WCMB and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 569

WCMB and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 569 (16 May 2025)
Applicant/s:  WCMB
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2025/1516

Tribunal:General Member R. West
Place:Melbourne
Date:16 May 2025
Decision:Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision of the delegate of the Respondent of 26 February 2025 to refuse to grant the Applicant a Protection (Class XA) (Subclass 866) visa.
.

.......................[SGD].................................................
General Member R. West
Catchwords
MIGRATION – refusal of application for protection visa – protection finding – applicant fails character test – discretion under s.501(1) – sexually based offences – meaning of indecent act – meaning of child – Direction 110 - primary considerations – protection of the Australian community from criminal or other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – other considerations – legal consequences of the decision – extent of impediments if removed – decision affirmed.
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Acts Interpretation Act 1901 (Cth)
Crimes Act 1958 (Vic)
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994
Sex Offenders Registration Act 2004 (Vic)
Cases
Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 174
BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199
BNNN v Minister for Home Affairs [2019] AATA 27
BNPB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 730
Briginshaw v Briginshaw (1938) 60 CLR 336
CKL21 v Minister for Home Affairs [2022] FCAFC 70
CKQV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 927
Crowe v Graham (1968) 121 CLR 375
Djalic v Minister for Immigration and Multicultural Indigenous Affairs (2004) 139 FCR 292
Do and Minister for Immigration and Border Protection [2016] AATA 390
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Grese v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3441
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1
Kirk v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 4858
Major v Minister for Immigration, Citizenship, and Multicultural Affairs [2024] FCA 597
Minister for Home Affairs v Stowers [2020] FCA 407
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Morgan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 189
Morgan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] AATA 2822
Norley v Malthouse [1924] SASR 268
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
PQSM and Minister for Home Affairs (Migration) [2019] AATA 603
PXYJ v Minister for Immigration and Border Protection [2017] AATA 1961
R v Court [1989] AC 28
Re Harrison v Minister for Immigration and Citizenship [2006] AATA 47
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238
R v RL [2009] VSCA 95
R v Rolfe (2021) 273 CLR 413
RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 437
RVKP v Minister for Immigration, Citizenship, and Multicultural Affairs [2023] AATA 1761
Sabet v The Queen [2011] VSCA 124
Singh v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 556;
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545
Weti-Safwan and Minister for Immigration and Border Protection [2016] AATA 797
WKBF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)[2023] AATA 3728
Secondary Materials
Direction No. 110 – 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
Statement of Reasons

