VRBF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 2732

VRBF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2732 (11 August 2022)
AppID:VRBF and Minister for Immigration, Citizenship and Multicultural Affairs

MatterType: Migration
Division:GENERAL DIVISION
File Number: 2022/4168
Re:VRBF
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member R West
Date:11 August 2022
Place:Melbourne

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision of the delegate of the Respondent dated 19 May 2022 and substitutes a decision not to exercise the discretion under section 501(1) of the Migration Act 1958 (Cth) to refuse the Applicant’s visa application.
............................[sdg]............................................
Member R West
Catchwords
MIGRATION – refugee – application for Protection Visa – applicant has substantial criminal record and does not pass the character test – whether discretion not to refuse visa should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of a minor child – expectations of the Australian community – non-refoulment obligations – extent of impediments if removed –links to the Australian community – other considerations – decision set aside.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1958 (Vic)
Migration Act 1958 (Cth)
Cases
CGX20 v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (No 2) [2020] FCA 1842
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Ibrahim v Minister for Immigration and Multicultural Affairs [1999] FCA 374
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
NBMZ and Minister for Immigration and Border Protection [2014] FCAFC 38
1901883 (Refugee) [2021] AATA 3216
Secondary Materials
Country Police and Information Note: Afghanistan: Medical Treatment and Healthcare, United Kingdom Home Office, October 2021
Department of Foreign Affairs, Thematic Report – Afghanistan, January 2022
Direction No. 90 – Migration Act 1958 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
DFAT Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022)
Department of Foreign Affairs and Trade, Afghanistan (Web Page) < Covenant on Civil and Political Rights, opened for signature on 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Convention on the Rights of the Child, opened for signature on 20 November 1989, 1577 UNTS 3 (entered into force on 2 September 1990)
REASONS FOR DECISION
Member R West
11 August 2022
INTRODUCTION

This matter concerns an application for the review of a decision of a delegate of the Respondent dated 19 May 2022 to refuse to grant the Applicant a Protection (Class XA) (Subclass 866) visa (Protection Visa) under s 501(1) of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The Applicant was born in Kabul, Afghanistan in March 1978. He first arrived in Australia on 22 October 2013 as the holder of a Refugee (Class XB) visa (Refugee Visa).
On 6 January 2015 the Applicant was arrested and detained on remand pending trial on several criminal charges.
On 22 April 2015 the Applicant plead guilty and was convicted of nine offences in the Broadmeadows Magistrates Court and was sentenced to a total effective sentence of 12 months’ imprisonment (Convictions).
On 25 June 2015, the Applicant’s Refugee Visa was cancelled under s 501(3A) of the Act on the grounds that the Minister was satisfied that the Applicant did not pass the character test under s 501(6)(a).
On 5 January 2016 the Applicant was released from prison and detained under s 189 of the Act and placed in immigration detention where he has remained.
The Applicant sought revocation of the cancellation of the Refugee Visa.
On 18 January 2017 a decision was made by the Assistant Minister for Immigration and Border Protection not to revoke the decision to cancel the Refugee Visa.[1]
[1] The Applicant advised the Tribunal that an application for judicial review of this decision filed on 16 October 2020 was on foot in the Federal Court at the time of the Tribunal hearing.
On 25 September 2018 the Applicant applied for a Protection Visa.
On 19 May 2022 a delegate of the Respondent refused to grant the Applicant a Protection Visa under s 501(1) of the Act (Reviewable Decision).
On 24 May 2022 the Applicant applied to the Tribunal for a review of the Reviewable Decision (Application).
HEARING
The Tribunal conducted a hearing of the Application by video conference on 4 and 5 August 2022 and by teleconference on 8 August 2022. The Applicant was represented by Mr Anthony Middleton of counsel, instructed by Refugee Legal. The Respondent was represented by Mr Will Sharpe, a solicitor with HWL Ebsworth Lawyers.
In conducting the review, the Tribunal had regard to:
(a)the documents produced to the Tribunal by the Respondent pursuant to s 500(6F) of the Act, sequentially numbered from 1 to 440 (G Documents);
(b)supplementary documents produced under summons and filed by the Respondent, sequentially numbered from 441 to 608 (SG Documents);
(c)the documents tendered by the parties and marked as exhibits as listed in Appendix A; and
(d)the oral evidence of:
(i)the Applicant;[2] and
(ii)Dr Nina Zimmerman.
[2] The Applicant gave evidence with the assistance of a Hazaragi/English interpreter.
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act provides that ‘the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test’.
In applying s 501(1), the Tribunal is required to first consider whether the Applicant passes the character test. If the Tribunal is not satisfied that the Applicant passes the character test it has a discretion whether to refuse to grant the visa.
Does the Applicant pass the character test?
The Act relevantly provides that a person is deemed not to pass the character test if:
(a) they have a ‘substantial criminal record’ – s 501(6)(a); or
(b) they were convicted of an offence that was committed while they were in immigration detention – s 501(6)(aa)(i).
Section 501(7)(c) of the Act provides that for the purpose of the character test, a person has a ‘substantial criminal record’ if ‘the person has been sentenced to a term of imprisonment of 12 months or more’.
Section 501(7)(d) of the Act defines ‘substantial criminal record’ to include a situation where the person ‘has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more’. For the purpose of applying this provision, s 501(7A) of the Act makes it clear that the whole of each concurrent term of imprisonment is to be counted when working out the total sentence.
The G Documents confirm that the Applicant was convicted in the Broadmeadows Magistrates Court on 22 April 2015 and sentenced to an aggregate of 12 months imprisonment to be served concurrently in respect of nine charges.
Accordingly, by virtue of ss 501(6)(a), 501(7)(d) and 501(7A) of the Act, the sentences imposed on the Applicant by the Magistrates Court are to be treated as a sentence of 12 months’ imprisonment.
The Tribunal therefore finds that the Applicant has a ‘substantial criminal record’ and, by virtue of s 501(6)(a) of the Act, is deemed not to pass the character test.[3]
[3] The Applicant conceded in his submissions that he had a ‘substantial criminal record’ by reason of the 12 month sentence and that he did not pass the character test.
Although not essential to its findings, the Tribunal notes that the G Documents also confirm that the Applicant was convicted in the Perth Magistrates Court on 8 October 2018 of the offence of destroy or damage commonwealth property for which he received a fine of $2,000.[4] This offence was committed while the Applicant was in immigration detention. Section 501(6)(aa)(i) of the Act provides that a person is deemed not to pass the character test if they were convicted of an offence that was committed while they were in immigration detention.
[4] G4 at p 42.
Discretionary considerations
On 8 March 2021, the Respondent issued Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 90) to commence operation from 15 April 2021. Direction 90 provides guidance for decision-makers in determining, relevantly, whether to refuse to grant a visa under s 501(1).
Section 499 of the Act authorizes the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the Tribunal must comply with the directions.[5]
[5] Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238, [591].
Clause 6 of pt 2 of Direction 90 provides that decision makers must take into account the considerations identified in cls 8 and 9, where relevant to the decision.
Clause 8 of pt 2 sets out four primary considerations:
(a) protection of the Australian community from criminal or other serious conduct;
(b) whether the conduct engaged in constituted family violence;
(c) best interests of minor children in Australia; and
(d) expectations of the Australian community.
Clause 9 of pt 2 sets out other considerations. These include, but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims;
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
Clause 6 stipulates that the decision maker must be ‘informed by the principles’ stated in cl 5.2 in assessing these considerations.
The principles in cl 5.2 are:
(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 measurable 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 measurable risk of causing physical harm to the Australian community.
EVIDENCE
The Applicant’s Evidence
The Applicant relied on five written statements made in support of his application for a Protection Visa. These statements were dated 13 September 2018,[6] 9 November 2018,[7] 6 November 2019,[8] 6 September 2020[9] and 29 July 2022.[10] The Applicant also gave oral evidence at the hearing.
[6] Exhibit A4.
[7] Exhibit A3.
[8] Exhibit A2.
[9] Exhibit A1.
[10] Exhibit A11.
The Applicant’s evidence was:
(a) He was born in March 1978 in Kabul, Afghanistan. He is a Hazara by ethnicity and Shi’a Muslim by religion.
(b) He grew up in Kabul with his parents, two brothers and one sister. He left school at ten or eleven years old and is functionally illiterate in any language. After leaving school he commenced work in a market to support his family. Eventually he opened a bicycle repair shop.
(c) He married his wife in around 1994 and had three daughters; A, born March 1995, H born March 1999, and N born March 2000.
(d) When the Taliban took control of Kabul in 1996, one of his cousins was killed by the Taliban and another cousin went missing, presumed killed by the Taliban.
(e) Between 1996 and late 2000 he was kidnapped three times by the Taliban and forced to pay a ransom or perform free work for the Taliban to secure his release.
(f) In late 2000 or early 2001, he fled Afghanistan with his wife and young family of three daughters to Quetta, Pakistan and from there to Mashhad in Iran where he joined his parents, who had left Afghanistan earlier. The Applicant’s two sons were born in Iran; MR born in March 2004 and M born in June 2006.
(g) He worked as a carpenter, interior painter and he developed skills in fixing electrical appliances in Iran but struggled to support his large family of seven.
(h) He was diagnosed with Type 1 diabetes in Iran and had difficulties obtaining medicine and treatment, so his health deteriorated. For some time, he could obtain medication through Médecins Sans Frontières (MSF) until MSF closed their office in Mashhad.
(i) The family were eventually found to be refugees by the United Nations High Commissioner for Refugees (UNHCR) and were referred to the Australian Government for resettlement. The Applicant, his wife and their five children were granted Refugee Visas and they arrived in Australia in October 2013, settling in Geelong, Victoria.
(j) After arriving in Australia, the Applicant briefly worked as a cleaner at an abattoir, but due to his health problems he had to cease work.
(k) He comes from a conservative background and found it challenging to adapt to life in Australia whereas his children, in particular his eldest daughter A, liked the freedoms they could enjoy compared to Iran. The Applicant struggled to accept that his eldest daughter would behave in a manner which might be normal for an Australian teenager, but which he found to be immodest, confronting and disrespectful.
(l) On 12 June 2014, the police were called by A to the then family home where he was living with his wife and his five children. It was alleged that the Applicant assaulted his wife and A on that occasion.[11]
[11] G8 at p 105.
(m) After this incident, an interim intervention order was made on 13 June 2014 and a final intervention order was made on 29 July 2014. He was forced to leave the family home. For a time, he had to live in his car.
(n) Following family law proceedings, he was granted fortnightly public access to his children. On 3 January 2015 he visited his wife and children at their new home. He claimed that he was not aware that visiting the home would constitute a breach of the intervention order. At the house he had an argument with A and an incident ensued which required the attendance of the police.
(o) He was arrested on 6 January 2015 and placed on remand. He has been in prison or immigration detention since that date.
(p) On 22 April 2015, he pleaded guilty to a number of charges related to the incident on 3 January 2015 and was convicted of make threat to kill, contravene family violence intervention order (two counts), contravene family violence final intervention order (three counts), assault with weapon, and unlawful assault (two counts).
(q) He was eligible for parole after six months, but on the condition that he complete some courses in prison. He claimed he could not complete them due to his poor English, and he served the full sentence.
(r) At the end of his sentence, on 5 January 2016 he was taken into immigration detention at Maribyrnong Immigration Detention Centre in Victoria. On 16 February 2016 he was moved to Christmas Island Immigration Detention Centre. After he agreed to become a witness in a trial in relation to an assault of a fellow detainee, he was moved to Yongah Hill Immigration Detention Centre to be able to attend the criminal trial in July 2018 and for his safety. He remains there at present.
(s) He has not had any contact with his wife or children since January 2015.
(t) While in detention at Yongah Hill Immigration Detention Centre he:
(i)attended a Men’s Group Behaviour Change Program in October and November 2020[12] where, despite his limited English, he learnt about domestic abuse, gender equality and healthy relationships; and
(ii)undertook regular sessions of torture and trauma counselling with ASeTTS.[13]
(u) On 8 October 2018, he was convicted in the Magistrates’ Court of Western Australia at Perth of destruction or damage to Commonwealth property for which he was fined $2,000. The offence occurred on 11 April 2018 while he was in detention.
(v) Apart from diabetes, he suffers from various other medical conditions, namely, renal and eye disease associated with diabetes, hypothyroidism and iron deficiency anaemia, depression, and detention fatigue.
[12] Exhibits A6 and A7.
[13] G14 at p153;Exhibit A12.
Dr Nina Zimmerman
Dr Zimmerman, consultant forensic psychologist, provided three written reports dated 14 June 2019,[14] 22 December 2019[15] and 17 November 2020,[16] and gave oral evidence at the hearing.
[14] Exhibit A10.
[15] Exhibit A9.
[16] Exhibit A8.
In her report of 17 November 2020, Dr Zimmerman noted a progressive deterioration in the Applicant’s mental health while in detention and provided the following assessment:
[79] [The Applicant’s] presentation is consistent with the 10th revision of the International Statistical Classification of Diseases and Related Health Problems (ICD-10) syndrome of depression. The syndrome typically involves lowering of mood, reduction of energy, and decrease in activity. Capacity for enjoyment, interest, and concentration is reduced, and marked tiredness after even minimum effort is common. Sleep is usually disturbed and appetite diminished. A depressive episode may be specified as mild, moderate or severe. Severe depression involves marked and distressing symptoms, typically including loss of self-esteem. Suicidal thoughts and acts are common and a number of "somatic" symptoms are usually present.
[80] Collateral information reported brooding over his health, tearfulness and agitation. All of these features present on examination and in the clinical files are recognised by both the major classificatory systems for mental disorders, the DSM- 5 and the ICD-10 as indicative of major depression. [The Applicant] described difficulty concentrating, also a key feature of major depression.[17]
[17] Exhibit A8 at [79].

