Suleman and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2025] ARTA 15
•13 January 2025
Suleman and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2025] ARTA 15 (13 January 2025)
Applicant/s: Syed Ahmed Suleman
Respondent: Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number: 2024/8029
Tribunal:General Member D Murphy
Place:Brisbane
Date of Reasons: 13 January 2025
Decision:The Tribunal affirms the decision under review.
............................[SGD]..............................
General Member D Murphy
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY subclass 444 Special Category (Temporary) Visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 –– decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
FYBR v Minister for Home Affairs [2019] 272 FCR 454
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Minister for Home Affairs v Buadromo [2018] 267 FCR 320
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Singh v Minister for Immigration Citizenship and Multicultural Affairs [2023] AATA 1327
NRFX v Minister for Immigration [2023] 300 FCR 582Secondary Materials
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
On 20 December 2024 I published my decision to affirm a decision made by a delegate of the Respondent on 8 October 2024 not to revoke the cancellation of the Applicant’s visa. These are my reasons for that decision.
The Applicant is a 31 year old citizen of Pakistan who came to Australia aged 20 on a student visa. The most recent visa held by him was a Class UK Subclass 820 Partner Visa (visa). The visa was cancelled on 4 October 2021 due to his criminal offending. He applied unsuccessfully to the Respondent for revocation of the cancellation decision. He has asked the Tribunal to review that non-revocation decision.
The cancellation of his visa was mandatory. Section 501(3A) of the Migration Act 1958 (Cth) (the Act) relevantly provides that the Respondent 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 because of the operation of paragraph (6)(a), on the basis of paragraph (7)(a), (b) or (c); and
· the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Under s 501(6)(a) of the Act, a person will not pass the character test if they have ‘a substantial criminal record’. Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have ‘been sentenced to a term of imprisonment of 12 months or more’[1].
[1] It is the term of imprisonment to which the applicant was sentenced, not the term actually served, that is relevant when determining the term of imprisonment - See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
On September 2021 the Applicant was sentenced to an aggregate sentence of 4 years and 10 months imprisonment for 3 counts of sexual penetration without consent. While he was serving that sentence, a delegate of the Respondent mandatorily cancelled his visa on 3 October 2021 because he did not pass the character test and he was serving a full time custodial sentence. The Minister is required to notify a non-citizen whose visa has been cancelled under s 501(3A) of the Act. The notice must include an invitation to make representations to the Minister about revocation of that decision.[2]
[2] s.501CA(3)(b)
A mandatory visa cancellation can be revoked under s 501CA(4) of the Act which states:
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.
On 8 October 2024 the Respondent decided not to revoke the cancellation (the reviewable decision). Section 500(1)(ba) of the Act provided for review of the reviewable decision by the Administrative Appeals Tribunal (AAT). On 11 October 2024 the Applicant lodged an application in the Administrative Appeals Tribunal (AAT) for review of that decision.
From 14 October 2024, the AAT ceased operation and the Administrative Review Tribunal (the Tribunal) commenced. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be applications for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act and that he does not pass the character test because has a ‘substantial criminal record’ as defined by s 501(7) of the Act, as he was sentenced on 18 August 2021 to terms of imprisonment of more than 12 months on 3 counts of sexual penetration without consent. The Applicant conceded that he did not pass the character test.
The issue I have to determine is whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa. If there is, I may set aside the reviewable decision.[3]
[3] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
The hearing of this application took place on 12, 13 and 16 December 2024. The Applicant and his wife gave evidence via video link. Annexure A contains the written evidence the Tribunal received.
IS THERE IS ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In applying s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) applies.
For the purposes of deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains 8 principles which provide the framework for decision making to revoke a mandatory cancellation under section 501CA:
· Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
· The safety of the Australian Community is the highest priority of the Australian Government.
· Non-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.
· The 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.
· Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
· With respect to decisions to refuse, cancel, and revoke cancellation of a visa, 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.
· Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen'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.
· The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that, informed by the principles in paragraph 5.2 of the Direction, I must take into account the considerations identified in sections 8 and 9, where relevant to my decision.
Paragraph 8 of the Direction sets out 5 ‘Primary Considerations’ that the Tribunal must take into account:
(1)the protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out 4 ‘Other Considerations’ which I must take into account, which include, but are not limited to:
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests
Paragraph 7 of the Direction says:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Primary consideration 1: protection of the Australian community
For this primary consideration, paragraph 8.1(1) of the Direction says that decision-makers should keep in mind:
(a)the safety of the Australian community is the highest priority of the Australian Government;
(b)the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens; and
(c)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, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of the Direction says that decision-makers should give consideration to:
(a)the nature and seriousness of the Applicant’s conduct to date; and
(b)the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
In assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I have considered the following relevant matters listed in paragraph 8.1.1(1) of the Direction:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)…;
(b)…
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending or other conduct on any victims and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)...
