SRKB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 4390

SRKB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4390 (18 November 2021)
Division:GENERAL DIVISION
File Number(s): 2021/5999
Re:SRKB
APPLICANT

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

DECISION
Tribunal:The Hon. Dennis Cowdroy AO QC, Deputy President
Date:18 November 2021
Place:Sydney

The Tribunal is satisfied that there is another reason why the Minister’s decision to cancel the applicant’s visa should be revoked. As such, the decision under review is set aside and substituted with a decision to revoke the cancellation of the applicant’s Class AZ Subclass 866 Protection visa.
.............................[sgd]...........................................
The Hon. Dennis Cowdroy AO QC, Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community –family violence – best interests of minor children – expectations of the Australian community – non-refoulement obligations – strength, nature and duration of ties to Australia – impediments to removal – decision under review set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth) s 499, 500, 501, 501CA
CASES
Al-Kateb v Godwin (2004) HCA 37
BHHX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1574
Do and Minister for Immigration and Border Protection [2016] AATA 390
Djalic v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 151
FYBR v Minister for Home Affairs [2019] FCAFC 185
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144
Weti-Safwan and Minister of Immigration and Border Protection [2016] AATA 797
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
XDJD and Minister of Immigration and Border Protection (Migration) [2021] AATA 2882
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
Migration Amendment (Clarifying International Obligations for Removal) Bill 2021
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO QC, Deputy President

18 November 2021

The Applicant seeks review of a decision of a delegate of the Respondent (“the Minister”) made on 26 August 2021 (“the decision under review”) not to exercise the discretion under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) to revoke the original decision made under s 501(3A) of the Act, to cancel the Applicant’s Class AZ Subclass 866 Protection visa (“the visa”) (“the original decision”).
A delegate of the Minister was satisfied that the applicant did not pass the character test on the basis that he had a “substantial criminal record” as a result of being sentenced to a term of imprisonment for 12 months or more: section 501(3A)(a)(i) of the Act.
The Applicant applied to the Tribunal for review of that decision. The hearing before the Tribunal was held on 4 November 2021 using the Microsoft Teams platform.
RELEVANT LAW AND POLICY: DIRECTION NO. 90
Section 501CA of the Act applies if the Minister decides under s 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Section 501(6)(a) of the Act provides that a person does not pass the “character test” if the person has a “substantial criminal record”. Section 501(7)(c) also provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Section 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction” or “Direction 90”).
The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. In particular, paragraph 5.2 of the Direction sets out a number of principles that the Tribunal has considered. It relevantly provides:
1Australia 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.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
5Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other type of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as “secondary” as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
The primary considerations (paragraph 8 of the Direction) are:
(a)protection of the Australian community from criminal or other serious conduct (“Primary Consideration A”);
(b)whether the conduct engaged in constituted family violence (“Primary Consideration B”);
(c)best interests of minor children in Australia (“Primary Consideration C”); and
(d)expectations of the Australian community (“Primary Consideration D”).
The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(i)the strength, nature and duration of ties to Australia; and
(ii)the impact on Australian business interests.
FACTS
The applicant, who is 30 years of age, claims to have been born in Afghanistan and claims to be a citizen of Afghanistan. Evidence obtained by the Minister from a family relative, namely the applicant’s maternal uncle, alleges that the applicant was born in Pakistan and that members of his family, who arrived by boat with the assistance of people smugglers, falsely claimed that they were from Afghanistan when in fact they were citizens of Pakistan. Such information is consistent with an assessment conducted in 2001 that the applicant’s mother spoke with a Pakistani accent in a Pakistani Hazaragi dialect. For the purposes of this decision, the Tribunal will consider both Pakistan and Afghanistan to be potential countries of return.
EVIDENCE
Statements
The Tribunal has had regard to all the material filed in this matter, including:
·Submissions were filed on behalf of the applicant by a migration agent dated 16 September 2019. However, said migration agent did not appear for the applicant at the hearing nor make representations on his behalf. These submissions included the following assertions:
o   The applicant’s whole family are Australian citizens: his three sisters and two brothers live in Sydney, as does the applicant’s nieces and nephews.
o   The applicant has been in Australia since he was child and has never left the country.
o   The applicant has already been punished for the offences he has committed and has been in detention for more than 13 months.
o   The applicant’s criminal offending and drug addiction can partly be blamed on the applicant’s unfair prosecution in 2004 and a fair-minded Australian would expect the government to provide the applicant with treatment, rather than deporting him.
o   The applicant came to Australia as a refugee.
o   Afghanistan has over 1.2 million people suffering from mental health issues and there is only one high security psychiatric facility where patients often chained and sedated.
o   The applicant is from a Hazara minority in Afghanistan which is frequently targeted by armed groups. More recently, it has been targeted by ISIS.
o   There are only two rehabilitation clinics for drug addicts in Afghanistan despite there being approximately 1.3 million to 1.6 million drug users.
o   The psychological report of Dr Kwok estimates at the chance of recidivism is moderate without treatment and would be reduced with treatment which is intended.
o   The applicant is a good candidate to be given a second chance.
o   The applicant has expressed remorse for his offending.
·The applicant has provided multiple statements dated between the years 2019 – 2021.
·A statutory declaration of Sister A, sister of the applicant, dated 16 September 2019 has been received, together with a letter written by the same person dated 11 March 2019.
·Two handwritten letters from Sister B, sister of the applicant, have been considered by the Tribunal.
·Two statutory declarations from the applicant’s mother, dated 16 September 2019 and 28 July 2020 respectively, and an undated letter.
·Letters of support from three of the applicant’s nieces and nephews, undated.
·A letter dated 24 July 2018 from the Australian Community Support Organisation (ACSO) verifies that whilst in custody the applicant voluntarily entered a program with Corrective Services NSW to help to successfully reintegrate the person into the community and reduce the risk of offending.
Oral evidence
The Tribunal heard oral evidence from the applicant and from the applicant’s mother.
Medical evidence
A report of Dr Emily Kwok dated 7 September 2019 has been received by the Tribunal.
A report of Dr Stephen H. Allnutt, forensic psychiatrist, dated 31 January 2007 was received by the Tribunal.
ISSUES FOR DETERMINATION
The Tribunal may revoke the original decision if the Tribunal is satisfied that:
(e)the Applicant passes the character test as defined by subsections 501(6)(a) and 501(7)(c) of the Act: section 501CA(4)(b)(i); or
(f)there is another reason why the original decision should be revoked: section 501CA(4)(b)(ii).
The applicant does not pass the character test because he has a substantial criminal record as defined by the Act. Therefore, the sole issue for determination by the Tribunal is whether there is another reason why the original decision should be revoked.
The Tribunal now turns to assess the primary considerations as relevant.
PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Under paragraph 8.1(1) of the Direction, it is stated that decision-makers should:
When considering protection of the Australian community…keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or 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.
Pursuant to paragraph 8.1(2), that consideration requires an assessment of the nature and seriousness of the Applicant’s conduct and the risk that the applicant presents to the community.
Nature and seriousness of the conduct
The Tribunal has had regard to paragraph 8.1.1(1)(a) of the Direction.
Applicant’s Criminal history
The Respondent has supplied the below table in their SFIC, outlining the applicant’s offending:

DATE EVENT

[redacted]

2005

The Applicant was found guilty of having custody of a knife in a public place. The Applicant was given 6 months' supervision.