Dr Zimmerman concluded that the Applicant suffers from a severe major depressive condition with associated mood incongruent psychotic features. She opined that if the Applicant remains in prolonged indefinite immigration detention, he is at risk of ongoing deterioration in his depression and the risk of suicide will increase as the period of indefinite detention increases.
Dr Zimmerman opined in her report of 22 December 2019 that the Applicant represents a good prospect for rehabilitation and, having considered his history and the nature of the difficulties he faces, stated that he poses a low risk of serious or imminent violence to members of the broader Australian community. [18]
PRIMARY CONSIDERATIONS UNDER CLAUSE 8 OF PART 2 OF DIRECTION 90
[18] Exhibit A9 at [45].
Protection of the Australian community from criminal or other serious conduct
In considering the protection of the Australian community, cl 8.1(2) of pt 2 of Direction 90 requires the Tribunal to give consideration 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.
The nature and seriousness of the conduct
The Applicant’s complete criminal record consists of the following convictions: [19]
[19] G3 at p 39-40.
(a) On 22 April 2015 he was convicted in the Broadmeadows Magistrates Court of:
(i)make threats to kill;
(ii)contravene family violence intervention order;
(iii)intent to harm/kill (2 counts);
(iv)assault with a weapon;
(v)contravene family violence final intervention order (3 charges); and
(vi)unlawful assault (2 charges) (April 2015 Offences)
(b) On 8 October 2018 he was convicted in the Perth Magistrates Court of destroy or damage property of the Commonwealth (October 2018 Offence); and
(c) an extract of the Applicant’s driver demerit point history[20] records an offence of exceeding the speed limit by more than 15 km on 16 September 2014[21].
[20] SG3 at p 456.
[21] A further offence of disobeying a traffic signal on 20 July 2015 is recorded but the Applicant was in prison at the time and could not have been the driver.
April 2015 Offences
A preliminary brief prepared by Victoria Police described the events giving rise to the April 2015 Offences as follows:[22]
On the 12th of June 2014, police were called to the then family home after his eldest daughter, A (19 years), called police stating that the accused had assaulted her and her mother, J (36 years). The accused had flown into a rage over the fact that J had taken A to see the doctor without his permission. He punched J in the head 5-6 times, and when A stepped in to protect her mother, the accused assaulted her. He then picked up a knife and threatened to kill the whole family.
At the time of the incident, A complained of suffering from sore ribs and stomach but declined to be treated by Ambulance. She stated that the accused had been assaulting her mother on a daily basis and the whole family lived in fear of what he might do next. A stated that the accused locked them inside the house on a daily basis and maintained full control over them. On this occasion, the following siblings were also present, H (14 years), N (15 years), MR (10 years) and M (8 years).
As a result of this incident, family violence intervention orders were applied for by police and granted by the Geelong Magistrate's Court. This orders [sic] were served on the accused on 29/07/2014. These orders prevented the accused from; Committing family violence against a protected person, Intentionally damaging property of a protected person, Attempting to locate or keep under surveillance a protected person, Publish on the internet, by email or other electronic communication any material about the protected person(s), Contact or communicate with a protected person by any means, Approach or remain within 5 metres of a protected person, Go to or remain within 200 metres of any place where a protected person lives, works or attends school/childcare, or get another person to do anything the respondent must not do under this order.
On the 3rd of January 2015, the accused attended (the home) where J and her children are now residing. He was in the living room with all of the members of the family when he demanded twenty-five thousand ($25,000) dollars from J. When A replied that they did not have the money to give to him he told her that he was speaking to her mother not her. The accused then grabbed A by the arm and picked up a small fruit knife from the table and struck her on her right arm four (4) times, causing pain and red marks. The accused stated that he would kill A, but not just her, he would kill the whole family. J then pushed the accused and A ran out of the house. As she ran past the accused he hit her in the back. The accused then chased her across the road to the driveway of (a house opposite) and threw a large stone at her back, causing soreness. A then told the accused that she was calling the police. The accused asked her not to then quickly left the area.
On the 4th of January 2015 at approximately 10:50am, the accused called J mobile phone from a private number, which A answered. He stated to A "I know where you live. I chase you anywhere. If you don't have a scarf, I take you head." A also received two calls from a private number at 1:30pm and 3:01 pm. She did not answer these calls as she believed it was the accused calling her.
[22] G8 at p 105.
The police preliminary brief notes that the Applicant admitted in the interview with police to assaulting A, as well as his wife.
In addition to the police preliminary brief notes, the Tribunal was provided with Victoria Police LEAP records of the incidents on 12 June 2014,[23] 3 January 2015,[24] and 4 January 2015.[25]
[23] SG3 at p 473-4.
[24] SG3 at p 479-81.
[25] SG3 at p 476-7.
The transcript of the Applicant’s trial in relation to the April 2015 Offences, and in particular the sentencing remarks of the court, were not in evidence before the Tribunal.[26] Accordingly, there is no record of what specific conduct formed the basis for any particular offence.
[26] The Tribunal was advised that as a matter of practice the court records were destroyed after 12 months and were not obtained at any stage for the purpose of assessing the Applicant’s immigration issues – see Exhibit A3 at p 25.
The records of the Broadmeadows Magistrates Court confirm that a total of 24 separate charges were made against the Applicant arising out of the incidents on 12 June 2014, and 3 and 4 January 2015.[27] Of these, 15 charges were withdrawn or struck out. The Applicant plead guilty and was convicted on the remaining 9 charges. The records indicate that:
(a) two convictions for unlawful assault were related to the events of 12 June 2014;[28]
(b) two convictions for contravention of Family Violence Final Intervention Order, one conviction for assault with weapon, one conviction for contravention of Family Violence Intervention Order – Intend Harm/Fear and one conviction for Make Threats to Kill related to events on 3 January 2015;[29] and
(c) two convictions for contravention of Family Violence Final Intervention Order were related to events on 4 January 2015.[30]
[27] SG3 at p 535-71.
[28] SG3 at p 560-1.
[29] SG3 at p 538, 544, 547, 549, 553.
[30] SG3 at p 555-6.
The Applicant accepted that the Tribunal is entitled to have regard to statements in the police preliminary brief notes, but should give them little to no weight in circumstances where:
(a) there is no evidence of a conviction of any ‘ongoing domestic assaults’ that the Applicant ‘dished out’ on a daily basis in the context of the index offending;
(b) there is no evidence of a conviction of any assaults on the Applicant’s wife on a ‘daily basis’;
(c) the statements are second and potentially even more remote hearsay of the representations; and
(d) the Minister did not call any police officer who made the representations.
The Tribunal accepts that the police preliminary brief notes and the LEAP records are to be treated with caution for the reasons advanced by the Applicant, especially in the absence of the court record in relation to the trial of the April 2015 Offences. In the absence of further evidence, the Tribunal is not in a position to make any specific findings regarding the April 2015 Offences other than to accept the fact of the Applicant’s conviction on each of the 9 charges.
The Tribunal does accept, however, that it can have regard to the police preliminary brief notes and LEAP records for the limited purpose of assessing the nature and seriousness of the Applicant’s offending for the purpose of cl 8.1(2) of pt 2 of Direction 90.
In this regard the Tribunal notes that the Applicant confirmed in cross examination that the police preliminary brief notes were read to him in translated form prior to him pleading guilty. The Applicant confirmed that his guilty plea was made on the basis of the alleged conduct in the police preliminary brief notes, although he asserted that there were some differences between the brief and his recollection of events. The Applicant also confirmed having made phone calls to his daughter A on 4 January 2015.
The fact that the Applicant admitted that his guilty plea was based on the information in the police preliminary brief notes satisfies the Tribunal that the Applicant’s convictions were the result of conduct of the nature of that alleged in the police preliminary brief notes. It was conduct that involved actual and threatened violence toward members of his immediate family and multiple breaches of Court orders made for the protection of those family members.
