TRHR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 5253

TRHR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 5253 (23 December 2022)
Division:GENERAL DIVISION
File Number(s): 2022/8106
Re:TRHR
APPLICANT

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

DECISION
Tribunal:Senior Member Dr Linda Kirk
Date:23 December 2022
Date of written reasons: 10 February 2023
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate, dated 3 October 2022, to refuse to revoke the Mandatory Visa Cancellation Decision, and in substitution, decides that the cancellation of the Applicant's Class XA Subclass 866 Protection visa is revoked.
................................[SGD]........................................
Senior Member Dr Linda Kirk
Catchwords
MIGRATION – Migration Act section 501CA(4) – primary considerations – other considerations – whether there is another reason to revoke mandatory cancellation of Applicant’s visa – Ministerial Direction No. 90 – substantial criminal record – nature and seriousness of offending – expectations of the Australian community – international non-refoulement obligations – detention with no chronologically fixed endpoint – extent of impediments if removed – links to the Australian community – strength, nature and duration of ties – Decision set aside and substituted.
Legislation
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Cases
BAL19 v Minister for Home Affairs [2019] FCA 2189
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
DQM18 v Minister for Home Affairs [2020] FCAFC 110
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
FYBR and Minister for Home Affairs [2019] FCAFC 185
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
MNLR v Minister for Immigration, Citizenship and Multicultural Affairs [2021] FCAFC 35
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
WRITTEN REASONS FOR DECISION
Senior Member Dr Linda Kirk
10 February 2023

TRHR (‘the Applicant’) is a 29 year old citizen of Afghanistan,[1] who first arrived in Australia on 7 June 2010.[2] He was granted a Class XA Subclass 866 - Protection visa on 4 October 2011 (‘the protection visa’).[3]
[1] Exhibit R1, G17, 262.
[2] Ibid, G3, 26.
[3] Ibid, G22, 320.
On 25 June 2019, the Applicant was convicted in the Liverpool Local Court for Destroy or damage property <=$2000; Destroy or damage property; Break & enter house etc steal value <=$60,000; two counts of Goods in personal custody suspected being stolen (not m/v); Possess housebreaking implements; Steal property in dwelling-house <=$2000; Goods suspected stolen given other not entitled (not m/v); and Break and enter dwelling-house etc with intent (steal) and sentenced to imprisonment for two years and six months to be served by way of an Intensive Correction Order (ICO).[4] On 23 June 2020, the ICO was revoked, and the Applicant was ordered to serve the remaining sentence of one year, six months, three weeks and four days imprisonment.[5]
[4] Ibid, G4, 31.
[5] Ibid, G10, 65.
On 2 September 2020, the Applicant’s visa was cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) (‘Mandatory Visa Cancellation Decision’) because a delegate of the Minister (‘the Respondent’) was satisfied the Applicant did not pass the character test in subsection 501(6) of the Act as he was considered to have, pursuant to subsection 501(7)(c), a ‘substantial criminal record’. The letter invited the Applicant to make representations to the Minister about revoking the decision to cancel the visa within 28 days of receipt of the letter. At the time, the Applicant was serving a sentence of full-time imprisonment at the Bathurst Correctional Centre in New South Wales for an offence against a law in Australia.[6]
[6] Ibid, G22, 320.
On 9 September 2020, the Applicant made representations seeking revocation of the Mandatory Visa Cancellation Decision.[7]
[7] Ibid, G14, 79.
On 18 March 2021, the Department conducted an International Treaties Obligation Assessment (ITOA) which concluded that Australia owed non-refoulement obligations in respect of the Applicant.
On 3 October 2022, a delegate of the Respondent decided, under subsection 501CA(4) of the Act, not to revoke the Mandatory Visa Cancellation Decision (‘the Reviewable Decision’).[8] The Applicant was notified of the decision on the same day.[9]
[8] Ibid, G3, 10.
[9] Ibid.
On 4 October 2022, the Applicant applied to the Tribunal for review of the Reviewable Decision under subsection 500(1)(ba) of the Act.[10]
[10] Ibid, G2, 3.
The matter was heard by the Tribunal on 14 and 15 December 2022. The Applicant attended the hearing via video conference from Christmas Island Immigration Detention Centre and was represented by counsel. The following persons gave oral evidence and were cross-examined at the hearing:
- The Applicant
- RA
- RM
- Dr Kim Dilati
The material before the Tribunal consists of:
- Section 501 G-Documents (G1-G28, pages 1-367) filed 1 December 2022 – Exhibit R1
- Bundle of Summonsed Documents (R1-R6, pages 1-190) filed 1 December 2022 – Exhibit R2
- Applicant’s Evidence Bundle (A1-A15, pages 1-226) filed 10 November 2022
The Tribunal has reviewed the evidence before it and refers to relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b)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.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7) of the Act provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution.
Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
(4)The Minister may revoke the original decision if:
(a) theperson 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.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 90
The Minister is empowered by subsection 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, except for the Minister acting personally, such as the Minister’s delegates and the Tribunal.[11]
[11] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
On 8 March 2021, the Minister signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The Direction commenced on 15 April 2021 and revoked the previous Direction No. 79 on the same date.[12]
[12] Direction 90, [2]-[3].
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)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.
(3)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 measureable risk of causing physical harm to the Australian community.
(4)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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-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 types 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 measureable risk of causing physical harm to the Australian community.
A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)Whether the conduct engaged in constituted family violence;
c)The best interests of minor children in Australia; and
d)Expectations of the Australian community.
Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:
a)International non-refoulement obligations;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘information and evidence from independent and authoritative sources should be given appropriate weight.’
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give a ‘other’ consideration the equivalent of or greater weight than a primary consideration.[13] Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as [Kenny and Mortimer JJ stated in Jagroop v Minister for Immigration and Border Protection and Another: ‘the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501’.[14]
[13] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
[14] (2016) 241 FCR 461 at [57].
ISSUES FOR DETERMINATION
Before the power in subsection 501CA(4) of the Act, to revoke the original decision, is enlivened, the decision maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by subsection 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo,[15] the Full Court of the Federal Court of Australia made the following observations in relation to subsection 501CA(4):
‘there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view ...’[16]
[15] [2018] FCAFC 151.
[16] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are:
1)whether the Applicant passes the ‘character test’; and
2)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Early life in Afghanistan
The Applicant was born in Ghazni, Afghanistan in 1993 and is approximately 29 years of age.[17] He is a Hazara and a Shia Musim.[18]
[17] Applicant’s Evidence Bundle, A1, 3, [4].
[18] Ibid.
The Applicant grew up in Ghazni with his parents, three brothers and one sister.[19] His father died when he was about 13 years old.[20] One of the Applicant’s brothers and his sister were killed in about 2012 or 2013.[21]
[19] Ibid, 3, [5].
[20] Ibid, 3, [6].
[21] Ibid.
The Applicant has lost contact with his family since being in prison.[22] The last time he spoke to them they were living in Ghazni.[23] Since he has been in immigration detention, he has not been able to contact his family,[24] and he does not know where they are.[25]
[22] Ibid, 3, [7].
[23] Ibid.
[24] Transcript of proceedings, 14 December 2022, 13.
[25] Ibid, 14.
The Applicant did not attend school in Afghanistan, and he is illiterate.[26] He cannot speak, read or write English.[27]
[26] Applicant’s Evidence Bundle, A1, 3, [8].
[27] Ibid; Transcript of proceedings, 14 December 2022, [9].
The Applicant started working as a taxi driver in Afghanistan when he was about 13 years old to support his family after his father died.[28] The Applicant also went to Iran a couple of times to try to find work, but he was deported back to Afghanistan by the authorities.[29]
[28] Applicant’s Evidence Bundle, A1, 3, [9].
[29] Ibid, 3, [10].
When the Applicant was a teenager, he met a girl named [redacted].[30] She is a year younger than him, and they lived in the same village.[31] The Applicant and [redacted] wanted to get married, but [redacted]’s family did not want them to do so because when she was a child, they had engaged her to marry another man.[32] [redacted] did not want to marry this man.[33]
[30] Ibid, 3, [11].
[31] Ibid.
[32] Ibid.
[33] Ibid.
The Applicant and [redacted] went to stay with the Applicant’s aunt and were planning on running away, but they were found by [redacted]’s family.[34] The Applicant ran away but [redacted] was caught.[35] [redacted]’s family were threatening the Applicant, and on the advice of his aunt, he went to Iran.[36] During his time in Iran, he did not have any identification documents and was unable to enrol in school. He recalls living in a warehouse and working as a cook to feed other workers. He recalled his deportation from Iran back to Afghanistan ‘a few times’ as he continued to illegally return to Iran.[37]
[34] Ibid, 3, [12].
[35] Ibid.
[36] Ibid, 3, [13].
[37] Ibid, A4, 14, [28].
When the Applicant returned to Afghanistan, he could not go back to his village because of the threats from [redacted]’s family.[38] Instead he went to Pakistan where he met a man who introduced him to a smuggler who arranged his travel to Australia.[39]
[38] Ibid, A1, 3, [14].
[39] Ibid, 4, [15].
Life in Australia
In June 2010, the Applicant arrived in Australia by boat as an unaccompanied minor. He was detained at the Christmas Island, Darwin, and Perth Immigration Detention Centres in 2010 and 2011.[40]
[40] Ibid, A4, 14, [31].
Following his release from immigration detention after being granted a protection visa in October 2011, the Applicant began living in the Sydney community.[41] He completed three months of English language schooling at [redacted].[42]
[41] Ibid, A1, 4, [17].
[42] Exhibit R1, G15, 83.
The Applicant became an apprentice painter and enjoyed his work.[43] Between 2014 to 2020, he worked for a number of companies, including [redacted].[44]
[43] Applicant’s Evidence Bundle, A1, 4, [17].
[44] Ibid, A4, 15, [38].
The Applicant describes the first four to five years of his life in Australia as ‘good’. He was making a life for himself until he started using drugs, following which his life ‘went downhill.’[45]
[45] Ibid, A1, 4, [18].
In 2012 or 2013, the Applicant learned that his sister and brother had been killed in Afghanistan by [redacted]’s family.[46] Another of the Applicant’s brothers was raped. The Applicant’s mother blamed him for what happened to his siblings.[47]
[46] Ibid, 4, [19].
[47] Ibid.
Drug use
In about 2015 or 2016, the Applicant was introduced to methylamphetamine (‘ice’) by a friend.[48] The Applicant had told his friend that he was stressed about his family in Afghanistan, and she told him that ice was good for stress.[49]
[48] Ibid, 4, [20].
[49] Ibid.

