WKJD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 950

WKJD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 950 (28 April 2023)
Division:GENERAL DIVISION
File Number: 2022/4461
Re:WKJD
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member Andrew McLean-Williams
Date:28 April 2023
Place:Brisbane

The Tribunal sets aside the reviewable decision of 11 May 2022 and substitutes it with a decision that the discretion to refuse the Applicant’s Subclass 790 (Class XE) Safe Haven Enterprise Visa under section 501(1) of the Migration Act 1958 (Cth) is not exercised.
..............................[SGD]................................
Member McLean-Williams
CATCHWORDS
MIGRATION – discretionary refusal to grant Safe Haven Enterprise (Class XE) Visa under

section 501(1) – where Applicant does not pass the character test – Applicant has substantial criminal record – whether the power to refuse the visa should be exercised pursuant to section 501(1) – consideration of Ministerial Direction No. 99 – decision under review is set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Al-Kateb v Goodwin (2004) 219 CLR 562
Ali v Minister for Homes Affairs [2020] FCAFC 109
Brown v Minister for Immigration and Citizenship [2009] FCA 1098
DLZZ v Minister for Immigration, Citizenship, Multicultural Affairs (Migration) [2023] AATA 7
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs [2019] FCA 50
Maut v Minister for Home Affairs (Migration) [2018] AATA 2754 at [43]
RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1273
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Uolilo v Minister for Home Affairs [2019] FCA 336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member McLean-Williams
28 April 2023
INTRODUCTION

This matter comes before the Tribunal sitting at Brisbane, on remittal from the Federal Court of Australia, pursuant to an order made by his Honour Abraham J in November, 2022. The de-novo hearing was conducted by the Tribunal over two days, on 8 and 9 March, 2023.
The Applicant appeared before the Tribunal by means of video link from Immigration Detention in [Location redacted], represented by Dr Timothy Haines (MARN 030142) of ‘Emulink Migration and Intercultural Consultancies’. Dr Haines appeared before the Tribunal by means of video link, from Adelaide. The Respondent, the Honourable Minister for Immigration, Citizenship and Multicultural Affairs was represented by Ms Kate Ervin, Solicitor, from Clayton Utz Solicitors. Ms Ervin also appeared before the Tribunal by means of video link, from Sydney.
The Applicant, WKJD, is a Shi’ia Bangash man from Pakistan, now aged 38 years. WKJD first arrived in Australia by boat, landing at Christmas Island on 1 May 2013.[1] WKJD was thereafter interviewed by officials from the Department of Home Affairs as an irregular maritime entrant, and initially granted a Humanitarian Stay (Class UJ) Subclass 449 (Temporary) visa, on 12 July 2013.[2]
[1] R1, p 339.
[2] Ibid, p 291.
On 19 October 2016, WKJD lodged an application for a Safe Have Enterprise Visa (‘SHEV’, Class XE) (‘the Visa’),[3] and on 25 October 2016 was granted a Bridging visa E (Class WE).[4]
[3] Ibid, p 393.
[4] Ibid, p 339.
On 1 August 2018, WKJD was assessed by a Delegate of the Minister as warranting refugee status and thus owed protection obligations pursuant to s.36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’).[5]
[5] R1, p 339.
In October 2019 – and whilst still residing in Australia pursuant to a bridging visa – WKJD was convicted upon his own confession in a District Court of Queensland before his Honour Judge Porter QC DCJ on two counts of sexual assault, which had been committed by WKJD on two separate victims, in December 2017, and January 2018. At the time of the first offence WKJD was 32 years of age, and he was 33 years of age at the time of the second offence.
In relation to the first offence, WKJD was sentenced to 6 months imprisonment. In relation to the second offence WKJD was sentenced to 15 months imprisonment, with each sentence to be served concurrently.[6] The second offence attracted a higher custodial term by reason of it representing an escalation in the seriousness of the offending by WKJD.
[6] Ibid, p 249.
On 11 May 2022 a Delegate exercising the delegated powers of the Minister under s.501(1) of the Act refused to grant WKJD a Safe Haven Enterprise (Class XE) visa on the basis that WKJD did not pass the character test in s.501(7)(a), because he had a ‘substantial criminal record’ as defined by s.501(7)(c); this by reason that WKJD had been sentenced to a term of imprisonment of 12 months or more (‘the visa refusal decision’).[7]
[7] Ibid, p 229.
On 2 June 2022 WKJD applied to the Tribunal for a review of the visa refusal decision.[8]
[8] Ibid, p 221.
On 19 August 2022 Senior Member Andrew George affirmed the decision to refuse to grant WKJD’s Safe Haven Enterprise visa.[9] This decision was appealed[10] to the Federal Court of Australia on grounds of jurisdictional error,[11] resulting in the remittal order made by Abraham J on 1 November 2022; thus requiring this fresh consideration by the Tribunal.
[9] WKJD v Minister for Immigration, Citizenship, and Multicultural Affairs [2022] AATA 2997.
[10] Federal Court Matter No. NSDS806/2022, order of Abraham J dated 1 November 2022.
[11] Uolilo v Minister for Home Affairs [2019] FCA 336, at [48], per Robertson J).
In exercising the discretion in s.501(1), the Tribunal must comply with any Ministerial Direction issued pursuant to s.499(1) of the Act. When the matter was previously before the Tribunal it was considered in light of the then extant Ministerial Direction 90. Upon this rehearing, the Tribunal is now obliged to consider the matter in light of the new Ministerial Direction, No. 99, Visa Refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
WKJD gave evidence by means of video link from [Location redacted], on 8 March 2023. The Tribunal also heard evidence on 8 March 2023 from Professor Jacques Metzer, who was called to give evidence on behalf WKJD by means of video link from Adelaide; and from a friend of WKJD in the South-East Queensland community, a Mr Witness SH, who also gave his evidence before the Tribunal on 8 March 2023, yet by means of telephone. Witness SH was called as a character witness and spoke of his surprise when informed about the offences committed by WKJD. The Tribunal hearing on 9 March 2023 was reserved exclusively for the reception of oral submissions from Dr Haines and Ms Ervin. The Tribunal also received written evidence, now reduced to an Exhibit List, a true and correct copy of which is attached to these Reasons and marked ‘Annexure A’.