The Applicant’s conviction on two counts of unlawful assault related to the events of 12 June 2014, and the fact that the police obtained a family violence intervention order after the 12 June 2014 satisfies the Tribunal that the Applicant’s conduct on 3 and 4 January 2015 was not an isolated event, and that he had been involved in acts of violence toward his family members prior to that.
October 2018 Offence
The October 2018 Offence relates to an incident at the Christmas Island Detention Centre on 11 April 2018 when the Applicant damaged a bar fridge and a washing/dryer machine with an alleged value of $7,000[31].
[31] SG4 at p 573.
A report on the incident prepared by SERCO stated:
On the 11th of April 2018 at approximately 1420 [the Applicant] was upset with the explanation of why he couldn’t have some cables that were in his possession as I had told him that he couldn’t have them as they had exposed wires. [The Applicant] was becoming more verbal and telling us to leave the dorm to which we did to de-esculate [sic] the situation. After a few minutes later [the Applicant] left the door and was still yelling at the compound officers… when he walked over and kicked the wheely bin over, he was told to calm down so we could talk about the situation when [the Applicant] walked over to the Bar Fridge outside of the dorm and pulled it to the ground in doing so broke the door off of its hinges. After this incident an unknow [sic] detainee came over to speak with [the Applicant] and was trying to calm him down when he walked up to the dorm and opened the door to the dryer and with using force pulled the washer dryer combo down to the ground and breaking off of the door and in that leaving live wires exposed and water spurting out of the pipes. At this stage a Code Black was called and [the Applicant] was moved away from the scene and it was secured for the rest of the detainee's safety until the power and water could be isolated. [32]
[32] G7 at p 81.
The SERCO record was essentially accepted by the Court, and the Magistrate described the offending in her sentencing remarks as follows:
In essence, you deliberately damaged Commonwealth property because you were frustrated and angry with the Serco guards for confiscating a particular item. Your actions were disproportionate to the actions of the Serco guards.
In damaging Commonwealth property you caused expense to the Commonwealth, but you also - but it also meant that other people were inconvenienced by not being able to use the fridge and the washer/dryer. You were also no doubt frustrated and angry because you had been detained in immigration detention from 2016. It is no doubt understandable where your future is unknown to be angry and frustrated but, of course, that's not an excuse for damaging Commonwealth property.
As I've already indicated to your lawyer, I place less weight on your assertion that you may have been on the verge of suffering low blood sugar causing a lack of judgment on your part. These were actions borne more out of anger and frustration than anything else.[33]
[33] G5 at p 43-62.
In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, cl 8.1.1(1) of pt 2 requires that decision-makers have regard to the factors set out in cl 8.1.1(1)(a)–(g).
A consideration of the factors, relevant in the Applicant’s case, is set out below.
Principle (a) – violent and/or sexual crimes are viewed very seriously – without limiting the range of conduct that may be considered very serious, the Australian Government and the Australian community view very seriously: violent and/or sexual crimes; crimes of a violent nature against women or children, regardless of the sentence imposed; acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed.
The Applicant’s conduct in relation to the April 2015 Offences involved acts of family violence and was of a violent nature against women and children, it is therefore to be viewed as very serious conduct.
Principle (b) – crimes committed while the non-citizen was in immigration detention.[34]
[34] See cl 8.1.1(1)(b)(iv) of Direction 90.
The conduct involved in the October 2018 Offence was described by Dr Zimmerman in her oral evidence as being in the nature of anti-social, rather than violent behaviour. As such, it is by its nature less serious than the April 2015 Offences. However, Direction 90 makes it clear that, because it was committed whilst the Applicant was in immigration detention, the October 2018 Offence is viewed very seriously by the Australian Government and the Australian community.[35] This is particularly so given that it involved deliberate damage to Commonwealth property, and that the Applicant’s actions were found by the sentencing judge to be disproportionate to the actions of SERCO guards.[36]
[35] See cl.8.1.1(1)(a)(i) of Direction 90.
[36] G5 at p 59.
Principle (c) – the sentence imposed by the courts for a crime or crimes
The sentence of 12 months imprisonment imposed by the Court in relation to the April 2015 Offences, while a significant custodial sentence, is reasonably moderate given, as the Applicant pointed out in his submission, that the maximum sentence for the offence of threat to kill alone is 10 years under s 20 of the Crimes Act 1958 (Vic). In the absence of the Court’s reasons for sentencing, it is difficult for the Tribunal to assess the significance of the overall sentence to an assessment of the seriousness of the offending. The Court is likely to have taken into account the Applicant’s guilty plea and his circumstances as a recently arrived refugee in assessing the appropriate sentence, as well as other factors. Nevertheless, the imposition of a significant custodial sentence signifies that the April 2015 Offences were serious offences.
The $2,000 fine imposed for the October 2018 Offence indicates that the offending on that occasion was less serious, having been attributed in part to frustration and anger on the Applicant’s part given his long period of detention.
Principle (d) – the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness
The Applicant’s criminal record is limited to two sets of incidents. The first involving family violence in June 2014 – January 2015 and the second, property damage in 2018. The offending was different in nature, arose in different circumstances and was three years apart. While there appears to be a common element in both incidents, namely the Applicant’s lack of self-control, the Tribunal is not satisfied that the Applicant’s offending demonstrates any trend relevant to this principle.
Principle (e) – the cumulative effect of repeated offending
The Applicant’s criminal record does not evidence any cumulative effect of repeat offending.
Principle (f) – whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending
There is no evidence that this consideration is relevant in the Applicant’s case.
Principle (g) - whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
The Tribunal notes that this principle relates to situations where an applicant is formally warned, or made aware in writing, of the consequences of further offending. There is no evidence that this consideration is relevant to the Applicant.
Having regard to the factors set out in cl 8.1.1(1)(a)–(g) of Direction 90, the Tribunal is satisfied that the Applicant’s criminal conduct in relation to the October 2018 Offence and particularly the April 2015 Offences was very serious conduct.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious misconduct
Clause 8.1.2(2) of pt 2 of Direction 90 states that in assessing the risk that may be posed by a non-citizen to the Australian community, the decision-maker 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).
(a) Nature of the harm
The April 2015 Offences included the repeated physical assault of a member or members of the Applicant’s immediate family including with a weapon. This involved the infliction of actual physical harm as well as having the potential to cause significant psychological harm. The repeated breaches of intervention orders and the threats to kill exposed members of the family to further potential psychological harm.
The Tribunal is satisfied that should the Applicant engage in similar conduct in the future, it would expose his family members and possibly other members of the Australian community to the risk of significant physical and psychological harm.
The Applicant’s conduct in relation to the October 2018 Offence was confined to property damage but it nevertheless involved a not insignificant financial cost to the Commonwealth.
(b) The likelihood of re-offending
It is relevant, in assessing the likelihood of the Applicant re-offending, that the Applicant has been involved in a series of disciplinary breaches while in detention.
SERCO Client Incident Reports for the Applicant in the period from 5 January 2016 and 18 August 2020 record numerous incidents in which the Applicant was alleged to have been in possession of contraband such as cigarette lighters and various electronic components and home-made tools.[37] In addition, he was allegedly involved in arguments or confrontations with other detainees or SERCO officers on 34 occasions over the period.[38] The records also include numerous incidents where the Applicant allegedly threatened self-harm, in some cases causing him to be placed in restrictive detention for his own safety.[39]
[37] G7, G9 and G32.
[38] G7 at p.70-2, 81, 83, 87-90, 93, 95, 97-- 100; G9 at p 109-12, 114-7, 120, 123, 126; G32 at p 338-9, 345, 348-54, 357, 360-1, 363.
[39] See for example G32 at p 346.