Initially the Applicant smoked ice on the weekends and was able to maintain his employment, but after about three to four months he began to use it every day.[50] He stopped working and used his savings to pay for ice.[51]
The Applicant has not taken methylamphetamines since he went to prison and has remained abstinent in immigration detention.
[50] Transcript of proceedings, 14 December 2022, 22.
[51] Applicant’s Evidence Bundle, A1, 4, [22].
Employment
The Applicant continued work again for brief periods after his addiction worsened. He worked for different employers as a painter in 2017 before working for [redacted] from 2018 to 2019. He ceased work in 2020.[52]
[52] Ibid, 4, [25].
Criminal history in Australia
The Applicant’s National Police Check dated 28 September 2020 records the Applicant’s convictions in Australia.[53] The Applicant’s offending history includes common assault, dishonesty offences and possession of drugs.
[53] Exhibit R1, G4, 31.
On 25 December 2015, the Applicant was convicted of Drive over general but not over mid alcohol limit. He was fined $600 and disqualified from driving for one month.
On 28 September 2018, the Applicant was convicted in Penrith Local Court for Possess prohibited drug and was released on a 12-month conditional release order.
On 25 June 2019, the Applicant was sentenced in Liverpool Local Court in respect of three incidents of offending which occurred on or about 5 September 2018, 13 October 2018 and 23 January 2019.
On or about 5 September 2018, the Applicant broke the glass of the victim’s front door with a knife. The noise woke the victim who immediately identified the Applicant as being a previous tenant. The Applicant then grabbed a ladder and placed it under the window of the unit below, cut the flyscreen, entered the window, stole an Opal card and went to sleep in the bed. The Applicant was convicted of the following offences and sentenced to an aggregate Intensive Corrections Order (ICO) for two years and six months:[54]
·Fail to appear in accordance with bail acknowledgement
·Enter enclosed land not prescribed premises without lawful excuse (two counts)
·Destroy or damage property <=$2000
·Destroy or damage property
·Break and enter house etc steal value <=$60,000
[54] Exhibit R1, G3, 18.
On or about 13 October 2018, while subject to conditional liberty, the Applicant was found sleeping across three seats of a train and apparently drug affected. The Applicant had used an invalid Opal card to board the train. He was found in possession of a knife and some utility blades, three Apple iPhones, a Lenovo computer tablet and some counterfeit currency, one $100 note, two $50 notes and two $20. The Assault officer in execution of duty charge relates to the Applicant grabbing the holster of the taser of the police officer while his hands were handcuffed. The Applicant was convicted and sentenced for the following offences:[55]
·Possess counterfeit money – imprisonment for 2 months backdated to 23 January 2019
·Custody of knife in public place – first offence – community correction order 18 months
·Two counts of Goods in personal custody suspected being stolen (not m/v) - aggregate Intensive Correction Order two years and 6 months
·Resist officer in execution of duty – community correction order 12 months
·Assault officer in execution of duty – community correction order 12 months
[55] Ibid.
On or about 23 January 2019, while subject to conditional liberty, the Applicant slipped a lock and entered a garage where he was found smoking. After leaving the garage and leaving behind a bag, the Applicant went to another address where he removed a flyscreen of a bedroom window, waking the victim who screamed, and the Applicant left the premises. The Applicant returned to the first garage and requested the return of his bag. The occupants called police who attended and located a drill and multi tool which the Applicant had stolen from the garage. The Applicant was also found to have pawned a stolen phone, and was in possession of housebreaking implements, some other stolen items, and an ice pipe. On 25 June 2019, the Applicant was convicted in the Liverpool Local Court of the following offences:[56]
·Furnish false information / statement to licensee
·Possess housebreaking implements
·Steal property in dwelling house
·Good suspected stolen given other not entitled (not m/v)
·Break and enter dwelling-house etc with intent to steal
·Goods in personal custody suspected stolen (not m/v)
·Possession of equipment for administering prohibited drug
[56] Ibid, 19.
The Applicant was sentenced to an aggregate two years and six months ICO. In addition, he was required to wear electronic monitoring for the first 12 months, undergo rehabilitation as directed, and abstain from drugs.
On 26 June 2019, the Applicant appeared in Newtown Local Court and was fined $300 for travel or attempt travel without valid ticket.[57]
[57] Ibid, G4, 37.
On 13 February 2020, during an argument about money with a housemate, the Applicant pushed the victim and struck him in the face causing the victim’s glasses to cut his face. On 13 March 2020, the Applicant struck a number of blows to the face of a man until he fell to the ground. This offending was a breach of the Applicant’s community correction order and a breach of bail conditions.[58]
[58] Ibid, G3, 18.
On 11 May 2020, the Applicant appeared in Fairfield Local Court and received a section 10A conviction with no further penalty in relation to an offence of Goods in personal custody suspected being stolen.[59]
[59] Ibid, G4, 37.
On 28 and 30 May 2020, the Applicant was charged with possession of drugs (methylamphetamine), also in breach of a community correction order and bail.
On 23 July 2020, the Applicant appeared in the Local Court of New South Wales and was convicted and sentenced for the following offences:
·Assault officer in execution of duty (call up) - four months imprisonment
·Resist officer in execution of duty (call up) - two months imprisonment
·Custody of knife in public place (call up) - two months imprisonment
·Common assault (DV) - four months imprisonment
·Stalk/intimidate intend fear physical etc harm (domestic) - two months imprisonment
·Assault occasioning actual bodily harm - seven months imprisonment
·Possess prohibited drug (three counts) - three months imprisonment
The Applicant was sentenced to an aggregate term of imprisonment of 20 months with a non-parole period of 12 months. This sentence was affirmed by the District Court of New South Wales on 26 August 2020.
The ICO that was imposed on 25 June 2019 was revoked by the State Parole Authority on 23 June 2020 and was treated as having been revoked on 30 May 2020.
Remorse for offending
In his statement dated 10 November 2022, the Applicant describes feeling ‘pain’ when he thinks about his offending and the people that were ‘scared or hurt’ by him.[60]
[60] Ibid, 5, [28].
Rehabilitation courses and work activities
During his time in custody, the Applicant attended a course about drugs and alcohol for a week. However, because he does not speak English very well and has no formal education, he was unable to understand what was taught during the course.[61]
[61] Applicant’s Evidence Bundle, A1, 5, [35].
The Applicant recently started another drug and alcohol course in immigration detention. He has been trying to learn, but he does not really understand what the instructor is saying as the course in conducted in English.[62]
[62] Ibid, 6, [38].
Although the Applicant has found it difficult to understand the drug and alcohol courses he has attended, he knows the effect drugs have on people and is adamant he will use them again.[63] In his statement he wrote:
‘When I look back at my drug use, I now realise that I don't want ever this life again. I don't want to take drugs again. There was a lot of misery and my life was unstable. I was doing the wrong thing a lot. This is something I do not want to go back to’.[64]
[63] Ibid, 6, [41].
[64] Ibid, 6, [40].
In prison, the Applicant worked in the kitchen and tailoring shop.[65]
[65] Ibid, 6, [36].
Mental health treatment
The Applicant has seen a psychologist while in immigration detention. During cross examination, he agreed that he requested fortnightly appointments with the psychologist, but he only attended two sessions.[66] He told the Tribunal that he did not have the motivation to attend further appointments. He explained:[67]
‘Being here, you know, people are, you know, just engaged with themselves and nobody has patience or anything else inside detention. People just pass their time doing exercise and stuff and the session of psychologist is like only questioning and answering and, you know, (indistinct) for all that, because inside detention is just stressful already. Inside detention my mind is like dispersed in so many ways, like family, future and condition, all those things. I cannot make a plan or make a decision to do something. I like to see psychologist, but inside, being inside it’s like life is tiring, you don’t have the motivation to do anything.’
[66] Transcript of proceedings, 14 December 2022, 30.
[67] Ibid.
In his statement, the Applicant wrote that if he returns to the community he will find a drug counselling program that is conducted in Hazaragi, Dari or Farsi, and he will attend sessions after work.[68]
[68] Applicant’s Evidence Bundle, A1, 6, [42].
The Applicant intends to deal with his stress with the assistance of a psychologist. He understands that he needs to book an appointment with a doctor and that he or she would help him to find a psychologist.[69]
[69] Ibid, 6, [44].
Psychological assessment
Dr Kim Dilati, Consultant Clinical and Forensic Psychologist, examined the Applicant via videoconference on 25 October 2022, and provided a report dated 8 November 2022. She also gave oral evidence and was cross-examined at the hearing. Dr Dilati told the Tribunal that she holds a Bachelor of Psychology, a Master of Forensic Psychology, a Graduate Diploma in Human Rights, and a PhD. Her area of expertise is the treatment and assessment of sexual offending and violent offending and the treatment assessment of trauma.[70]