This matter concerns an application for review of the decision of a delegate of the Respondent under s.501(1) of the Migration Act 1958 (Cth) (the Act) to refuse to grant the Applicant a Protection (Class XA) (Subclass 866) (the Visa).
BACKGROUND
The Applicant is a citizen of Afghanistan.[1]
[1] Section 501 G Documents, G5 at p.64.
On 4 July 2011, the Applicant arrived in Australia on a Provisional Partner visa, sponsored by his wife.[2]
[2] G5 at pp.113-4.
In November 2011, the Applicant’s wife notified the then Department of Immigration and Citizenship that her relationship with the Applicant had ceased and his Partner Visa was revoked and he was granted a Bridging Visa E.[3]
[3]Exhibit A1 at [19].
On 30 April 2015, the Applicant was convicted in the Melbourne Magistrates’ Court on five charges of indecent assault and four charges of indecent act with child under the age of 16, contrary to ss 39 and 47 of the Crimes Act 1958 (Vic) (Crimes Act) and sentenced to 161 days imprisonment (already served on remand), 300 hours of community work, an order to undergo sex offender treatment and placement on the sex offenders register for life under s 34(1)(c)(iii) and Sch 2 cl 3 of the Sex Offenders Registration Act 2004 (Vic).
On 30 April 2015, following his convictions the Applicant’s Bridging Visa E was revoked and he was taken into immigration detention.
On 13 May 2016, the Applicant applied for a Protection Visa on the basis that he would be subject to persecution if sent back to Afghanistan because of his conversion to Christianity. The application was unsuccessful.[4]
[4] The history of the refusal of the Applicant’s first Protection visa application and the litigation which followed it is set out in Exhibit A1 at [44]–[60] and also G5 at p.114.
On 24 July 2023, the Applicant was given notice by the Minister under s 48B of the Act that the Minister considered that it was in the public interest for the Applicant to be able to lodge a further application for a Protection Visa.[5]
[5] G5 at pp.251–93.
On 7 August 2023, the Applicant again applied for a Protection Visa (Class XA) (Subclass 866) (Visa Application).
On 26 February 2025, a delegate of the Respondent accepted that the Applicant was a person to whom Australia owed protection obligations but refused the Visa Application under s.501(1) (Refusal Decision).[6]
[6] G4 at pp. 19.
As a consequence of the Refusal Decision the Applicant was granted a Bridging Visa R (Subclass 070) (BVR) and released from detention.[7]
[7] G4 at pp. 19-38.
On 3 March 2025, the Applicant applied to the Tribunal for review of the Refusal Decision (Application).
HEARING
The Tribunal conducted a hearing of the Application on 8 May 2025. The Applicant was represented by Mr Scott Calnan, a solicitor (who appeared by videolink). The Respondent was represented by Mr Max Plitsch, a solicitor with the Australian Government Solicitor.
In conducting the review, the Tribunal had regard to:
(1)the documents produced to the Tribunal by the Respondent pursuant to section 501G of the Act, numbered G1 to G5 and paginated from pages 1 to 322 (G Documents), and two further bundle of documents produced under summons sequentially numbered RTB1 to RTB7 and paginated from pages 1 to 875 (SG Documents);
(2)a Statement of Facts, Issues, and Contentions produced by the Respondent (RSFIC);
(3)a Statement of Facts, Issues, and Contentions produced by the Applicant (ASFIC);
(4)the documents tendered by the Applicant and marked as exhibits, and listed in Appendix A; and
(5)the oral evidence of:
i.the Applicant; and
ii.Dr Lorraine Sheridan, Forensic Psychologist.
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act provides that the Respondent may refuse to grant a visa to a person if the person does not satisfy the Respondent that the person passes the character test.
Section 501(6)(e) relevantly provides that a person does not pass the character test if:
…a court in Australia or a foreign country has:
(1)convicted the person of one or more sexually based offences involving a child; or
(2)found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; …
Was the Applicant convicted of one or more sexually based offences involving a child?
In the ASFIC the Applicant submitted that he does not fail the character test because of any conviction by a court of him of “one or more sexually based offences involving a child” within the meaning of s501(6)(e)(1), on two bases:
1. The correct approach to determining whether an offence that the Applicant has been convicted of is a “sexually based offence involving a child” within the meaning of s501(6)(e)(i), MA in the absence of the Court stating the elements of the offence is to look at the statement of the offence in the statute and interpret that offence using the common law where necessary to understand the meaning of that provision. Applying that approach, the offences that the Applicant was convicted of were not clearly “sexually based offences” within the meaning of s501(6)(e)(i) as there was no unambiguous sexual nature to the elements of those offences.
2. If the Tribunal were to reject the above approach and seek to establish that the offences that the Applicant was convicted of were “sexually based offences” on the basis of the preliminary matters raised by the Delegate and the Brief of Evidence from the Victoria Police (“the Brief of Evidence”) that approach could not validly lead to the conclusion that the charges that the Applicant was convicted of were “sexually based”. This is because the preliminary points do not support such a conclusion and the information in the Brief of Evidence is unreliable[8]…
The Respondent agreed with the Applicant’s submission “that the question whether a person has been convicted of a ‘sexually based offence’ is answered by reference to the elements of the offence qua legal entity, and not by reference to some separate factual enquiry conducted by the decision-maker.”[9]
[9] RSFIC at [39].
The Tribunal accepts that the question whether the Applicant had been convicted of one or more sexually based offences involving a child is to be answered by reference to the elements of the offences for which he was convicted having regard to the proper construction of the relevant statutes.[10]
[10] Morgan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 189 at [22]; RVKP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 1761 at [16]–[20].
The factual basis for this inquiry is the fact of the Applicant’s convictions for the following offences:
1. Five counts of indecent assault contrary to s. 39 of the Crimes Act; and
2. Four counts of indecent act with child under 16 contrary to s.47 of the Crimes Act.[11]
Section 39 of the Crimes Act in force at the time of the Applicant’s offending provides:
(1) A person must not commit indecent assault.
(2) A person commits indecent assault if he or she assaults another person in indecent circumstances—
(a) while being aware that the person is not consenting or might not be consenting; or
(b) while not giving any thought to whether the person is not consenting or might not be consenting.
Sub-section 47 (1) of the Crimes Act, in force at the time of the Applicant’s offending, provided that:
A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a child under the age of 16 to whom he or she is not married.
Turning first to the offences under s.47, the Tribunal notes that there is no definition of “sexually based offences” in the Act. It is required to look at the actual content of the elements of the offences.[12]
[12] Morgan (n 10) [22].
Neither the Acts Interpretation Act 1901 (Cth) nor the Act itself define ‘child’. However, s 5CA of the Act does defines the expression ‘child of a person’ by reference to the Family Law Act 1975 (Cth) which defines a child as a person under the age of 18.[13] Having regard to this definition, the Tribunal is satisfied that the reference to ‘child’ in s 501(6)(e) is to a person under the age of 18.[14] The Applicant was convicted of four offences contrary to s.47, for which a necessary element is that the victim be under the age of 16. This fact satisfies the Tribunal that the Applicant’s offending under s.47 involved a child for the purpose of s.501(6)(e)(i).
[13] See s 4.
[14] RVKP (n 10) [21].
There was no definition of the word “indecent” or “indecent act” in the Crimes Act at the relevant date.
In the Macquarie Dictionary (7th ed) “indecent” is defined as “1. Offending against recognised standards of propriety or good taste; vulgar: indecent language. 2. Not decent: unbecoming or unseemly: indecent conduct.” The Oxford Dictionary definition of indecent is “thought to be morally offensive, especially because it involves sex or wearing no clothes”. The Cambridge Dictionary definition is “morally offensive, especially in a sexual way”. The Collins Dictionary defines indecent as “offensive to standards of decency, especially in sexual matters”.
The Applicant argued that, while the common law authorities differ as to whether something being “indecent” must involve some act that is sexual or has sexual connotations, the weight of authority in both the High Court and the House of Lords indicated that it need not. In those circumstances, given the serious consequences to the Applicant if he is not granted a Protection visa, it is contended that the proper course for the Tribunal is to find that the offences that the Applicant was convicted of were not unambiguously “sexually based” offences within the meaning of s501(6)(e)(i) and so the Applicant does not fail the character test as a result.
The Tribunal rejects the proposition that it should take into account the personal consequences to the Applicant in considering whether the offences of which he was convicted are ‘sexually based’ offences. The Applicant’s submissions seem to confuse the approach to assessing evidence discussed in Briginshaw v Briginshaw[15] with the Tribunal’s task of statutory interpretation.
[15] (1938) 60 CLR 336 discussed in WKBF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3728 at [17].
The Applicant’s submissions on the correct interpretation of the term indecent referred to two authorities.
First, the remarks of Windeyer J in Crowe v Graham[16] regarding the use of the terms obscene and indecent in the context of the Obscene and Indecent Publications Act 1901 (NSW):
Let us turn to the words ‘obscene’, ‘indecent’. Each is a well known word. Each has been long used in law. Apart from any definitions given to them by statutes, , they are both to be understood within the meanings that they have at common law; and for present purposes each must be understood with any colour it takes by their collocation. I say this because the adjective ‘indecent’ has long been used in law to describe multifarious forms of offensive or objectionable conduct. In this general sense it denotes lewd forms of misbehaviour, but not always. Indecent exposure, indecent assaults involve lewdness. Indecent language does not, for example, Norley v Malthouse [1924] SASR 268. Brawling in church, maltreating corpses, grave-snatching have all been punished as indecent. Sometimes indecent conduct was punished at common law because it created a public nuisance. Sometimes simply as, in Lord Mansfield’s words ‘against public decency and good manners’. The House of Lords has said that for the common law the list is not closed.
[16] (1968) 121 CLR 375 at 390 (‘Crowe’).
Secondly the statement of Lord Ackner in R vCourt[17] (with whom the majority agreed) in considering the offence of indecent assault:
The judge in assisting the jury in his summing up as to the meaning of an indecent assault, adopted, inter alia, a definition used by Professor Glanville Williams, Textbook of Criminal Law, 2nd ed (1983) p 231: ‘indecent’ may be defined as ‘overtly sexual’. This is a convenient shorthand expression since most, but not necessarily all, indecent assaults will be clearly of a sexual nature although they, as in this case, may only have sexual undertones. A simpler way of putting the matter to the jury is to ask them to decide whether “right-minded persons would consider the conduct indecent or not”. It is for the jury to decide whether what occurred was so offensive to contemporary standards of modesty and privacy as to be indecent.
[17] [1989] AC 28 at pp.42–3 (‘R v Court’).
The dictionary definition of indecency goes beyond sexual behaviour, but what is relevant is the meaning to be given to the term indecent in the context in which it is used in ss.39 and 47 of the Crimes Act.
Windeyer J, in the remarks relied on by the Applicant in Crowe v Graham,[18] acknowledged that the term ‘indecent’ has a broad general meaning and “has long been used in law to describe multifarious forms of offensive or objectionable conduct”. But he made clear that the meaning must be understood with any colour it takes by its collocation. In considering the term as it was used in the context of the Obscene and Indecent Publications Act 1901 (NSW) Windeyer J acknowledged that indecent assault involves lewdness in contrast to other forms of indecent behaviour of the kind at issue in Norley v Malthouse [1924] SASR 268.
[18] Crowe (n 16) 390.
The Victorian Court of Appeal has held that indecent in the context of s.39 of the Crimes Act imports a sexual connotation.
R v RL[19] concerned an appeal against a conviction for indecent assault, contrary to s 39 of the Crimes Act. In delivering the judgment of the Court, Nettle JA explained:
An assault is an indecent assault … if it amounts to an act of indecency upon the victim or is otherwise of such character as to involve an act of indecency upon the victim. For that purpose, ‘indecent’ imports a sexual connotation which:
..may derive directly from the areas of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault. The genitals and the anus of both male and female and the breast of the female are relevant areas … (R v Harkin (1989) 38 A Crim R 296 at 301 (Lee CJ at CL, Wood and Mathews JJ agreeing at 303).
There is also some authority for the proposition that, even where an assault is not such as unequivocally to offer a sexual connotation, it may still constitute an indecent assault if accompanied by an intention on the part of the assailant thereby to obtain sexual gratification. In the end, however, it is a question of fact for the jury to decide according to contemporary standards of modesty and decency.
[19] [2009] VSCA 95 at [9].
In Sabet v The Queen, Lasry AJA endorsed the remarks of Nettle JA, stating that the authorities ... “clearly support a requirement that the assault be directly accompanied either by a sexual connotation, with the assault itself of a sexual nature, or by a specific intention to obtain sexual gratification”.[20]
[20] [2011] VSCA 124 at [10]–[17].
This conclusion is consistent with the decision in R v Court in which the House of Lords considered there was a sexual nature to the offence of indecent assault, created by s 14(1) of the Sexual Offences Act 1956. The statement of Lord Ackner relied on by the Applicant did not assert that an assault which is not of a sexual nature could still be indecent. His Lordship postulated that there may be sexually motivated acts which fail to be indecent according to community standards and that this is a matter for the jury to determine. He illustrated this by giving the example of a person who obtained ‘perverted sexual gratification’ from removing another’s shoe and asked whether it would constitute indecent assault. Lord Ackner accepted that there is a necessary sexual element to indecency in the crime of indecent assault but acknowledged that it may not be sufficient in some circumstances.