Background Facts
WKJD was born in a remote part of Pakistan in January 1985. WKJD is a citizen of Pakistan, and a Shi’ia Muslim by religion, and a member of the Bangash ethnic minority. WKJD has a wife and ten-year old son, who are still living in Pakistan. WKJD holds considerable fears for their safety because of the Taliban in Pakistan, and he hopes to eventually bring them to live with him in Australia.
WKJD was born and raised in a small, predominantly Shi’ia village as the youngest of seven children, having one older brother and five older sisters. WKJD’s father was a farmer herding sheep and dairy cattle. WKJD’s mother passed away when WKJD was only a few months of age such that WKJD was thereafter raised by his older sisters and an aunt. WKJD was educated until the equivalent of year ten, at which point impoverished circumstances compelled that he forego any further education and instead join his father, working in the fields. At around this time WKJD’s older brother was also sent to Dubai in search of paid employment.
In 2008, when WKJD was aged about 23, the village was attacked by the Taliban in what proved to be a heated battle, extending over three days and nights. Early in the battle, and at the strident insistence of his father – to run and hide and at least save himself – WKJD fled into the mountains. Many villagers were killed during the ensuing battle, including WKJD’s father, who was eventually captured and executed by the Taliban. After the Taliban had departed, WKJD emerged from his mountain hideout, to further discover that his family home had been burned to the ground.
Around six months later, a note was slipped under the door of the house in which WKJD was residing. The note was from the local Taliban commander, and it was addressed to WKJD. The note informed that many Taliban fatalities had been attributed to the resistance by WKJD’s father during the prior attack on the village, and the note indicated that the Taliban were now intent on reprisal, and to hunt down and kill WKJD, in the same manner as they had executed his father. At that stage fearing for his safety, WKJD immediately left the village, and went to live with his older sister and her husband, in Karachi.
WKJD next lived in Karachi in comparative safety for approximately two years, until reaching a point at which both he and his neighbours had observed that WKJD was now being followed each day, by strangers. Fearing re-discovery by the Taliban, WKJD fled from Karachi in January 2011 and moved in with his older brother, who had by now returned to their home village, where circumstances had become far safer than had been the case beforehand.
In February 2011, WKJD – by now aged 26 – was married to his wife ‘BS’, who shortly thereafter gave birth to a son, ‘SAA’, born on 10 December 2011. At this point life for WKJD was relatively harmonious and stable. He purchased a car, and worked as a taxi driver.
Yet, in the middle of 2012, WKJD received another letter from the Taliban. The letter stated that the Taliban knew where WKJD had been living when in Karachi, and where WKJD was now living. Further threats were made by the Taliban towards WKJD. Because of a renewed fear for his safety WKJD resolved that he must leave Pakistan immediately. In a statement dated 4 July 2022 WKJD explained his decision-making at this point:
‘I knew that if I fled to another part of Pakistan, I might be able to live in peace for a couple of years but eventually I would be found by the Taliban. They have eyes and ears all over Pakistan and they believe I have wronged them immensely so I was pursued persistently.
I thought about bringing my wife and son with me when I left Pakistan but the risks of travelling by boat were too high. My son was still quite young at the time and we were very scared that he might not survive as we heard of many people drowning and falling sick on such long-distance boat journeys.
Looking back, I should have brought them with me as I survived the boat journey and now much of my pain is due to their absence in my life. I left Pakistan in April 2013 when my son was only 16 months old. I have not seen him since.’[12]
[12] R1, p 14, [33]-[35].
WKJD arrived by boat at Christmas Island on 1 May 2013. He was processed and taken to another detention centre on the Australian mainland about 20 days later.
WKJD was granted a bridging visa in July 2013. Initially, WKJD lived in Melbourne, and then briefly moved to Brisbane, before settling in Sydney, where he worked as a ‘Go catch’ driver between November 2015 and March 2016. Next, WKJD worked various other unskilled odd jobs in Sydney, as had been assigned to him by a labour hire company. These included factory work for meat wholesalers, and for an air-conditioning company. WKJD lived wherever he could find work, and throughout this time WKJD remained focussed on the need to send money back to his wife and son, in Pakistan; sending them between approximately $800 and $1,000 each month.
In 2017, WKJD moved to Brisbane, and found work as a taxi and Uber driver, until January 2018.
Next, in an effort to expedite the protracted bridging visa process, WKJD resolved to move to a provincial location, and he selected [Location redacted] for these purposes. Once in [Location redacted], WKJD resumed work as a taxi driver.
OFFENDING HISTORY
Other than for the two offences that were to lead to his imprisonment and that are now the subject of these Tribunal review proceedings, WKJD has no other criminal history.
The offences under examination arose in the context of WKJD’s work as a taxi driver. The circumstances of that offending are as now obtained from the sentencing remarks made by his Honour Judge Porter QC DCJ in the District Court of Queensland, sitting in [Location redacted], in October 2019.[13]
[13] R1, p 14, [33]-[35].
The offences took place in December 2017, and January 2018 in very similar – essentially identical – factual circumstances. In relation to the factual circumstances of the offending, his Honour observed the following:
‘Both offences occurred over [redacted in original]. At that time, you were employed as a taxi driver by [redacted in original]. The first offence occurred in respect of a woman who was [redacted in original] at the time of the offence. She had been to a Christmas function and was relying on a taxi to get her safely home early [redacted in original]. On the morning of the [redacted in original] she booked a taxi, and you came to drive her home. She sat in the front seat. You took her to her house in [redacted in original] and asked if you could use her bathroom. She obliged you, and let you into her house, and directed you to the toilet. She returned to her lounge room, and when you returned, you lent forward and kissed her on the lips for about three seconds. She was shocked and pulled back. She doesn’t remember if she said anything. You tried again to kiss her on the lips a second time. She pulled back and told you in no uncertain terms to get out of her house. You left the house. She made a complaint to the police two days later.