[70] Transcript of proceedings, 15 December 2022, 60.
In her report, Dr Dilati wrote that during the interview, the Applicant ‘was difficult to engage, highly guarded and reactive when discussing his trauma history. He presented as stoic and apathetic.’[71] In her oral evidence, Dr Dilati explained that the Applicant presented as ‘quite disconnected and apathetic’, in particular in relation to the questions around his experiences of trauma. She observed that the Applicant was ‘evidently despondent when discussing his situation’, however he ‘did not appear to understand the concept of trauma or have insight into his mental health difficulties.’[72]She told the Tribunal that the idea of Post Traumatic Stress Disorder (‘PTSD’) and complex trauma or any of his symptoms are ‘probably quite foreign’ to the Applicant.[73]
[71] Applicant’s Evidence Bundle, A4, 15, [41].
[72] Ibid, 15, [45].
[73] Transcript of proceedings, 15 December 2022, 61.
Dr Dilati was asked whether she formed a view in relation to the Applicant’s attitude towards his offending. She stated:[74]
‘… I would say that he was remorseful at the time for his conduct, and he took responsibility. There was no indication of him minimising or even justifying his behaviours or blaming … others for what had happened. So, overall, I think he had an appropriate attitude towards his previous offending conduct.’
[74] Ibid, 62.
In Dr Dilati’s opinion, the Applicant meets the criteria for PTSD, Stimulant Use Disorder, and Substance Use (Methamphetamine) Psychotic Disorder.[75]
[75] Applicant’s Evidence Bundle, A4, 11-36, [96]-[99].
Dr Dilati’s diagnosis of PTSD was made on the basis that the Applicant ‘has a longstanding history of trauma as a result of his transient childhood as an unaccompanied minor, his experiences seeking asylum, neglect, abuse, and poverty.’ She noted that the Applicant ‘engaged in problematic substance use’ to ‘mitigate his unwanted negative symptoms’. She further observed that the Applicant’s ‘unresolved trauma and continued drug use has led to a trajectory of psychotic symptoms and offending behaviours.’[76] In her oral evidence, Dr Dilati confirmed that, in her opinion, there is a correlation between the Applicant’s trauma and his substance abuse.[77]
[76] Ibid.
[77] Transcript of proceedings, 15 December 2022, 63.
Dr Dilati’s diagnosis of Stimulant Use Disorder (methamphetamine use) was made on the basis that the Applicant ‘displayed a problematic pattern of methamphetamine use with persistent desire and unsuccessful efforts to cut down methamphetamine use which has continued despite recurrent social and interpersonal problems, cravings, and a strong desire or urge to use.’ She noted that his use of methamphetamine was ‘regular, persisting and … precipitated his offending conduct.’ In her view, the Applicantis in remission, however he is ‘still vulnerable to relapse’,[78] without the appropriate treatment.[79] Dr Dilati confirmed that the Applicant meets the definition of ‘sustained remission’ which is the absence of symptoms over a period of 12 months or more.[80]
[78] Applicant’s Evidence Bundle, A4, 20, [98].
[79] Transcript of proceedings, 15 December 2022, 62.
[80] Ibid, 63.
Dr Dilati found that the Applicant’s Substance Use (Methamphetamine) Psychotic Disorder had resolved with the use of psychotropic medication and abstinence from drugs.[81]
[81] Applicant’s Evidence Bundle, A4, 20, [99].
In relation to the Applicant’s risk of re-offending, Dr Dilati reported that he scored within the ‘Low range of protective factors’ suggesting the presence of limited protective factors which may increase his risk of violence. These protective factors include ‘motivation to attend treatment, interest in prosocial work, and attending to professional care whilst in custody.’[82] However, in her opinion with support and treatment, the Applicant can increase his internal protective factors, motivational factors, and external factors.[83]
[82] Ibid, 18, [84].
[83] Ibid, 18, [85].
Dr Dilati reported that the Applicant scored within the ‘Moderate to High range of Future Violence/Case Prioritisation, the Moderate range of Serious Physical Harm and the Low range of Imminent Violence towards others.’ She noted that the Applicant presented with several risk factors including a ‘history of violence, substance use, traumatic experiences, adverse childrearing experiences, problems with treatment supervision, future potential problems with professional services and plans (if he is returned to Afghanistan), an unstable living situation, reduced personal support, difficulties with insight, possible personality disorder, and problems with stress and coping.’ She noted however that ‘risk is dynamic and changeable and dependent on the balance of risk and protective factors present.’ For the Applicant to reduce his risk of reoffending, ‘it will be imperative that he increases his protective factors such as stable employment and accommodation, abstinence from illicit drug and alcohol use, engagement in meaningful activity, regular attendance of mental health treatment, and to have his risk re-evaluated every 6 to 12 months to mitigate risk factors of violence.’[84] Dr Dilati confirmed in her oral evidence to the Tribunal that if the Applicant ‘remained consistent’ in relation to these protective factors, ‘the research shows that it can most definitely decrease future risk of violence.’[85]
[84] Ibid, 19, [89].
[85] Transcript of proceedings, 15 December 2022, 65.
In her report, Dr Dilati recommended a treatment plan for the Applicant. She recommended that the Applicant undergo long term treatment for PTSD by a psychologist who specialises in the rehabilitation of PTSD, regular sessions with an Adult Psychiatrist who can monitor his medication, mental health progress and symptomology, and that he has regular contact with his GP and obtain a Mental Health Care Plan (MHCP) for a forensic psychologist. In her opinion, the Applicant will require treatment over a period of two years to address his offending behaviours and substance use with a forensic psychologist ‘who can assess and reduce his risk of reoffending as well as explore distorted beliefs related to his offending and substance use.’[86] Dr Dilati explained to the Tribunal that for individuals who have moderate severe mental health conditions, ‘regular and consistent treatment is essential’ otherwise it is not successful ‘or it takes a longer to see results and rehabilitation is extended.’[87]
[86] Applicant’s Evidence Bundle, A4, 1-2, [2]-[4].
[87] Transcript of proceedings, 15 December 2022, 68.
Future plans
In his statement, the Applicant wrote that following his release from detention he intends to maintain his abstinence from drug use and focus on his work as a painter.[88] He is again practising his faith as a Shia Muslim.[89]
[88] Applicant’s Evidence Bundle, A1, 6, [47].
[89] Ibid, 7, [49].
The Applicant wants to exercise and play soccer with his friends in the community who are a good influence and who do not take drugs.[90] He is focused on continuing to exercise and playing sport, to help him stay away from drugs.
[90] Ibid, 6, [47].
The Applicant has ceased his relationships with the friends who introduced him to drugs. Although he acknowledges there is a risk he may see them in the community, he is adamant that he wants to stay away from these people.[91]
[91] Ibid, 6, [46].
The Applicant told the Tribunal that wants to find somewhere to live and is considering renting a room in a share house with friends.[92] He will be able to pay for the room with his salary as a painter.[93]
[92] Transcript of proceedings, 14 December 2022, 32.
[93] Applicant’s Evidence Bundle, A1, 7, [50].
Ties to Australia
The Applicant has one cousin in Australia, RA. They are not very close, and he last spoke to him two or three months ago.[94]
[94] Transcript of proceedings, 14 December 2022, 38.
Impediments on return
In his statement, the Applicant wrote that, if he is returned to Afghanistan, he fears that he will be killed almost immediately by [redacted]'s family or by the Taliban.[95] He does not think he will be able to live in Afghanistan. In his country, when you leave the house, you do not know if you will come back alive. Hazaras have long been subjected to persecution in Afghanistan.[96]
WITNESS EVIDENCE
[95] Applicant’s Evidence Bundle, A1, 7, [51].
[96] Ibid, 7, [53].
Applicant’s cousin, RA
RA provided a written statement dated 8 November 2022,[97] and gave oral evidence by telephone at the hearing.
[97] Ibid, A2, 8.
RA is the Applicant’s paternal cousin, and he has known the Applicant since he was born.[98] When the Applicant first came to Australia he lived with RA for one year.[99] During this time, the Applicant ‘was a good person, trying to make a living’ and did not do ‘any wrong things’.[100] However, once the Applicant moved to alternative accommodation around 2013, RA noticed the Applicant was mixing with some addicts who were living in the same area. At this time the Applicant became ‘a not so good person.’ RA was told that the Applicant was initially smoking marijuana and then he started smoking ice.[101] Whenever he asked the Applicant if he was taking drugs, he would deny it.[102] However the Applicant looked like he was on drugs, and ‘he seemed very weak.’[103]
[98] Ibid, 8, [2].
[99] Ibid, 8, [5].
[100] Ibid.
[101] Ibid, 8, [7].
[102] Ibid, 8, [8].
[103] Ibid.
The Applicant disappeared for a period of time, and RA did not see him until he came out of prison. He told RA that he had gone to prison because he had a fight, and he denied being an addict.[104] RA supported the Applicant when he came out of prison. He rented him a place to live and bought him a phone, but unfortunately the Applicant’s problems started again and he disappeared.[105]
[104] Ibid.
[105] Ibid, 8, [9].