Lord Griffiths, who agreed with Lord Ackner, and with whom the remainder of the majority in turn agreed, stated:
Indecent assault is after all a sexual offence appearing in the Sexual Offences Act 1956 and one should on general principle look for a sexual element as an ingredient of the offence.[21]
[21] R v Court (n 17) 34.
Similarly, the location of ss 39 and 47 in the Crimes Act in Part 1, Sub-divisions 8A and 8C, entitled ‘Sexual offences’ and ‘Sexual offences against children’, is relevant to their interpretation.[22]
[22] R v Rolfe (2021) 273 CLR 413 at [20].
While not binding precedent, the Tribunal has consistently held that offences involving the element of indecency are ‘sexually based’.[23]
[23] PXYJ v MIBP [2017] AATA 1961 at [25]–[27]; BNNN v Minister for Home Affairs [2019] AATA 27 at [2], [4], [12]; RQRP v MICMSMA [2020] AATA 437 at [70]; CKQV v MICMSMA [2020] AATA 927 at [120]–[121]; Grese v MICMSMA [2020] AATA 3441 at [31]–[32]; Kirk v MICMSMA [2022] AATA 4858 at [6]–[7], [36]; Morgan v MICMSMA [2023] AATA 2822 at [6], [13].
For these reasons the Tribunal is satisfied that the term ‘indecent act’ in s.47 of the Crimes Act necessarily connotes sexually based conduct and as such an offence under s.47 is a sexually based offence for the purpose of s. 501(6)(e)(i) of the Act.
Accordingly, the Applicant is a person who has been convicted by an Australian court on four counts of a sexually based offence involving a child. He therefore fails the character test.
In view of this finding, it is unnecessary for the Tribunal to consider the Applicant’s convictions under s.39 for the purpose of the character test. The Tribunal is satisfied that sexual assault under s.39 is a sexually based offence but it is not necessarily an offence involving a child. Were the Tribunal to consider the offences under s.39 to ascertain whether those convictions were for a sexually based offence involving a child it would have to be on the alternative basis proposed by the Applicant, that is by relying on the factual basis for the convictions. As the Applicant has noted, there are limited records available to the Tribunal regarding the convictions, and notably there is no record of the findings of fact established at trial. The best evidence available is that in the Police Informant’s Brief which, without a proper record of the trial, stand as untested allegations. The parties’ submissions are that the proper inquiry for the Tribunal is to consider the statutory elements of the offences and not to adopt the alternative course raised by the Applicant. The Tribunal accepts this approach.
As the Applicant does not pass the character test, the discretion under s.501(1) to refuse to grant a visa is enlivened and the issue before the Tribunal is whether, the discretion should be exercised to refuse to grant the Applicant a Protection Visa.
DIRECTION 110
On 7 June 2024, the Minister issued Direction No. 110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 110) to commence operation from 21 June 2024. Direction 110 provides guidance for decision-makers in determining, relevantly, whether the discretion under s.501(1) should be exercised to refuse to grant a Visa.
The Applicant disputed the validity of paragraphs 5.2 (3), (4), (7) and (8) of Direction 110 insofar as they fetter the decision-maker’s obligation to take into account, or give weight to, all the circumstances of the Applicant’s matter in the exercise of the discretion under s.501 of the Act. The Applicant also asserted that the primary purpose of s501 is to protect the Australian community from criminal or other non-desirable conduct by non-citizens who might engage in such conduct and insofar as 5.3(4) - (8) suggest that a decision-maker can ignore protection of the Australian community and rely on other factors to refuse a visa those provisions must be invalid.
While the protection of the Australian community is central to the power in s 501(1),[24] clauses 5.2(3), (4), (7) and (8) do not suggest that a decision-maker can ignore protection of the Australian community and rely on other factors to refuse a visa. Clause 6 of Direction 110 requires decision-makers to have regard to all relevant considerations in reaching a decision.
[24] Djalic v Minister for Immigration and Multicultural Indigenous Affairs (2004) 139 FCR 292 at 311 [71] (Tamberlin, Sackville and Stone JJ), quoted in KDSP v MICMSMA (2020) 279 FCR 1 at 18 [57].
Section 499 of the Act authorises 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 direction.[25]
[25] See Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 [17].
The Direction provides decision-makers with a framework for the exercise of the discretion. It provides a series of considerations and a statement of principles. The task for the decision-maker is to take into account each of the considerations to the extent that they are relevant having regard to the principles, generally giving greater weight to the primary considerations and greatest weight to the protection of the Australian community as expressed in clause 8.1. However, the weighting of each consideration is a matter for the decision-maker. The Direction does not require that the primary considerations be given greater weight than other considerations in all cases.[26] In addition, the decision-maker is not limited only to the considerations stated in the Direction. The use of the word ‘include’ in Clause 9(1) admits of other relevant considerations.
[26] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545 at 551–2 [23]–[28] (Colvin J).
The Courts have accepted that no part of the Direction is invalid on the basis that it fetters the exercise of the decision-maker’s discretion. Bromwich J noted in Major v Minister for Immigration, Citizenship and Multicultural Affairs:[27]
At common law, the exercise of a discretionary power by delegation must be made by reference to circumstances prevailing at the time of the decision, such that the delegator cannot wholly fetter the delegate’s future exercise of the power; and correspondingly, the delegate cannot fetter their own exercise of that power….
The common law restriction on fettering a delegate or the equivalent has long been departed from in migration decision-making by the power bestowed on the Minister by s 499 of the Migration Act. Section 499 provides that the Minister may give binding written directions to a person or body having functions or powers under that Act, provided that they are not inconsistent with either that Act or the Migration Regulations 1994 (Cth)
[27] [2024] FCA 597 at [14]–[15].
The Applicant extends the invalidity argument also to paragraph 7(3) of Annex A to Direction 110 which appears to prevent a decisionmaker from taking into account the length of the Applicant’s sentence in exercising its discretion under s 501(1) and Clause 8.1.1(1)(a)(ii) to the extent it prevents the Tribunal from having regard to the length of the applicant’s sentence in determining the seriousness of his offending.
The Applicant’s argument misapprehends paragraph 7(3) of Section 2, which is not concerned with the discretion under s.501(1) but is for the purposes of determining whether a person passes the character test under s 501(6)(e).
The Tribunal rejects the Applicant’s argument regarding the validity of Clause 8.1.1(1)(a)(ii) of the Direction. The equivalent clause in the previous Ministerial Direction 79 was held to prevent the Tribunal from having regard to the length of the Applicant’s sentence in determining the seriousness of his domestic violence offending in Minister for Home Affairs v Stowers, where Yates J found:
The error in the Tribunal’s approach is compounded at [43] of its Decision Record where, although referring to, it seems, the 2016 and 2011 offences as, once again, “serious”, the Tribunal said that it was relevant to consider their seriousness against the actual sentences imposed on the respondent. In approaching its task in this way, the Tribunal acted contrary to para 13.1.1(1)(b) which states that crimes of a violent nature against women and children are viewed very seriously, regardless of the sentence imposed…[28]
[28] [2020] FCA 407 at [50].
An argument that the equivalent clause in Ministerial Direction 79 was ultra vires s 499 of the Act was rejected in Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[29]
[29]. [2022] FCA 174 per Cheeseman J at [64]–[74].
Accordingly, the Tribunal is required to apply all relevant provisions of Direction 110 in accordance with s.499(2A) of the Act.
Paragraph 6 of Part 2 of Direction 110 provides that decision-makers must take into account the considerations identified in paragraphs 8 and 9 where relevant to the decision within the framework provided by the principles stated in paragraph 5.2.
Paragraph 8 of Part 2 sets out the five primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia
(4)the best interests of minor children in Australia;
(5)expectations of the Australian community.