[redacted]

2007

The Applicant was found guilty of aggravated break and enter with intention in company. He was given a control order and a 9-month suspended sentence of juvenile detention.

The Applicant was also found guilty of robbery in company, for which he was sentenced to 18 months' juvenile supervision and was required to undergo drug and alcohol counselling.

[redacted]

2008

The Applicant was found guilty of resisting an officer in the execution of their duty and assaulting an officer in the execution of their duty, for which he was given a good behaviour bond and 15 months of juvenile supervision. The Applicant was again referred for counselling.

[redacted]

2010

The Applicant was found guilty of having custody of an offensive implement in a public place, for which he was sentenced to a bond for 12 months.

The Applicant was also found guilty of common assault and destroying or damaging property, for which he was fined $800.00.

[redacted]

2011

The Applicant was found guilty of possessing a prohibited drug for which he was fined $100.00.

[redacted]

2012

The Applicant was found guilty of having custody of a knife in a public place (subsequent offence).

[redacted]

2013

The Applicant was found guilty of common assault (domestic violence) for which he was sentenced to a bond and 2 years of police probation

[redacted]

2013

The Applicant was found guilty of forging or altering a prescription for a prohibited drug; obtaining or attempting to obtain a prohibited drug by false representation; and of goods in his custody suspected of being stolen. He was sentenced to 12 months of police probation and was referred for counselling.

[redacted]

2014

The Applicant was found guilty of using a false document to obtain property for which he was sentenced to four months' imprisonment, suspended for four months.

[redacted]

2015

The Applicant was found guilty of common assault (domestic violence) for which he was sentenced to 9 months' imprisonment.

[redacted]

2015

The Applicant was found guilty of common assault (domestic violence) for which he was sentenced to 9 months' imprisonment.

[redacted]

2016

The Applicant was found guilty of resisting a police officer in the execution of their duty and of assaulting a police officer in the execution of their duty and was sentenced to 9 months imprisonment.

[redacted]

2016

The Applicant was found guilty of making a false document to obtain property and of using a false document to obtain property and was sentenced to a good behaviour bond.

[redacted]

2017

The Applicant was found guilty of having custody of a knife in a public place (subsequent offence) and of possessing or attempting to possess a prescribed or restricted substance.

[redacted]

2017

The Applicant was found guilty of shoplifting, stalking or intimidating with the intention of causing fear of physical harm and was sentenced to 12 months' imprisonment, suspended.

[redacted]

2018

The Applicant was convicted of destroying or damaging property (domestic violence) and was sentenced to 6 months' imprisonment.

As a consequence, the applicant has received several periods of imprisonment, the most significant being the suspended sentence of 12 months imprisonment imposed on [redacted], which was later called up after the applicant re-offended in [redacted] 2018.
Sentencing observations in respect of recent offending
The Tribunal has considered sentencing observations in relation to the most recent convictions.
On [redacted], before the Local Court of New South Wales at Parramatta, Magistrate Still referred to the evidence before the Court relating to the charges of producing false misleading documents, resisting an officer in the execution of their duty, knowingly produce a false/misleading documents, intimidating a police officer in execution of the duty and assaulting a police officer in the execution of his duty. The offences related to false/misleading document related to bogus drug prescriptions. Having referred to the fact that the applicant was 25 years of age and had inflicted an injury on a police officer in the course of their duty, the magistrate observed:
The second observation is that at the time he commits these offences the defendant is on parole and he is on parole for two matters of assault. Sure they are domestic violence but they are still matters of violence. That aggravates this offending in my view.
The Magistrate sentenced the applicant to nine months imprisonment with a six-month non-parole.