In 2021, the Applicant phoned RA from Villawood Immigration Detention Centre and told him that he had been released from prison and his visa was cancelled. He called him again about two or three weeks ago. Other than this, they have not had much contact.[106] This is because in their culture younger people out of respect do not tell older family members about ‘bad things’. He thinks this is why the Applicant did not tell him that he was using drugs and had gone to prison.[107]
[106] Ibid, 8, [10].
[107] Ibid.
RA is a painter and he has worked with the Applicant. The Applicant often worked as a foreman or supervisor at job sites and he was ‘very trusted and a very good worker.’[108] RA believes that if the Applicant quits drugs, ‘he will make a proper living for himself.’[109]
[108] Ibid, 8, [12].
[109] Ibid, 8, [11].
RA told the Tribunal that if he can be assured that the Applicant has quit drugs and is ‘following the right path’, he will ‘help him in any possible way.’ He will find him a place to live, find him work, and either give or lend him money.[110]
[110] Ibid, 9, [17].
Applicant’s employer, RM
RM provided a written statement dated 10 November 2022,[111] and gave oral evidence by telephone at the hearing.
[111] Ibid, A3, 10.
RM first met the Applicant when he applied for a job and then commenced work at RM’s company.[112] He worked there for a period of about a year between 2018 and 2019.[113] RM found the Applicant to be an honest and hard-working employee.[114]
[112] Ibid, 10, [2].
[113] Ibid, 10, [4].
[114] Ibid, 10, [3].
RM told the Tribunal that he is not aware of all the details of the Applicant’s offending, but when he worked for him, he noticed he was wearing an ankle monitor and he knew he had to report daily. He never asked him why he was wearing the bracelet, but guessed it was related to some kind of criminal activity.[115] He did not notice any issues related to the Applicant’s drug use. He was ‘very hard working and reliable [and] behaved like a normal person.’[116] If he had realised the Applicant was having issues with drugs when he was working for him, he ‘would have talked to him and introduced him to AA meetings to show him there is help out there for him.’ He ‘would do the same for him in the future.’[117]
[115] Ibid, 10, [5].
[116] Ibid, 10, [6].
[117] Ibid, 10, [10].
RM understands the Applicant has a criminal history that is related to his drug use, including an assault. Knowing this about the Applicant does not change the fact that he is willing to re-employ him. He believes the Applicant ‘will continue to be a respectful and hard worker.’[118] The Applicant will be employed as a permanent staff member about six days a week, 7am to 3pm every day and he will earn between $1000-$1200 per week.[119]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[118] Ibid, 10, [7].
[119] Ibid, 10, [9].
1)Does the Applicant pass the ‘character test’?
In the representations and documents that the Applicant submitted to the Department and the Tribunal, he does not dispute the information in the National Criminal History Check report dated 28 September 2020 recording his criminal convictions and sentences. It records that on 25 June 2019, the Applicant was convicted in the Liverpool Local Court for Destroy or damage property <=$2000; Destroy or damage property; Break & enter house etc steal value <=$60,000; two counts of Goods in personal custody suspected being stolen (not m/v); Possess housebreaking implements; Steal property in dwelling-house <=$2000; Goods suspected stolen given other not entitled (not m/v); and Break and enter dwelling-house etc with intent (steal) and sentenced to imprisonment for two years and six months. The Tribunal is satisfied that the Applicant has a ‘substantial criminal record’ for the purposes of section 501(3A)(a) and section 501(6) of the Act as he has been sentenced to a term of imprisonment of 12 months or more: section 501(7)(c). The Tribunal is also satisfied, for the purposes of section 501(3A)(b) of the Act, that on 2 September 2020 the Applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the state of New South Wales.
Having found that the Applicant does not satisfy the character test, the Tribunal finds that section 501CA(4)(b)(i) cannot be invoked to revoke the Mandatory Visa Cancellation Decision.
2)Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
In determining whether pursuant to section 501CA(4)(b)(ii) of the Act there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must, in accordance with paragraphs 8 and 9 of the Direction, take into account the relevant ‘primary considerations’ and ‘other considerations’.
PRIMARY CONSIDERATIONS
Primary Consideration 1 – Protection of the Australian community
Reiterating the general guidance and principles in the Direction, paragraph 5.2 states:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) 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.
(3) 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 measureable risk of causing physical harm to the Australian community.
Paragraph 8.1(2) states that in considering the need for protection of the Australian community, decision-makers should also have regard to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) Nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1(1) sets out factors to be considered in determining the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Relevant to the Applicant’s conduct, the Tribunal must have regard to the following factors:
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)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)    …
(ii)crimes committed against vulnerable members of the community …, or government representatives or officials due to the position they hold, or in the performance of their duties.
(iii)    …
(iv)    …
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 frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f) …
g) ...
Paragraph 8.1.1(1)(a)(i) of the Direction states that violent crimes are to be viewed very seriously. The Applicant has been convicted of multiple crimes of violence, including Assault occasioning actual bodily harm. Any offending of a violent nature is very serious as it has the potential to cause harm to members of the community. Paragraph 8.1.1(1)(b)(ii) of the Direction recognises that crimes committed against government representatives or officials due to the position they hold, or in the performance of their duties, are serious. The Applicant has been convicted of multiple crimes against police, including two convictions for Assault officer in execution of duty and one conviction for Resist officer in execution of duty. These crimes must be viewed seriously.
Having regard to paragraph 8.1.1(1)(d) and (e) of the Direction, the Tribunal notes that the Applicant has been convicted of more than 30 offences since September 2018. It further notes the frequency of the Applicant’s offending and the cumulative effect of repeated offending, which has had a deleterious impact on the Australian community.
On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant’s criminal offending is serious in nature, and this weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction states:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers 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.
Paragraph 8.1.2(2) of the Direction provides that in assessing the risk that may be posed to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
Having regard to the nature of the harm to individuals or the Australian community, if the Applicant were to reoffend in accordance with paragraph 8.1.2(2)(a) of the Direction, the Tribunal finds that the nature of the harm if the Applicant were to reoffend is serious. The Applicant’s criminal offending has included physical violence, and if this were to be repeated, it would pose a significant risk of physical harm to members of the Australian community. In addition to the potential harm to the Applicant’s victims, there is the significant financial cost to the community associated with emergency services and law enforcement activities of any future offending by the Applicant. If the Applicant were to re-offend, further resources from the criminal justice system, health system, and the Australian economy more broadly, would be directed to addressing his offending, including further arrests, court proceedings and rehabilitative programs. For these reasons, the Tribunal finds that the nature of the harm to individuals should the Applicant engage in similar criminal offences is serious.
Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 8.1.2(2)(b) of the Direction, the Tribunal has taken into account information and evidence on the risk of him re-offending and evidence of the rehabilitation he has achieved.
The Tribunal has had particular regard to the professional assessment of Dr Dilati in relation to the risk of the Applicant re-offending detailed in her report dated 8 November 2022. Dr Dilati concluded that the Applicant remained a moderate to high risk of future violence and noted that he had few protective factors in place, which increased his risk of violent reoffending. The protective factors Dr Dilati identified are the Applicant’s motivation to attend treatment, his interest in engaging in pro-social work and his attending to professional care whilst in custody. Further evidence before the Tribunal in relation to protective factors include RA’s offer to the Applicant of ongoing employment, and the support that his cousin RM is prepared to give him by way of finding him accommodation and work and his willingness to give or lend money to the Applicant. It also includes his plans to engage in prosocial activities outside work, including exercise and playing soccer and practicing his religion.
The Applicant’s evidence is that at the time of his offending, he was suffering from a methamphetamine addiction. This is confirmed by the diagnosis by Dr Dilati of the Applicant meeting the criteria for Substance Use (Methamphetamine) Psychotic Disorder. In her opinion, this condition has resolved with the use of psychotropic medication and abstinence from drugs. Dr Dilati also diagnosed the Applicant with Stimulant Use Disorder (methamphetamine use) which is now in remission. However, she emphasised that the Applicant remains vulnerable to relapse without appropriate treatment.
Whereas the Applicant has made attempts to engage with drug and alcohol counselling while in immigration detention, his ability to meaningfully participate has been adversely impacted by his limited English ability and his illiteracy. The evidence before the Tribunal is that the Applicant plans to engage in drug and alcohol counselling in the community. The Applicant provided evidence to the Tribunal that there are drug and alcohol programs available in the community that are offered in a language that he understands. The Tribunal accepts the Applicant’s evidence that his prospects of engaging with suitable programs in the community are better than his prospects in immigration detention due to the broader range of service providers and his ability to appropriately engage with supportive community organisations.
IHMS records before the Tribunal record that the Applicant saw a psychiatrist in July 2022. These record that the consultation was done with the assistance of a telephone interpreter, but due to a poor connection frequent repetition was required and this limited how much could be covered in the appointment. The Applicant provided to the Tribunal an explanation for why he has not sought ongoing psychological counselling in immigration detention, namely the frustration and sense of hopelessness that he has felt being detained. The Tribunal finds that this explanation is consistent with Dr Dilati’s evidence that this response is not unexpected from a person with a complex history of trauma and who has not previously engaged with psychological counselling.
The Applicant’s evidence is that he intends to engage with a psychologist when he is released into the community, and he is aware of the steps he needs to take to find a practitioner with the skills required to provide him with treatment for his PTSD.
On the basis of the evidence before it and taking into account available information and evidence of the risk of the Applicant re-offending and his rehabilitation, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is moderate. However, in the context of the potential harm to the Applicant’s victims should he engage in the same or similar criminal conduct in the future, the Tribunal finds this risk to be unacceptable.
For the reasons above and applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, Primary Consideration 1 weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 – Family violence committed by the non-citizen
Paragraph 8.1.1(2) of the Direction prescribes that this consideration is relevant where the non-citizen has been convicted of an offence that involves family violence and/or there is information or evidence from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence. This consideration does not arise on the material before the Tribunal.
Primary Consideration 3 – The best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction requires decision-makers to determine whether revocation is in the best interests of the child. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made: paragraph 8.3(2). The Applicant has not identified any minor children and this consideration does not arise on the material before the Tribunal.
Primary Consideration 4 – The expectations of the Australian community
Paragraph 8.4 of the Direction states:
(1)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 to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, 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 is 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:
(a) acts of family violence; 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 …
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(e) …
(f) …
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)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.
The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 8.4 of the Direction, in FYBR and Minister for Home Affairs (‘FYBR’).[120] The majority (Charlesworth and Stewart JJ) concluded as follows:
·Paragraph 11.3 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[121] It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations.[122]
·However, the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[123] It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of ‘appropriateness’.[124]
[120] [2019] FCAFC 185.
[121] Ibid, Charlesworth J at [66]; Stewart J at [91].
[122] Ibid, Charlesworth J at [67]; Stewart J at [104].
[123] Ibid, Charlesworth J at [76].
[124] Ibid, Stewart J at [97].