Paragraph 9(1) of Part 2 sets out other considerations. These include, but are not limited to:
a)    legal consequences of the decision;
b)    extent of impediments if removed;
c)    impact on Australian business interests.
Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations and specifically provides that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.
EVIDENCE
Applicant’s Criminal Record
A complete statement of the Applicant’s criminal record as reported by the Australian Criminal Intelligence Commission on 23 October 2024 was included in the G Documents.[30] It records that on 30 April 2015 the Applicant was convicted in the Melbourne Magistrates Court on 5 charges of indecent assault and 4 charges of indecent act with child under 16 for which he was sentenced to an aggregate of 161 days imprisonment, a community correction order for 18 months and was required to perform unpaid community work of 300 hours.
Witnesses
[30] G6 pp 44-5.
The Applicant
The Applicant provided a statutory declaration dated 26 March 2025 to the Tribunal,[31] which he affirmed in his oral evidence. In his statement the Applicant said:
[31] Exhibit A1.
1. He was born in Afghanistan in December 1986.
2. He has three sisters and two brothers. One brother lives in Melbourne. The Applicant’s parents and his other brother live in France, one sister lives in the United Kingdom, one in the USA and one in Afghanistan.
3. He completed a Diploma in Information Technology and a Diploma of English in Kabul in 2008 and from 2008 to 2009 he worked for the US military in Kabul and then from 2009 to 2011 for the Afghan government.
4. In May 2011 he was abducted by Muslim extremists and sexually assaulted because the abductors were aware of his interest in Christianity.
5. In September 2009 he met an Australian woman of Afghan ethnicity and they later married. The woman returned to Australia, and he was subsequently granted a Partner visa and joined his wife in Australia, arriving in July 2011.
6. A few months after arriving in Australia his relationship with his wife broke down and she notified the Department that their relationship had ceased. The Applicant’s Partner visa was cancelled in November 2011 and he was granted a Bridging Visa E.
7. He worked at various jobs including as a pre-deployment trainer with the Australian Defence Force. By 2014 he was working at a train station and part-time in a restaurant in Melbourne. His daily commute often involved taking the crowded city tram. The offences for which he was charged were alleged to have occurred on the tram in September, October and November 2014. He said he recollected that on the crowded tram there was a good deal of unintended physical contact although he did not recall making any physical contact with anyone. He said he now recognises that others on the tram may have viewed his actions differently and as inappropriate even though he was not intending to act inappropriately or indecently. He said he now deeply regrets any impact his actions may have had on the persons involved.
8. He was arrested at his workplace at Southern Cross station in November 2014 and taken into custody and remained in custody pending the hearing of the charges against him on 30 May 2015.
9. He was sentenced to 161 days imprisonment which was the period he had served on remand and made subject to a community corrections order (COO) for a period of 18 months, requiring him to complete 300 hours of community service over the first 12-month period. He was taken into immigration detention upon being released by the Magistrates Court on 30 May 2015 and remained in detention until February 2025 when he was released into the community on a bridging visa.
10. In May 2016 he applied for a protection visa on the basis that he would be subject to persecution if returned to Afghanistan because of his conversion to Christianity. The Application was refused and a subsequent appeal to the former Administrative Appeals Tribunal (AAT) was unsuccessful. He unsuccessfully challenged the AAT decision in the courts.
11. In August 2021 he obtained legal assistance and applied for ministerial intervention to allow a further protection visa application. The Minister issued a notice in July 2023 allowing him to lodge a further application. In August 2023 he made a second application for a protection visa which was refused on 26 February 2025.
12. He claims that for the 10 years he was in immigration detention he was a model detainee and demonstrated positive, cooperative and compliant behaviour. He said he attended numerous health promotion seminars which directly addressed the root causes of the sexual offences for which he was convicted. The seminars included courses on recidivism, and sexual offenders, sexual assault on males, sexual assault and victim blaming, consent in relation to sexual acts, stalking and re-offending.
13. He claimed the seminars have improved his emotional awareness and understanding of boundaries and he has reflected on how cultural differences may have influenced his understanding of cultural space. He said he is now more mindful, self- reflective and empathetic in his interactions.
14. He said he now understands the gravity and harm caused by his behaviour and feels deep shame and regret for any distress that may have been caused to the victims.
Dr Lorraine Sheridan, Forensic Psychologist
In a written report dated 24 December 2024[32] Dr Lorraine Sheridan, a forensic psychologist, expressed the following opinion regarding the Applicant:
[32] G5 at pp.170-7.
1. On the basis of the Applicant’s results on the Personality Assessment Inventory (PAl-Plus) test, a standardised psychological test for a variety of common psychological and mental health issues, she noted:
i.there are sufficient grounds for the results of the Applicant’s scores to be given a moderate weighting and compared with others, the Applicant is likely to have relatively few antisocial traits and behaviours;
ii.his self-description was of someone who is not particularly impulsive or adventurous, and it would be expected that he would not engage in institutional misconduct;
iii.with respect to anger control issues, he is unassertive and has difficulties standing up for himself;
iv.in respect of his interactions with others, the PAI-Plus indicate higher than average levels of dominance and average levels of warmth. He is likely to be quite controlling in most of his relationships with others;
v.the PAI-Plus clinical profile results revealed no marked elevations that would indicate the presence of clinical-level mental health problems. The pattern of scores did suggest that he experienced a traumatic event in his past.
1. Of the ten objective variables used in the STATIC-99R test three applied to the Applicant. These related to:
i.him never having had an intimate adult relationship of two years or more duration,
ii.the victims being unrelated to him, and
iii.the victims being strangers.
1. A STATIC-99R score of 3 places the Applicant into the moderate-low risk range. In studies of offenders with this same score, 4.6% • 9.6% have been found to engage in further sexual offences within a five-year period.
2. She found no evidence of personality or mental health dysfunction that would account for or indicate any ongoing risk of the Applicant reoffending. This absence of risk applies to both reoffending in a similar fashion and also to the general risk posed to the community.
3. She concluded that the Applicant:
…seems to be functioning well in detention The offending for which he was convicted was his first offence. He has set plans into place that would aid his adjustment to employment and possible study, supported by close family members. I have not seen any indicators that [the Applicant] would reoffend. He has a good record of compliance within detention. I would suggest that if he is released back into the Australian community, he is given conditions involving reporting requirements and psychological support.
In a subsequent statutory declaration dated 21 March 2025 Dr Sheridan stated that she had spoken to the Applicant by telephone on 21 March 2025 after his release from immigration detention. She confirmed on the basis of that conversation and having regard to the fact that the Applicant has not re-offended since his release into the community that her assessment of 28 August that the Applicant was a moderate to low risk of re-offending was still a valid assessment.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
Paragraph 8.1(2) of Part 2 of Direction 110 requires decision-makers 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.
Nature and Seriousness of the Applicant’s Conduct to Date
Paragraph 8.1.1(1) of Part 2 of Direction 110 provides a description of what is considered ‘very serious’ and ‘serious’ conduct. Paragraphs 8.1.1(1)(a)(i)-(iii) list certain crimes which are to be regarded as ‘very serious’ and includes sexual crimes and crimes of a sexual nature against women and children regardless of the sentence imposed.
The four charges of indecent act with child under the age of 16 contrary to s.47 of the Crimes Act were clearly crimes of a sexual nature against children and are to be regarded as very serious. The five charges of indecent assault contrary to s.39 of the Crimes Act are crimes of a sexual nature and although a necessary element of the crimes is not that the victim be a child it is not disputed that the victim in each case was a female and therefore either a woman or a child. Accordingly, these five offences are also to be regarded as very serious regardless of the sentence imposed.
The descriptions of serious crimes given in paragraphs 8.1.1(1) are not exhaustive, and paragraphs 8.1.1(1)(c)-(i) set out a range of factors decision-makers must consider in assessing the nature and seriousness of the criminal offending or other conduct to date. This includes, for relevant purposes in this case:
a)    the impact of the offending on victims and their family;
b)    the frequency of the Applicant’s offending; and
c)    the cumulative effect of any repeated offending;