(i)…
2021 convictions for sexual penetration without consent
The sentencing remarks of Burrows DCJ[4] disclose that as at July 2021 the Applicant was employed by a promotional company to drive young women employed by the company to meet taxi drivers to promote and sell taxi driver mobile payment terminal systems. On 25 July 2021 an 18 year old woman, the victim of the Applicant’s offending, commenced work for the promotional company. At 8.00am on 26 July 2021, the victim commenced her shift with the Applicant as her driver. She was to have worked with another young woman that day, but the other woman did not attend work. The Applicant drove the victim to the airport where the young woman spent some hours successfully selling the mobile payment terminal system to taxi drivers.
[4] Ex G1 Page 38-45
The Applicant then drove the victim to various locations, including his home, as well as Optus Stadium to collect a key from a friend to a residential unit, at which the offences occurred. After collecting the key, the Applicant drove to Hungry Jack’s where he purchased lunch for the victim. He then drove her to the friend’s residential unit to have a lunchbreak. The sentencing judge was satisfied that the Applicant knew the residential unit was vacant.
Upon entering the unit, the Applicant had a cigarette. He then returned to sit next to the victim on a couch. She felt uncomfortable and tried to move away from the Applicant. The Applicant kept leaning in on her and she started to feel scared. The Applicant used his left hand to grab and squeeze her thigh. The Applicant undid the buttons and zip on her pants and placed his left hand down her pants and underneath her underwear and rubbed her vaginal area. The victim said, ‘Don’t’.
The Applicant took his hand away, removing rings that he was wearing on his left hand, placing them on a coffee table. He then used his fingers to penetrate the victim’s vagina by rubbing between the lips of the vagina. That conduct was the subject of count 1.
The victim tried to wriggle away and told the Applicant to stop. Instead the Applicant moved his hand up towards her bra and stomach, under her clothing, grabbed the sides of her stomach and pushed her belly button in. He then put his hand down her pants and rubbed the victim’s vagina, touching the inner lips. That conduct was the subject of count 2. The victim again said, ‘Don’t’.
The Applicant then pulled the victim down onto the couch, where she was laying on one shoulder. The Applicant partly straddled the victim and place a finger or fingers inside her vagina and moved the finger or fingers in and out. The conduct lasted for less than a minute. Again the victim said, ‘Don’t’ and ‘Just stop’. The Applicant eventually stopped and got off. That conduct was the subject of count 3.
The Applicant then left the room for a short period of time. When he came back into the room, he tried to grab the victim’s legs again, but the victim pulled herself up into a protective ball. The Applicant and the victim then returned to the Applicant’s taxi, attending a park for a period, then an oval, before the Applicant took the victim back to the depot at the end of the shift, where she collected her car and drove home.
The sentencing judge was satisfied from observing the victim give evidence that the impact of the offending upon her was significant and that it continued past the sentencing date. The victim was unable to provide a victim impact statement. She did attend the sentencing hearing.
The sentencing judge noted that the Applicant had not disclosed any substance abuse issues, mental health issues, physical health issues and he had no prior convictions for sexual offending. The judge took into account the age disparity between the Applicant and the victim (26 against 18) and that the Applicant was employed to drive the victim around and assist her. The sentencing judge described the Applicant’s conduct as persistent, despite repeated requests to stop. The sentencing judge noted that the Applicant was physically much larger than the victim and that he used a degree of physical force to overcome her resistance when he pushed her down on the couch and then digitally penetrated her (count 3).
The sentencing judge noted the offences were, in his view, serious. General and personal deterrence were relevant sentencing factors. After taking into account totality, the sentences imposed were:
(a)Count 1 – 2 years five months imprisonment;
(b)Count 2 – 2 years 3 months imprisonment; and
(c)Count 3 – 2 years 7 months imprisonment.
Count 2 was ordered to be served cumulatively upon Count 3, resulting in a sentence of 4 years and 10 months imprisonment being imposed, with eligibility for parole after serving 2 years 10 months of that sentence.
There is no information to assess the impact of the offending upon the victim and her life. I note the cumulative effect of his sexual offending in that, while the 3 offences were committed on the same day, each offence was committed despite repeated refusal of consent by the victim.
I find the Applicant’s course of conduct which resulted in the 3 convictions for sexual penetration without consent, to be very serious conduct, for the purposes of the Direction. This is because each count was a sexual crime committed against a woman. Count 3 also involved violence towards the victim, being pushing her down on the couch to restrain her from moving.
Driving offences – 2015 - 2016
The Applicant also has three convictions[5] for:
(a)using an unlicensed vehicle on 2 December 2015, for which he was convicted on 15 January 2016 and fined $100;
(b)having no authority to drive a vehicle on 27 August 2016, for which he was convicted on 22 September 2016 and fined $150; and
(c)using an unlicensed vehicle on 27 August 2016, for which he was convicted on 22 September 2016 and fined $50.
[5] Ex R2 page 20
In relation to categorisation of the conduct giving rise to these offences under paragraph 8.1.1 the Direction, while these offences occurred more than 8 years ago, I regard the conduct giving rise to the second and third offences committed on 27 August 2016 as serious conduct for the purposes of the Direction, because the Applicant had been residing in Australia since 2013 and should have been aware (from his previous conviction on 2 December 2015) that it was necessary to hold a driver licence and drive a licenced car, yet some 9 months later, he still had not complied with laws which improve safety on roads.