The effect of paragraph 8.4 is that it imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. The question to be addressed does not involve an inquiry into what the Australian community does or does not expect, because that is normatively expressed in the terms of the consideration: paragraph 8.4(4). Rather, the relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed community expectation’ of non-revocation of a mandatory visa cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences’.[125] As a normative expression, this consideration indicates the likelihood that community expectation will in most cases lead to non-revocation, without dictating an inflexible conclusion. The question for the decision-maker is the weight to be attached to this consideration.
[125] Ibid, Charlesworth J at [77].
The Applicant’s submission is that this consideration should be given little weight. He submits that the Australian community would expect that a greater degree of tolerance would be shown for persons such as him when regard is had to the positive contribution he made as a painter since arriving in Australia as a child, the recognition that he is owed protection obligations, the nature and circumstances of his offending, the relationship his drug addiction had to his offending conduct, and his subsequent period of abstinence.[126]
[126] Transcript of proceedings, 15 December 2022, 74.
The Respondent submits that in observing the norm stipulated in paragraph 8.4(1), and principles 5.2(2), (3) and (4), the Australian community would expect that the Applicant should not continue to hold a visa on account of his offending, particularly in circumstances where he has committed violent crimes and crimes against public officials.[127]
[127] Respondent’s Statement of Facts, Issues and contentions (‘RSFIC’), [35].
Having regard to the expectations of the Australian community as stated in paragraph 8.4(1) of the Direction, the Tribunal notes that the Applicant has breached a number of Australian laws and committed serious offences, including violent offences, which the community would generally expect to result in the cancellation of his visa.
The evidence is that the Applicant arrived in Australia in June 2010, and he worked as a painter for a period of approximately 10 years. Having regard to the factors in principle 5.2(4) of the Direction, the Tribunal finds that the Applicant’s residency in Australia for more than a decade and his contribution to the economy through his work as a painter, would likely result in a higher level of tolerance by the Australian community for the Applicant’s criminal conduct than there would be for a non-citizen who has not lived in the community for an extended period of time.
Paragraph 8.4(2) of the Direction recognises that the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that a person should not continue to hold a visa. Relevantly, paragraph 8.4(2)(d) identifies the commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties as offences as one of the categories of crimes that the Australian community would expect offenders to have their visas cancelled. As noted above, the Applicant has been convicted of multiple crimes against police, including two convictions for Assault officer in execution of duty and one conviction for Resist officer in execution of duty.
Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account the nature, seriousness and impact of the Applicant's criminal offending, the duration of his residency in Australia and his contribution to the Australian economy, the Tribunal finds that Primary Consideration 4 on balance weighs against revocation of the Mandatory Visa Cancellation Decision.
OTHER CONSIDERATIONS
While the primary considerations carry particular weight, the Direction acknowledges at paragraph 9 that ‘other considerations’ must be taken into account by the decision-maker where relevant. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection (‘Suleiman’)[128]
Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[128] [2018] FCA 594, [23].
In FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[129] Wigney J held that this analysis ‘tends to overcomplicate or over intellectualise the issue’. His Honour held that the use of the word ‘generally’ in clause 8(4) of Direction 79 (the same wording is used in section 7(2) of Direction 90) ‘recognises that there may well be cases where the circumstances are such that one or more “other considerations” may be deserving of more weight than one or more primary considerations’.[130] His Honour also held that the formulation identified in Suleiman ‘is at least potentially problematic because it tends to suggest that a decision-maker cannot give greater weight to one or more of the “other considerations” in any given case unless they consider that the case is somewhat unusual or out of the ordinary’.[131]
[129] [2021] FCA 775, [22].
[130] Ibid, [23].
[131] Ibid,
The ‘other’ considerations relevant to the Applicant’s circumstances are considered in the following paragraphs.
International non-refoulement obligations
Paragraph 9.1 of the Direction relevantly provides:
1)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. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). 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. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
2)In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa 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 obligation 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 appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
6)It may not be possible at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non-citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non refoulement obligations.
Protection obligations owed to the Applicant
The Applicant claims to fear serious harm if he is returned to Afghanistan. In particular, he claims that he will almost certainly be killed by [redacted]’s family or the Taliban.
The Applicant’s protection claims were assessed by way of an ITOA on 18 March 2021, which found that Australia owes non-refoulement obligations in respect of the Applicant.[132] The Respondent accepts the Applicant is a person in respect of whom Australia has non-refoulement obligations.[133]
[132] Exhibit R1, G19, 289.
[133] RSFIC, [38].
On the basis of the evidence before it, particularly the ITOA, the Tribunal is satisfied that the Applicant engages Australia’s international non-refoulement obligations as defined in section 5 of the Act. The evidence supports a finding that there is a likelihood that the Applicant would face a real risk of suffering serious harm in Afghanistan. This finding is consistent with the decision to grant the Applicant the protection visa in October 2011.
Application for protection visa not permitted
As the Tribunal has found that Australia owes the Applicant non-refoulement obligations, it will consider whether he would be permitted to lodge an application for protection visa if the Tribunal does not decide to revoke the Mandatory Visa Cancellation Decision, and his protection visa remains cancelled.
Section 501E provides:
Refusal or cancellation of visa--prohibition on applying for other visas
(1)A person is not allowed to make an application for a visa, or have an application for a visa made on the person's behalf, at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if:
(a) at an earlier time during that period, the Minister made a decision under section 501, 501A, 501B or 501BA to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; and
(b) the decision was neither set aside nor revoked before the application time.
Section 48A(1B) of the Act provides:
No further applications for protection visa after refusal or cancellation
(1B) Subject to section 48B, a non-citizen in the migration zone who held a protection visa that was cancelled may not make a further application for a protection visa while in the migration zone.
Section 48B provides:
Minister may determine that section 48A does not apply to non-citizen
1)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.
2)The power under subsection (1) may only be exercised by the Minister personally.
Section 5(1) of the Act defines ‘protection visa’:
‘protection visa’ has the meaning given by section 35A.
Note: Section 35A covers the following:
(a)permanent protection visas (classified by the Migration Regulations 1994 as Protection (Class XA) visas when this definition commenced);
(b)other protection visas formerly provided for by subsection 36(1);
(ba) safe haven enterprise visas;
(c)temporary protection visas (classified by the Migration Regulations 1994 as Temporary Protection (Class XD) visas when this definition commenced);
(d)any additional classes of permanent or temporary visas that are prescribed as protection visas by the regulations.
As the visa the Applicant held prior to its mandatory cancellation is a ‘protection visa’, if the Tribunal decides not to revoke the Mandatory Visa Cancellation Decision under section 501CA, the Applicant will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa: section 501E and regulation 2.12AA of the Migration Regulations 1994 (Cth). He will be prevented by section 48A(1B) of the Act from making a further application for a protection visa while he is in the migration zone unless the Minister determines that section 48A does not apply to him: section 48B; paragraph 9.1(8) Direction.
The evidence before the Tribunal is that on 7 September 2021, the Applicant’s legal representatives wrote to the Minister requesting that the Minister exercise his power under sections 46A(2) and 48B of the Act to permit the Applicant to make new protection visa application.[134] On 23 March 2022, the Applicant was advised by a delegate of the Minister that the request would not be considered, because there is a legal barrier under section 197C(3) of the Act to his involuntary removal to Afghanistan and he fails the character test.[135]
[134] Exhibit R1, G16, 101.
[135] Ibid, G24, 331.
On the basis of this evidence, the Tribunal finds that, as a consequence of the operation of sections 501E and 48A of the Act, the Applicant is unlikely to be permitted to make any further substantive visa applications, including for a protection visa, whilst he is in the migration zone, and if such an application were made it would be highly likely to be refused on character grounds. Accordingly, there is no reasonable prospect that the Applicant’s protection claims will be assessed in the reasonably foreseeable future.
The Tribunal therefore must consider and engage with the immediate legal consequences of a decision not to revoke the Mandatory Visa Cancellation Decision in circumstances in which the Applicant would subsequently be unable to make an application for a substantive visa.
Obligation to remove unlawful non-citizen
Section 197C addresses the relevance of Australia’s non-refoulement obligations to the removal of non-citizens from Australia as required by section 198 of the Act:
197C Relevance of Australia’s non‑refoulement obligations to removal of unlawful non‑citizens under section 198
(1)For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2)An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
(3)Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non‑citizen to a country if:
(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.
(4)For the purposes of subsection (3), a protection finding is made for a non‑citizen with respect to a country if a record was made in relation to the non‑citizen under section 36A that the Minister is satisfied as mentioned in paragraph 36A(1)(a), (b) or (c) with respect to the country.
(5)For the purposes of subsection (3), a protection finding is also made for a non‑citizen with respect to a country if the Minister was satisfied of any of the following (however expressed and including impliedly):
(a) the non‑citizen satisfied the criterion in paragraph 36(2)(a) with respect to the country and also satisfied the criterion in subsection 36(1C);
(b) the non‑citizen satisfied the criterion in paragraph 36(2)(aa) with respect to the country;
(c) the non‑citizen:
(i) would have satisfied the criterion in paragraph 36(2)(a) with respect to the country except that subsection 36(3) applied in respect of the non‑citizen;
(ii) satisfied the criterion in subsection 36(1C);
(d) the non‑citizen:
(i) satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and
(ii) would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non‑citizen was a non‑citizen mentioned in paragraph 36(2)(a);
(e) the non‑citizen:
(i) satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and
(ii)would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non‑citizen was a non‑citizen mentioned in paragraph 36(2)(a) and subsection 36(2C) or (3) applied in respect of the non‑citizen;
(f) the non‑citizen would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that subsection 36(2C) or (3) applied in respect of the non‑citizen.
(6) For the purposes of subsection (3), a protection finding is also made for a non‑citizen with respect to a country if:
(a) the Minister was satisfied (however expressed and including impliedly) that, because subsection 36(4), (5) or (5A) applied to the non‑citizen in relation to the country, subsection 36(3) did not apply in relation to the country; and
(b) a protection finding within the meaning of subsection (4) or (5) was made for the non‑citizen with respect to another country.
(7) For the purposes of subsection (3), a protection finding is also made for a non‑citizen with respect to a country in circumstances prescribed by the regulations.
(7A) For the purposes of subsection (3), if an unlawful non‑citizen has made more than one valid application for a protection visa that has been finally determined, that subsection applies only in relation to the last such application.
(8) For the purposes of subsection (5), it is irrelevant whether or not the non‑citizen satisfied any other criteria for the grant of a protection visa.
(9) For the purposes of subparagraph (3)(c)(iii), a non‑citizen who withdraws their written request to be removed to a country is taken not to have made that request.
198 Removal from Australia of unlawful non-citizen
(2B) An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a) a delegate of the Minister has cancelled a visa of the non-citizen under subsection 501(3A); and
(b)since the delegate's decision, the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and
(c) in a case where the non-citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate's decision--either:
(i) the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii) the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate's decision.
2021 Amendment Act

The Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) (‘the Amendment Act’) came into effect on 25 May 2021.[136] It introduced a new section 36A which provides that, in considering a valid protection visa application, the Minister must consider and record findings against the protection obligations criteria (sections 36(2)(a) and 36(2)(aa)) before deciding whether to grant or refuse a protection visa based on the other criteria. It also amended section 197C to introduce sections 197C(4)-(9) outlined above.
[136] The Migration Amendment (Clarifying International Obligations for Removal) Act2021 (Cth) received royal assent on 24 May 2021.
The Explanatory Memorandum for the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (‘the CIOR Explanatory Memorandum’) describes the purpose of the Bill in relation to removal of non-citizens who engage Australia’s non-refoulement obligations:
Section 197C of the Migration Act provides that, for the purposes of section 198 (removal from Australia of unlawful non-citizens), it is irrelevant whether Australia has non-refoulement obligations in respect of a UNC, and that person must be removed as soon as reasonably practicable.
…
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).[137]
[137] Ibid, 2-3.
The CIOR Explanatory Memorandum provides further clarification in relation to the effect of the amendments to section 197C in relation to the obligation to remove an unlawful non-citizen:
The amendments to section 197C of the Migration Act ensure that the power at section 198 of the Migration Act does not require or authorise an officer to remove an unlawful non-citizen whose valid application for a protection visa has been finally determined, and for whom a protection finding has been made through the protection visa process, in circumstances where to do so would be inconsistent with Australia’s non-refoulement obligations. That is, the person cannot be removed to the country in relation to which their protection claims have been accepted, unless they no longer engage non-refoulement obligations or have requested, in writing, to be removed.
…
Together, the amendment to section 197C and the introduction of section 36A promote human rights by strengthening protections from removal where a person engages non-refoulement obligations under the CAT and the ICCPR, as well as under the Refugees Convention.
Legal consequences of a non-revocation decision
Paragraph 9.1(3) of the Direction recognises that the existence of a non-refoulement obligation does not preclude non-revocation of a Mandatory Visa Cancellation Decision as it will not necessarily result in removal of an applicant in respect to which the obligation exists. In the Applicant’s circumstances, sections 197C and 198 of the Act would not operate to require him be removed to Afghanistan in breach of Australia’s international obligations. Section 197C of the Act expressly provides that removal under section 198 is not required or authorised in respect of an unlawful non-citizen to a country in respect of which a protection finding has been made. Accordingly, even if the Mandatory Visa Cancellation Decision is not revoked, it is unlikely that the Applicant would be returned to Afghanistan in breach of Australia’s international non-refoulement obligations.
Given the Applicant’s previous status as the holder of protection visa, and the protection finding made by the ITOA process, the Applicant cannot be removed to Afghanistan. Accordingly, he will remain in immigration detention unless and until the Minister exercises his non-compellable power under section 195A of the Act to grant the Applicant a visa, or his power under section 197AB of the Act to make a residence determination, or the Applicant is removed to a third country, or the Applicant requests voluntary removal, or the protection finding is reversed.
Guidance in relation to the legal consequences of a non-revocation decision where non-refoulement obligations are engaged is provided by the Full Court of the Federal Court decision in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs(‘WKMZ’).[138] This decision was made in the context of Ministerial Direction No. 79, but the principles it outlines in relation to how a decision-maker should consider the legal consequences of a non-revocation decision are also relevant to the Direction. WKMZ referred to the possible outcomes of a decision that a Mandatory Visa Cancellation Decision is not revoked: removal, indefinite detention, and the grant to the non-citizen of a visa.[139] As outlined above, the Tribunal finds that there is no realistic prospect that the Applicant would be granted another visa, including a protection visa, in the reasonably foreseeable future.[140] The Tribunal must consider the consequences of the Applicant’s removal to Afghanistan, and the prospect that he may be held in ongoing immigration detention.
[138] [2021] FCAFC 55.
[139] Ibid, [97].
[140] See MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 at [73].
Alternatives to removal to Afghanistan
Paragraph 9.1(3) provides that a non-revocation decision need not necessarily result in a non-citizen’s removal from Australia where there are other alternatives available:
(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa 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 obligation 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 appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
The Respondent advised the Tribunal that no decision has been made by the Minister on whether or not he will exercise his non-compellable powers to grant the Applicant a visa under section 195A or make a residence determination under section 197AB of the Act. Nor has any decision been made as to whether the Applicant can be resettled in a third country.[141] The Respondent further advised the Tribunal that should the delegate’s decision be affirmed, it will be open to the Minister to consider the alternative management options available to him in relation to the Applicant, including consideration under sections 195A and 197AB or resettlement in a third country.[142] The Respondent does however acknowledge that, as there is no time limit for the Minister to make such a decision and his power non-compellable, a consequence of non-revocation of the Mandatory Visa Cancellation Decision is that the Applicant is likely to remain in immigration detention for an indefinite period.[143]
[141] RSFIC, [40].
[142] Ibid.
[143] Ibid, [41] Detention for a prolonged and/or uncertain duration with no chronologically fixed end point.
For these reasons, the Tribunal finds that while the powers in sections 195A and 197AB of the Act remain available, the immediate legal effect of non-revocation in the Applicant’s circumstances is him being detained in immigration detention without a fixed chronological endpoint.[144]
[144] Respondent’s Supplementary submissions at [9] citing WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [136].
In FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) (‘FRVT’), the Tribunal reached the same conclusion in relation to potential exercise of the Minister of his discretionary powers where the applicant’s protection visa was mandatorily cancelled:
‘the Tribunal considers that it is very unlikely that the Minister, having decided not to revoke the mandatory cancellation of the Applicant’s Protection visa, will exercise any non-compellable discretions, including those in sections 48B, 195A or 501J of the Act, in the Applicant’s favour. This is especially so in the case of the Minister’s broad discretion under section 195A of the Act to grant visas to persons in detention’.[145]
[145] [2020] AATA 294, [279] and [312].
The approach taken by the Tribunal in FRVT has been applied by the Federal Court in BAL19 v Minister for Home Affairs;[146] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs;[147] and DQM18 v Minister for Home Affairs.[148]
[146] [2019] FCA 2189, [42]-[46].
[147] [2021] FCAFC 35, [42], [53], [55] and [73].
[148] [2020] FCAFC 110, [108]-[109].
For the reasons stated above, the Tribunal finds that the consequences of a non-revocation decision are that the Applicant will be held in detention without a ‘chronologically fixed endpoint’.[149]
[149] 2021] FCAFC 55, [132].
Ongoing immigration detention
The COIR Explanatory Memorandum stated as follows in relation to the detention of non-citizens who engage Australia’s non-refoulement obligations but who cannot be removed from Australia:
‘The amendments in the Bill are primarily aimed at protecting from removal those persons who engage Australia’s non-refoulement obligations, but where character or security concerns mean they are ineligible for the grant of a protection visa. Persons who are granted a visa are not subject to removal. This means that persons affected by the amendments may be subject to ongoing immigration detention under section 189 of the Migration Act.