The Applicant did not deny the serious nature of sexual offending. However, he submitted that the offences were his first offences and there was no trend of increasing seriousness. He claimed the offending caused no physical injury and no physical exposure or overt physical coercion was involved.
The Tribunal has no direct evidence before it of the impact of the Applicant’s offending on the victims. There is no indication that the Applicant’s conduct resulted in physical injury. However, for the purpose of assessing the seriousness of the offending, the Tribunal accepts that sexual offences against children can result in significant emotional and psychological harm for the victims.[33] Exposing children to such harm is very serious conduct. The Tribunal also notes that the Applicant’s offending was not an isolated event but involved repeated conduct over a three-month period.
[33] Morgan v MICMA [2023] AATA 2822 at [6], [41].
There is no evidence that the offending had a cumulative effect on any of the victims.
As to the nature of his offending, the Applicant submits that the Tribunal cannot properly rely on the Police Brief of Evidence for information to determine the factual basis for his convictions. Contrary to the Applicant’s submission, the Respondent asserted that the Tribunal can and should have regard to the Informant’s statement in assessing the nature of the Applicant’s conduct, and the Tribunal is entitled to make its own factual findings about the Applicant’s conduct, provided it does not make a finding inconsistent with the Court’s findings of the Applicant’s guilt. The Respondent argued further that the fact a number of the charges against the Applicant were dismissed provides no basis upon which to infer that the Magistrate ‘found some of the evidence … wanting and rejected it’ as asserted by the Applicant.
The Tribunal acknowledges that, given the absence of a proper record of the Magistrates Court proceedings, it should adopt a cautious approach to findings of fact related to the Applicant’s convictions. The Tribunal cannot go behind the convictions or impugn the decision of the Magistrates Court.[34] The Police Briefs stand as untested allegations. However, the summons material produced to the Tribunal includes the witness statements of each of the victims. They consistently describe a pattern of behaviour by the Respondent in which he stood close to the victim on a crowded tram and pressed his genitals against the victim, in each case the victim asserted that they felt his erect penis pressing against them.[35] The Applicant acknowledged in his oral evidence that at trial each of the victims were cross examined. On the basis of the convictions recorded by the Court the Tribunal can assume that in substance the evidence of the victims in relation to at least 9 charges was accepted to the criminal standard. Accordingly, given the consistent description of the Applicant’s conduct by the victims and the multiple convictions recorded, the Tribunal is satisfied that the general nature of the Applicant’s offending involved him standing close to women and girls on a crowded tram and pressing his erect penis against them. This is very serious conduct.
[34] Singh v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 556; HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354; Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234.
[35] RTB7 at pp.845- 65.
Having regard to these matters, the Tribunal is satisfied that the Applicant’s past criminal conduct was very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious misconduct
Paragraph 8.1.2(2) of Part 2 of Direction 110 requires the decision-maker, in assessing whether the Applicant represents an unacceptable risk of harm to the Australian community, to have regard, cumulatively, to:
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 available information and evidence on the risk of the applicant reoffending.
Nature of the Harm
Should the Applicant engage in further conduct of the kind for which he was convicted it would expose the victims especially children and other young persons to significant risk of psychological, emotional and possibly physical harm.
Likelihood of reoffending
In assessing the risk of reoffending, the Tribunal is mindful of the comments of the Full Court in CKL21 v Minister for Home Affairs that in curial and administrative decision-making, the task of assessing the degree of likelihood of an event occurring in the future “must be based on a logical process of reasoning based on the known facts”.[36] Accordingly, the Tribunal has approached the assessment of risk having regard to a series of factors.
[36] (2022) 293 FCR 634 [74], citing the High Court’s decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-5.
The Applicant has not taken responsibility or expressed unqualified remorse for his offending.
In his statement of 26 March 2025, the Applicant stated that he deeply regrets and feels shame for any negative impact that his conduct may have had on any person in relation to his criminal charges[37] and in his oral evidence he stated that he respects the findings of the Court. However, he stopped short of admitting his guilt. He claimed that the police had not properly made out all of the elements of the offences for which he was convicted and it was his intention at the time of his conviction to lodge an appeal.[38]
[37] Exhibit A1 at [66].
[38] Exhibit A1 at [33].
In giving his oral evidence the Applicant was evasive and argumentative. He objected to answering many questions which he appeared to view as unhelpful to his case. He variously raised excuses for his behaviour. He portrayed his actions as inadvertent contact due to the crowded nature of the tram. He claimed that people in Afghanistan have a different sense of social distancing and he was not fully aware of how his actions might have been perceived by others in a crowded tram. He suggested that there may have been some collusion between the witnesses as they were all students together at the same school. He pointed to the fact that no-one on the trams complained about him or called the police, and that no CCTV footage was produced as being indicative of his innocence. He was dismissive of the assertion that he was sexually aroused and had an erect penis at the time of the offending as reported by the victims. He claimed he was struggling with depression and emotional distress at the time of his offending, which impacted his judgement and spatial awareness.
He told Dr Sheridan that he was innocent, and she noted that he was “...in something of a quandary because he maintains that he did not indecently assault the female school students. However, he was found guilty and convicted.”[39]
[39] G176 at [36].
The Applicant claims that for the ten years he was in immigration detention he was a model detainee and demonstrated positive, cooperative and compliant behaviour. The records produced by the Respondent[40] under summons confirm the Applicant’s good record.
[40] RTB at pp 1-146.
The Applicant was released into the community on a BVR in February 2025 and since being in the community he has not been charged with any offence.
There is no evidence that the Applicant has indulged in drug or alcohol use or that such use played any part in his offending.
The Applicant has support within the community. He is able to live with his brother and his family. He is in receipt of Centrelink payments and has prospects of obtaining employment. He has other relatives, friends and social acquaintances in Australia. He is an active Christian.
He is currently subject to some supervision in the community. The terms of the BVR include significant limitations and reporting obligations, including that that the Applicant must not go within 200 metres of a school, child-care centre or a day-care centre or perform work or participate in activities involving minors.[41] The Applicant’s convictions for indecent act with child under 16 are registerable offences[42] under the Victorian Sex Offenders Registration Act 2004 (Vic) for which the Victorian courts are empowered by s.11 to make a sex offender registration order imposing ongoing restrictions and supervision, including a prohibition on child-related employment.
[41] RTB at p.685-8.
[42] G5 at p.42.
As for rehabilitation, the Applicant received some psychological treatment in 2012-2014 for anxiety and depression after problems in his marriage[43] but there is no evidence of any specific counselling following his conviction and while in detention for ten years.
[43] G5 at pp.183-7.
The terms of the Magistrate’s sentencing order included that the Applicant undergo a medical and mental health assessment and treatment as directed and participate in an offending behaviour program as directed noting that a sex offender program was assessed as suitable. The conditions were stated to apply from 30 April 2015 and to run for 18 months.[44] These conditions were not complied with as the Applicant was taken into immigration detention immediately after the conclusion of his criminal trial.
[44] G5 at p.41.
The Respondent asserts that he attended numerous health promotion seminars while in detention which directly addressed the root causes of the sexual offences for which he was convicted. The seminars included courses on recidivism and sexual offenders, sexual assault on males, sexual assault and victim blaming, consent in relation to sexual acts, stalking and re-offending.
Dr Sheridan commented at [32]:
I do not possess any information about these particular courses and as such cannot comment on their efficacy but it is encouraging that [the Applicant] chose to attend them.
In her oral evidence Dr Sheridan stated that it was likely that the Applicant’s offending was the result of social isolation and depression and that he was likely to avoid further offending provided he fully accepted what he had done. She said that he would benefit from counselling and especially group therapy.
Dr Sheridan assessed the Applicant on the STATIC- 99R test and opined:
..the STATIC-99R uses 10 objective variables based on file information. Of the 10 variables, three applied to [the Applicant]. These related to (i} him never having had an intimate adult relationship of two years or more duration, (ii) the victims being unrelated to him and (iii) the victims being strangers. A STATIC-99R score of 3 places [the Applicant] into the moderate-low risk range. In studies of offenders with this same score, 4.6% • 9.6% have been found to engage in further sexual offences within a five-year period.[45]
Consideration
[45] Exhibit A3.
