the decision under review, But I do not accept the submission by the applicant that she would refuse medical treatment for that reason.
52.There are wider members of the applicant’s family whom I should also consider.
53.I have had regard here to the applicant’s brother’s evidence before the Tribunal. I note that his children refer to the applicant as a second ‘dad’, and they would be very affected by the applicant’s sudden departure from Australia, should that occur.[31] The applicant’s mother-in-law has written a statement in support which I acknowledge.[32]
[31] A decision by me to affirm the decision under review would not lead to the applicant being removed from Australia immediately: see below at [**].
[32] HB, 20.
54.There are a wide number of extended family members. These are listed in the applicant’s personal circumstances form.[33] I accept that this is a close-knit family and that the sudden removal of the applicant from Australia would have a serious impact upon the functioning of this extended family. I accept the applicant’s contention[34] that were he to leave Australia, his extended family would miss out on his financial and moral support. The applicant refers to eighteen family members in total.[35]
[33] HB, 2923ff. He lists a father-in-law, a mother-in-law, a brother-in-law, and two sisters-in-law together with two uncles and two aunts, four nieces and 2 nephews and four cousins.
[34] HB, 2923.
[35] HB, 2932-2933.
55.I accept also that the applicant himself would suffer grievously if he were removed from Australia. His one-on-one daily ties with his spouse, his mother, and his two children would be severed as would his ties with other family members. This is a very serious matter because the consequence of the decision to affirm the decision under review will be to expose this family to a risk of fracture for the indefinite future.
56.I must have regard to the best interests of minor children. The applicant’s daughter, who is 15 at the time of my decision, would be affected substantially in my view if the applicant were to leave Australia suddenly. She has grown up without her father. In May of this year at the latest, the applicant will leave jail. He may or may not spend some time in detention but I believe it is likely on the evidence before me that he will in due course re-enter the Australian community on a bridging visa pending his removal to a safe third country, which is yet to be found, however. The daughter has grown up without a father, which has been a serious burden for her no doubt as I have pointed out. To have him back in her life on a bridging visa and then removed suddenly would be a serious and ongoing source of concern for her and a destabilising feature of her life.
57.I have given serious consideration to the daughter’s views as expressed as expressed in her statement.
58.Other minor children will be affected. I refer here to the role the applicant plays as a second father, so to speak, to his brother’s children. They will be affected too, although it should be noted that they have a biological father and mother. There is a wider group of extended minors in this regard, and I have had regard to their interests. The applicant refers to ‘strong and endearing ties’ to his nieces and nephews.[36]
[36] HB, 2940.
59.This consideration count very substantially in the applicant’s favour.
60.I must have regard to the expectations of the Australian community: paragraph 8.5. I acknowledge that the applicant has engaged in serious conduct in breach of the expectation that he obey Australian laws while in Australia. As a consequence, as ‘a norm’ - although not as an inflexible rule - the community expects the Government not to allow the applicant to remain in Australia.
61.Subparagraph (2) of paragraph 8.5 makes it clear that the non-revocation of a mandatory cancellation of the visa may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person not continue to hold a visa. In particular, the Australian community expects that the Australian Government should cancel applicants’ visas if they raise serious character concerns through conduct of a specified type. This includes the commission of serious crimes against children. These expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Moreover, I am to apply the expectations of the Australian community as articulated in the paragraph without independently assessing them for myself in any particular case.
62.This consideration applies substantially against the applicant. He has been found guilty of the very serious crime of raping a minor on three occasions over the course of an hour approximately. And in assessing that crime, the sentencing Court regarded it as a very serious example of the crime of rape.
63.I must have regard to other considerations under section 9. So far as the legal consequences of my decision is concerned, I proceed on the following basis. The respondent obtained instructions and indicated to me that a third country is unlikely to be able to be found for the applicant in the reasonably foreseeable future. Given the non-refoulement obligations the applicant is owed, it is likely that the applicant will receive a bridging visa with conditions.[37]
[37] He cannot be detained when there is no real prospect of his removal becoming practicable in the reasonably foreseeable future: see NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 415 ALR 254.
64.I proceed on the basis that there may be a period of time that the applicant will have to spend in detention (although this is not envisaged by the respondent) before the bridging visa is granted. The applicant is, however, very likely to be granted a bridging visa as a person who does not enjoy a reasonable prospect of being sent to a safe third country in the reasonably foreseeable future.[38]
[38] And as indicated in fn 7, this is required by NZYQ once there is no real prospect of the applicant’s removal becoming practicable in the reasonably foreseeable future.
65.The conditions to be attached to the visa are not yet known but they will certainly prevent travel outside Australia. I accept that the applicant would like to travel outside Australia particularly with his daughter and other family members, but that will not be possible without the applicant forfeiting his right altogether to remain in Australia if I affirm the decision under review. Conditions can include reporting, attending for interviews, notifying interstate or overseas travel, and not working with minors. These can prove to be restrictive particularly if, as here, the applicant were to be concerned to open a business. The very fact of being on a bridging visa may well impact his employment prospects, and that has a direct consequence for his family. I accept that these are consequences of a decision to affirm the decision under review.
66.It may also be the case that the applicant will end up being required by the respondent to wear a monitoring device of some sort given his very serious offending or be subjected to curfew requirements.