Immigration detention remains a key component of border management and assists in managing potential threats to the Australian community – including national security and character risks – and ensures people are available for removal.
Unlawful non-citizens who are unable to be removed due to barriers which include, but are not limited to, the situation where the amendments to section 197C made by this Bill will operate to protect them from removal in breach of non-refoulement obligations, may be detained until their removal is reasonably practicable. Removal in such cases may become possible if, for example, the circumstances in the relevant country improve such that the person no longer engages non-refoulement obligations, or if a safe third country is willing to accept the person. An unlawful non-citizen may also request in writing to be removed from Australia.
Held detention in an immigration detention centre is a last resort for the management of unlawful non-citizens, particularly individuals whose removal may not be practicable in the reasonably foreseeable future.’
If the Mandatory Visa Cancellation Decision is not revoked, the Applicant will remain in immigration detention whilst the Minister considers whether he can be returned to another country, or whether he will exercise of one of his discretionary powers under the Act. In WKMZ Kenny and Mortimer JJ observed that consideration of these options may take some time:[150]
The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end. It may be inferred that any decision by the executive to abandon its adherence to Australia’s international obligations would, as White J said in AQM18, be a serious step and not a decision taken quickly.
[150] Ibid.
In MNLR v Minister for Immigration, Citizenship and Multicultural Affairs, Wigney J considered the potential for ‘indefinite detention’ arising from circumstances where it is not reasonably practicable to remove an unlawful non-citizen from Australia:[151]
‘It has also been said, in this context, that the effect of s 197C is that indefinite detention is “not a possibility” (AQM18 at [25]) or “no longer arises”: Uolilo [v Minister for Home Affairs [2020] FCA 1135] at [91]. Those statements are undoubtedly correct if “indefinite” in this context is taken to mean that the period of detention may not, or will not, ever come to an end. That is because the detention will come to an end when the unlawful non-citizen is either granted a visa (in which case they are no longer an unlawful non-citizen) or they are removed from Australia pursuant to s 198 of the Act. Those statements are, however, somewhat questionable if “indefinite” is taken to mean that the actual period in which the non-citizen may or will remain in detention is unable to be defined or determined with any precision.
There could be little doubt that the length of time that an unlawful non-citizen may spend in immigration detention may in some circumstances be very uncertain and very lengthy. That is particularly the case where the circumstances are such that it is not reasonably practicable to remove the unlawful non-citizen from Australia, for example where they are stateless or their nationality or citizenship is uncertain and no country will agree to receive them, and it cannot be said with any certainty when those circumstances may change. Detention is nonetheless to continue indefinitely in those circumstances until the person is able to be removed: Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 at [33]-[35] (per McHugh J), [227]-[231] (per Hayne J), [299], [301] (per Callinan J) and [303] (per Heydon J).’
[151] [2021] FCAFC 35, [93]-[94].
In the Applicant’s circumstances, there is most likely to be a significant delay while steps are taken to identify a country which will agree to receive him. During this period, he will be subject to ongoing immigration detention.
Having considered the circumstances referred to above, the Tribunal finds that the most likely consequence of a decision to not revoke the Mandatory Visa Cancellation Decision is the Applicant’s ongoing immigration detention, and that the period of his loss of liberty may be very lengthy and have no chronologically fixed endpoint.
This consequence would be highly detrimental to the Applicant’s psychological health and well-being and would also be in breach of Australia’s international obligations and human rights standards. The Tribunal finds that the consequence of ongoing immigration detention is a factor that weighs very heavily in favour of revoking the Mandatory Visa Cancellation Decision.
While the Tribunal finds that ongoing immigration detention is the most likely consequence of non-revocation of the Mandatory Visa Cancellation Decision, it cannot discount the potential that the Applicant will voluntarily return to Afghanistan where he will be at risk of harm inconsistently with Australia’s non-refoulement obligations. This consequence would be highly detrimental to the Applicant and weighs heavily in favour of revocation of the Mandatory Visa Cancellation Decision.
In conclusion, the legal and practical consequences of a decision not to revoke the Mandatory Visa Cancellation Decision is the prospect of the Applicant’s ongoing immigration detention with no chronologically fixed endpoint or his removal to Afghanistan contrary to Australia’s non-refoulement obligations. The Tribunal finds that both these consequences weigh very heavily in favour of revocation.
Extent of impediments if removed from Australia
The Direction states in paragraph 9.2:
(1)    Decision-makers must consider the extent of any impediments that the non-citizen 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:
a)    the non-citizen’s age and health;
b)    whether there are substantial language or cultural barriers; and
c)    any social, medical and/or economic support available to them in that country.
Having regard to the factors in paragraph 9.2(1)(a) and (c) of the Direction, the evidence before the Tribunal is that the Applicant is aged 29 years and has been diagnosed with PTSD and previously suffered from Stimulant Use Disorder, and Substance Use (Methamphetamine) Psychotic Disorder. Dr Dilati’s recommendation is that the Applicant engage in a comprehensive treatment plan with a psychologist for his PTSD, and that he accesses appropriate treatment and programs for substance abuse as he remains vulnerable to relapse into drug addiction.
The Applicant claims that if he is removed to Afghanistan, he will not have adequate access to psychological treatment and support services to manage his underlying trauma and to prevent a relapse of his substance abuse issues.[152] The Applicant referred to country information that supports his claims. In 2010, the World Health Organisation reported that inpatient detoxification services for drug users were only available to 10-50% of the population. No services were available in the areas of outpatient detoxification services, or other forms of rehabilitative treatment. Community based prevention programs were available to less than 25% of the population.[153] In its 2019 Afghanistan report, the Department of Foreign Affairs and Trade (DFAT) reported that while attempts were made by the previous government in Afghanistan to tackle the issue of drug production, services to support and rehabilitate people with drug addictions continue to be inadequate and unable to cope with the high numbers of addicted people needing to access these services.[154]
[152] Applicant’s Statement of Facts, Issues and Contentions (‘ASFIC’), [108].
[153] Ibid, [109].
[154] Applicant’s Evidence Bundle, A15, 186.
The Applicant has expressed his strong desire to avoid relapsing into his previous drug addiction and his plans to seek treatment from a psychologist for his PTSD. Based on the evidence before it, particularly the country information referred to above, the Tribunal finds that if the Applicant returns to Afghanistan, he will likely suffer extreme hardship in the form of being unable to access necessary support services and appropriate psychological counselling.
In relation to the factors in paragraph 9.2(1)(b) of the Direction, the evidence before the Tribunal is that the Applicant left Afghanistan at the age of 17 years, and he speaks Hazaragi, Dari and Farsi. The Applicant has lost touch with his family in Afghanistan, and he is unaware of their current whereabouts. In circumstances where the Applicant has been unable to make contact with his surviving family members in Afghanistan, he would have no viable support network, would struggle to find accommodation, and would face the prospect of severe hardship. In its 2019 report, DFAT warned that individuals without family or support networks will face barriers to effective settlement in any part of the country:[155]
‘Ethnic, religious, tribal and family affiliations are important factors in almost every aspect of life in Afghanistan. Ethnic kinship is central to identity and acceptance in the community, and plays a crucial role in enabling Afghans to obtain shelter, employment and security.’
[155] Ibid, A15, 197.