In his statement of 6 September 2019, the Applicant responded to many of the incidents.[40] He explained that he had electronic components and home-made tools because he liked to keep busy assembling and repairing electronic equipment including mobile phones. He disputed many of the incidents in which he was accused of aggressive or abusive behaviour. The Tribunal makes no findings in relation to these numerous incident reports. It accepts that the Applicant is suffering from mental and physical health conditions, has limited language skills and may (understandably) have become angry and frustrated at times by the restrictions imposed on him over a long period of detention.
[40] Exhibit A2.
Dr Zimmerman opined in her report of 17 November 2020 that it is likely at least some of the Applicant’s outbursts of frustration and anger while in detention are associated with his depressed mood.[41]
[41] Exhibit A8 at [100].
Even though this explains much of the Applicant’s conduct, the existence of his ongoing depression and the extent of the incidents reported while in detention, suggests that the Applicant has a significant need for psychological and material support if released into the community in order to address his propensity to become violent or aggressive. In this context the Tribunal notes that the Applicant’s legal representatives had arranged for him to be assessed by Bethany Community Support if he is released, [42] but in giving his oral evidence the Applicant displayed no understanding of what this entailed.
[42] Exhibit A5.
Dr Zimmerman reported on 22 December 2019 that the Applicant represents a good prospect for rehabilitation and,[43] having considered the Applicant’s history and the nature of the difficulties he faces, she stated:
I remain of the opinion that he poses a low risk of serious or imminent violence to members of the broader Australian community. A possible risk scenario would be if he were in contact with his wife or older daughter and an argument occurred where he felt humiliated or disrespected. This is the situation where there is a risk that [the Applicant] could resort to either threats or acts of actual violence.[44]
[43] Exhibit A9 at [45].
[44] Ibid at [42].
Dr Zimmerman confirmed in her oral evidence that her assessment related to the risk of the Applicant acting violently to another person and was not an assessment of the likelihood of him offending generally.
Dr Zimmerman was questioned about the basis for her assessment in cross examination. She acknowledged that her assessment was based on the description of the incidents in January 2015 given by the Applicant, which was essentially that he had slapped his daughter because she had been disrespectful towards him. She confirmed that her assessment did not take into account the matters recorded in the police preliminary brief notes which she acknowledged painted a very different picture of the Applicant’s offending. [45] The Tribunal therefore gives less weight to Dr Zimmermann’s assessment of the risk of physical violence.
[45] G8 at p 105.
In assessing the risk of reoffending, the Tribunal has also had regard to the extent to which the Applicant has demonstrated genuine remorse for his actions.
The Tribunal notes that the Applicant is reported as having confessed to assaulting his wife and A to the police at the time of his arrest on 6 January 2015, and that he plead guilty to all charges at his trial.[46]
[46] G8 at p 105.
In his written statement of 9 November 2018, the Applicant stated:
I want to make it very clear now that the reality is that judges determine the law and I acknowledge that I was convicted of a serious offence. I was convicted because what I did was against the law and a very serious criminal offence. Most of all, I deeply regret what I did to my family and I take full responsibility for my actions. I am entirely responsible for what happened and only I am to blame. I know and think this and it was only when I was very upset and emotionally unstable that I may have sounded like I did not believe this to be the case – but I do.[47]
[47] Exhibit A3 at [2].
Notwithstanding this wholehearted statement, there is a question over the genuineness of the Applicant’s remorse. In giving his oral evidence, the Applicant explained the situation with his wife and family in 2013 – 2014. He admitted that there were tensions in his relationship with his wife, which he said stemmed largely from the disrespectful behaviour of his daughter A and his wife’s support of her. His description of the relationship sought to paint a picture that he was simply trying to maintain proper standards for his family, and A was determined to pick fights with him and was rude and disrespectful. His only admission of being violent was to say that he slapped A when she tried to run away. This minimisation of his own responsibility for the violence was reflected in his statements to Dr Zimmerman, to his lawyers and in interviews with the Department.
In her report of 14 June 2019 Dr Zimmerman recorded the Applicant’s account of his offending as including the statement:
He stated that [his daughter A] made a statement to the police saying that he punched her and had a knife, which he said was all made up.[48]
[48] Exhibit A10 at [15].
Dr Zimmerman also recorded that:
As well as insisting that he never breached the Intervention Order, [the Applicant] denied raising his hand against his daughter. He stated that he is aware that he was alleged to have repeatedly breached the Order and to have slapped his daughter but strenuously denied both these allegations.[49]
[49] Ibid at [18].
In correspondence with the Department dated 7 November 2016, the Applicant’s solicitors provided the following statement of their client’s instructions regarding the incident on 3 January 2015:
[The Applicant] instructs that when he arrived at their home, he started talking to his wife about the upbringing of their children. His eldest daughter came into the room and spoke very disrespectfully to him. He told her not to speak to him that way. She took the younger children and went out. She then came back and told her mother to put on her shoes and follow her out of the home, which his wife did. [The Applicant] instructs that he was very angry and he left. On his way home he saw his daughter. She again spoke very disrespectfully to him and he slapped her face. Later his wife called him. She was very angry with him as the neighbours had told her that they saw him hit the daughter. The next day, the police came to his home and took him into custody where he remained until he was sentenced on 22 April 2015. [50]
[50] Exhibit R1.
This account clearly understates the extent and nature of the Applicant’s criminal conduct, as evidenced by his conviction for five separate offences on the day in question.
The Applicant also denied at his protection visa interview that he had physically assaulted his eldest daughter and claimed that he had only plead guilty to avoid further shame to his wife and daughter.[51]
[51] Exhibit A13 at p 27.
The significance of the Applicant’s lack of candour in relation to his offending was noted by Dr Zimmerman who stated in her report of 14 June 2019:
...there were some inconsistencies between the accounts he gave earlier and the account to me where, for example, he flatly denied having slapped his daughter. This would suggest that he may be continuing to minimise what occurred and indicates a need for work to help him come to terms with what occurred and to develop skills for situations where he may feel disrespected by family in the future... He indicated that he would be willing to undergo such counselling in the community.[52]
[52] Exhibit A10.
There is no evidence that the Applicant has undergone such counselling nor that he has any definite plans to do so, although he has participated in 35 sessions of torture and trauma counselling provided by ASeTTS,[53] and participated in a Men’s Group Behaviour Change Program while in detention.[54] The Tribunal is not convinced that the Men’s Group Program was particularly effective. The Applicant gave oral evidence that the Program was presented in English, and that he relied on other detainees to explain the content to him. He displayed only a limited understanding of the content.
[53] See Exhibit A12 and G14 at p 153.
[54] Exhibits A6 and A7.
The Applicant claimed in his evidence that there were cultural factors which contributed to his violent offending. He said that he came from a conservative background and found it challenging to adapt to life in Australia whereas his children, and especially his daughter A, liked the freedom. Dr Zimmermann referred to this in her reports[55]. The Tribunal notes that the Applicant has been incarcerated since his offending and largely isolated from the Australian community. There is no evidence that he has addressed these cultural issues.
[55] See Exhibit A9 at [36]
The risk of reoffending in the manner of the April 2015 Offences largely depends on the Applicant re-establishing contact with his immediate family.
The Applicant said repeatedly in his oral evidence that he did not know where his wife and children were living, and that he had not contacted them since January 2015. He said in his oral evidence that he would want to stay with them if they were prepared to accept him as a father, but he would not be ‘treated like a donkey’. He said that if they did not accept him it is better that he not live with them. These statements are at odds with his written statements, where he expressed that he strongly desires to be reunited with his children and that he intends to seek legal advice as to his parenting rights.[56] These contradictory statements suggest to the Tribunal that the Applicant is confused and undecided about whether he wants to have a role in the family, and there is a degree of uncertainty about how he would respond if released into the community.
[56] Exhibit A2 at [21]-[22].
This uncertainty is significant. Dr Zimmerman, while assessing the Applicant’s risk of violent reoffending as low, did identify one specific area of risk of re-offending as ‘…if he were in contact with his wife or older daughter and an argument occurred where he felt humiliated or disrespected’. This specific risk is reflected in the decision of the Broadmeadows Magistrates Court in refusing the Applicant’s application for bail pending appeal. Records produced under summons by the Broadmeadows Magistrates Court confirm that the Applicant was refused bail pending appeal on 1 May 2015.[57] The stated reasons of the Court were:
Delay is a concern, but given the Applicant’s demonstrated history of breaching the Intervention Order in a serious fashion, in my view he is an unacceptable risk to the victims (who he appears to regard as his chattels)
[57] SG3 at p 562-70.
The April 2015 Offences involved violence born of the Applicant’s anger and frustration. The existence of the family violence intervention order in effect at the time of the incident satisfies the Tribunal that the April 2015 Offences were not an isolated event, but rather were reflective of a broader propensity for aggression and violence in his dealings with his family, at least since arriving in Australia.
The October 2018 Offence also indicates that the Applicant has the propensity to lash out in an aggressive way when frustrated and angry. His record in detention is punctuated by a series of minor infractions of the rules and occasional incidents of confrontation with officers and other detainees. The Tribunal readily accepts that these incidents have to be assessed in the context of the strict discipline under which detainees are required to live, and the understandable frustration and anxiety the Applicant has experienced as a result of his prolonged detention. Nevertheless, they do suggest that the Applicant continues to have a propensity to act out of frustration and anger.
Dr Zimmerman’s assessment of his mental health confirms that he continues to suffer from severe depression. It has not been established that he will receive the necessary support he needs to deal with his mental health issues if released into the community. The indications are that the Applicant will face significant pressures given his criminal record, his long period of incarceration, his illiteracy and limited English, his limited work experience as well as his diabetes and other health issues.
Having regard to the evidence as a whole, the Tribunal is satisfied that there is a material risk of the Applicant engaging in serious violent offending if reconnected with his family, although it is problematic whether he will seek or be able to re-establish contact. Taking all matters into account the Tribunal assesses the risk of violent offending as moderate. As to the risk that he will engage in other forms of criminal conduct, the Tribunal notes that the October 2018 Offence is an isolated event and is explained by his frustration and anger after many years in detention. The evidence does not disclose a propensity to engage in criminal behaviour generally and the Tribunal assesses the risk of further such offending as low.
The protection of the Australian community is a primary consideration under Direction 90, and weighs in favour of not granting the Applicant a Protection Visa.
Whether the conduct engaged in constituted family violence
Clause 8.2(1) of Direction 90 expresses the Government’s serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. Clause 4(1) of the Direction defines family violence to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful’, and includes assault and sexual assault.
The April 2015 Offences consist of 9 separate convictions. Four involved breaches of Family Violence Intervention Orders. Although the Tribunal is unable to determine the specific factual basis for these breaches because of the lack of court records, it is satisfied that intervention orders are introduced to provide a measure of reassurance and safety for the protected persons and that a breach of that protection is very likely to cause the protected persons to be fearful. As such, the conduct meets the description of family violence. The remaining offences involve actual assaults and a threat to kill directed at family members. They clearly meet the definition of family violence. The Tribunal is therefore satisfied that the April 2015 Offences are family violence (as defined) and that the Applicant’s convictions make them a relevant consideration.[58] The Applicant concedes that his most serious offences constitute family violence.
[58] Clause 8.2(2)(a) of pt 2 of Direction 90.
Clause 8.2(3) provides that, in considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:
(a) the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b) the cumulative effect of repeated acts of family violence;
(c) rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i) the extent to which the person accepts responsibility for their family violence related conduct;
(ii) the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii) efforts to address factors which contributed to their conduct; and
(d) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the noncitizen’s migration status, should the non-citizen engage in further acts of family violence.
In assessing the seriousness of the family violence for which the Applicant was convicted the Tribunal notes that:
(a) acts of family violence by the Applicant were proven on three occasions on 12 June 2014 and 3 and 4 January 2015;
(b) the evidence does not show a trend of increasing seriousness or an accumulated effect of the violence;
(c) there is no evidence of any meaningful rehabilitative action by the Applicant and the Applicant’s acceptance of responsibility for his actions is not unequivocal; and
(d) there is no evidence of any formal warnings about the consequence of further acts of family violence.
The Tribunal notes the Government’s concerns regarding the granting of a visa to a non-citizen who has engaged in family violence. This is a primary consideration under Direction 90. In the Applicant’s case, while the proven instances of family violence are serious, the evidence does not establish a trend of increasing seriousness or a cumulative effect on the victims which would warrant a finding of heightened seriousness. The Tribunal therefore determines that affording the consideration moderate weight is proportionate to the seriousness of the Applicant’s offending.
Best interests of minor children in Australia affected by the decision
Clause 8.3(1) of pt 2 of Direction 90 provides that ‘decision-makers must make a determination about whether refusal under s 501 is, or is not, in the best interests of a child affected by the decision’. In considering the best interests of the child, cl 8.3(4) requires specific factors to be considered. The consideration of the factors relevant in this case are set out below:
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has five children, of which only one is a minor child at the date of this decision.[59] A son, M, was born in June 2006. He is currently 16 years of age.
[59] This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse the visa is expected to be made – cl 8.3(2) of Direction 90.
The Applicant’s written submission states:
The Applicant has one minor child with whom he will seek to re-establish contact on his release. The Applicant understands that he must comply with all intervention orders in place. He also understands it will be hard to win back the trust of his family. Notwithstanding these difficulties, and taking into account the Applicant’s desire to engage with programs to assist his understanding of his previous offending, it is possible that the Applicant will be able to reconnect with his family and his youngest child. A decision to refuse the Applicant’s visa would remove the possibility of the Applicant ever re-establishing a connection with this youngest child.