Alleged false or misleading information to the Department regarding criminal offending
The Applicant completed incoming travel declarations[6] on 28 January 2016, 29 September 2017 and 6 August 2019 in the course of returning to Australia from Pakistan. When asked if he had any criminal convictions he did not disclose the 3 convictions for traffic offending detailed above.
[6] Ex G1 pages 294-296
The Applicant’s explanation was that he was not aware that he was required to disclose traffic convictions on the incoming travel declaration. I accept that the Applicant did not understand that convictions relating to traffic matters had to be disclosed. I attribute no weight to this issue. I find that the Applicant did not intend to mislead anyone when he completed the three travel declarations.
At the hearing, the Applicant has admitted he provided false information to the Department in his application revoke the cancellation of his visa dated 29 October 2021[7]. In the application, the Applicant described the victim of the 3 sexual offences as a ‘false victim’ and described his convictions as being for, ‘a crime I haven’t conducted’[8]. Under the heading ‘criminal history and risk of reoffending’ the following statements:
‘I believe all proofs were ignored because of my race. The girl is after the compensation money. I was hired by her company to drive her to different businesses. The video proof clearly shows no fear in her facial expression which no one can hide if they have faced sexual abuse and will not message and come again the following day.’
[7] Ex G1 page 52
[8] Ex G1 page 58
At the Tribunal the Applicant conceded these representations were false. He made them because, consistent with his plea of guilty, he feared he would lose his family if he pleaded guilty. The right to plead not guilty at trial is a legal right. A defendant has no right to make statements to the Department after the conclusion of a trial after they have been found guilty by a jury, that the person knows are untrue. Suggesting that a person who you know is in fact a victim of a sexual offence was motivated by money to make a complaint is reprehensible conduct. I consider the Applicant’s conduct in making such false applications in his application to the Department to revoke the cancellation of his visa to be very serious conduct for the purposes of the Direction.
Conduct while in prison
Prior to the grant of parole and the Applicant’s transfer to immigration detention, the Applicant was facing 3 charges for contravening the Prisons Act 1981 (WA)[9]. I have placed no weight on these matters because no findings were made to the requisite standard. I have therefore disregarded the alleged conduct which was the subject of charges when making my findings.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
[9]See Ex R3
The Direction says that in considering the need to protect the Australian Community from harm, I should have regard to 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 it may be repeated may be unacceptable.[10]
[10] Paragraph 8.1.2(1) of the Direction.
I have regard to the following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.[11]
[11] Paragraph 8.1.2(2) of the Direction.
The nature of harm, should the Applicant engage in further conduct of that kind for which he has been convicted, namely sexual offending, including violent sexual offending, includes:
(a)personal injury (physical and psychological) and economic loss to the victim;
(b)difficulty for the victim in social situations, including developing and maintaining intimate personal relationships and maintaining confidence in work environments (where sexual offences may occur) which in turn may require the victim to access professional counselling for extended periods of time; and
(c)psychological damage and pain and suffering to the families and friends of the victim of the Applicant’s offending.
The level of injury could be very significant. The factors affecting the risk that the Applicant may reoffend are unknown. No contributing factors were identified at the sentence hearing. The Applicant sought leave to appeal against the sentence, which was dismissed on or about 21 February 2022[12].
[12] See Ex R3 page 35 for reference to letter from Court of Appeal to the Applicant.
In his statutory declaration[13] dated 7 November 2024 at paragraphs 16 and 17, the Applicant has declared that:
· ‘When my offence occurred, I had only one daughter. Now I have two children, whose lives and well-being are my highest priority. Since being on bail, my younger daughter […] was born, and becoming a father to two has fundamentally changed my perspective on life.
· My family’s support and the responsibility I feel toward my children will ensure that I remain on a path of integrity and law-abiding behaviour.’
[13] Ex A1 PDF pages 123 to 125
As at 26 July 2021, when the 3 sexual offences were committed the Applicant had been married to his wife for 4 years[14] and the Applicant’s first daughter was 5 years old[15]. The Applicant’s second child was born less than 8 months after 26 July 2021[16].
[14] Se Ex G1 at page 70 for the marriage certificate – date of marriage 21 April 2017
[15] See Ex G1 at page 73 for her birth certificate and pages 75 to 77 for genetic testing conducted as at 14 February 2017, proving the Applicant was the biological father of his eldest daughter and therefore was aware by 26 July 2021 that he had a daughter.
[16] See Ex G1 at page 74 for the birth certificate of the Applicant’s second daughter.
In oral evidence to the Tribunal, the Applicant said that being blessed with another girl in 2020 and being a father to 2 girls made him reflect on committing a ‘bad offence’ to someone’s daughter. In final submissions, the Applicant submitted that the newly protective factors that have occurred since the offending included the fact that the Applicant’s first daughter commenced living with the Applicant and his wife, as well as the birth of his second daughter.