It would seem the police did not identify you immediately, because the second offence occurred on the [redacted in original] about [redacted in original] weeks later. The victim in that case was [redacted in original] years old. She’d also been out socialising and, as responsible people do these days, relied on getting a taxi home when she’d had some drinks. She got into your taxi at [redacted in original] in the morning on the [redacted in original], the [redacted in original] of [redacted in original]. You were driving her home, and she fell asleep. When you turned into her street, she woke up and noticed you had driven past her address and parked outside a house just around the corner. The following happened:
You got out of the taxi and walked to the front passenger door where she was sitting, and opened her door, grabbed her by her arms and started to pull her out of the taxi. As you were doing this, you kissed her on the lips and tried to put your tongue in her mouth. She pushed against you to try to get out of the taxi. As she tried to get out, you pinned her against the door frame and continuously tried to kiss her. She recalls you continually saying, “Let’s go inside.” She remained pinned against the taxi with her left hand on the door frame. She couldn’t push you away. As she continued to struggle, you undid her belt, put your hands down inside her jeans and touched the top of her vagina. She used her shoulder to shove you back as hard as she could. She fell back into the taxi. She wasn’t able to get out because the door was locked. You went into the driver’s side. She yelled at you to take her home. You did drive her home just around the corner. She paid you for the trip and ran into the house. She also made a complaint to the police.’[14]
[14] Ibid, p 33, lines 7-43.
After his arrest in early 2018 shortly after the second offence, WKJD was granted bail, and thereafter remained residing in the [Location redacted] community for a further period of approximately 18 months, before the date of his sentencing (in late October, 2019). During this period WKJD worked in a poultry processing factory, between April 2018 and August 2019; as well as for Coles supermarket, as a trolley pusher, from June 2019 until October 2019. No further offences were committed by WKJD whilst he was on bail.
In relation to the offences for which he was dealt with by his Honour Judge Porter in October 2019, in his statement dated 4 July 2022, WKJD said the following:
‘…In 2017 and 2018 I made two very big mistakes that have ruined my life and the lives of two women.
At the time of the offences, my mental health was very poor. The trauma from my past was creeping up on me and I felt very alone. I was not coping with being separated from my wife and child for so long and I acted out of character. Of course, I am not excusing my actions but I want to give some insight into my headspace at that time.
My wife and child are in a very fragile living situation in Pakistan and every day I fear that I will receive a call that something has happened to them. Although there is no excuse for my behaviour, I want to emphasise that what I did is not who I am. It is not usually in my nature to behave this way and I am very regretful that I left my mental health deteriorate to that point.
Since my offences, I have spoken to psychologists and had a lot of time to think about what I have done. In 2019 I spoke to psychologist Victoria Barclay-Timmis in [Location redacted] where I lived. She explained to me the direct impact of my actions on the victims.
I understand that as a direct result of my actions, those women may struggle to form relationships with men and trust men, especially men who they are not familiar with. I know they must be dealing with a lot of trauma that may haunt them for the rest of their lives.
In that moment I understand they must have been very scared especially because I was a stranger, and they were in a vulnerable position. When I put myself in their shoes, I can imagine the fear they felt in those moments, and I will never forgive myself for this.
What I did was not right, and I wish I could go back in time and undo everything and undo the trauma that these women are likely still dealing with. They did not deserve what happened to them. No one does. I understand that one of the women has also suffered financial harm as my actions impacted her ability to sustain her job.
I cannot imagine what it must have been like for those women, and I will never truly know how their mental health, relationships and overall wellbeing will be impacted in the long-term. I can only pray every day that they will recover, and that God may forgive me for what I have done.
Whilst in detention I have spoken to several counsellors and psychologists. I have requested mental health services many times and have been able to have over thirty consultations with professionals.
The psychologists I have spoken to in [Location redacted] and in detention have helped me adopt strategies to assist me when my mental health deteriorates. In the last year or so, I have experienced insomnia and have felt depressed [in Location redacted]. To help me process my anxiety and depression, I have written down my thoughts which has helped soothe me.
The biggest thing that has helped me is seeking professional help as soon as I notice signs of anxiety or depression. While I was in custody, I became quite anxious when I received a notice of visa cancellation and immediately asked staff at Woodford Correctional Centre if I could access a welfare officer or counselling. You can see this in my offender case file.
My IHMS records show that I have had over thirty sessions with professionals since being [in Location redacted]. My IHMS records only show the sessions I have attended until January 2022. Since then, I have attended a further four to five sessions roughly. I cannot remember the exact number, but I have requested a copy of the most updated IHMS records.
I was not able to go to any session during the month of Ramadan (April) because I was fasting and feeling quite fatigued. I was worried that I would not understand the psychiatrist and they would not understand me if I was feeling exhausted. If not for Ramadan, I would have taken it upon myself to see a psychiatrist in April as well.
I have been very assertive with my mental health and ensuring that I get the regular checks that I need. I intend to be this proactive in the community and take all the necessary steps to ensure that I do not derail again. I understand that my mental health is my priority, and I am more than happy to invest in a psychologist if I am in the community and working again.
I don’t engage in drugs, cigarettes or alcohol. I don’t gamble or party or engage in any such habits. It is not in my nature, and I am not suspectable to drug or alcohol use. If I am allowed to move back to [Location redacted], I am confident that regular sessions with my psychologist Victoria Barclay-Timmis will prevent any future impulsive behaviour. My usual habits are conducive with a healthy and law-abiding lifestyle.
I have always been very proactive with my mental health, and I intend to be even more so in the future. I will never allow myself to get back to the state I was in when I committed my offences. That life is behind me, and my number one focus now is to ensure that I can work and send money back to my baby boy.
I stayed out of trouble for almost five years after arriving in Australia and when I was on bail for eighteen months I did not engage in any criminal behaviour. My past behaviour is not in line with who I really am, and they are not a reflection of how I will behave in the future.’[15]
[15] R1, pp 15-16, [45]-[61].