On [redacted] in the District Court of New South Wales before Judge Bennett SC, the Court considered an appeal from the above conviction and found that the applicant’s appeals should be allowed because the magistrate did not consider the time spent by the applicant in prison. However, the sentences were confirmed.
On [redacted] the applicant appeared before the Downing Centre Local Court, before Magistrate Farnan on the charges of making false document to obtain property, using a false document to obtain property, shoplifting, and stalk/intimidate intend to fear physical harm. The Magistrate handed down two three month and one 12 month sentence in the matter, all suspended.
On [redacted] in the Local Court at Parramatta the applicant had his suspended sentence called up after he was charged with shoplifting, stalk/intimidate intend fear physical harm, destroy or damage property, and use false document to obtain property. Magistrate Still observed:
[SRKB], you are on suspended sentences for three months and 12 months, and that incident with your grandmother where you smashed the window is a breach of those bonds. They had gaol bonds, so these bonds must be revoked and I am obliged to sentence you on those matters first. Your criminal history does not assist you. It has numerous matters of violence, and you have previously served terms imprisonment and it appears you have failed the Drug Court program as well.
Some of the crimes for which the applicant has been convicted were violent crimes committed against a woman in a domestic violence context. The violent nature of the crimes and the fact that they are committed against a woman means that they are to be considered very serious, as per paragraph 8.1.1 of Direction 90.
The Tribunal must now look to the frequency of the offending.
The police narratives establish that the applicant has come to the attention of the police as early as 2002 when the applicant, approximately 12 years of age, was found to have engaged in a fracas near Belmore railway station. A victim was slashed with a very sharp razor-blade but the victim declined to make a statement.
On [redacted] the applicant received an infringement for travelling on a train without a ticket. In [redacted] the applicant was found to be carrying a Swiss Army knife and a telephone which was founded been stolen in a robbery at Strathfield but it was not established whether the applicant was engaged in the robbery.
On [redacted] the applicant, in the company of other young persons demanded money from two males who were surrounded by the applicant and his companions. The applicant demanded to see the victim’s bags and stated he had a knife. Police found that a knife was found in close proximity to the applicant. No charges were laid.
Throughout 2003 and 2004 the applicant came under the attention of the police. In one incident in 2004 the applicant spoke to the persons in a home threateningly in another language, such as: “I’m going to put you in the ground”; and “come down and I will put you in the ground”; “you’re not good people you are Christian”; “come down we will kill you”. The applicant then went to a motor vehicle and removed a 30cm kitchen knife and confronted the victim on the footpath at the front of the unit block whereupon the applicant stabbed the victim in the left upper arm and upper torso on two occasions. The applicant was charged. Within two weeks of that matter, whilst in juvenile detention, the applicant was forcibly removed from the room of another detainee.
Throughout 2005 other events occurred involving the applicant. On [redacted] the applicant was found in York Park at Berala having in his possession a closed flick knife about 5 cm when closed and 10 centimetres in length when opened and a small resealable plastic bag containing 0.9 grams of cannabis. The police record made on [redacted] states that the applicant was “well known to police in relation to knife offences”.
On [redacted] at Auburn police station, the applicant was asked why he was there to which the applicant responded:
I want to fucking report you cunt…I come here to report and you fucking dog cunts hassle me.
The pattern of similar conduct has continued throughout 2005 – 2009.
The applicant continued to offend into 2010. On [redacted] the applicant attempted to obtain a prescription for OxyContin from a medical practitioner. When the applicant was informed that he should visit another medical centre because the doctor was busy, the applicant left but returned and became aggressive and demanded the prescription. The applicant left the building but was then seen to throw a metal sign at the glass window causing it to fracture. The applicant then said to the doctor “I will kill you”. The applicant was arrested and was seen to be under the influence. A pair of scissors was found in his pants pocket and he was noticed to be reaching for something in his underwear. Police found a 20cm long single scissor blade in his underwear. The applicant was charged with common assault and bail conditions were imposed.
Thereafter in 2010 further incidents occurred. On [redacted] the accused was arrested for shoplifting in a Big W store.
On [redacted] the applicant assaulted someone and then absconded.
On [redacted] the applicant obtained a prescription from a medical practitioner for OxyContin for 40 packets. When the applicant did not have sufficient funds, he seized the balance of the order for which you could not pay and absconded.
Similar conduct by the applicant occurred throughout 2011 – 2012. Notable offences include an incident in September 2011 when the applicant stabbed his brother, and an incident in November 2011 where the applicant became aggressive and violent towards a doctor while seeking Oxycontin.
Throughout 2012 until he was eventually detained in 2018, the applicant was involved in numerous offences commencing on [redacted] 2012 and in each year thereafter.
The respondent states:
It is difficult, given the volume of the Applicant's offending, to adequately characterise its gravity as a whole. While some of the Applicant's individual offences could fairly be described as "misdemeanours that involve lesser faults and omissions", to use the words of Senior Member Britten Jones (as he then was) in Furlong and Minister for Immigration and Border Protection, much of the Applicant's offending is clearly serious in nature. For present purposes, it suffices to draw attention to just five instances of the Applicant's offending:
(a)On [redacted] at about 4.35PM, police found the Applicant sitting on a street. Police asked the Applicant what he was doing as he appeared to be heavily drug-affected. The Applicant responded that he was a regular user of heroin. The Applicant was handcuffed however he managed to remove from his jacket pocket an uncapped syringe filled with blood. Police then searched the Applicant and found another syringe (not filled with blood) and a Stanley knife.
(b)On [redacted], at about 8.30PM, the Applicant returned home highly drug-affected. The Applicant's younger brother, who was a child at the time, confronted the Applicant, telling him that he was embarrassing the family and that the neighbours were laughing at them. The Applicant then approached his younger brother, grabbed his jumper and then used the palm of his hand to strike his brother in the face. This caused the Applicant to bleed from his mouth. The Applicant then threw a "hook" punch, which his brother managed to evade. The Applicant continued, however, to "collar punch" his brother throughout their fight until his brother was able to get away to a police station.
(c)On [redacted], the Applicant attended a pharmacy at about 6.53PM and approached the prescription counter. He produced to the pharmacist a prescription in his name for Durogesic (fentanyl) patches. The pharmacist attempted to verify the prescription with the issuing doctor but the doctor could not be reached. Accordingly, the Pharmacist informed the Applicant that she could not issue him the patches at that time. The Applicant remained in the pharmacy, complaining about the pain he was suffering and stating that he needed the medication for pain relief. The pharmacist eventually agreed to provide the Applicant with one fentanyl patch from the packaging.
Two days later, the pharmacist followed up with the doctor who had purportedly provided the prescription. The doctor confirmed that he had not done so and that the prescription pad from which the prescription had been taken had actually been stolen from his offices.
(d)On [redacted], at about 1.40PM, the Applicant and two other males entered a Chemist Warehouse store and made their way to the vitamin section. Shortly thereafter, the Applicant took three 500g containers of Manuka honey and placed them in a bag. The Applicant then left the store without paying for the honey. When a security guard challenged the Applicant, the Applicant told the security guard that he had taken the honey because the chemist had declined to provide a prescription.
The security guard called the police and, while they were waiting for police to arrive, the Applicant repeatedly attempted to leave the store. When stopped by the security guard, the Applicant approached the security guard with a clenched fist and said, "I know lots of people to bash you" and "I'm going to kill your whole family".
(e)On [redacted], the Applicant attended a police station for the purposes of reporting with respect to his bail conditions. At this time, he presented police with a certificate, stating that he would be unfit to report for bail for the next two months. Police warned the Applicant that he could not present certificates for such a substantial period of time and that he would have to present medical certificates daily. The Applicant responded by saying, "Nah, I'll be coming in when I feel like it".