The evidence before the Tribunal recording when the Applicant’s first child commenced living with him indicate this may have occurred in 2018, when his first child was around 2 years old[17], or around February 2019[18], which is well before the offences were committed on 26 July 2021. As the Applicant and his wife were not specifically asked about this issue, I am not prepared to draw a conclusion as to when the Applicant’s first child commenced living with her father regularly.
[17] Ex R3 TB5 page 27
[18] Ex A1 PDF page 98
The Applicant informed the Tribunal that his relationship with his wife was ‘very good’. A Treatment Assessment Report[19] prepared on 22 February 2023, recorded that the Applicant denied any problems in his life as at 26 July 2021, when the 3 sexual offences were committed, or that there were any issues in the Applicant’s relationship with his wife, or that he under the influence of substances at that time. The evidence before the Tribunal was that as at 26 June 2021 the Applicant enjoyed strong friendships with various persons residing in Australia. Family, friends and religion were not protective factors in July 2021, when the 3 sexual offences were committed.
[19] Ex R3 page 27
I do not accept that the change from the Applicant being a father of one daughter, to being a father of 2 daughters, or the fact that his first daughter commenced living with the Applicant and his wife (as opposed to his first daughter living with her mother or another family member) have resulted in a fundamental change to the Applicant’s risk profile, such that the existence of these factors will prevent him from committing the offence of sexual penetration without consent in the future.
The Respondent described the Applicant’s sexual offending as opportunistic offending for his own gratification and because he thought he could get away with it. This description appears appropriate on the facts before the Tribunal. The factors increasing the risk of reoffending are unknown, other than having the opportunity to commit the offending.
As to evidence of remorse, the Applicant maintained his innocence of the crimes in multiple documents:
(a)His application to revoke the cancellation of his visa dated 29 October 2021[20] outlined in paragraph 38 above.
(b)Between 2 and 21 February 2023, in a ‘level of service risk need responsivity’ report prepared by Acacia Prison[21], approximately a year after his application for leave against sentence was dismissed, the Applicant stated that he did not push the victim down. Additionally, when asked about the victim saying things like ‘don’t’ and just stop’ he appeared somewhat confused and denied hearing her say these or any other words to that effect.
(c)On 22 February 2023, in a Treatment Assessment Report[22], the author attributed the Applicant as saying that he had never met the victim prior to 21 February 2021, but she had been particularly friendly with him – more so than the other women he had worked with. According to the author the Applicant repeatedly emphasised he was in no way trying to blame the victim, but her friendliness, coupled with her allowing him to buy her lunch, agreeing to go to his friend’s place, and sitting in close proximity to him on the couch, left him feeling ‘confused’. The author said that the Applicant explained that he had interpreted these signs as the victim may have been interested in him sexually. The Applicant admitted, in hindsight, he had likely misread the situation. While the Applicant did not deny the offending, he denied pulling the victim down on the couch or that he heard the victim say, ‘don’t’, ‘just stop’ or words to that effect.
(d)in his statutory declaration sworn 7 November 2024[23] at paragraphs 5 to 8, the Applicant declared that ‘some parts of the allegations against him were true, but not all details as described’.
[20] Ex G1 page 52
[21] Ex A1 at pages 96-109
[22] See R3 at TB5 pages 24
[23] Ex A1 item T14 123-125
At the Tribunal hearing, the Applicant maintained a position that he had committed the offences, that he was ashamed of how he treated the victim, but he did not agree with the entire factual basis, however he was unable to articulate which facts he disagreed with in relation to the absence of consent, which is the central premise of the sexual offences. The Applicant’s position has moved from complete denial of criminal offending to accepting that he has been convicted of criminal offences, but he continues to attempt to minimise the extent of his criminal conduct in repeatedly sexually penetrating a woman who a jury found did not consent.
In oral evidence at the Tribunal hearing, the Applicant said he wished he had pleaded guilty to the offences, because he would have been in prison for less time and he may have received a more positive outcome. The Applicant said he wanted to move on and make a better life for himself; that he did not want to go back to ‘this place’ (which I infer to mean prison and immigration detention).
On 23 February 2022 the Applicant was notified that his application for leave to appeal against sentence was refused[24]. On 20 June 2022 the Applicant enrolled for re-release support. On 21 July 2022[25] he commenced a 3 week Alcohol and Other Drugs Group program. On 27 July 2022 he completed an ANP Advanced course. On 29 September 2022[26] he completed the AVP T4F workshop. By 27 January 2023[27] he had requested a treatment assessment and an intensive management plan (IMP).
[24] Ex R3 page 35
[25] Ex R3 page 33
[26] Ex R3 page 32
[27] Ex R3 page 31
In his evidence at the Tribunal hearing, the Applicant said that a lifestyle course and another course he attended made him realise he took the wrong approach to dealing with the charges laid against him. The Applicant informed the Tribunal that it took 13 months for him to be assessed before he was able to attend a course. The Applicant gave evidence that he did any course he could do, bearing in mind he had a full time job while in prison.