The Tribunal notes that cl 8.3 of pt 2 of Direction 90 requires the Tribunal to consider the interests of the child affected by the decision. The Applicant’s submission stresses his desire to be a father. While the interests of the Applicant are able to be considered generally under other parts of the Direction, cl 8.3 requires the Tribunal to focus on the best interests of the child. The question is not whether it is in the Applicant’s best interests to remain in Australia with his child, it is whether it is in the child’s best interests for him to do so.[60]
[60] As the Applicant correctly notes, art 3(1) of the United Nations Convention on the Rights of the Child provides: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
There are limited facts before the Tribunal upon which to assess this issue.
The Applicant has not had any contact with M since January 2015 when he was taken into custody. There is no evidence regarding the specific relationship between the Applicant and M before that time. There is no evidence about M’s current circumstances or his views about the Applicant. There is no evidence from a professional psychologist or independent person with knowledge of the child to offer an objective opinion about what is best for him. Given the long separation between M and the Applicant, and the incidents of domestic violence in the past, the Tribunal is reluctant to make assumptions about what might be in M’s best interests. In addition, there is only a limited opportunity for the Applicant to play a positive parental role before M attains 18 years of age in June 2024.
The Applicant submits that if the Applicant’s Protection Visa application were refused then the impact on M could be profound. The Applicant identifies, from the Convention on the Rights of the Child, the most relevant potential consequence as ‘the [child’s] loss of regular contact with, and opportunity for guidance by, their [family member] or to the disruption to their family life which would flow from their [family member]’s inability to live in this country’. The Tribunal notes that regular contact between the Applicant and M, and the opportunity for guidance, has already been lost and it is quite possible that disruption to M’s family life may well result from the Applicant remaining in Australia.
The interests of minor children are a primary consideration under Direction 90, but in this case the Tribunal is not satisfied one way or the other that it is in M’s best interests for the Applicant to be granted a Protection Visa. Accordingly, this factor is neutral and weighs neither for nor against the grant of the visa.
Expectations of the Australian Community
Clause 8.4 of pt 2 of Direction 90 relevantly provides:
(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) ……
(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 majority of the Full Court of the Federal Court has explained that cl 11.3 of the former Direction 65, which mirrors the wording of cl 8.4(1) and (2):
…should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasizes that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
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.[61]
[61] FYBR v Minister for Home Affairs [2019] FCAFC 185, [75]-[76].
The Applicant’s criminal conduct is clearly contrary to the expectation of the Australian community that non-citizens will obey Australian laws. The April 2015 Offences involved acts of domestic violence and are therefore of a kind detailed in cl 8.4(2) of pt 2 of Direction 90, and each such offence raises legitimate character concerns. The Tribunal accepts that there is a deemed community expectation that the Applicant not be granted a Protection Visa. The expectation is a primary consideration under Direction 90 and weighs against granting the Protection Visa.
The Tribunal is not satisfied that it is appropriate to refuse to grant a Protection Visa solely on the basis of the deemed expectation in cl 8.4 of pt 2 of Direction 90. Rather, it is appropriate to weigh the expectation of the Australian community together with the other considerations required by Direction 90.[62] In doing so, it is important to take into account the Applicant’s status and particular circumstances in the context of Australia’s commitment to international treaties enshrining its non-refoulement obligations,[63] and prohibitions against indefinite detention.[64]
[62] QHRY v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 827 at [43]-[48].
[63] See cl 9.1(1) of Direction 90 and the international obligations there cited.
[64] Articles 7 and 9 of the International Covenant on Civil and Political Rights.
These international obligations are pertinent to the consideration of the Applicant’s case. He is a refugee for whom the Minister’s delegate has made a protection finding, and has accepted that he is a person in respect of whom Australia has non-refoulment obligations. The Applicant is also a person who has been held in immigration detention for over 6 years having previously served his sentence for his criminal behaviour.
Having regard to these matters, the Tribunal accepts that the expectation of the Australian community weighs in favour of not granting the Applicant a Protection Visa, but the weight to be given to this consideration is significantly diminished by the Applicant’s status and circumstances, and the obligations that arise from them.
OTHER CONSIDERATIONS UNDER CLAUSE 9 OF PART 2 OF DIRECTION 90
International non-refoulement obligations
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
The Conventions referred to in the Direction are aimed at Australia’s obligations to avoid particular types of harm occurring to a person in the event that they were to be returned to their country of nationality.
In this case the Tribunal is required to assess whether the Applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion or whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Afghanistan, there is a real risk that the Applicant will suffer ‘significant harm’ as defined in s 36(2A) of the Act, which means to be arbitrarily deprived of life, subject to a death penalty, subjected to torture, cruel or inhuman treatment or punishment or subject to degrading treatment or punishment.
Section 36(2B)(c) provides that there is taken not to be a real risk that a non-citizen will suffer significant harm if the Minister is satisfied that the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. Accordingly, the assessment of non-refoulement claims rests heavily on the particularity and personal circumstances of an Applicant.[65]
[65] NBMZ and Minister for Immigration and Border Protection [2014] FCAFC 38; [2014] 220 FCR 1 at [22].
In the Reviewable Decision, the delegate noted that the delegate who had initially considered the Applicant’s Protection Visa application had made a ‘protection finding’ for the Applicant and was satisfied that the Applicant met the requirements of s 36(2)(a) and s 36(1C) of the Act.[66] The delegate concluded:
Having regard to the assessment completed by the Department on 28 June 2019, I accept that if [the Applicant] is removed to Afghanistan, there is a real risk he will suffer significant harm. Accordingly, I accept that [the Applicant] is a person in respect of whom Australia has nonrefoulement obligations.
[66] G2 at p 34.
The Protection Visa assessment undertaken by the delegate on 28 June 2019 was comprehensive and addressed each of the criteria specified in s 36(2) for the grant of a Protection Visa.[67]
[67] Exhibit A13.
The delegate found that the Applicant is of Hazara ethnicity and a Shia Muslim, and that he fears being killed by the Taliban or other Sunni extremist groups because of his race and religion. The delegate was satisfied that Shia Hazaras are targeted by non-state actors such as the Taliban and Islamic State in Afghanistan because of their race and religion and face a real chance of being killed for this reason.
The delegate was satisfied that the feared persecution was well-founded and would involve a real chance of serious harm to the Applicant. The delegate also accepted that, as a Shia Hazaras person, the Applicant was likely to face ‘non-random, selective, premeditated and discriminatory conduct’[68] because of his ethnicity and religion.
[68] Ibrahim v Minister for Immigration and Multicultural Affairs [1999] FCA 374.
Since the delegates assessment in June 2019, the political situation in Afghanistan has changed dramatically. The Department of Foreign Affairs and Trade (DFAT) country information notes that the Taliban has declared an ‘interim government’ in Afghanistan,[69] having taken power on 15 August 2021 after the fall of the government of the Islamic Republic of Afghanistan. This occurred after a military advance through provinces in Afghanistan in 2021.
[69] Department of Foreign Affairs and Trade, Afghanistan (Web Page) <>
An updated assessment since the Taliban’s takeover by DFAT is that:
Hazaras in Afghanistan face a high risk of harassment and violence from both the Taliban and ISKP, on the basis of their ethnicity and sectarian affiliation. While the level of mistreatment of Hazaras is currently less widespread than was predicted by some sources upon the fall of Kabul, members of the Hazara community have suffered from ISKP terror attacks and Taliban violence, including hundreds of evictions.
Shi’a face a high risk of being targeted by ISKP and other militant groups on the basis of their religious affiliation when assembling in large and identifiable groups, such as during demonstrations or when attending mosques during major religious festivals. This risk increases for those living in Shi’a majority or ethnic Hazara neighbourhoods in major cities such as Kabul and Herat.[70]
[70] DFAT Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022) at p 195-196.
In the Respondent’s written submission, it was conceded that there is a real risk the Applicant will suffer significant harm if returned to Afghanistan, and that he is a person in respect of whom non-refoulement obligations are owed. The Respondent relied on:
(a) the findings of the delegate that the Applicant would be targeted by the Taliban and harmed or killed if returned to Afghanistan such that international non-refoulement obligations were owed; and
(b) the fact that, before a decision was made under s 501(1) of the Act in relation to the Applicant's Visa, a delegate made a protection finding on 28 June 2019, being satisfied that the Applicant met the criterion in s 36(2)(a) of the Act, with respect to Afghanistan, along with the criteria in s 36(1C).
Having regard to the protection findings by the delegate on 28 June 2019, and taking into account the consolidation of the Taliban in power in Afghanistan since August 2021, the Tribunal is satisfied that the Applicant, as a Shia Hazaras, would face a significant risk of serious harm or be subject to ‘non-random, selective, premeditated and discriminatory conduct’ if he were now removed to Afghanistan. Accordingly, the Tribunal is satisfied that the Applicant is a person to whom international non-refoulement obligations are owed.
However, the Tribunal is satisfied that, if the Protection Visa is not granted, the Applicant is not likely to be deported to Afghanistan contrary to Australia’s international obligations. The protection finding by the delegate on 28 June 2019 is significant in this respect as it relates to s 197C(3) of the Act.
Section 197C(3) relevantly provides that:
(3)… 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.
The Respondent conceded in final submissions that the effect of the delegate’s protection finding and s 197C(3) was that, in current circumstances, deportation of the Applicant to Afghanistan can effectively be ruled out. Even though deportation is not a material concern, the Tribunal is nevertheless required to consider and confront the legal and practical consequences of a decision to refuse the application for a Protection Visa.[71]
[71] NBMZ and Minister for Immigration and Border Protection [2014] FCAFC 38 at [10].
The immediate legal consequence of the Applicant being refused a Protection Visa is that he is precluded by s 48A of the Act from making a further application while he remains in the migration zone. The practical consequence of not being granting a Protection Visa is that the Applicant will be subject to indefinite detention. In practical terms there are only four ways in which the indefinite detention could be brought to an end.
First, circumstances in Afghanistan may change so that the risks to the Applicant are removed or diminished to the point where he can be deported without infringing Australia’s non-refoulment obligations. There is no reason to believe that this is likely in the foreseeable future. The issues underlying the risks for the Applicant are deep seated and of long standing. There is no evidence before the Tribunal to support a conclusion that things are likely to change for the better.
Secondly, the Applicant could choose to return to Afghanistan voluntarily. In this context the term ‘voluntarily’ is misleading. For the Applicant to choose to return to Afghanistan and face the risks of significant harm would be an act of desperation driven by the prospect of indefinite incarceration as the only alternative. The Tribunal has previously characterised this as a form of forced removal and questioned whether it is in reality a breach of Australia’s non-refoulment obligations:
We question whether there is a real choice between prolonged detention and returning to a country where the applicant believes there to be a real chance of persecution or a real risk of significant harm. As observed by Deputy President Britten-Jones in XDJD and Minister for Immigration and Border Protection (Migration), a written request by an applicant to be removed from Australia may still constitute refoulement if an applicant requests that he be refouled “out of despair due to his prolonged detention”. We agree with this statement of principle.[72]
[72] 1901883 (Refugee) [2021] AATA 3216 at [114].
Whether one accepts the genuineness of the choice involved in this option or not, the fact remains that if the Applicant were to return to Afghanistan it would involve not only putting his life at risk, but also exposing him to very significant detriment.[73]
[73] See the factors identified at paragraphs 144-150 below.
Thirdly, the Applicant may be offered the opportunity to be resettled in a third country. There is no evidence that this option is anything other than a possibility at some stage in the future. Even if a third country was identified there are several potential problems for the Applicant which may disqualify him from being offered a chance to relocate. He has a criminal record, he has significant health issues, he is illiterate and has limited language and he has little or no work history or skills. He is also 44 years old.
Finally, there are limited options for the exercise of Ministerial discretion. The Minister may act personally under s 48B to determine that s 48A does not apply and allow a further application for a Protection Visa, or the Minister may exercise a non-compellable power in ss 195A or 197AB to allow the Applicant to remain in Australia otherwise than in detention. The Respondent’s position in relation to this option is:
As at the date of these submissions, 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 s 195A or make a residence determination under s 197AB of the Act. Nor has any decision been made as to whether the applicant can be resettled in a third country. It is, with respect, appropriate for the Minister and his department to defer consideration of these matters until after the outcome of the review process relating to the refusal decision. If the delegate’s decision is affirmed, it is open to the Minister to consider the alternative management options available to him in relation to the applicant, including consideration under ss 195A and 197AB or resettlement in a third country.
The Tribunal is mindful of the approach to this issue by the majority of the Court in NBMZ and Minister for Immigration and Border Protection [2014] FCAFC 38 at [4] where it was stated:
It is true, too, that the Minister may grant a detainee a visa in the circumstances described in s 195A of the Act. But, as Buchanan J points out in his reasons, there was no reference to the possibility or the willingness of the Minister to contemplate a visa under s 195A in either the briefing paper to him, or in his reasons. We agree with Buchanan J that the applicant is entitled to have this application determined on the hypothesis that he will be indefinitely detained and that any question of a visa under s 195A is, at best, a matter of speculation. There is no foundation for any assumption that the Minister will grant any relevant visa.[74]
[74] per Allsop CJ and Katzmann J.