In relation to matters relevant to sentence, his Honour observed that WKJD had no relevant prior criminal history; was not regarded by his Honour as a high risk of re-offending; and that WKJD had not breached any of the imposed conditions, whilst on bail. His Honour further accepted that WKJD had ‘remorse, regret and shame’, and had entered a timely plea of guilty – thus sparing the two victims from needing to be cross-examined; or their needing to psychologically prepare for the rigours of a criminal trial. His Honour found that WKJD had shown cooperation with the police, and that WKJD had demonstrated an ‘acceptance of the wrongness of your conduct’. Yet, of most concern to his Honour were the specific factual circumstances of the offending, in regards to which his Honour said:
‘First, this was the kind of assault which is every woman’s nightmare. Women trying to get home late in the evening are often reliant on taxi drivers and similar modern transport alternatives. An attack by a driver with a sexual motivation strikes at the heart of the freedom women should have in every civilised society to move around free from sexual molestation. In nearly every case, women can rely on male taxi drivers. That made these attacks all the more distressing. This is no new insight. The same comments have been made by judges of this court and the Court of Appeal for nearly 30 years and probably more. General deterrence is a very significant consideration.
Second, it is disturbing you were more persistent and aggressive with the second younger woman after having been easily repelled by the discouragement of the first woman. If you were in any doubt that uninvited sexual advances of this kind were wrong, and I see no reason to think you didn’t know that, your experience with the first woman should have left you in no doubt. Third, the second woman was preyed on in a circumstance where she was particularly vulnerable having fallen asleep. Fourth, your attack on the second woman was protracted and involved actual intimate touching of her despite her fierce resistance. Fifth, it is a matter of mitigation that you desisted in both cases, although I note in both cases you were fiercely resisted. And, finally, you are not a young man. You should have known better than this.
I have before me the victim impact statements from both women. I am directed by the Parliament to take those into account in identifying the harm caused by the offending and in assessing the nature and seriousness of the offending. The victim impact statements are, in my judgment, neither exaggerated nor unreasonable. They demonstrate the truth of the observations I made as to the impact of this kind of random attack. It has also caused, in one case financial, and the other relationship impacts, which are quite serious.
…
In this case I had in mind a head sentence of 18 months imprisonment, particularly because of the circumstances of the offending in respect of the second young woman, following on from the plain lesson that should have been learnt in the first case. I think, bearing in mind your otherwise good character, and the fact that you’ve been on bail for 18 months, and I can’t perceive you as a high risk of reoffending, and all the other circumstances I’ve identified, I’m content to impose the sentence submitted by the Crown. And I should observe that [redacted in original] submitted for a sentence of 12 months, which, frankly, I think was a reasonable submission from her perspective, but it seems to me not sufficiently to address the necessary objects of general deterrence, punishment and community denunciation arising out of this kind of offending, bearing in mind the persistent violence of the second offence.
Therefore, I impose a sentence of six months imprisonment in respect of the first count, which is called count 2 on the indictment, and 15 months imprisonment on the second count, which is count 4 on the indictment. Bearing in mind that it’s a parole eligibility date in respect of a sexual offence, I’m going to recommend parole after four months served, bearing in mind the prospect that it might not be able to granted at that time.’[16]
[16] R1, p 33, line 48-49; p 34, lines 1-27; p 36, lines 6-24.
WKJD is entirely abstinent from alcohol and has no drug history.
In terms of mental health matters, the Tribunal notes there to be psychological reports from Mr Tim Watson-Munro, dated 11 July 2022 and Ms Victoria Barclay-Timmis, dated 12 September 2019 before the Tribunal. Neither of those psychologists were called to give evidence before the Tribunal, yet a summation of their unchallenged written opinions is as follows:
Ms Victoria Barclay-Timmis:
Ms Barclay-Timmis saw WKJD at her clinic in [Location redacted] on 14 August 2019. The report that she prepared (now dated 12 September 2019) was intended for use as part of a plea in mitigation during the District Court sentencing hearing before his Honour Judge Porter QC DCJ, on 21 October 2019. Ms Barclay-Timmis reported the following:
‘WKJD demonstrated deep remorse and stated that the nature of the charges brought great shame towards him and his family. He reported he was fearful of being incarcerated, losing his two jobs, and potentially being deported.
…
[WKJD] ‘reported current symptoms indicative of a Major Depressive Episode, including dysphoria anhedonia, self-criticism, low energy, low motivation, sleep disturbance, difficulties with attention and concentration, hopelessness and suicidal ideation (with no clear plan or intent). His symptoms were considered consistent with the Diagnostic and Statistical Manual of Mental Disorders (DSM – 5) diagnosis of Major Depressive episode, Moderate.’[17]
[17] Ibid, pp 53-56.
In addition, since being charged by the police, Ms Barclay-Timmis noted that WKJD had experienced further symptoms ‘consistent with a DSM-5 diagnosis of Adjustment Disorder with anxiety’.[18]
[18] R1, p 275.
In terms of the risk of recidivism, Ms Barclay-Timmis does not appear to have conducted any actuarial assessment of risk, yet opined that WKJD’s age (34 years as at the date of her 2019 assessment and now 38 years); and the fact of his marriage were both ‘static’ factors that place him at a lower risk of recidivism. In terms of dynamic factors that may contribute to any risk of further sexual offending, Ms Barclay-Timmis reported that:
‘[WKJD] did not report deviant sexual interests/activities/fantasies. There was no evidence to suggest that [WKJD] had substance use or abuse issues, an antisocial personality, or problems with impulsive behaviour. He did demonstrate victim empathy.
In addition to the factors discussed above, it was noted that [WKJD] showed good insight into his current legal situation, expressed remorse, and reported a willingness to engage in ongoing counselling.
…
Risk of sexual recidivism: After careful consideration of the specific factors of this case (outlined herein), a low risk of reoffending has been identified. Important protective factors include [WKJD’s] lack of offending history, no deviant sexual interest, no history of mental illness or substance use/abuse, display of victim empathy, and compliance with the legal processes.
Impact of imprisonment: The compromised state of [WKJD’s] current mental health is likely to affect adversely his ability to cope with a period of imprisonment, and to deteriorate as a result of imprisonment. Both [WKJD’s] depression and anxiety conditions are likely to be exacerbated by a period of incarceration.’[19]
[19] Ibid, pp 56-57.