The rehabilitation programs he undertook included: blood born viruses completed 24 August 2021[28]; basic work health and safety concepts skill set completed 11 November 2021[29]; The Circle men’s group four week voluntary program for young adults completed 2 December 2021[30]; Peaceful Pathways Basic Workshop completed on 16 May 2022[31]; Peaceful Pathway Advanced Workshop completed on 24 July 2022[32]; Alcohol and Other Drugs Awareness Treatment Readiness Group completed 28 July 2022[33], Check and operate a Forklift Truck Skill Set completed 22 May 2023[34]; and Certificate II in Supply Chain Operations completed on 29 June 2023[35].
[28] Ex G1 page 167
[29] Ex G1 page 168
[30] Ex G1 page 174
[31] Ex G1 page 166
[32] Ex G1 page 165
[33] Ex G1 page 165
[34] Ex G1 page 169
[35] Ex G1 page 170
I do not accept that two courses made the Applicant realise he had committed 3 sexual offences. I accept the Applicant’s evidence that he was not offered the opportunity to participate in any prison based rehabilitation sexual offender programs. I also accept his evidence that his wife attempted to locate sex offender programs for the Applicant to complete, but there were no free programs to undertake.
The Applicant arrived at Acacia Prison on 25 August 2021, before being transferred to Karnet Prison on 14 March 2023[36]. On 21 February 2023 a ‘treatment assessor’ at the Acacia Prison prepared a ‘level of service risk needs responsivity report’[37]. The author of the report noted that:
(a)the Applicant had reported participating in voluntary programs for his own education and to hear others’ experiences, rather than the programs necessarily being relevant to the Applicant’s situation;
(b)the Applicant acknowledged the offending had negatively impacted the victim, though he did appear more focused on how it had affected him and his family; and
(c)the current offences (being the 3 penetration without consent) appeared somewhat opportunistic and involved some poor judgment, decision making and consequential thinking. However there is no pattern of similar behaviour. He generally appears capable of making sound decisions and does not behave in an impulsive or irrational manner. He demonstrated insight with regard to these factors, acknowledging he had misjudged the situation and made some poor decisions on this occasion.
[36] Ex R3 at TB5 page 3
[37] Ex A1 at pages 96-109
A Treatment Assessment Report[38] was prepared by an unknown officer at Acacia Prison on 22 February 2023, the day after the ‘level of service risk need responsivity report’ was signed off. The conclusion reached in the Treatment Assessment Report was that:
(a)the Applicant presented as:
(iii)a low risk of general reoffending according to the LS/RNR;
(iv)a below average risk of sexual reoffending according to his combined Static-995/Stable-2007 results; and
(b)given his below average risk and the absence of identifiable treatment needs, the Applicant is not recommended for programmatic intervention at this time.
[38] Ex R3 at TB5 pages 24
In relation to the risk of reoffending, the Treatment Assessment Report noted[39]:
[The Applicant] scored 3 on the Static-99R, which placed him in the average risk category for sexual reoffending. His risk was associated with his age at release and having an unrelated/stranger victim. He scored 0 out of a possible 24 on the Stable-2007, with no identifiable treatment needs. His composite assessment placed him in Level II for supervision and intervention. Individuals placed in level II are considered below average risk and are expected to have around one half the rate of recidivism compared to the average individual convicted of a sexually motivated offence.
[39] Ex R3 at TB5 page 26
The Applicant submits that the likelihood of the Applicant engaging in future offending, either of a sexual nature or general offending is negligible, if not nil[40]. This conclusion is not supported by the Level of Service Risk Need Responsivity Report[41] dated 21 February 2023 or the Treatment Assessment Report dated 22 February 2024.
[40] Ex A1 paragraph 4.7.23 on page 11
[41] Ex A1 item T8 at PDF Pages 94-109
Karnet Prison Farm prepared a Parole Review Report[42] on 15 April 2024 which repeated the assessment of risk contained in the Treatment Assessment Report.
[42] See R3 at TB5 at pages 15 to 23
The Applicant’s Parole Order dated 6 June 2024[43] states:
‘The Board decided that your release would present an acceptable risk to the safety of the community due to:
· your participation in voluntary programs, which demonstrates a motivation and willingness to address your offending behaviour; and
· you have been assessed as not requiring intensive treatment programmes in custody…’
[43] Ex A1 pages 91 to 92
The fact that the Applicant has not participated in any rehabilitation courses focussed on sexual offending means that he has not had the opportunity to personally explore with a counsellor or professional why he committed the offences on 21 July 2021, which may assist to identify factors which may affect reoffending. I accept the Applicant feels shame and remorse, particularly for subjecting his wife and children to the difficult life they have endured over the past 4 years. The Applicant’s explanations for why he will not offend again, as explored in paragraph 43 to 45 above, do not provide any sound basis for concluding that there is no risk that he will reoffend. As the Respondent pointed out, the existence of family, friends and religion were not preventative factors on 21 July 2021.
If released into the community, the Applicant intends to resume working as the manager of a carwash which is owned by a friend. His parole order which operates until 17 June 2026 imposes requirements including that the Applicant must not commit another offence and that he not be in possession of any illegal drug and that he is to attend programmes and counselling as directed.