The Applicant did not report for bail on [redacted]. Accordingly, on [redacted], police attended and placed the Applicant under arrest. The Applicant became very argumentative, telling police "Nah, I'm not coming". When police attempted to handcuff the Applicant, the Applicant said to them, "If you put those handcuffs on me, you're dead".
Police proceeded to attempt to handcuff the Applicant, who resisted the arrest. The Applicant continued to swing his arms and kicking with his legs. Eventually, police were able to handcuff the Applicant and get him into the caged portion of the police vehicle. At this point, the Applicant shouted at the police officers, "You fucking dogs, you're both fucking dead, you're both fucked".
Once the Applicant was back at the station, he was placed into a cell and was searched. While being searched, the Applicant looked at one of the officers, and stated, "How about you take your badge off and I'll fuck you up, cunt".
The respondent submits:
The Applicant's criminal history is a violent one, punctuated with frequent assaults both against members of his own family and against other community members. The Applicant assaulted his juvenile brother in the family house,
The Applicant has, on multiple occasions, threatened to kill people or to have them killed. Examples of this conduct are set out above and include telling a police officer, who was trying to arrest the Applicant with respect to other charges, "fuck you, I'm going to kill you". In a separate incident, in 2017, the Applicant was trying to steal a number of jars of honey from a chemist, when a shop assistant confronted him. The Applicant responded by approaching the shop assistant with a clenched fist and saying, "I know lots of people to bash you. I'm going to kill your whole family". These threats have the potential to (and, in the case of the shop owner, did) cause serious fear in their victims. Members of the Australian community should not be obliged to tolerate death threats from the Applicant merely because they are performing their lawful duties in arresting the Applicant or in challenging his attempts to steal. In the Respondent's submission, such conduct ought to be viewed very seriously within the context of Primary Consideration 1.
The Applicant has also been convicted of domestic violence offending as set out above. Domestic and family violence is a particularly insidious form of offending. This Tribunal has recognised time and again the appalling consequences that such offending has on victims, families more broadly, and society as a whole. It is beyond clear that the Australian community has no tolerance for this form of offending. Indeed, with the implementation of Direction 90, the Minister has mandated that offences of domestic violence must be attributed very significant weight.
The Applicant has been convicted of common assault (DV), with the facts of this offending set out above. In circumstances where this offending must be specifically addressed under the auspices of Primary Consideration 2, it suffices, for present purposes, to submit that this offending is extremely serious. Domestic and family violence should never be tolerated or validated in society and the clear text of Direction 90 makes it clear that the same applies with respect to decisions made under s 501CA(4) of the Act.
The Applicant has also been convicted of violent offending against police. At paragraph 8.1.1(b)(ii), Direction 90 sets out that offences against government representatives or officials ought to be considered as especially serious. The rationale for this is clear: government officials, particularly police officers and other law enforcement officers and emergency workers, place themselves in vulnerable positions for the protection and service of the broader community. Where those officials are victimised by reason of their position, such offending should be viewed as particularly abhorrent.
However, it is necessary to have regard to circumstances of the applicant’s offending.
The applicant has had a limited education. Following his arrival in Australia he attended an intensive English course and attended primary school. However, when of high school age, it appears that he did not attend school but instead undertook casual employment. Accordingly, he has not had the benefit of a sound education.
The Tribunal notes significant matters relative to the consideration of the protection of the Australian community. The fact is that the applicant has appeared before numerous courts between [redacted] 2005 and [redacted] 2018 and has been found guilty of or pleaded guilty to in excess of 20 separate criminal offences including robbery in company, common assault (domestic violence), possession of a knife in public, assaulting a police officer in the execution of the duty, forging a prescription; possessing a prohibited drug, stalking or intimidating with intent to cause fear or physical harm, aggravated break and enter in company, and destroying property (domestic violence). Many of the instances referred to are drug related.
The Tribunal finds that the applicant’s offending can be considered as very serious, endangering members of the Australian community and targeting medical or other professionals in the course of their jobs.
Risk to the Australian community should the Applicant reoffend or engage in other serious conduct
The Tribunal has had regard to paragraph 8.1.2 of the Direction.
Dr Emily Kwok, psychologist, prepared a report dated 7 September 2019 for use in the applicant’s request for revocation of the cancellation decision.
It refers to the personal history of the applicant, including an incident where he reportedly fell off a roof of a building when he was five years old and may have suffered some head injury as a result, although there are no medical records to confirm this.
The applicant stated to Dr Kwok that he enjoyed playing soccer when he first came to Australia, and that his childhood in Australia was ‘normal’ until he was allegedly wrongfully accused of committing a crime when he was a juvenile and was held on remand for proximally four months, his life changed. He stated that he became isolated, and resorted to drugs but that he had decided to “turn his life around”. The applicant used drugs and also drank alcohol heavily as a young person. He consumed drugs mainly when he was 16 to 18 years of age. The applicant stated that he had originally begun taking drugs to cope with stress.
The applicant stated to Dr Kwok that he could not remember anything from his childhood but that he had nightmares of events which took place in Afghanistan.
The applicant claims that the alleged malicious prosecution of him in 2003/2004 was the most traumatic experience of his life, that he did not cope well upon being released from a juvenile detention centre, that he was required to appear before the Children’s Court on several occasions between 2004 and 2006 and that his life routines and activities “went upside down”.
Dr Kwok concluded that the applicant suffered from a post-traumatic stress disorder (PTSD) and Anxiety Disorder as defined by the Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM – 5). Dr Kwok also consider that that the applicant was in partial remission for substance abuse disorder. Dr Kwok stated:
[SRKB] is considered to pose a moderate risk of re-offence if he is returned to the community without appropriate treatment. Nevertheless, his prognosis is positive and depending on his responsiveness to treatment, his risk of recidivism and danger to the community can be reduced. Treatment for [SRKB] is available in the community and, at present, he does not require hospitalisation although this can be considered if he presents with self-harming or suicidal ideation.
It should be observed that no evidence has been provided of any treatment received by the applicant as a result of Dr Kwok’s recommendation.
The evidence before the Tribunal established that the applicant was not truthful when he gave his history of drug taking to Dr Kwok. Dr Kwok considered that the applicant was at moderate risk of reoffending, unaware that he was still abusing illicit drugs. Dr Kwok gave her opinion based upon the fact that the applicant was in partial remission for substance abuse disorder and was using methadone in “gradually reducing” amounts. There is no such evidence of any such remission and the evidence before the Tribunal indicates that the applicant has continued to take illicit drugs.
During the course of the hearing the applicant acknowledged that he is now consuming illicit drugs (“ice”) weekly and has done so, weekly, since his detention which commenced approximately 13 months ago.
In his statement dated 15 September 2019, the applicant claims to accept responsibility for his criminal conduct and expresses regret.
The submissions of the applicant’s previous representative stated that despite his extensive criminal history, none of the offences were directed against vulnerable members of the community or against children, and that there is no indication that his offending has increased in seriousness. The applicant submits that the courts have provided lenient sentences, thereby indicating that the courts did not consider that the applicant was a danger to the community. In respect of the offence which came before Magistrate Still on [redacted], His Honour revoked existing bonds that had been earlier imposed on the applicant and stated:
I do that because, objectively, it is not a serious case of damage. I accept that it has tripped the section 12 bonds and that is what makes the offending worse.
On behalf of the applicant, attention is drawn to the findings of Dr Kwok that the applicant’s offending was heavily influenced by his post-traumatic stress disorder and anxiety disorder, and partly exacerbated by his prosecution for grievous bodily harm with intent to murder in 2004. He was acquitted of those offences but the impact of the prosecution has caused the applicant to be deeply affected.