Mr Tim Watson-Munro
In his report dated 11 November 2022, Mr Watson-Munro (who is based in Sydney), indicated that he conducted ‘tele-health’ examinations upon WKJD on 29 June and 5 July 2022.
Mr Watson-Munro described WKJD as ‘co-operative though clearly depressed and anxious’.[20] In part, Mr Watson-Munro observes that: ‘compounding his worries, [WKJD] stated that his wife and son live in a highly dangerous situation in Pakistan, as Shia Muslims. The area is subject to ongoing Taliban activity and in this context, [WKJD] is constantly in a state of hyperarousal regarding his family safety.’[21]
[20] Ibid, p 80.
[21] R1, p 81.
Mr Watson-Munro also reported the following:
‘Prior to entering detention on 20 October 2019, [WKJD] was diagnosed with a “Major Depressive Episode” and an Adjustment Disorder, with anxiety. His mental state has deteriorated further since entering detention. I note IHMS records indicate that he was also diagnosed with an adjustment disorder in January 2022, following a mental health consultation with a separate psychiatrist whilst [in Location redacted]. This is in accordance with my own observations and assessment of him.
…
[WKJD] has expressed appropriate remorse regarding his offending behaviour. I note that following the offences, he was granted bail and lived in the community for in excess of 12 months without further offending. He pleaded guilty to the charges and in so doing demonstrated both insight and an acceptance of responsibility for his behaviour. I note that he has completed a number of educational courses whilst in immigration detention, reflective of a strong desire to move forward with his life with a view to assimilating into the Australian community if he is given the opportunity. I note that [WKJD] has made a number of attempts to enrol himself in sex offender’s programs but has been unable in this regard due to circumstances beyond his control, not least of which has been the logistic restrictions which have occurred as a consequence of the COVID-9 pandemic. [WKJD’s] mood state has been further aggravated by the possibility that he may be held in immigration detention indefinitely, against a backdrop of a finding by the Department that he is owed protection. Should this occur, evidently there will be a significant recrudescence and escalation in his overall symptomatology.
…
At examination [WKJD] expressed a significant remorse for his actions. When questioned about this he stated “it was a very big mistake… I regret it”.
…
[WKJD] has suffered long-standing symptoms of depression and anxiety, which I suspect date back to his formative childhood years…
He left school at the age of 17 to assist his father, with him then witnessing him being murdered by the Taliban.… It is apparent that he has a range of symptoms reflective of post-traumatic stress disorder arising from that event…
Whilst living in Pakistan, he remained in a state of constant hypervigilance, with his anxiety being compounded by fears that the Taliban would kill him as well. His mood settled slightly when he fled to Karachi before there was a recrudescence in his symptoms when he returned to his village to marry. Since fleeing [to] Australia he has continued to suffer significant symptoms of depression, anxiety, features of an Adjustment Disorder and ongoing PTSD.
…
[WKJD] stated that he has better insight to his criminality adding that whilst talking to a psychologist in detention, he gained a better understanding of the effects on his two victims. He stated that he has no intention to reoffend.’[22]
[22] R1, pp 82-86.
Due to language, cultural, and logistic considerations arising from the tele-health format of interview, no psychometric assessments were undertaken by Mr Watson-Munro. The Tribunal notes however that Mr Watson-Munro concurs with the previous opinions and findings made by Ms Barclay-Timmis, as now expressed in her report dated 12 September 2019, particularly those in relation to WKJD being a ‘low risk’ of re-offending.
Professor Jacques Metzer
During the Tribunal hearing on 8 March 2023, expert psychological opinion evidence was received from Professor Jacques Metzer, Adjunct Professor of clinical psychology at the University of Technology Sydney, and clinical psychologist in practice at North Terrace, Adelaide.
In a report dated 1 March 2023, Professor Metzer opined that, on the basis of his own ‘tele-health’ clinical assessment, WKJD presently suffers from Major Depressive Disorder with Anxiety; as well as from Post-Traumatic Stress Disorder (PTSD).
In part, in his report, Professor Metzer stated the following:
‘I think that the adjustment disorder together with the major depressive episode have now merged into the DSM5 diagnoses of Major depressive disorder with anxiety and Post-traumatic Disorder… These diagnoses indicate a serious deterioration in [WKJD’s] mental health, particularly taking into consideration that he now has an apparent increase in suicidal ideation for which he has a plan. This has not been noted by previous mental health consultants, and appears to be emergent.
Further, [clinical psychologists and other mental health counsellors] who consulted [WKJD], all discussed and gave unambiguous opinions regarding his [low] risks of further offending…
…
Methods by which this information regarding risk of recidivism is revealed include interview, psychometric data and risk analyses.…
…
I think that he has learned much in the aftermath of his offending and that the probability of his reoffending is very unlikely, which is supported by my psychological colleagues and my own professional opinion and most importantly, the scientific evidence.’[23]
[23] A4, pp 4-5.
During the giving of his oral testimony Professor Metzer also opined that WKJD requires further treatment if released back into the Australian community; particularly in relation to his long-standing PTSD condition. In relation to that treatment requirement, the following exchange then took place between the Tribunal and Professor Metzer:
‘MEMBER: Professor, it’s the Member here. Look, both Victoria Barclay-Timmis and Mr Watson-Munro have both previously given opinions that WKJD is a low risk of recidivism. You concur with that assessment, but you have made some recommendations in relation to further treatment. Now, I don’t wish to sound cruel, but my focus is not on the needs of WKJD, [rather] my focus is squarely on what I’m required to decide, which is what the Ministerial Direction says [that] I have to decide, and that’s the question of risk to the community?
PROF METZER: Yes.
MEMBER: My concern is for the public interest, rather than for the interests of WKJD. What is the impact on risk to the community if WKJD does not have the treatment that you propose that he does [now] require? Does the risk go up, or does the risk remain the same as that, being low?
PROF METZER: I think that, particularly now, the risk is still the same risk as was assessed by the two psychologists, because the factors have not changed in the end. What has changed is his reaction to the offences and the consequences for him thereof.
MEMBER: Yes?
PROF METZER: So those aspects, his now deepening depression, his suicidality, which is particular in need of treatment. He will get that as well with the PTSD treatment, but the suicidal one is particularly important if he were not to be released.