Having considered the alternative ways the Applicant’s detention could be brought to an end, the Tribunal is satisfied that the legal and practical consequence of not granting the Applicant a Protection Visa is to condemn him to prolonged and indefinite detention. To do so would deprive the Applicant of his most basic freedoms and impose on him a form of punishment reserved for serious criminal conduct.
The harshness of this outcome for the Applicant is exacerbated by a number of factors.
First, he has been incarcerated continuously since January 2015 and been in immigration detention for over 6.5 years. He described the effect of this prolonged period in his statement of 6 September 2020 as follows:
One, two, three, four, five years I have been in detention. There are major side effects to my mood and health from being in detention. I am depressed, stressed, worrying about my future and have a total loss of physical motivation. Depression has ruined all my normal bodily functions. I do not have a good sleep at night and I have no energy. My ability to concentrate, make decisions and my patience have all been affected. I have lost my sense of creativity. Before detention, when I was in Australia with a visa, I was an active man. Even if I was not working for a wage, at least I could create a program for myself. For example, during the day I used to make things and go to buy tools. I was busy in my life. Inside the detention centre, I don’t have freedom and I don’t have much opportunity to do anything. I feel there is nothing to do but sleep all day.[75]
[75] Exhibit A1 at [3].
Secondly, the Applicant has serious health issues. He suffers from Type 1 diabetes and associated renal and eye disease, hypothyroidism, iron deficiency anaemia and depression.[76]
[76] G24 at p 245.
Thirdly, his significant mental health issues are exacerbated by his detention. Dr Zimmerman diagnosed the Applicant as suffering from a severe major depressive condition with associated mood incongruent psychotic features. In the opinion of Dr Zimmerman, the Applicant’s mental state has deteriorated while in detention and further detention will make it worse. She opined that if the Applicant remains in prolonged indefinite immigration detention then he is at risk of ongoing deterioration in his depression and the risk of suicide will increase as the period of indefinite detention increases.[77]
[77] Exhibit A10.
The Applicant’s former counsellor Ms Bonnie Beazley from the Association of Services to Torture and Trauma Survivors, who last saw the Applicant in November 2020, reported on 27 June 2022:
…my previous assessment indicated that his indefinite detention with the corresponding uncertainty and the unpredictable detention environment has contributed to his poor mental health, rendering him vulnerable and susceptible to further deterioration. I was concerned about further deterioration on his already poor mental state with the increase of the length of detention.[78]
[78] Exhibit A5.
Having regard to these matters, the Tribunal is satisfied that indefinite detention poses extremely serious consequences for the Applicant and is a consideration warranting significant weight in the exercise of the Tribunal’s discretion under s 501(1) of the Act.
To the extent that the prospect of indefinite detention might be said not to fall under the ‘international non-refoulment obligations’ consideration under cl 9(1)(a) of Direction 90, the Tribunal notes that the list of considerations under cl 9(1) of pt 2 is not exclusive and it is able to be considered as an additional consideration, albeit not as a primary consideration under cl 8 of Direction 90.
Extent of impediments if removed
Clause 9.2 of pt 2 of Direction 90 requires that:
decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(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.
In reality the Applicant is unlikely to be forcibly removed to Afghanistan, although it is possible that he may elect to voluntarily return in order to avoid indefinite detention in Australia. If he were to return to Afghanistan, he would face significant impediments in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens).
Afghanistan is currently an unstable country following the takeover by the Taliban,[79] and in this environment the Applicant would be exposed to the risks identified in his statement of 13 September 2018:[80]
(a) as a Shia Hazara, he would be targeted by the Taliban intelligence unit or Sunni religious extremists;
(b) as a returnee from the West, he is at risk of attack, extortion, kidnapping or robbery because people would think he has money or was a Christian sympathiser; and
(c) his wife’s relatives may seek to punish him for abandoning her and his children.
[79] Department of Foreign Affairs, Thematic Report – Afghanistan, January 2022.
[80] Exhibit A4 at [4].
Unemployment in Afghanistan is very high.[81] The Applicant has limited employment skills. Before he left Afghanistan, he ran a bicycle repair business and claims to have worked as a carpenter and painter while in Iran. However, apart from a brief period as a cleaner he has not worked since he arrived in Australia in October 2013.
[81] The UK’s Home Office cites a survey from the Austrian Federal Office for Immigration and Asylum that demonstrates that employment options are scarce. The results showed that 58.3% of men in a November 2021 were unemployed.
The Applicant has a diagnosed mental health condition and requires ongoing counselling and treatment. The health services in Afghanistan are severely under-resourced, particularly for mental health areas. A report by Human Rights Watch notes ‘there are critical gaps in the availability and quality of psychosocial support and mental health services in Kabul and other cities, while in rural areas they are virtually non-existent’.[82]
[82] Country Police and Information Note: Afghanistan: Medical Treatment and Healthcare, United Kingdom Home Office, October 2021.
The Applicant has severe diabetes which currently requires daily care and other health issues. The health system in Afghanistan is ill-equipped to care for his complex needs.
The Applicant left Afghanistan in 2001 and has resided in Australia for nearly 9 years. He has no meaningful social supports in Afghanistan and no access to accommodation, financial or material aid.
The Respondent’s written submission acknowledges that the Applicant’s health concerns, his long absence from the country and his lack of support in Afghanistan are impediments if he was to return to the country and that this weighs in favour of granting the Protection Visa.
The Tribunal accepts that the extent of the impediments to the Applicant if he were removed to Afghanistan (or if he felt forced to relocate to avoid indefinite detention) would be significant and weigh in favour of granting the Protection Visa. However, given that deportation is currently not likely, and it is problematic whether the Applicant would voluntarily relocate to Afghanistan given the risks and detriment such an election would entail, the Tribunal gives this consideration limited weight.
Impact on Victims
Clause 9.3 of pt 2 requires decision makers to 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’.
The relevant ‘impact’ under cl 9.3 is the adverse impact likely to result from the non-citizen being granted a visa.[83]
[83] CGX20 v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (No 2) [2020] FCA 1842 [17]-[21], which considers the analogue consideration at 14.4 of Direction No 79.
There is no evidence before the Tribunal as to any adverse impact likely to result for the victims of the Applicant’s offending if the Applicant is to be granted a visa to remain in Australia.
Links to the Australian Community
Clause 9.4 of pt 2 of Direction 90 requires that decision makers reflect on the principles at cl 5.2 and have regard to the considerations set out in cls 9.4.1 to 9.4.2.
Clause 9.4.1 refers to the strength, nature and duration of the non-citizen’s ties to Australia and sets out the following principles:
(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.
Clause 9.4.1 requires the Tribunal to consider any impact of its decision on the Applicant’s immediate family members in Australia. Put simply, the Tribunal is not in a position to give any meaningful consideration to this issue. The Applicant’s immediate family in Australia comprises a wife and five children. The Applicant has not seen or communicated with his family since he was arrested in January 2015, and he does not know where they are currently located. There is no evidence before the Tribunal as to the circumstances of the family members, or their views as to the prospect of the Applicant being granted a visa. In ordinary circumstances, the Tribunal might make the assumption that it is in a family’s interests to have contact with the father/husband. However, in this case the Applicant was subject to an intervention order prior to his arrest and was involved in domestic violence toward members of his immediate family. The evidence from the Applicant is that he has not been contacted by any member of his family since his arrest over seven and a half years ago. It is possible that the impact of granting the Applicant a visa may be negative for some or all members of his family who may wish to avoid any prospect of contact with the Applicant. It is also possible that some members would be positively impacted by the decision as it would allow for the possibility of reconciliation. In the absence of any actual evidence, the Tribunal can only speculate, and such speculation is not a sound basis for making its decision.
As to the broader question of the nature of the Applicant’s ties to Australia, the Tribunal notes that the Applicant came to Australia in October 2013 and has lived here continuously ever since, but he began offending less than two years after his arrival and has been in prison and immigration detention continuously since his arrest on 6 January 2015. He held a job as a cleaner in an abattoir for only a brief period after his arrival in Australia, but he did not otherwise engage in paid work prior to his arrest. His immediate family is in Australia, although he has had no contact with them for over 7 years.
There is no evidence that the Applicant was directly involved in any specific community activity prior to his arrest or while in prison or detention. He has provided a letter of support from Mohammad Norozi, the President of the Hazara Community in Geelong, which in effect offers the Applicant the support of the Hazara community on his release from detention.[84] Mr Norozi was not called to give evidence and the Tribunal gives little weight to his statements that the Applicant ‘is liked and respected by our community or that his contribution as an older member was valued by many as he strengthened and provided cohesion in our community’. The Applicant conceded in cross examination that he first spoke to Mr Norozi while he was in prison and has only spoken to him on two occasions since that time. The Applicant arrived in Australia in October 2013 and he was taken into custody on 6 January 2015, meaning that he was only in the community for 14 months in total. At the time, he was 36 years old. During the 14 months he was in the community, he was involved in domestic violence and interactions with the police in June 2014 and January 2015. These facts do not sit well with Mr Norozi’s statements.
[84] Exhibit A11.
The Tribunal finds that the Applicant has established limited ties to the country and while those ties weigh in favour of granting a Protection Visa, they are not strong ties and the Tribunal gives them little weight.
Impact on Australian Business Interests
Clause 9.4.2(3) requires decision makers to ‘consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia’.
There is no evidence that this consideration is relevant to the Applicant.
CONCLUSION
In exercising the discretion under s 501(1) of the Act the Tribunal is required to examine the factors for and against the grant of a Protection Visa following an assessment and evaluation of those factors and if satisfied that the visa should be granted to act on that view.[85]
[85] By analogy with the exercise of discretion under s 501CA(4)(b)(ii) per North ACJ in Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38].
In assessing the relative weight to attribute to factors for and against granting the Protection Visa, the Tribunal has had regard to:
(a) Clause 7(2) to (3) of pt 2 of Direction 90 which provide:
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
(b) the principles set out in cl 5.2 of Direction 90 which provide the framework for decision making under s 501CA of the Act. Those principles include:
(1) …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.
Factors against granting a Protection Visa
The protection of the Australian community from harm, as a result of criminal activity or other serious conduct by non-citizens, is a primary consideration under Direction 90 and weighs against the grant of the Applicant’s visa. However, the Tribunal gives this consideration limited weight because there is a limited risk of harm to the Australian community if the Applicant is released into the community. While there is a moderate risk of the Applicant engaging in serious violent offending if reconnected with his family, it is far from certain that he will seek to reconnect, and he may not be able to do so as he has not contacted them for over 7 years and does not know where they are currently living. He is otherwise assessed as being a low risk of engaging in other criminal conduct.
As to the Government’s concerns regarding the granting of a visa to a non-citizen who has engaged in family violence, the proven instances of family violence by the Applicant are serious but the evidence does not establish a trend of increasing seriousness or a cumulative effect on the victims and it is now over 7 years since his offending. The Tribunal therefore affords this consideration moderate weight against the grant of a Protection Visa, as a primary consideration under Direction 90.
The deemed expectation of the Australian community that non-citizens will obey Australia’s laws weighs in favour of not granting the Applicant a Protection Visa, but the weight to be given to this consideration is significantly diminished by the Applicant’s status and circumstances as a refugee to whom non-refoulment obligations are owed and who has already been detained in detention for over 6.5 years.
Neutral Factors
The interests of minor children are a primary consideration under Direction 90, but in this case the Tribunal is not satisfied one way or the other that it is in the best interests of the Applicant’s only minor child for the Applicant to be granted a Protection Visa. Accordingly, this factor is neutral and weighs neither for nor against the grant of the visa.
There is no evidence before the Tribunal as to any adverse impact likely to result for the victims of the Applicant’s offending if the Applicant is to be granted a visa to remain in Australia.
There is also no evidence that allowing the Applicant to remain in Australia or not has any relevance to Australian business interests.
Factors in favour of granting a Protection Visa
The Applicant has established limited ties to the country and while those ties weigh in favour of granting a Protection Visa they are not strong, and the Tribunal gives them little weight.
The principal consideration weighing in favour of granting the Applicant a Protection Visa is his status as a person to whom Australia owes an international non-refoulement obligation, and for whom a delegate of the Respondent has made a protection finding. It is accepted that he would face a significant risk of serious harm or be subject to ‘non-random, selective, premeditated and discriminatory conduct’ if he were now removed to Afghanistan. Under s 197C of the Act, he cannot be forcibly removed to Afghanistan because of the protection finding and he faces the prospect of indefinite detention in Australia with limited options for ending detention. Indefinite detention poses extremely serious consequences for the Applicant. He has serious physical and mental health issues and there is a material risk that he will attempt suicide if he remains in detention indefinitely.
Even if the Applicant agreed to voluntarily return to Afghanistan as an alternative to indefinite detention, he would face very significant detriments in establishing himself and maintaining basic living standards and would face grave risks to his personal safety. This consideration weighs in favour of granting the visa.
These considerations favour the grant of a protection visa and warrant significant weight in the exercise of the Tribunal’s discretion under s 501(1) of the Act.
Weighing the factors for and against granting the Protection Visa requires the Tribunal to give both primary and other considerations ‘appropriate weight’. The Federal Court has said that this 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’.[86] Although, a finding that a non-primary consideration is to be treated as a primary consideration may not be necessary.[87]
[86] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 per Colvin J.
[87] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775 per Wigney J at [22] and [23].