For this reason, it is submitted that the applicant’s reoffending should not be understood as showing a disregard or contempt of the law. The applicant is willing to undergo mental health treatment for his PTSD and Anxiety Disorder. There is no evidence of any offences whilst the applicant has been in migration detention.
As regards the risk to the Australian community, the applicant draws attention to the observations of Buchanan J in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [192], where His Honour stated that:
…the discretion to be exercised under section 501 is fundamentally forward, rather than backward, looking. It concerns the future, not the past.
It is well-established that the Minister cannot regard visa cancellation or deportation as a form of punishment for past events, as per Tamberlin, Sackville and Stone JJ in Djalic v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 151 at [58].
It is submitted on behalf of the applicant that the likelihood of the applicant engaging in further criminal conduct is low and any prospective risk could be addressed appropriately by considering his mental health and addiction issues. A letter dated 24 July 2018 from ACSO states that:
This letter is to confirm that [SRKB] has been referred to the OnTRACC (Transition Reintegration and Community Connection) program whilst in custody. OnTRACC is a 12 month voluntary program delivered in partnership with Corrective Services NSW, which supports medium to high risk (LSI-R) parolees in the Sydney Metro region to successfully reintegrate into the community and reduce their risk of reoffending.
The OnTRACC program provides support to Parolees, subject to an individual's needs, in the following areas:
·     securing housing
·     scheduling and attending appointments
·     assistance with referrals and paperwork
·     seeking employment or training opportunities
·     legal support with fines and/or debt
·     strengthening a client's formal and informal supports in the community
·     supporting integration with pro social networks
The applicant is claiming that he is now had time to reflect on his wrongdoing; however, the Tribunal is unable to give such expression of contrition more than negligible weight in view of the prior conduct and offences committed by the applicant. The applicant claims now to accept responsibility for his conduct, understands the impact of his behaviour, and has undertaken rehabilitative efforts to address that behaviour, and the Tribunal has considered this. However, the evidence before the Tribunal suggests that that any such understanding will only reduce his potential risk to the Australian community in the future if he is able to access and maintain consistent treatment for his mental health. The Tribunal is satisfied that his drug-fuelled outbursts have placed not only his brother, but also other family members at risk of violence and that this risk is a continuing one.
Finding on Primary Consideration A
The Tribunal is satisfied that the nature of the applicant’s offending is serious. The Tribunal also accepts that, without treatment, the applicant is at moderate risk of re-offending.
Given the factors discussed above, the Tribunal finds that this consideration weighs strongly against revocation of the original decision.
PRIMARY CONSIDERATION B: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Paragraph 8.2(1) of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 4(1) defines family violence to mean "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member) or causes the family member to be fearful".
This primary consideration is relevant in circumstances where (paragraph 8.2(2)):
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.1.2(2)(a)); and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.1.2(2)(b)).
Paragraph 8.2(3) of the Direction also provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.1.2(3)(a));
b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.1.2(3)(b));
c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.1.2(3)(c)):
(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.1.2(3)(c)(i));
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.1.2(3)(c)(ii));
(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.1.2(3)(c)(iii)); and
d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.1.2(3)(d)).
The details of the applicant’s offending has been discussed above. The applicant has been involved in violence including stabbing his brother, discharging a flare gun towards his brother when the applicant’s brother the front door of their home unit which inadvertently struck a different family member. On [redacted], the applicant became enraged when his mother refused to provide him money to enable him to buy methadone, and shattered a window at his home. His niece was inside the bedroom and shards of glass landed on the bed where she was sitting which frightened her greatly.
The respondent states that:
In XNBW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Senior Member Illingworth described domestic violence as a "scourge", a "plague" and a "pernicious blight" upon the community. Senior Member Puplick explained in Mendoza and Minister for Immigration and Border Protection:
The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically. Paragraph 8.2(1) of Direction 90 provides that the Australian Government has 'serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia', and that the Government's concerns are proportionate to the seriousness of the family violence engaged by the non-citizen.
The Applicant has been convicted of common assault (DV). The facts of this assault are set out above. The salient points are that he came home heavily drug affected and began a serious violent altercation with his younger brother, who was a child at the time. In the course of the fight, the Applicant struck his brother in the face with his hand, causing his brother to bleed from his mouth. This is serious family violence.
The offending of the Applicant can be plainly considered ‘family violence’ for the purposes of Direction 90, as defined in paragraph 4(1) of the Direction. The Tribunal notes that the applicant’s mother and sister have provided statements indicating that they support his application for revocation. These will be dealt with under a separate consideration.
The Tribunal finds that the episodes of domestic violence have arisen within the family setting. On one occasion, when the applicant has become enraged because his mother would not provide him money to buy drugs and he shattered a window. It is not suggested that this was a premeditated act. The other event of family violence occurred when he assaulted his brother during some altercation. These offences can again be traced back to his drug-seeking habit which has been most likely derived from his diagnosed but largely untreated mental illness.
Finding on Primary Consideration B
The Tribunal finds that this consideration weighs against revocation of the decision under review.
PRIMARY CONSIDERATION C: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.3(1) of the Direction provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision (where that child is, or would be, under 18 years old at the time of the decision to revoke or not revoke the mandatory cancellation decision is expected to be made).
Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:
a)the nature and duration of the relationship between the child and 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) (sub-paragraph 8.3(4)(a));
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));
c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways (sub-paragraph 8.3(4)(d));
e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct (sub-paragraph 8.3(4)(h)).
The Respondent submits that:
As the Full Court of the Federal Court explained in Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs it may be a rational assumption that the best interests of a child will generally be served by remaining with their parents. However, as Direction 90 makes clear, this starting point is subject to other considerations, some of which may indicate that it is not in the best interests of the child for the Original Decision to be revoked.
The Applicant has five nieces and nephews namely IF (approximately 11 years of age), NAF (approximately eight years of age), EMA (approximately eight years of age), SF (approximately seven years of age) and HAF (approximately two years of age). These children are cared for by their parents and grandmother.
The applicant claims that he has had strong bonds with the four eldest children. The applicant states in his statement dated 15 September 2019 that his nieces and nephews visited him almost every weekend in immigration detention until COVID-19 restrictions prevented such visits, and he frequently keeps in contact by telephone during the week. He has photos of himself with his nieces and nephews.
It should be noted that the applicant has supplied handwritten letters from two of his nieces/nephews, which echo the affection that the applicant claims to have.
The applicant’s mother and sister claimed to have strong relationship as evidenced by their visits to him. One of the applicant’s sisters refers to the strength of NAF’s relationship with her uncle.
On behalf the applicant it is submitted that the five nieces and nephews, all of whom are under age of 18 and are Australian citizens by birth, have a strong connections to the applicant and that he has made a positive contribution to their upbringing. It is further submitted that the applicant has played a positive role in the lives of the nieces and nephews.
The Tribunal accepts that the applicant has affection for his nieces and nephews. However, the Tribunal also notes that the younger nieces and nephews would have had negligible contact with the applicant since he has been removed from them while serving sentences of imprisonment or detention. Further, the Tribunal notes that the relationship is not a parental one.
Finding on Primary Consideration C
The Tribunal notes at the applicant has no children of his own. The Tribunal notes that the applicant appears to have had contact with his nieces and nephews, some of whom are of a very young age. It is difficult to ascertain the continuity of such contact in view of the periods of incarceration and the detention of the applicant, but it can be said that any such contact would be detrimentally impacted by the applicant’s removal to another country. The Tribunal notes that one such child is only two years of age and clearly no bond would have been established with that child, due to the applicant’s period of current incarceration and then detention.
The Tribunal considers that the best interests of the minor children, being the applicant’s nieces and nephews, weighs moderately in favour of the revocation of the original decision.
PRIMARY CONSIDERATION D: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)   acts of family violence; or
(b)   causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in the context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;
(d)   commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)   involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)    worker exploitation.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion and is ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J). That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to Direction 90.
It has further been held that the consideration is “in substance … adverse to any applicant”: see Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
The Tribunal notes the decision relied upon by the applicant in Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23], where Deputy President McCabe stated (referring to a predecessor Direction in the same terms as the current Direction):
As I begin my deliberations, I assume the Australian community would be fair-minded and mature. Modern Australia was founded by convicts and their jailers, after all: we are a nation built on second chances. The community would certainly not be vengeful. The applicant has already been punished for his offence and the community would not want to see these cancellation miss used to inflict further punishment. I would also expect this community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgement about the individual and what should be done.
In Weti-Safwan and Minister of Immigration and Border Protection [2016] AATA 797 at [50], Member Bygrave made observations to similar effect, stating:
I also consider the deliberation of Australian community expectations involves “bringing appropriate perspective and proportionality to bear in the assessment of risk” and that the “expectations must be considered contextually, relative to factors arising in relation to other principles” set out in the Direction.
It must be noted that the applicant’s offending raises ‘serious character concerns’ as defined by the Direction, in that some of his offending constitutes family violence (as discussed above); and that he has been found guilty of offending perpetrated against government officials in the course of the performance of their duties – such as the assault of a police officer in the course of their duties.
The Tribunal notes that the attitude of the applicant towards law enforcement officers and detention staff has been defiant and aggressive. The recent records of the detention centre where the applicant has been held demonstrate that whilst in detention, the applicant has refused to provide urine samples; and has threatened nurses with physical harm.