MEMBER: All right, I understand?
PROF METZER: If he is released, that would decrease remarkably and very quickly, but he still needs a program because – – ‑
MEMBER: But in terms of risk to the Australian community, Mr Watson-Munro and the other psychologist, have both said, “Look, this fellow is a low risk”. You’re saying he’s a low risk and the lowness of that risk doesn’t change whether he receives further treatment or not?
PROF METZER: No, the risk stays the same, I believe. Because the – – ‑
MEMBER: All right. I mean, the man requires treatment because he has problems, some of which of course have been caused by his incarceration and [he] requires treatment for his own purposes, but in terms of community interest, it’s a separate issue?
PROF METZER: Yes, it is. And I think that the consequences of his previous offending have been, you know, first a gaol sentence, or two gaol sentences, in short a double-edge, and the current detention; these are the effects of his offences. They serve as – – ‑
MEMBER: All right. Well, punishment follows the event. But surely one would say too that the salutary effect of his incarceration, and now facing the prospect of deportation, in and of itself will serve to suppress any carnal desires he may have in the future and minimise the prospect of him doing something like this again?
PROF METZER: Yes, it would. Because deep depression – and, as I stated, I did say that my view is that since the previous reports, his depression had deepened, so that depression, since it has deepened, he is – yes, he is, I suppose, in danger of that as well, and suicidality, add that onto it. For the community, he is not going to be doing – the risk factors, which I’ve listed before, have not changed in that sense, perhaps some of the dynamic ones, but certainly the static ones are all the same. The dynamic ones, yes, a few of those, of course, have changed because he’s been incarcerated and so on, but the effect of incarceration is usually, at least in a certain number of people, to suppress any tendencies towards further offending, at least that’s the intent of the incarceration anyway with it all. So, my view is that it is difficult to separate any components of mental health problems, disorders, from the circumstances that he finds himself at the moment. For the community, if he were to be released, for example, next week, the risks that he poses for similar recidivism, in my view, would be even lower than they were before his incarceration.’[24]
LEGISLATIVE FRAMEWORK
[24] Transcript, p 33, lines 22-47; p 34, lines 1-35.
Does the Applicant Pass the Character Test?
As WKJD was sentenced on 21 October 2019 to a term of more than 12 months imprisonment, the Tribunal finds that he has a ‘substantial criminal record’ and cannot pass the character test.
In these circumstances the task for the Tribunal is to exercise the discretion in s.501(1) to consider whether or not to exercise the power to refuse the Visa application. And, in considering whether to exercise the discretion either way, the Tribunal is bound – because of s.499(2A) – to comply with any directions made under the Act.[25]
[25] Brown v Minister for Immigration and Citizenship [2009] FCA 1098 at [16]; (per Edmonds J); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [51] (per Bell, Gageler, Gordon and Edelman JJ).
In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Ministerial Direction’) now has application.[26]
[26] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90, this in turn was replaced by Direction 99 on 3 March 2023.
For the purposes of deciding whether or not to exercise the power to refuse the Visa application, paragraph 5.2 of the Ministerial Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2, where relevant to the decision.
The principles found in paragraph 5.2 of the Ministerial Direction may be briefly stated as follows:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(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.

Paragraph 6 of the Ministerial Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Ministerial Direction then sets out five (5) Primary Considerations, that the Tribunal must take into account. These are:
(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; and
(5)expectations of the Australian community.
Paragraph 9 of the Ministerial Direction then sets out four (4) Other Considerations which must also be taken into account:
a)legal consequence of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
Of significance is the Other Considerations being seen to be ‘other’ considerations, as opposed to merely ‘secondary’ considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[27]
‘…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.’[28]
[27] [2018] FCA 594.
[28] Ibid, [23].
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering Primary Consideration 1, paragraph 8.1 of the Ministerial Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers are required to have particular regard for the principle that entering or remaining in Australia is a privilege, that the Commonwealth of Australia confers on non-citizens in the expectation that they are, and have been, law abiding; that they will respect important institutions; and that they will not cause or threaten harm to individuals, or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Ministerial Direction requires decision-makers to consider:
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 Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Ministerial Direction specifies that decision-makers must have regard for a number of factors.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Ministerial Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed ‘very seriously’ by the Australian Government and the Australian community.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Ministerial Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)   where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.
Sub-paragraph (c) in paragraph 8.1.1(1) of the Ministerial Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Ministerial Direction requires a decision-maker to have regard to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Ministerial Direction requires a decision-maker to have regard to the cumulative effect of an Applicant’s repeated offending.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Ministerial Direction requires a decision-maker to have regard to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Ministerial Direction requires a decision-maker to have regard to whether the non-citizen has re-offended since being formally warned 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 as a matter in the non-citizen’s favour).
Sub-paragraph (h) of paragraph 8.1.1(1) of the Ministerial Direction requires a decision-maker to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
In light of the facts and circumstances of WKJD’s offending, subparagraphs 8.1.1(1) (b), (e), (f), (g), and (h) are not relevant for consideration by the Tribunal during this deliberation.
The Minister submits that WKJD’s offending comprising two sexual assaults upon women – one of whom was in a particularly vulnerable position, given the fact of her having fallen asleep in WKJD’s taxi – must be viewed by the Tribunal as ‘very serious’ (paragraph 8.1.1(a)(i)), by reason that the offending was sexual in nature. Porter DCJ described the offending in these terms:
Both offences occurred over [redacted]. At that time, you were employed as a taxi driver by [redacted]. The first offence occurred in respect of a woman who was [redacted] at the time of the offence. She had been to a Christmas function and was relying on a taxi to get her safely home early [redacted]. On the morning of the [redacted] she booked a taxi, and you came to drive her home. She sat in the front seat. You took her to her house in [redacted] and asked if you could use her bathroom. She obliged you, and let you into her house, and directed you to the toilet. She returned to her lounge room, and when you returned, you lent forward and kissed her on the lips for about three seconds. She was shocked and pulled back. She doesn’t remember if she said anything. You tried again to kiss her on the lips a second time. She pulled back and told you in no uncertain terms to get out of her house. You left the house. She made a complaint to the police two days later.