The Applicant would also significant cultural and practical barriers if he returned to Afghanistan. It would be difficult for the Applicant to return to a place which he left as a child and where he will have no family or social networks or other means of support. Furthermore, the Taliban has effective control throughout Afghanistan and the security situation has worsened considerably since the Applicant’s departure in 2010.
The Applicant had limited work experience as a taxi driver before he departed Afghanistan in 2010. If he returns to Afghanistan, it will likely take some time for him to find suitable employment. He has experience working as a cook in Iran and a painter in Australia and he may be able to find employment in one of these fields of work.
Having regard to the evidence before it, and guided by the factors in paragraph 9.2 of the Direction, the Tribunal finds the Applicant will likely face significant hardship if he is required to establish himself in Afghanistan. The Tribunal finds that this consideration weighs very heavily in favour of the revocation of the Mandatory Visa Cancellation Decision.
Impact on victims
The Direction states in paragraph 9.3:
(1) Decision-makers must consider the impact of the section 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.
There is no evidence before the Tribunal of the views of the Applicant’s victims and the impact on them of a decision to revoke the Mandatory Visa Cancellation Decision. Accordingly, Tribunal has given no weight to the factors in this paragraph.
Links to the Australian community
Paragraph 9.4 of the Direction requires decision-makers to have regard to paragraphs 9.4.1 to 9.4.2 below.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1 requires consideration of the strength, nature and duration of the Applicant’s family and social ties to Australia:
(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.
Having regard to paragraph 9.4.1(1) of the Direction, the evidence before the Tribunal is that the Applicant has only one family member in Australia being his cousin RA. In circumstances in which the Applicant has lost contact with the surviving members of his family in Afghanistan, it is significant that the only family member with whom he has contact resides in Australia and is willing to assist him to reintegrate back into the Australian community.
In relation to his other ties, the Applicant has resided in Australia for 12 years and made a contribution to the economy through his work as a painter. He has formed social links in his community, including through his work and sporting activities.
Impact on Australian business interests
The Applicant does not claim that any Australian business interests would be affected by his removal to Afghanistan. Accordingly, the Tribunal has given the factors in paragraph 9.4.2(3) no weight.
On the basis of the evidence before it, and having regard to the factors in paragraph 9.4, particularly the length of time the Applicant has resided in Australia and his contribution to the Australian economy through his work as a painter, the Tribunal finds that this consideration weighs heavily in favour of revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Considerations 1 weighs against revocation of the Mandatory Visa Cancellation Decision. The Applicant’s criminal offending is serious, particularly as it includes offences involving violence. The moderate risk of the Applicant committing future criminal offences coupled with the nature and seriousness of the harm this would cause to his future victims and the community is such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 4 weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that Applicant’s violent offending and offences against police should cause him to forfeit the privilege of remaining in Australia, and this is not outweighed by the duration of his residency in Australia.
In regard to the relevant Other Considerations, the potential for the Applicant to be held in immigration detention for a very lengthy period with no chronologically fixed endpoint, and the extent of impediments he will face if he were to voluntarily return to Afghanistan weigh very heavily in favour of revocation. The strength, nature and duration of the Applicant’s family and social ties to Australia also weigh heavily in favour of the revocation of the Mandatory Visa Cancellation Decision.
The Tribunal is satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked and decides that the Reviewable Decision should be set aside.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate, dated 3 October 2022, to refuse to revoke the Mandatory Visa Cancellation Decision, and in substitution, decides that the cancellation of the Applicant's Class XA Subclass 866 - Protection visa is revoked.

I certify that the preceding 181 (one hundred and eighty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk

.....................................[SGD]...................................
Associate
Dated: 10 February 2023

Date(s) of hearing: 14 and 15 December 2022

Solicitors for the Applicant: H. Gray, Legal Aid NSW

Solicitors for the Respondent: C. Allen, Sparke Helmore Lawyers

Date(s) of hearing:	14 and 15 December 2022
Solicitors for the Applicant:	H. Gray, Legal Aid NSW
Solicitors for the Respondent:	C. Allen, Sparke Helmore Lawyers