The Applicant has no history of alcohol or substance abuse. He has familial support in the community and has reasonable prospects of obtaining employment. He has demonstrated by his conduct in detention and by his otherwise clean record that he is capable of living a prosocial life. However, the issue is not the Applicant’s general conduct in the community, it is the extent to which he represents a risk of repeating the serious criminal conduct for which he was convicted in May 2015. In this regard there are areas of concern.
The Applicant has continued to deny his conduct. His qualified expressions of remorse ring hollow when they are prefaced by a refusal to acknowledge his offending behaviour. He has not demonstrated the level of full acceptance indicated by Dr Sheridan as necessary for avoiding reoffending.
The Applicant’s offending was not a one-off offence it involved a repeated pattern of offending over a substantial period. The absence of further offending tells nothing because until very recently the Applicant has been isolated from the community in prison and immigration detention.
The Applicant has not undertaken proper rehabilitation specifically directed at his offending. The rehabilitation required under the Magistrate’s order was not complied with due to the Applicant’s immigration detention. The courses undertaken by the Applicant in detention, while they were related to sexual offending, were directed at different types of sexual offences. Dr Sheridan was unable to confirm that they were appropriate for the Applicant. Importantly he has not been involved in group therapy as suggested by Dr Sheridan.
The nature of the Applicant’s past offending involved public, opportunistic contact with strangers, which is the sort of contact that is not adequately covered by the regime of protection afforded by the Sex Offenders Register.
The assessment of Dr Sheridan is that the Applicant represents a moderate to low risk of re-offending. The Tribunal is not bound to accept this assessment and must make its own findings, but the professional opinion of Dr Sheridan carries substantial weight in assessing the risk. In considering Dr Sheridan’s opinion the Tribunal notes that her assessment was largely based on the results of the Static-99 R test, which is a well-recognised test. However, it does not rely on the Applicant accepting his guilt. Dr Sheridan stated in her oral evidence that the Applicant needed to fully accept his guilt in order to avoid further offending and thought that he would benefit from group therapy in order to come to that acceptance. The Tribunal is concerned that even after having ten years to reflect on his offending, the Applicant does not accept full responsibility for his conduct and that he has not engaged in group therapy or undertaken any specific counselling related to his offending. The Applicant also demonstrated in giving his evidence an unwillingness to openly confront his offending and a preparedness to find excuses for it.
Having regard to these matters the Tribunal is satisfied that the Applicant represents a material risk of re-offending in the manner for which he was convicted. The level of risk is at a moderate level. This risk must be weighed against the nature of his past offending which was very serious and if repeated would threaten significant psychological harm to vulnerable members of the Australian community.
The protection of the Australian community is a primary consideration under Direction 110 and Paragraph 8.1(1) identifies the safety of the Australian community as the highest priority of the Australian Government.
Family Violence
Paragraph 8.2(1) of Direction 110 states:
The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
There is no evidence that the Applicant has engaged in any family violence as defined in paragraph 4(1) of Direction 110, and accordingly this consideration is not relevant.
The Strength, Nature and Duration of Ties to Australia
Paragraph 8.3 of Part 2 of Direction 110 requires that decision-makers:
(1) …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) …must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has resided continuously in Australia since arriving in 2011, albeit that he arrived as an adult and has spent the majority of that time separated from the Australian community on remand and in immigration detention.
The Applicant has a brother in Australia who is married with two children. He currently lives with his brother and his family. The Applicant’s parents and his other brother live in France, one sister lives in the United Kingdom, one in the USA and one in Afghanistan.
The Respondent accepts that the Applicant has a close relationship with his brother and his brother’s two children, who have provided the Applicant with letters of support.[46]
[46] G5 at pp.136-41.
The Applicant also has five cousins and a second uncle living in Australia,[47] and he claims to have tutored his cousin’s son in music. There have been limited opportunities for contact with the extended family over the last ten years due to the Applicant’s immigration detention.
[47] G4 at p.74.
In addition to his relationship with family the Applicant has demonstrated a personal connection with other members of the Australian community as evidenced by the references and letters of support provided to the Department in support of his application.[48]
[48] G5 at pp.142-69.
The Applicant contributed positively to the Australian community in employment in various positions from after his arrival in 2011 until his arrest in 2014. He has also been an active member of the Christian church. He also provided some assistance to the Australian military in 2011[49] but has been prevented from disclosing the details for security reasons.[50]
[49] G6 at p.211.
[50] G5 at p.210.
On this basis the Tribunal accepts that the Applicant has reasonably strong ties to the Australian community although diminished by a lack of contact brought about by ten years of immigration detention and his term of imprisonment.
The strength, nature and duration of the Applicant’s ties to the Australian community is a primary consideration under Direction 110 and weighs in favour of granting the Applicant a visa. However, because the Applicant has been granted a BVR and will continue to reside in the community if the refusal decision is affirmed, this consideration attracts limited weight in favour of the grant of the visa.
Best Interests of Minor Children affected by the Decision
Paragraph 8.4(1) of Part 2 of Direction 110 requires that decision-makers must make a determination about whether refusal under s 501 or non-revocation under s 501CA is, or is not, in the best interests of a child affected by the decision.
In considering the best interests of the child, paragraph 8.4(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 identified three children who require consideration under these principles, his nephew and niece (his brother’s children), aged 16 and 17 respectively[51] and his cousin's son.
[51] G5 at p.72.
The records indicate that the Applicant’s cousin’s son was born in May 2005[52] and so is not a minor child.
[52] G5 at p.72.
The Applicant currently lives in his brother’s house with his nephew and niece who had visited him while he was in detention. While the Applicant does not play a parental role for either child, he is their only uncle in Australia with whom the children have a close relationship notwithstanding the separation.[53]
[53] G5 at pp136-9.
The Tribunal accepts that it is in the best interests of the children for the Applicant to remain in Australia and to be granted a protection visa. The best interests of minor children is a primary consideration under Direction 110. However, the weight to attach to this consideration is reduced because the Applicant does not play a parental role, the children are almost adults and the Applicant has been granted a BVR and will remain in the community whether or not a protection visa is granted.
Expectations of the Australian Community
Paragraph 8.5 of Part 2 of Direction 110 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)    causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)    commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)    involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)     worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community
Paragraph 8.5(4) states:
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 Applicant relying on two AAT decision from 2016,[54] asserted that the Tribunal:
...should (not) countenance the following of Government views of community expectations being used in the Applicant’s matter to dictate a particular outcome by being not fair minded or vengeful, being disproportionate or by trying to use this consideration to inflict further punishment after the Applicant had finished his sentence.
Furthermore, the Government view of community expectations refers to what is the norm. The facts of the Applicant’s case are unusual and, it is submitted, justify a deviation from that norm in his matter.[55]
[54] Weti-Safwan and Minister for Immigration and Border Protection [2016] AATA 797; Do and Minister for Immigration and Border Protection [2016] AATA 390.
[55] ASFIC at [107]-[111].
The majority of the Full Court of the Federal Court has explained that paragraph 11.3 of the former Direction 65, which mirrors the wording of paragraphs 8.5(1) and (2) of Direction 110:
[75] … 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.
[76] 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.[56]
[56] FYBR v Minister for Home Affairs (2019) 272 FCR 454 [75]-[76].
The Applicant has committed multiple serious crimes of a sexual nature against women and children.
The Respondent submits that, having regard to paragraph 8.5(2) which states that non-revocation 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 … hold a visa’, and to the guiding principles in paragraphs 5.2(2), (3) and (5), the Tribunal should assign significant weight to this primary consideration in favour of a decision not to revoke the visa cancellation decision.
The Applicant asserted that even if 8.3(4) of the Direction is to be followed, s.9(1) allows the Tribunal to consider a list of further considerations in this matter that is not closed and should include the Applicant’s service to the Australian and US militaries, putting himself in harms way from the Taliban to aid the Australian Defence Force in its armed conflict in Afghanistan by training them and by translating for the US military (Australia’s closest ally) in Afghanistan.
The Tribunal accepts that the Applicant’s service to the Australian and US military warrants separate consideration to be weighed against the other considerations. It is discussed at paragraph [140]-[147] below.
The deemed expectation of the Australian community as expressed in Paragraph 8.5 of Part 2 of Direction 110 is that a non-citizen who engages in such conduct should not be allowed to remain in Australia. This expectation applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community: paragraph 8.5(3). The Tribunal is satisfied that the expectation of the Australian community is that the Applicant should not be granted a protection visa.