It would seem the police did not identify you immediately, because the second offence occurred on the [redacted] about [redacted] weeks later. The victim in that case was [redacted] years old. She’d also been out socialising and, as responsible people do these days, relied on getting a taxi home when she’d had some drinks. She got into your taxi at [redacted] in the morning on the [redacted], the [redacted] of [redacted]. You were driving her home, and she fell asleep. When you turned into her street, she woke up and noticed you had driven past her address and parked outside a house just around the corner. The following happened:
You got out of the taxi and walked to the front passenger door where she was sitting, and opened her door, grabbed her by her arms and started to pull her out of the taxi. As you were doing this, you kissed her on the lips and tried to put your tongue in her mouth. She pushed against you to try to get out of the taxi. As she tried to get out, you pinned her against the door frame and continuously tried to kiss her. She recalls you continually saying, “Let’s go inside.” She remained pinned against the taxi with her left hand on the door frame. She couldn’t push you away. As she continued to struggle, you undid her belt, put your hands down inside her jeans and touched the top of her vagina. She used her shoulder to shove you back as hard as she could. She fell back into the taxi. She wasn’t able to get out because the door was locked. You went into the driver’s side. She yelled at you to take her home. You did drive her home just around the corner. She paid you for the trip and ran into the house.’[29]
[29] R2, pp 5-6, [18].
The Minister further submits that his Honour had observed that WKJD’s offending was ‘the kind of assault which is every woman’s nightmare’, and that such an attack, (if) committed by a taxi driver, ‘strikes at the heart of the freedom women should have in every civilised society to move around free from sexual molestation’. The Minister contends that these remarks only serve to now underscore the seriousness with which WKJD’s offending must be regarded by the Tribunal; as do the following further comments made by Porter DCJ:
‘Second, it is disturbing you were more persistent and aggressive with the second younger woman after having been easily repelled by the discouragement of the first woman. If you were in any doubt that uninvited sexual advances of this kind were wrong, and I see no reason to think you didn’t know that, your experience with the first woman should have left you in no doubt. Third, the second woman was preyed on in a circumstance where she was particularly vulnerable having fallen asleep. Fourth, your attack on the second woman was protracted and involved actual intimate touching of her despite her fierce resistance. Fifth, it is a matter of mitigation that you desisted in both cases, although I note in both cases you were fiercely resisted. And, finally, you are not a young man. You should have known better than this.’[30]
[30] R2, pp 5-6, [19].
The Tribunal is further required – because of paragraph 8.1.1(c) – to take into account the fact of WKJD having been ordered to serve a custodial term of imprisonment, and to accept this as a reflection of the objective seriousness of WKJD’s offending. Paragraph 8.1.1(1)(d) requires that the Tribunal consider whether the frequency of WKJD’s offending and to consider whether there has been any upwards trend, in terms of the seriousness of that offending. WKJD offended twice, in essentially identical circumstances, and the Tribunal determines that there was an increasing trend in the seriousness of the second offence, given that in the second offence WKJD was more persistent and forceful towards his victim, as is now reflected by the fact of the longer custodial term imposed by Porter DCJ for the second offence, committed by WKJD in January 2018.
On behalf WKJD, Dr Haines submits that WKJD is:
‘...well-aware of the nature of the crimes he has committed and has fully accepted, acknowledged and indeed paid for his crimes. He in no way diminishes or abrogates responsibility for his crimes, which was serious from the point of view of the community; nor does he argue with the way he was treated by the court, in recognition of that community view.’[31]
[31] A2, p 4, [15].
Although serious, Dr Haines submits that WKJD’s crimes should nonetheless be regarded as at the lower end[32] of a spectrum of seriousness, as is reflected in the fact that WKJD was sentenced to a total of only 15 months imprisonment, and was then immediately released on parole, after serving just four months, in circumstances where the maximum sentence for crimes of this nature is (potentially) imprisonment for a period of up to ten years.
[32] Ibid, pp 4-5, [16] – [23].
Ultimately, the Tribunal takes the view that because of the Ministerial Direction, the nature and context of WKJD’s offending now compels the Tribunal to categorise it as being ‘very serious’. That stated however, the Tribunal concurs with the observation by Senior Member Furnell in DLZZ, at [68], where Senior Member Furnell had said:
‘Not all very serious conduct attracts the same level of opprobrium. There are degrees of very serious conduct and, on the spectrum of very serious conduct, as I see it, the Applicant’s conduct sits at the lower end.’[33]
[33] DLZZ v Minister for Immigration, Citizenship, Multicultural Affairs (Migration) [2023] AATA 7 (9 January 2023).
Although DLZZ was not specifically a sexual assault case, it was nonetheless an instance of violent offending, by kicking, assault with a weapon, intentionally infliction of injury, and kidnapping. DLLZ had also been convicted of domestic violence offences on several prior occasions. The particular offences for which DLZZ was convicted – and which were considered in a Tribunal context by Senior Member Furnell – ultimately attracted a head sentence of over 20 months, thus making DLZZ’s offending objectively more serious than those offences here committed, by WKJD.
Without seeking in any way to diminish the seriousness and community opprobrium that must attach to WKJD’s offending, the ‘spectrum’ identified by Senior Member Furnell, – and as now acknowledged on innumerable occasions by Australian Courts when engaged in sentencing – is a legitimate factor for the Tribunal’s consideration, and the Tribunal considers it to be appropriate to place WKJD’s offending at the ‘lower end’ of what still remains ‘very serious’ conduct.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) of the Ministerial Direction provides that when considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be deemed unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(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; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
Assessing the nature of the harm to individuals or the Australian community that may occur if WKJD were to engage in further criminal or other serious conduct is a matter that is informed by the nature of his offending to date, including any escalation in that offending. This assessment also notes that the Ministerial Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. As indicated above, some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable.[34]
[34] Paragraph 8.1.2(1) of the Direction.