The carwash is an example of an opportunity that the Applicant has to meet younger women, who may be vulnerable. While the owner of the car wash is aware of the Applicant’s criminal history[44], he regards the Applicant as a friend[45]. The Applicant would hold a significant position of power over young women working at the carwash as he would not just be their manager, but he could let staff know that this is a friend of the owner.
[44] Ex A1 page 126
[45] Ex G1 page 122
I am satisfied there remains a real risk that the Applicant may reoffend if released into the Australian community and future offending of a similar nature would have the potential to cause serious injury to members of the Australian community, Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa.
Primary consideration 2: family violence
The Direction defines ‘family violence’ to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes them to be fearful. The Direction provides that a member of a person’s family includes a person who has, or has had, an intimate personal relationship with the relevant person.
There is no evidence before the Tribunal that the Applicant has been convicted of an offence, found guilty of an offence, or had charges proven, that involve family violence. There is also no information or evidence from independent and authoritative sources indicating that the Applicant is, or has been, involved in the perpetration of family violence.
This primary consideration is not engaged.
Primary consideration 3: strength nature and duration of ties to Australia
Paragraph 8.3 of the Direction says I must consider any impact of the decision on the Applicant’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.
Aside from the Applicant’s two children (who are also considered under Primary Consideration 4), the Applicant’s wife will be severely impacted by a decision to affirm the reviewable decision. She is the full time primary caregiver to both children, who are 8 and 4 years old. The Applicant’s eldest child has significant medical needs. The Applicant’s wife has 3 adult children and an elderly mother who is in a nursing home. The Applicant’s wife tends to all needs of the children, with limited assistance from family friends. She is on a pension and relies upon assistance from foodbanks and charity. The Applicant’s wife has suffered financially and emotionally as a result of the Applicant’s offending.
The Applicant’s wife gave evidence at the Tribunal hearing that she would not leave Australia because she regards the eldest child as her child, though she is not her biological mother. The option of the Applicant’s wife and children moving to Pakistan is not a practical possibility. Present interim orders of the Family Court of Australia provide that the Applicant’s first child is to reside with the Applicant’s wife. The Applicant’s first child has a mother and grandmother in Australia and proceedings in relation to time spent with the first child are yet to be determined. The mother of the first child has not consented to her child’s permanent removal from Australia and the first child does not have a passport. Further, the first child has complex medical needs which are presently met through the Australian public health system. It is not known whether these needs could be met in Pakistan but it can safely be concluded that the level of medical care in Pakistan will not be as high as in Australia and it will come at significant cost to the Applicant. There are also cultural issues for relocating 2 young children and a mother none of whom speak Urdu, issues locating appropriate educational facilities (and education costs) for the children and limited prospects for the Applicant’s wife to obtain long term employment in Pakistan. I accept that the Applicant’s wife also holds significant fears for the safety of the children in Pakistan.
A decision to affirm the reviewable decision will mean that the Applicant’s wife will not be able to live with her husband for the foreseeable future. Physical contact between the Applicant and his wife will only be where the Applicant’s wife can travel to be with the Applicant. She would need to find someone to care for the two children who reside with her, in order to travel, as well as fund the flights. The Applicant described his family’s status as ‘middle class’. I am not able to draw a conclusion as to how often the Applicant’s wife would be able to afford to travel overseas to see her husband. If she is reliant upon her own funds, I accept that it is unlikely that she would be able to afford to travel overseas for a number of years.
The Applicant’s mother in law supplied a statement in support of his application. She will be adversely affected by a decision to affirm the reviewable decision, though nowhere near to the extent of her daughter, the Applicant’s wife. The Applicant’s wife’s 3 children will also be adversely affected by a decision to affirm the reviewable decision.
I should also consider the strength, nature and duration of any other ties that the Applicant has to the Australian community, having regard to:
(a)how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that:
oless weight should be given where the Applicant began offending soon after arriving in Australia; and
omore weight should be given to time the Applicant 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 11 years. He has maintained employment since arriving in Australia aged 21. Prior to being incarcerated he managed a car wash for 2 years.
The Applicant’s friends have given statements evidencing charity work engaged in by the Applicant, including helping his local community. A number of friends have supplied statements in support of the Applicant. I am assuming that the friends who supplied references have an indefinite right to remain in Australia.
It is clear that the Applicant has contributed positively to the Australian community and he has substantial ties with the Australian community in Perth.
Taking into account the impact of any non-revocation decision on the Applicant’s immediate family members in Australia and the strength, nature and duration of any other ties that the Applicant has to the Australian community, this Primary Consideration weighs heavily in favour of the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.4 of the Direction requires me to determine whether a non-revocation decision is or is not in the best interests of a child (under the age of 18 at the time) affected by the decision.
Paragraph 8.4(4) of the Direction sets out a number of factors to take into consideration, which relevantly include:
· the nature and duration of the relationship between the child and the Applicant. 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);
· the extent to which the Applicant 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;
· the impact of the Applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
· the likely effect that any separation from the Applicant would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
· whether there are other persons who already fulfil a parental role in relation to the child.