67.I accept that I do not know when the applicant would be removed from Australia if I affirmed the decision under review. That is clearly not information before me. I do accept, however, that if I affirm the decision under review, the applicant will be subject to removal at any time. That possibility remains a significant ongoing stressor both for him and for his family. I note that the Parliament has recently passed legislation authorising the Government to pay third countries to receive those holding bridging visas pending removal.[39] In other words, the Government is able to offer an inducement to other countries to receive Bridging visa holders whom the Australian Government wishes to have removed from Australia.
[39] See Migration Amendment Act, 2024.
68.The applicant cannot be returned compulsorily to Pakistan at the present time. For this reason, I do not take into account any impediments on removal or any breach of non-refoulement obligations. The applicant submitted to me that he might be sent to a third country that would then send him on to Pakistan in due course even though he is owed non-refoulement obligations. Equally, however, I believe he might not be sent to such a country. I simply have no information before me as to any likely receiving country: that would be a purely speculative or hypothetical assumption at this stage. Accordingly, I do not believe I should weigh refoulement to Pakistan as a factor to be weighed in my decision-making.
69.Moreover, what impediments the applicant might face were he to be removed, I cannot say; but I do take into account in a general way that any removal by him to a third country would involve substantial disruption to his family, a substantial disruption to his own life, and severe emotional impact on his family and on him. It will also involve a severe disruption of any possibility he might have to make a serious contribution to his family’s financial welfare. I take those matters into account in a generalised way given that I cannot know at this stage how likely it is that the applicant will be removed from Australia within the reasonably foreseeable future. Nevertheless, it is a realistic prospect given the nature of a pending removal bridging visa and the legislative authority the federal Government has to pay third countries to receive those on bridging visas the Government wishes to deport. In this regard, I take into account in a generalised way the applicant’s stated health concerns, which appear in his personal circumstances form.[40] I cannot know at this stage which country will receive him if I affirm the decision under review, and do not know what, if any impediments, there might be to his receiving appropriate medical care. Nevertheless, I have taken into account in a general way that he may well be sent to a country with a less well-developed health system, and that may prove problematic for the treatment of one or more of his conditions.
[40] HB, 2926; namely, PTSD, heart disease, blood pressure, cholesterol among others. There is also a reference to ‘seizure’ on this page.
70.There is another feature of this matter that I believe I should take into account. The applicant has been ineligible to be considered for parole because the granting of parole would mean he would be transferred to immigration detention. Instead of serving six and a half years in jail, he has served more than eight years as of today’s date, and will most likely have to serve the balance of his head sentence, due to terminate in May 2025, in jail. That has represented a very significant added burden to him, one that he would not have faced if his visa had not been cancelled; and if I restored the visa, he would become immediately eligible for parole (as parole would be served in the community).
Weighing the considerations
71.I turn now to weigh the various considerations. In this regard, I believe I should face squarely the reality of what a decision to affirm the decision under review would mean for the applicant and his family (both immediate and extended). Although the result of my decision is not likely to be the immediate removal of the applicant from Australia on completion of his jail term in May 2025, the applicant and his family will have to live with the ongoing uncertainty of his deportation in due course. He may be removed at any time in the future. That is a concerning prospect, both for the applicant and for his family for the reasons I have given.
72.Families do function better when their lives are predictable. Severe disruption to families can lead to dysfunction, and innocent family members often bear the brunt of dysfunction. That is a very real concern in this case for the reasons I have articulated. He has an important role to play in his family, both from an emotional and from a financial perspective.
73.I accept also that my finding is that the applicant’s risk of recidivism is very low. I accept that the offending is the only instance of criminal offending in the applicant’s record. He has otherwise been of good character in Australia. He has behaved appropriately in jail, and has served a very long sentence, and one where he has had the added burden of not being eligible to seek parole. He may have to spend some time in immigration detention pending the grant of a bridging removal visa if I affirm the decision under review.
74.I do not believe that the applicant is likely to reoffend, as I say. Moreover, it is unlikely that he will be removed promptly from Australia: he is likely to live in the community for the foreseeable future upon his release from jail. Accordingly, any decision I take to affirm the decision under review will not immediately attenuate the future risk he might pose to the Australian community. That is something to be taken into account in his favour in my view.
75.All that said, the Direction speaks very strongly at various points against serious offending against Australian community members, including children, as I have indicated in the course of these reasons. Indeed, as I have indicated, the ‘community expectations’ consideration applies even though an applicant may pose no measurable risk at all of recidivism in the future. The offending in this case is, I reiterate, of the most serious kind. It is important to note that the offending consisted of not one, but three separate acts of forced sexual intercourse over approximately one hour against a vulnerable victim (that is, a 15-year-old girl who was seeking to return home late at night). This crime raises the most serious character concerns, which the Direction requires me to address and weigh carefully. The decision I reach must take into account all the specific circumstances of the case: see paragraph 5.1(3). I have weighed, however, the fact that the applicant’s risk of recidivism is very low.
76.All in all, I have decided, on balance, after applying the Direction, that the preferable conclusion is that the applicant’s visa cancellation should remain in force. This conclusion entails very unfortunate consequences both for the applicant and for his family as I have said; but it is, in my opinion, the preferable conclusion on the evidence before me.
FORMAL DECISION
77.It follows that my formal decision is to affirm the decision under review.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for the decision herein of Senior Member C Shepherd.
……………………[sgnd]……………………
Associate
Dated: 29 January 2025
Date(s) of hearing: 14 and 15 January 2025

Applicant’s Representative

Self-Represented

Respondent’s Representative

Tegan Weir

HWL Ebsworth