It appears that the applicant, whilst a juvenile, was tried but acquitted for a crime of attempted murder. There is vague evidence to suggest that proceedings were instituted by the applicant for compensation. As result the applicant stated he was paid $110,000 by way of compensation for wrongful prosecution. No documents have been produced to verify such facts. However, the applicant asserts that it was such prosecution that has contributed to his mental condition, and the report of Dr Kwok supports this assertion. The applicant stated that:
During those 4 years, I went through constant trauma of physical and mental abuse…which resulted in I turning to drugs [sic] for solace.
Dr Kwok’s report notes:
it is important to note that [SRKB] did not present with behavioural problems, severe mood disorder nor substance use prior to the malicious prosecution. Thus, the malicious prosecution (including wrongful detention, separation from his family, daily reporting at the police station, and stress from the legal proceedings) had both exacerbated [SRKB]’s pre-existing psychological symptoms as well as caused additional emotional distress.
Dr Kwok also notes that the applicant stated that he used drugs to manage his emotional distress, and also states:
[SRKB]’s case was unique in that his wrongful detention made him more vulnerable to mental health problems and recidivism when, in fact, he posed no credible threat to public safety. It was, unfortunately, in juvenile detention where he was also first introduced to illicit drug use and juvenile delinquency.
The Australian community is not without compassion and there are important considerations in relation to this applicant. The Tribunal will deal with these hereunder.
Firstly, the applicant was diagnosed with a mental illness as early as 2007 by Dr Allnutt. Such illness was again confirmed by Dr Kwok in 2019. There is no evidence that any treatment has been received for such illness. The pattern of offending of the applicant, which has occurred virtually annually, may be contributed to by his untreated mental illness – a factor the applicant himself asserts.
In her report, Dr. Kwok has stated that:
[SRKB] has an extensive history of mental health problems that have not been adequately treated and would require an interdisciplinary treatment team in the community consisting of a general practitioner, psychiatrist and psychologist. His need for a prosocial routine and social stability will be important to assist him in establishing community living, which may include access to assistance in employment seeking and training to improve his employability. This treatment plan cannot be implemented within an immigration detention centre, therefore, it is better for him to receive treatment outside.
She also notes a correlation between the applicant’s psychological conditions and drug dependency. She states that she will accept the applicant as a client were he to be released, and that his risk of recidivism can be reduced with treatment.
The Tribunal accepts that the applicant is unlikely to receive adequate treatment for his mental health problems in detention. It does not appear that he is receiving any real treatment other than an oral anti-psychotic medication. The Tribunal also accepts that is almost impossible to consider that the applicant would receive adequate treatment in Pakistan or Afghanistan, not least due to the lack of familial and social support he would receive.
Secondly, the Tribunal accepts the notion that the false prosecution of the applicant at a young age may have had a significantly traumatising effect on him, especially in the wake of the other trauma he experienced as a child fleeing either Pakistan or Afghanistan. The Tribunal believes that this must be taken into consideration when assessing the expectations of the Australian community to bring context to the applicant’s offending.
It is not impossible that the applicant’s conduct towards figures of authority – such as police, or staff at the detention centre – arises from a distrust of such personnel and is result of his false prosecution; however, there is no evidence before the Tribunal to verify such hypothesis.
The Tribunal considers it likely that, through no fault on his part, the applicant has been subjected to a miscarriage of justice which has, in turn, resulted in his distrust towards the police and authority, and led him to engaging in drug-seeking and drug-taking behaviours.
The Tribunal notes the submission, made by the applicant’s former migration agent, that the offending, when carefully analysed, does not show a tendency or increase towards major crime or violence. The applicant has not committed sexual assault, or other crimes of real violence. The Tribunal finds that, for the most part, where any violence has been involved, it has arisen from the attempts by the applicant to obtain drugs, or while the applicant is drug-affected. Such conduct has demonstrated an increase in threatened violence by the applicant, however without any actual violence.
Finding on Primary Consideration D
The Tribunal considers that the Australian community’s expectations would, prima facie, weigh against revocation of the original decision, although consideration should be given to the effect of the applicant’s false prosecution shortly after his arrival in Australia on his mental health and subsequent offending.
OTHER CONSIDERATIONS
The Tribunal now turns to assess the other considerations (paragraph 9 of the Direction) as relevant.
International non-refoulement obligations
In paragraph 9.1 (1) of the Direction, a non-refoulement obligation is:
…an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
…
The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
At paragraph 9.1(3), the Direction states that the existence of a non-refoulement obligation does not necessarily preclude the refusal or cancellation of a non-citizen’s or non-revocation of the mandatory cancellation of their visa:
This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligations exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to the appropriate conditions.
There is some question of the country of return for the applicant, as there is a question as to whether the applicant is a citizen of Afghanistan or Pakistan. The respondent contends that he is Pakistani and has accepted that he is owed non-refoulement obligations. The Tribunal is willing to accept that the applicant is owed non-refoulement obligations, regardless of whether he is to be returned to Afghanistan or Pakistan.
The cancellation of the applicant’s Class AZ Subclass 866 Protection visa, granted to the applicant in 2004, prevents the applicant from making application for another visa, except a bridging visa. Whilst the applicant is in the migration zone, he is prevented by section 48A of the Act from making further application for a protection visa. He has no right to reside in another alternative country: if the revocation of the applicant’s visa is not revoked, he faces indefinite detention.
The Tribunal notes that given the applicant’s personal circumstances, the applicant will not be removed to Pakistan or Afghanistan in the event that the original decision is not revoked: the applicant has been granted his current visa following an assessment of the applicant’s own protection obligations (as per section 197C(3)(a) – (b) of the Act). Accordingly, mandatory cancellation will not deprive section 197C(3) of its effect until the applicant formally request to be removed to Pakistan or to Afghanistan; or if the applicant is found to no longer engage Australia’s non-refoulement obligations.
The Explanatory Memorandum to the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 explains the impact of new subsection 197C(3) as follows:
The Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (the Bill) amends the Migration Act 1958 (the Migration Act) to:
o   modify the effect of section 197C to ensure it does not require or authorise the removal of an unlawful non-citizen (UNC) who has been found to engage protection obligations through the protection visa process unless:
o   the decision finding that the non-citizen engages protection obligations has been set aside;
o   the Minister is satisfied that the non-citizen no longer engages protection obligations; or
o   the non-citizen requests voluntary removal; and
ensure that, in assessing a protection visa application, protection obligations are always assessed, including in circumstances where the applicant is ineligible for visa grant due to criminal conduct or risks to security.
The purpose of the bill is identified as follows:
The purpose of the Bill is to clarify that the duty to remove under the Migration Act should not be enlivened where to do so would breach non-refoulement obligations, as identified in a protection visa assessment process, including Australia’s obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