The Applicant has two minor biological children in Australia who will be adversely affected by a decision to affirm the reviewable decision. The greatest impact is upon the Applicant’s eldest daughter, who is now 8. She was born with a cleft palate. Rectification of the palate has required surgery with ongoing appointments with speech pathologists and specialists. She will require ongoing medical assistance throughout her childhood. The eldest child also has learning difficulties at school. It is difficult for her to socialise and make friends.
The eldest child’s birth mother may be indigenous. She has other younger siblings who reside with her birth mother. She has a maternal grandmother who wishes to participate in her life. There are proceedings before the Family Court of Western Australia in relation to who may spend time with the eldest child.
The Applicant’s younger daughter, aged 4, is of good health. Both girls enjoy a close relationship with their father. They speak to him daily and they have regularly visited him fortnightly while he was in prison and in immigration detention. Both girls believe their father is away at work and will return home.
The Applicant, as the father of both girls, is likely to play a significant positive parental role in their future. A decision to affirm the reviewable decision may result in the Applicant never returning to the Australian home of his two daughters. That news and the effect of that outcome upon the Applicant’s wife, the primary care giver to both girls, is likely to have a devastating impact upon both daughters, regardless of the amount of Facetime and electronic contact maintained with their father.
A statement of a chaplain/welfare officer was tendered[46] which drew conclusions as to possible effects on ‘fatherless families’. I place little weight on the content of this statement because the author was not a qualified psychologist and, in any event, the Applicant’s two daughters will not be ‘fatherless’, but communication between father and daughters may largely be by Facetime and electronic communications, and not through physical touch.
[46] Ex A1 pages 144 to 145
The Applicant’s daughters are not aware of the Applicant’s criminal offending, his imprisonment or the cancellation of his visa. I am unable to form a view from the evidence before the Tribunal as to whether the Applicant’s sexual offending will have a negative effect on his two daughters.
While the Applicant’s younger daughter will be able to travel with her mother to Pakistan and other countries, the Applicant’s eldest daughter will not be able to travel to Pakistan unless the Family Court makes such orders or until she turns 18.
The practical effect of a decision to affirm the reviewable decision is that the eldest daughter will be the most significantly affected, because she will be the most deprived of physical contact with her father and she is the child with health, education and social challenges. The eldest child has a unique family situation which may change as time progresses.
The ability of the Applicant’s youngest daughter to travel overseas is dependent upon the financial position of her mother, whose source of income is a Government pension and her father’s financial resources.
I am of the view that a non-revocation decision is not in the best interests of the Applicant’s two children, in that it will prevent the possibility of person to contact between the Applicant and his children in Australia, including participation in milestone life events. The Applicant’s involvement in the children’s lives will be dependent on Facetime and electronic communication.
Taking into account the best interests of the two children mentioned above cumulatively, this Primary Consideration weighs heavily in favour of the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5(1) of the Direction says 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 he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.[47]
[47] Paragraph 8.4(1) of the Direction.
Paragraph 8.5(2) of the Direction says that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted 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, relevantly:
(a)…; or
(b)…;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this 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)…; or
(e)…; or
(f)….[48]
[48] Paragraph 8.5(2) of the Direction.
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.[49]
[49] Paragraph 8.5(3) of the Direction.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined[50]:
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.
[50] This approach is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185
The Applicant has committed 3 sexual offences against a woman, which is conduct nominated in Paragraph 8.5(2)(c). He demonstrated disregard for the laws regulating the community that he seeks to re-enter.
The Applicant has breached the community's expectation for non-citizens to abide by the law and, as per paragraph 8.5(2) of the Direction, the community expects that the Australian Government can and should cancel the visas of non-citizens if they raise serious character concerns through conduct of the type undertaken by the Applicant.
Primary Consideration 5 weighs heavily against revocation of the cancellation of the Applicant’s visa.
Other consideration 1 – legal consequences of the decision
There is no claim, and otherwise nothing on the material to suggest that Australia’s non-refoulement obligation are enlivened in relation to the Applicant.
The consequence of affirming the non-revocation decision would be that the Applicant:
(a)will be liable to be removed from Australia as soon as reasonably practicable[51];
(b)must remain in detention until removal[52];
(c)will be prohibited from applying for another visa while in Australia, except for a Protection visa or Bridging visa[53]; and
(d)will be indefinitely excluded from Australia[54].
[51] See 198 of the Act
[52] See s 189 of the Act
[53] See s 500(1)(c) of the Act
[54] See Special Return Criteria 500(1)(c) in Schedule 2 to the Migration Regulations 1994 (Cth),
The Applicant does not make any refoulment claims with respect to this Other Consideration. In any event, I note that this decision does not prevent the applicant from making application for a Protection visa.
The Applicant submitted that this decision will have a legal consequence for the present proceedings before the Family Court of Western Australia. While I acknowledge that a decision to affirm the reviewable decision will result in the Applicant being liable to be removed from Australia as soon as possible, there are further review options for the Applicant. The Applicant’s removal from Australia is likely to result in the Family Court ordering that the Applicant’s first child will reside with a person who is not the Applicant. I have already determined that a decision to affirm the reviewable decision is not in the best interests of the Applicant’s two children. Beyond this consideration, I am not required to consider the factors in section 66C of the Family Law Act 1974 as part of this decision making process[55].