Weighing up these considerations, the Tribunal is satisfied that the essential assessment in the exercise of the discretion under s 501(1) of the Act in this case is to decide between the collective interests of the Australian community, as expressed in Direction 90, and the particular and very personal interests of the Applicant. The Tribunal accepts that the Applicant is a very vulnerable person by virtue of his refugee status and past trauma, his current serious physical and mental health issues, his isolation from his family and his prolonged period of immigration detention. For him to be refused a Protection Visa would be a crushing personal experience and would leave him with the unpalatable option of remaining in indefinite detention or electing to return to the dangers and depravation of his country of birth.
The Tribunal does not discern a sufficient benefit to the collective interests of the Australian community as expressed in Direction 90 by refusing the Applicant a Protection Visa or a sufficient detriment to those interests by granting the visa, which would outweigh the detriment to the Applicant resulting from not being granted a Protection Visa.
The Tribunal is therefore satisfied that that the discretion under s 501(1) of the Act should be exercised in favour of not refusing the Applicant a Protection Visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision of the delegate of the Respondent dated 19 May 2022 and substitutes a decision not to exercise the discretion under section 501(1) of the Migration Act 1958 (Cth) to refuse the Applicant’s visa application.

I certify that the preceding 180 (one hundred and eighty) paragraphs are a true copy of the reasons for the decision herein of Member R West