As is referred to by the High Court of Australia in Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, the High Court of Australia at [94] found that Australia would contravene its non-refoulement obligations under article 33(1) and thereby its international obligations, if it were to return the applicant to a country where he would hold a well-founded fear of persecution, having already been found to have protection obligations; see further discussion of the Full Court of the Federal Court of Australia in Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 at [100] – [113]. As a consequence, it would lead to the result that the applicant will potentially remain in detention indefinitely in accordance with section 189 of the Act. The Tribunal considers that such an outcome is undesirable and should be avoided.
The real prospect of a person being confined to detention indefinitely, and the fact that there is no constitutional impediment to indefinite detention was considered by the High Court of Australia at [115] of Al-Kateb v Godwin (2004) HCA 37; 219 CLR 562. The High Court was divided by a 4-3 decision that held that a non-citizen in the migration zone without a visa is a lawful non-citizen and must be detained for the purpose of removal. Where removal is not a practical option, the result will be indeterminate detention. For discussion on such question see the decision in BHHX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1574.
The difficulty arising where an applicant does not satisfy the character test, yet the prospect of indefinite detention rises was considered in XDJD and Minister of Immigration and Border Protection (Migration) [2021] AATA 2882 at [108] - [115].
In these circumstances, the Tribunal considers that the Minister may exercise the personal discretion under section 195A to grant the applicant Visa or exercising the minister’s personal discretion under section 197AB to make a residence determination to enable the applicant to reside at a specified place in the community, subject to appropriate conditions. Such conditions would include a requirement that the applicant undergo a mental assessment, abide by recommended courses for mental health treatment, reside with his family, use his best endeavours to obtain employment, and to undertake to refrain from consuming any illicit substances or other substances not obtained by medical prescription.
It must be noted that these powers are personal and discretionary, and there is nothing before the Tribunal to suggest that this power would be exercised in favour of the applicant. Further, the existence of a possibility of another visa being obtained by the applicant does not excuse the Tribunal from its responsibility to consider non-refoulement obligations.
The Respondent, and the Tribunal, accepts that the applicant is owed non-refoulement obligations. The Tribunal also accepts that the applicant has had a protection finding made in his favour, and is owed protection obligations.
By practical exercise of s 197C and 189, as expanded on by the Explanatory Memorandum discussed above, it now becomes a distinct and possible consequence of the decision in this matter that the applicant may find himself in indefinite detention, should the Tribunal not revoke the cancellation of his visa, unless he personally requests removal.
There is also the distinct possibility that, if the applicant is removed, he would be targeted due to his race in both Pakistan and Afghanistan, and potentially harmed.
The Tribunal considers possible indefinite detention to be a serious consideration in this matter. It strongly weighs in favour of revocation of the decision.
The Tribunal separately considers that the international non-refoulement consideration weighs heavily in favour of revocation of the cancellation decision.
Extent of impediments to the applicant if removed from Australia
Paragraph 9.2(1) of the Direction provides that decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(1)the non-citizen's age and health;
(2)whether there are substantial language or cultural barriers; and
(3)any social, medical and/or economic support available to them in that country.
The Applicant is now 30 years of age. He is unmarried but has resided in Australia since he was nine years of age.
The report of Dr Allnutt, psychiatrist, dated 31 January 2007, refers the applicant’s history provided to him and to the allegation that as a child in Afghanistan until the age of eight or nine years of age, the applicant was exposed to violence, killing and fighting, both his father and brother disappeared in suspicious circumstances and that the applicant thought that he himself would die because of the sectarian fighting. He arrived in the company of others in 2002 using the services of a people smuggler. He spent a year in Woomera detention centre but thereafter has been living with his family in Sydney.
The applicant informed Dr Allnutt that he had used cannabis but he had ceased using it and had not used drugs from approximately November 2006. The assessment took place on 17 January 2007. The applicant was then approximately 15 years old.
The applicant had consulted a psychologist, Mr Peter Champion, who had provided a report to Dr Allnutt dated 24 October 2006. Mr Champion had concluded that the applicant did not suffer from a developmental disability but that “his presentation was suggestive of the presence of a significant Mood Disorder and in all possibility anxiety disorders.” Dr Allnutt considered that the applicant had symptoms consistent with a depressive disorder and an anxiety disorder. The applicant also suffered from paranoid ideation believing that someone might be harm him, and mild psychotic symptoms. Dr Allnutt believed that these arose from his traumatic upbringing. Dr Allnutt considered that there were reasonable grounds to believe that the applicant suffered a “mental illness” as defined in Schedule 1 of the Mental Health (Criminal Procedure) Act 1990 (NSW), which has since been repealed. Dr Allnutt said:
That is, that he is manifesting hallucinatory phenomena, possible delusional beliefs and a depressed mood.
Dr Allnutt recommended an extensive treatment program. There is no evidence that the applicant has ever received any such treatment.
The Tribunal accepts that if the applicant is returned to Pakistan or Afghanistan, he will not have available to him the medical services and mental health services that would otherwise be available to him in Australia. As such, the applicant will incur a significant detriment. The Tribunal notes that the applicant’s PTSD was diagnosed in 2007 yet there is no evidence of any attempt by the applicant or his mother to seek medical assistance or treatment for such condition. The condition was identified again by Dr Kwok in 2019. She noted that the applicant’s mental health was not addressed by his family:
His family was living in hardship and poverty when they arrived in Australia, and [SRKB]’s psychological needs were overlooked under those circumstances.
Again, there is no evidence that any treatment has been sought or obtained since that date.
If he were to return to either Pakistan or Afghanistan, the opportunity for obtaining treatment would be exceptionally difficult, if not unprocurable. As a consequence, returning the applicant to a country of which he has little memory would be to destroy forever any opportunity of living a useful life.
The Tribunal also accepts that because the applicant has been residing in Australia for more than 20 years, there will most likely be cultural barriers which will exacerbate the present difficulties for the applicant. Such difficulties may be compounded by the fact that the applicant appears to have no social family connections, nor any other connections in Pakistan and Afghanistan.
The applicant, while having completed some courses while incarcerated, does not appear to have much of an education, nor any identifiable job skills that would aid him in supporting himself were he to be removed to another country.
It is apparent that the applicant would suffer serious and detrimental impediments were he to be returned to either Pakistan or Afghanistan.
The Tribunal considers that this consideration weighs heavily in favour of revocation of the cancellation of the applicant’s visa.
Impact on victims
Paragraph 9.3(1) of the Direction provides:
Decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The applicant was convicted on 5 August 2016 of assaulting a police officer in the execution of his duty. Over the period of his offending, the applicant has repeatedly been found to be carrying a weapon in public. He has threatened his victims, the majority in later years who seemed to be strangers to the applicant such as pharmacists and medical practice staff, with physical harm. Yet there is no evidence that the applicant has ever assaulted a stranger (other than the offence considered above), nor is there evidence that any weapon has been used to assault a stranger. There is nothing before the Tribunal to indicate what kind of impact the applicant’s removal would have on any of these victims of his offending, and the Respondent does appear to have put forward any submissions on the matter.
The applicant has been convicted of multiple counts of common assault (domestic violence) throughout the years of his offending, targeted at his family members such as his mother and brother.

In PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235, Kerr J noted that statements and information provided by victims must be taken into account, regardless as to whether they are adverse to or consistent with the interests of the applicant. A failure to do so is to deny the victim the limited agency they are entitled to in such proceedings. It is a matter of the Tribunal to determine the weight they assign to such statements and information.
The applicant’s mother is identifiably a victim of the applicant’s offending. She provided oral evidence through an interpreter. It was apparent that she wishes for her son to remain in Australia and that she has attempted to deal with the applicant’s drug issues. In her statutory declaration dated 16 September 2019 she states “I cannot bear the pain of losing another son.”
The Tribunal is satisfied that the removal of the applicant would have a significant impact on the applicant’s mother, in that she would likely experience serious emotional distress.
There is no statement from the applicant’s brother, and as such the impact of removal on him as a victim is unable to be assessed.
Given that the Tribunal has no evidence before it of the impact on other victims of the applicant’s offending, and giving due consideration to the statement of the applicant’s mother and the likely impact of serious emotional distress on her, the Tribunal finds that his factor weighs only slightly in favour of revocation of the cancellation of the applicant’s visa
Links to the Australian community
The Tribunal must have regard to the Direction at paragraphs 9.4.1 (strength, nature and durations of ties to Australia) to 9.4.2 (impact on Australian business interests).
Strength, nature and duration of ties to Australia
Under paragraph 9.4.1 of the Direction:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non- citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant has resided in Australia for 21 years. As he left Pakistan or Afghanistan at approximately nine years of age, he has little recollection, except a recollection of terror, from the country he fled. The applicant’s family all reside in Australia and there is no evidence before the Tribunal of any of his family remaining in Pakistan or Afghanistan. It should be observed that the applicant considers that the claim that he came from Pakistan is “ridiculous at best”. This is despite evidence of his family’s background derived from his maternal uncle.
The applicant began offending around four to five years after his arrival in Australia and continued to offend consistently until the conviction in 2018 that resulted in the cancellation of his visa.
There is some evidence of him being engaged in gainful employment; however, it appears as though his periods of employment have been sporadic.
The Applicant also stated that prior to the events in 2003 and 2004, he held a job at a carwash for around three years. Following his release from juvenile detention, he sought employment at a different carwash, but struggled to maintain it due to the requirements of his release and also the stress of being wrongfully accused. Dr Kwok also notes:
In subsequent years, [SRKB] had been incarcerated multiple times. When he was in the community, he had reportedly worked as a factory hand, picker and packer, and cleaner. He was also unemployed for significant amounts of time. [SRKB] said that he was unemployed before his most recent incarceration, because he was in the process of coming off drugs through the methadone program. He stated that he was also reporting to his parole officer and attending classes.
The applicant received a certificate entitled “Statement of Attainment in Outreach Access” in December 2005. The applicant also has provided a transcript of an academic record of his attendance at the South-Western Sydney Institute for 2007 where the applicant undertook courses related to repair of motor vehicles. A further certificate was issued by TAFE entitled ‘Statement of Attainment in Work Skills’ awarded in July 2007. He was awarded a certificate by TAFE confirming his completion of a course entitled “Automotive Skills Course” within the Automotive Light Vehicle Section.
The applicant enrolled on 31 March 2008 in the Putand Education and Training Unit. He attained certificates for completing a five-day Access Program, and Occupational Health & Safety Program in April 2008, and a Certificate of Participation in the Cobham Juvenile Justice Centre & Rutland ETU. The Tribunal accepts that the applicant has endeavoured to improve himself by undertaking such courses.
The Tribunal is also mindful that the applicant’s mother, sisters, nieces and nephews would be adversely affected if the applicant were removed from Australia. Each of these persons either an Australian citizen or a permanent resident or has a right to live in Australia indefinitely.
The applicant’s mother has asserted that she and the applicant’s other family members “dearly love” the applicant and that they will provide him with “accommodation, financial, emotional and professional help” if he were to be released. Two of the applicant’s sisters have provided written statements, and there is also evidence of one sister’s communications with organisations such as Foundation House and Odyssey House that conduct treatment programs for those afflicted with drug, alcohol and other kinds of dependency.
The Tribunal is mindful of the connection between the applicant and such close family members. However, there is nothing to suggest that the applicant has any connection in Australia of any wider community, social or work groups. The applicant has no wife in Australia, no regular employment, nor is there any evidence of future employment.
Taking these factors into consideration, the Tribunal considers the strength, nature and duration of the ties to Australia are such as to weigh in favour of the revocation of the original decision. The weight given to the applicant’s familial links to Australia and the time he has spent living must necessarily be mitigated by the fact that the Applicant began offending approximately four years after his arrival in Australia.
Impact on Australian business interests
This consideration is not relevant in this matter.
Finding on Links to the Australian Community
The Tribunal has taken these factors into consideration. The Tribunal finds that, overall, this consideration weighs strongly in favour of the revocation of the original decision.
CONCLUSION
In weighing the competing considerations and the weight to be given to all relevant considerations, the Tribunal finds that, with regard to the primary considerations:
(a)the finding in respect of primary consideration A weighs strongly against revocation;
(b)the finding in respect of primary consideration B weighs against revocation;
(c)the finding with respect to primary consideration C weighs moderately in favour of revocation;
(d)the finding in respect of primary consideration D weighs against revocation in view of the circumstances surrounding the applicant’s offending which is related directly to his mental illness.
With regard to other considerations:
(a)the finding in respect of international non-refoulement obligations weighs strongly in favour of revocation;
(b)the finding in respect of the extent of impediments if the applicant is removed weighs strongly in favour of revocation;
(c)the finding in respect of impact on victims weighs only slightly in favour of revocation; and
(d)the finding in respect of links to the Australian community weighs in favour of revocation.
It is acknowledged that other considerations can outweigh primary considerations. The Tribunal is of the opinion that, on balance, the other considerations of international non-refoulement obligations and the associated prospect of indefinite detention as a consequence of the cancellation of the applicant’s protection visa, and the extent of impediments that the applicant will face should he be removed, particularly with regards to his mental health treatment, must be given appropriate weight.
The Tribunal acknowledges that the applicant’s offending has been prolonged and serious in nature, and that he continues to struggle with drug dependency. However, the Tribunal considers that above discussed factors are very powerful reasons weighing in favour of revocation. If the applicant were able to obtain treatment for his mental health and drug dependency and gain employment, it is the Tribunal’s belief that he may be able to lead a crime-free life. The facilities for treatment should be available to him in Australia, and the Tribunal considers that this is the vital requirement for his rehabilitation.
The Tribunal finds that, in this matter, it can be satisfied that on balance, when weighing the primary and other considerations as discussed above, there is ‘another reason’ why the cancellation of the applicant’s visa should be revoked.
DECISION
The Tribunal is satisfied that there is another reason why the Minister’s decision to cancel the applicant’s visa should be revoked. As such, the decision under review is set aside and substituted with a decision to revoke the cancellation of the applicant’s Class AZ Subclass 866 Protection visa.

I certify that the preceding 176 (one hundred and seventy-six) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO QC, Deputy President

...................................[sgd].....................................
Associate
Dated: 18 November 2021

Date(s) of hearing: 4 November 2021

Applicant: Self-represented

Solicitors for the Respondent: Mr O Morris, Clayton Utz

Date(s) of hearing:	4 November 2021
Applicant:	Self-represented
Solicitors for the Respondent:	Mr O Morris, Clayton Utz