[55] See Plaintiff M1/2021 v Minister for Home Affairs [2002] 275 CLR 582
Having regard to Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 1327, this Other Consideration is given some weight in favour of revocation of the reviewable decision.
Other consideration 2 – extent of impediments if removed
I must take into account the extent of any impediments that the Applicant may face if removed from Australia to Pakistan, in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of Pakistan, taking into account:
(a)the Applicant’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to the Applicant in Pakistan.
The Applicant is a 31 year old man who is able bodied and who has no known medical conditions other than Hepatitis B which is being treated with medication. There are no substantial language or cultural barriers to the Applicant returning to Pakistan.
The Applicant has immediate family in Pakistan, including his mother, at whose home he may reside, as well as 9 siblings who reside in Pakistan. His siblings include a lawyer, a bank manager and 2 siblings who own a farm house[56].
[56] Ex A1 at pages 96-109
The Applicant identified employment opportunities in Pakistan and that he felt he would be able to locate work.
The Applicant’s father, formerly a passport officer, passed away in 2024. Any entitlement that the Applicant had to an interest in his father’s estate was not able to be identified at the time of the hearing.
The greatest impact upon the Applicant from a decision to affirm the reviewable decision is his inability to live physically day to day with his wife and 2 daughters. He will be able to maintain daily Facetime/electronic contact as he has done while in prison and immigration detention. Physical contact between the Applicant, his wife and his youngest daughter will only occur when the Applicant’s wife and youngest child can travel overseas. Physical contact between the Applicant and his eldest child is dependent on his eldest child’s mother permitting such contact or the Family Court making orders permitting the eldest child to travel overseas to visit her father.
This Other Consideration weighs moderately in favour of revocation of the reviewable decision.
Other consideration 3 - impact on Australian business interests
The Tribunal must consider any impact on Australian business interests of a decision to affirm the reviewable decision.
If the reviewable decision is set aside, the Applicant intends to work for Silver Sponge Car Wash, a business the Applicant worked for prior to his incarceration. The Applicant submits that the business will lose a hardworking employee if the reviewable decision is affirmed. It is proposed that the Applicant will be the manager of that business.
This Other Consideration is given some weight in favour of revocation of the reviewable decision.
Any new Other Considerations
The Applicant requested that I have regard to the Convention on the Rights of the Child (the Convention).
In NRFX v Minister for Immigration [2023] 300 FCR 582 the Full Court of the Federal Court of Australia found[57] that Article 9.1 of the Convention does not apply in circumstances where a parent is deported.
[57] See in particular the judgment of Derrington J at [47] to [75].
I note also that the Tribunal has heard evidence from the Applicant and the Applicant’s wife in relation to the effect of the Tribunal’s decision may have upon his two minor children. Written and oral submissions were also directed to this primary consideration. The Applicant did not request that his two children give direct evidence in this proceeding, which appears appropriate given their age.
I give his other consideration no weight.
CONCLUSION
Bearing in mind the principles outlined in paragraph 5.2 of the Direction, I am required to weigh all of the Considerations in accordance with the Direction.
The protection of the Australian community and the expectations of the Australian community weigh heavily against revocation of the Applicant’s visa.
The strength, nature and duration of the Applicant’s ties to Australia and the best interests of minor children weigh heavily in favour of revocation of the reviewable decision.
The legal consequences of the decision are given some weight, as is the impact on Australian businesses, while the extent of impediments if the Applicant is removed from Australia is given moderate weight.
Having regard to the 8 principles set out in paragraph 5.2 of the Direction, I note that the safety of the Australian Community is the highest priority of the Australian Government. The higher 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, does not apply to the Applicant, who arrived in Australia aged 20 and committed the most serious offences aged 26. Having regard to the Applicant’s specific circumstances, I find that the real risk of the Applicant reoffending and the harm that such reoffending would cause, results in the considerations of protecting the Australian community and the expectations of the Australian community outweighing all other considerations in favour of revocation of the reviewable decision.
Consequently I am neither satisfied that the Applicant passes the character test, nor that there is another reason why the original decision should be revoked. Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Date(s) of hearing:
12, 13 and 16 December 2024
Solicitors for the Applicant: Ms Qijing Briony Chen, Tang Law Solicitors for the Respondent: Mr Christopher Orchard, Sparke Helmore Annexure A
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE RECEIVED
A1
Applicant’s Statement of Facts Issues and Contentions and documents
A
08.11.24
A2
Applicant’s Reply
A
06.12.24
A3
Annexure 1 – Court Report
A
06.12.24
A4
Annexure 2 – School Chaplaincy Program
A
06.12.24
G1
Section 501G Documents
R
24.10.24
R1
Respondent’s Statement of Facts, Issues and Contentions
R
20.11.24
R2
Respondent’s Tender Bundle
R
05.12.24
R3
Respondent’s Supplementary Tender Bundle (Department of Justice)
R
12.12.24
0