The expectation of the Australian community is a primary consideration under Direction 110. Whether or not it is appropriate to act in accordance with that expectation is a matter to be determined having regard also to each of the other considerations.
OTHER CONSIDERATIONS – PARAGRAPH 9 OF PART 2 OF DIRECTION 110
Legal Consequences of the Decision
In the Reviewable Decision the delegate of the Respondent accepted that the Applicant is a person in respect of whom Australia has non-refoulement obligations (Protection Finding).[57]
[57] G4 at p.31 [86].
In those circumstances Paragraph 9.1.1(2) of the Direction provides that:
Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501 CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
Paragraph 9.1.1(3) further provides that:
Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
The delegate explained the granting of a BVR for the Applicant on 26 February 2025 as follows:
In accordance with s197C(3) of the Act, the protection finding made for [the Applicant] means that the removal of [the Applicant] to Afghanistan is neither required nor authorised by s198. In this regard, I have noted that the exceptions under s197C(3)(c) do not currently apply to [the Applicant]. As such, I find that a decision to refuse [the Applicant]'s visa will not result in his removal in breach of Australia’s non-refoulement obligations.
The legal effect of the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 is that where the statutory duty to remove a non-citizen has arisen (pursuant to s 198 of the Act), detention of the non-citizen will no longer be supported by ss 189 and 196 of the Act where there is no real prospect that it will be practicable to remove the non-citizen in the reasonably foreseeable future. In such a case, the non-citizen, if in immigration detention, must be released.[58]
[58] G4 at p.31 [87]-[88].
The legal consequences of a decision not to grant the Applicant a protection visa may therefore be summarised as follows:
1. The Applicant is subject to a Protection Finding.
2. He cannot be removed to Afghanistan.
3. He has been granted a bridging visa (BVR) which entitles him to continue to reside in Australia subject to conditions.
4. He cannot be held in detention while there is no real prospect that it is practicable to remove him from Australia in the foreseeable future.
5. He cannot apply for another visa (except a bridging visa))[59] while he is in the migration zone.
The principal immediate implication for the Applicant if he is refused a protection visa is that his right to remain in Australia under a BVR will lack permanency and be subject to conditions. The Respondent retains a right to revoke the BVR or vary the conditions and under s.197D a protection finding may be reconsidered. The Respondent asserts that neither is likely in the foreseeable future. The Tribunal does not speculate of these possibilities[60] other than to note that they provide a legitimate basis for the Applicant to be concerned about the certainty of his position.
[60] BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199 at [12] – [14].
Extent of Impediments if Removed
Paragraph 9.2(1) of Part 2 requires that:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)    the non-citizen’s age and health;
b)    whether there are substantial language or cultural barriers; and
c)    any social, medical and/or economic support available to them in that country.
Consistent with the delegate’s Protection Finding, the Tribunal accepts that the Applicant would be at substantial risk of persecution or serious physical harm or death if removed to Afghanistan. He would also likely face impediments in establishing himself and maintaining basic living standards. However, the Applicant cannot be removed under s.198 of the Act while a protection finding is in place and so this consideration is moot and attracts no weight.
Impact on Australian Business Interests
Paragraph 9.3(1) of Part 2 of Direction 110 requires:
Decision-makers must 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.
The Applicant has limited work experience as an employee and has not worked for over ten years while in detention and on remand. If a protection visa is not granted the Applicant will be able to work under the conditions of his BVR.
There is no evidence that a decision to refuse to grant the Applicant a Visa would compromise the delivery of a major project or important service in Australia.
Accordingly, the Tribunal gives this consideration only nominal weight in favour of revocation.
Other Considerations
The considerations specifically referred to in Paragraph 9 are not exclusive and the Tribunal is not limited in considering other relevant matters.
The Applicant has raised the issue of his service to both the Australian and US military as a separate consideration in the exercise of the discretion under s.501(1) of the Act.
The Applicant’s evidence was that from 2008 to 2009 he was recruited in Afghanistan by Strategic Security Solutions International (SSSI) to undertake work for the US military at Camp Eggers in Kabul in which he acted as an interpreter and translator for the Combined Security Transition Command Afghanistan (CSTC-A), a US military unit supporting and developing the Afghan military and government.[61] In November 2011, after arriving in Australia, he was employed as a pre-deployment trainer for the special forces of the Australian Defence Forces through a subcontractor. The Applicant asserted that he was bound by confidentiality obligations to not disclose details of his engagement and provided a letter from the Minister for Defence confirming it.[62] The Applicant also provided a letter from the subcontractor, which confirmed the Applicant’s engagement as a role player for a 12 day period in November 2011.[63]
[61] Exhibit A1 at [6].
[62] G5 at p.210.
[63] G5 at p.211.
The Tribunal accepts that the Applicant’s service with the military is a relevant consideration in determining whether to refuse or grant the Applicant a protection visa.
Service with the US military involved the Applicant exposing himself to the risk of reprisal by the Taliban and although not directly in furtherance of the interests of Australia that service was in common cause with Australia’s involvement in the conflict in Afghanistan. The Applicant’s involvement with the Australian military is subject to secrecy obligations, but it seems from the evidence produced that he performed only a limited training role in Australia.
The Tribunal gives this consideration limited weight in favour of granting the Applicant a protection visa.
A further consideration raised by the Applicant in his submissions is the implications for him of continuing to live in Australia on the basis of his current BVR if he is refused a protection visa. The Applicant has described the uncertainty associated with a BVR as a Sword of Damocles hanging over his head. The Tribunal accepts that the uncertainty associated with a BVR has negative implications for the Applicant. He has suffered from anxiety and depression and this may be aggravated. The lack of permanent residency is likely to limit his ability to obtain employment. The uncertainty will make it harder for the Applicant to establish relationships, acquire property and plan for his future.
The Tribunal gives this consideration some weight in favour of granting the Applicant a protection visa.
CONCLUSION
In Gaspar v Minister for Immigration and Border Protection,[64] North ACJ elaborated on how to approach the exercise of the discretion under section 501CA(4)(b)(ii) of the Act:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.
[64] [2016] FCA 1166 [38].
The Tribunal accepts that this is also the appropriate approach to the exercise of its discretion under s.501(1).
Weighing the factors requires the Tribunal to give both primary and other considerations ‘appropriate weight’.[65] Paragraph 7 of Part 2 of Direction 110 provides guidance on how relevant considerations are to be assessed. It states that primary considerations should generally be given greater weight than the other considerations, but one or more primary considerations may outweigh other primary considerations.
[65] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 [23].
There are two primary considerations weighing in favour of refusing the Applicant a protection visa, the protection of the Australian community from criminal or other serious conduct and the expectations of the Australian community that non-citizens will obey Australian laws while in Australia. Against them are two primary considerations, the best interests of the Applicant’s nephew and niece and the strength, nature and duration of the Applicant’s ties to Australia. There are also other considerations including the Applicant’s service to the military and the negative implications for him if he remains in Australia on a BVR.
A central consideration in this case is the legal consequences of a decision to refuse the Applicant a protection visa. In that event the Applicant would remain in Australia on a BVR. He would be precluded from forced removal to Afghanistan by reason of the Protection Finding. He would be subject to the conditions imposed on his BVR. An assessment of the weight to be given to each of the considerations in exercising the discretion under s.505(1) must take into account this reality.
In these circumstances the Applicant would be in a position to continue his relationship with his nephew and niece and to maintain his ties with the Australian community, especially with his brother and his family and the Applicant’s wider family in Australia. Accordingly, the weight to be given to the two primary considerations in favour of granting the Visa is substantially diminished. There are negative implications for the Applicant resulting from the uncertainty associated with a BVR which weigh in favour of not refusing the visa and the Applicant’s service to the military adds some limited weight.
On the other hand, the Applicant has engaged in very serious criminal offending and is assessed as a moderate risk of reoffending in a similar manner. The protection of the Australian community is a primary consideration in favour of refusing the Applicant a protection visa. However, the Applicant’s continued presence in Australia on a BVR runs contrary to the deemed expectation of the Australian community that a person who engages in serious conduct in breach of the law should not be granted a visa and should not remain in Australia. It also affects the objective of protecting the Australian community from the moderate risk posed by the Applicant of committing further serious offences of the kind for which he was convicted.