.........................[sdg]...............................................
Associate
Dated: 11 August 2022

Dates of hearing: 4, 5 and 8 August 2022

Counsel for the Applicant: Anthony Middleton

Advocate for the Respondent: Will Sharpe

Solicitors for the Respondent: HWL Ebsworth Lawyers

APPENDIX A

EXHIBIT

DESCRIPTION OF EVIDENCE

R1

Letter dated 7 November 2019 from Refugee Legal to Robert Richardson

A1

Applicant’s Statement to the Department of Home Affairs in support of his Protection Visa application dated 6 September 2020

A2

Applicant’s Statement to the Department of Home Affairs in support of his Protection Visa application dated 6 November 2019

A3

Applicant’s Statement to the Department of Home Affairs in support of his Protection Visa application dated 9 November 2018

A4

Applicant’s Statement to the Department of Home Affairs in support of his Protection Visa application dated 13 September 2018

A5

Email from Rachel Morgan at Bethany Community Support dated 12 July 2022

A6

Certificate of Participation in Men’s Group dated November 2020

A7

Certificate of Participation in Men’s Group dated October 2020

A8

Addendum report of Dr Nina Zimmerman dated 17 November 2020

A9

Addendum report of Dr Nina Zimmerman dated 22 December 2019

A10

Psychiatric report of Dr Nina Zimmerman dated 14 June 2019

A11

Statement of the Applicant dated 29 July 2022

A12

ASeTTS Report by Bonnie Beazley dated 27 June 2022

A13

Protection Visa Assessment dated 28 June 2019

Dates of hearing:	4, 5 and 8 August 2022
Counsel for the Applicant:	Anthony Middleton
Advocate for the Respondent:	Will Sharpe
Solicitors for the Respondent:	HWL Ebsworth Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE
R1	Letter dated 7 November 2019 from Refugee Legal to Robert Richardson
A1	Applicant’s Statement to the Department of Home Affairs in support of his Protection Visa application dated 6 September 2020
A2	Applicant’s Statement to the Department of Home Affairs in support of his Protection Visa application dated 6 November 2019
A3	Applicant’s Statement to the Department of Home Affairs in support of his Protection Visa application dated 9 November 2018
A4	Applicant’s Statement to the Department of Home Affairs in support of his Protection Visa application dated 13 September 2018
A5	Email from Rachel Morgan at Bethany Community Support dated 12 July 2022
A6	Certificate of Participation in Men’s Group dated November 2020
A7	Certificate of Participation in Men’s Group dated October 2020
A8	Addendum report of Dr Nina Zimmerman dated 17 November 2020
A9	Addendum report of Dr Nina Zimmerman dated 22 December 2019
A10	Psychiatric report of Dr Nina Zimmerman dated 14 June 2019
A11	Statement of the Applicant dated 29 July 2022
A12	ASeTTS Report by Bonnie Beazley dated 27 June 2022
A13	Protection Visa Assessment dated 28 June 2019