It might be said that the exercise of the discretion under s.501(1) in this case is in effect a choice between whether the Applicant remains in Australia on a protection visa or a BVR. In assessing the relative considerations in this context the Tribunal has regard to the principles set out in paragraphs 5.2 and 8.1(1) of Direction 110, that the safety of the Australian community is the highest priority of the Australian Government. In this respect it is relevant that the BVR offers a level of protection for the Australian community through the inclusion of conditions which are enforceable under the provisions of the Migration Act.
The Tribunal also has regard to the principle in paragraphs 5.2 (5) and (6) as they relate to the Applicant. The Applicant had been participating in, or contributing to, the Australian community for only a short period of time when he committed his offences. He had been in Australia for approximately 3 years and so warrants a low level of tolerance. Similarly, the Applicant has not lived in Australia for a substantial part of his life, nor did he come to Australia at a very young age. On the basis of principle 5.2(6) he does not warrant a higher level of tolerance by reason of the time he has been in Australia.
The Tribunal notes the principles 5.2(7) and (8). Principle 5.2(7) contemplates circumstances in which the nature of the non-citizen’s conduct is so serious or the harm that would be caused if it was repeated is so serious that even strong countervailing considerations may be insufficient to justify granting a visa. Principle 5.2(8) contemplates circumstances where the inherent nature of the conduct is so serious that even strong countervailing considerations may be insufficient to justify granting a visa even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
It is not disputed that the offences for which the Applicant was convicted were serious. The Tribunal’s finding is that they were very serious offences. The Applicant did not deny the seriousness of sexual offending in his submissions.[66] Notwithstanding paragraphs 8.1.1(1)(a), the Tribunal is not precluded from considering the sentence imposed in its overall assessment of the weight to be given to the protection of the Australian community in the overall exercise of the discretion. In this case the Applicant was sentenced to 161 days imprisonment, being the period for which he was held on remand. Unfortunately, the Tribunal did not have access to the sentencing remarks of the Magistrate and so is not informed of the considerations which were taken into account in determining the sentence. However, the Tribunal notes that the Applicant had no prior convictions when sentenced and in that context a term of imprisonment of 161 days is not an insubstantial sentence. The Tribunal has observed that custodial sentences are generally a last resort in the sentencing hierarchy.[67]
[66] ASFIC at [74].
[67] See PQSM and Minister for Home Affairs (Migration) [2019] AATA 603 at [46], Re Harrison v Minister for Immigration and Citizenship [2006] AATA 47 at [63], see also BNPB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 730 (6 April 2023) at [80].
While the Applicant’s offending was very serious the Tribunal is not satisfied that it rises to the level of seriousness contemplated by principles 5.2(7) and (8). However, the countervailing considerations in the Applicant’s case are not strong.
Having regard to all of the relevant considerations and weighing those for and against the refusal to grant a protection visa to the Applicant the Tribunal is satisfied that the discretion under s.501(1) should be exercised to refuse to grant the visa.
Accordingly, the correct and preferable decision under section 105 of the Administrative Review Tribunal Act 2024 (Cth) is to affirm the decision under review.
DECISION
Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision of the delegate of the Respondent of 26 February 2025 to refuse to grant the Applicant a Protection (Class XA) (Subclass 866) visa.

I certify that the preceding 161 (one hundred and sixty-one) paragraphs are a true copy of the reasons for the decision herein of General Member R. West.

..................[sgd]......................................................
Associate
Dated: 16 May 2025

Date of hearing: 8 May 2025

Applicant’s Representative: Mr Scott Calnan

Respondent’s Representative: Mr Max Plitsch (Australian Government Solicitor)
APPENDIX A – LIST OF APPLICANTS EXHIBITS

List of Exhibits

A1

Statutory Declaration of the Applicant dated 26 March 2025

A2

Applicant’s Tender Bundle

A3

Statutory Declaration of Dr Lorraine Sheridan dated 21 March 2025

Date of hearing:	8 May 2025
Applicant’s Representative:	Mr Scott Calnan
Respondent’s Representative:	Mr Max Plitsch (Australian Government Solicitor)

List of Exhibits
A1	Statutory Declaration of the Applicant dated 26 March 2025
A2	Applicant’s Tender Bundle
A3	Statutory Declaration of Dr Lorraine Sheridan dated 21 March 2025