In relation to the nature of any potential future harm that may be caused in the event that WKJD were to re-offend in like circumstances, the Minister submits that the nature of the harm is ‘self-evidently serious’, such that any risk of repetition becomes ipso facto unacceptable. Here, the Minister submits that, although WKJD contends that he does not pose any unacceptable risk to the Australian community on the basis that his risk of re-offending was assessed as low by the psychologist Ms Victoria Barclay-Timmis, the Minister seeks to underscore that this risk assessment was one that was not ultimately accepted by Porter DCJ, who, when sentencing WKJD, had stated:
‘I’m not satisfied you’re a low risk of reoffending. Apart from articulating that you belong to various categories which seem to be correlated with a low risk of reoffending, though as is frequently the case, no analysis and explanation of how the correlation gives rise to causation is contained in the report – there are two matters that were specifically relied upon: your age at [redacted], and your engagement in a long-term relationship. I note that both of those protective factors were in place at the time of the first and the second offence. There’s nothing else before me in the psych report or anywhere else to persuade me you’re a particularly low risk of reoffending, and I don’t find as such.’[35]
[35] R2, p 7, [24].
Although the Minister acknowledges that WKJD has accessed psychology services whilst in immigration detention; and that WKJD has now obtained a psychology report for the purposes of the previous tribunal proceedings, (and again now for the current Tribunal proceeding) that similarly concludes that WKJD is a ‘low risk’ of re-offending, the Minister submits that there remains a risk of WKJD re-offending, as had been noted by his Porter DCJ. Here, the Minister notes that the so-called protective factors of family and employment as had been described in the original psychological report prepared by Ms Barclay-Timmis were similarly present at the time of WKJD’s offending in late 2017 and in early 2018 and, notwithstanding, these offences were still committed. As to the risk of recidivism, the Minister notes that WKJD is yet to access a suitable sex offender treatment program (despite his admittedly having made several attempts to do that); and the fact that WKJD will not return to driving taxis in the future does not, in and of itself, preclude the prospect of WKJD re-offending as ‘sexual offending is not necessarily confined to any particular profession’. Moreover, the Minister notes that the evidence remains ‘unclear’ as to whether WKJD’s PTSD, which has been identified as a contributing factor of his offending, has been properly treated. In all these circumstances the Minister submits that the Tribunal could not be confident that WKJD’s risk of recidivism is ‘low’. In this light, the Minister submits that Primary Consideration One weighs heavily in favour of the Tribunal affirming the decision to refuse WKJD the Visa.

In response to these contentions regarding future risk, Dr Haines contends that, even notwithstanding the obvious constraints imposed by the fact of his being held in immigration detention in [Location redacted], WKJD has taken every step reasonably open to him in an effort to seek treatment; and the question of the risk that WKJD might present in terms of re-offending needs to be considered in light of there now being three separate expert opinions that are essentially ad idem in stating that WKJD presents a very low risk of re-offending; and that the expiration of further time whilst WKJD has been in immigration detention – time during which WKJD has also undergone the various further therapies described in his IHMS records[36] – should be deemed as now sufficient in order to allay any of the concerns originally expressed by Porter DCJ during sentencing on 21 October 2019.
[36] R1, pp 279-285.
Dr Haines also points to the practical impossibility of WKJD ever returning to taxi driving, such as to submit that the precise circumstances that gave rise to both offences are now exceedingly unlikely to ever arise again in the future.
Likelihood of engaging in further criminal or other serious conduct
Ultimately, the Tribunal is unpersuaded by the Ministers arguments that the risk of future similar offending by WKJD now represent risk of a kind that could only be categorised as ‘unacceptable’. Here, the Tribunal does take note of the sentencing remarks made by his Honour Judge Porter DCJ, those in which his Honour had indicated his not being satisfied – solely on the basis of Ms Barclay-Timmis’ report – that WKJD presented only as a low risk of re-offending. However, the Tribunal now comes to a different view, and does so on the basis that the Tribunal deliberates at a point that is ‘further down the track’, and in light of there being additional expert evidence before the Tribunal, that was not previously available to his Honour at the date of sentencing. Now, each of Professor Metzer and Mr Watson-Munro also arrive at the same conclusion regarding the question of future risk as that obtained previously, by Ms Barclay-Timmis.
Despite there being no actuarial assessment of risk, all of the psychological expert opinion, – which is accepted and relied upon by the Tribunal – is consistent, in terms of expressing confident views regarding the low risk presented to the Australian community by WKJD. Similarly, Professor Metzer’s oral evidence when before the Tribunal, and as now excerpted in these reasons, is regarded as sufficient to allay any further concerns that WKJD’s – as yet insufficiently treated – PTSD may contribute to an increased profile of risk. Although there now may be some risk, the Tribunal assesses this as low, and tolerable. This necessitates some reduction in the weight that may otherwise attach in favour of a decision by the Tribunal affirming the decision under review to refuse to grant the Applicant the requested Visa.
In this light, rather than Primary Consideration One here attracting a ‘very heavy’ weighting in favour of affirming the decision under review, the Tribunal is satisfied that the low risk of WKJD re-offending is enough to reduce that weighting to only a ‘heavy’ weight, in favour of affirming the decision under review.
Conclusion: Primary Consideration 1
Primary Consideration One weighs heavily towards a decision to exercise the power conferred by subsection 501(1) to refuse WKJD the requested Visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Ministerial Direction provides:
1The 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 (see paragraph (3) below).
2This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
3In 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 non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
There is no evidence before the Tribunal that indicates the WKJD has been convicted of, or has otherwise been involved in, acts of family violence. As such, this consideration is not relevant in the Tribunal’s deliberations and now attracts only neutral weight.
Conclusion: Primary Consideration 2
This consideration weighs neutrally in the deliberation regarding the exercise of the power to refuse to grant WKJD the requested visa.
PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3 of the Ministerial Direction provides:
1Decision-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.
2In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
3The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
4Decision-makers 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)the length of time the non-citizen has resided in the Australian community, noting that:
(i)     considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii)    more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii)   less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
Given the circumstances of his arrival in 2013, WKJD has no immediate family in Australia. Dr Haines on behalf WKJD now submits that there are numerous community letters of support for WKJD, and that these now evidence the extent of goodwill towards WKJD, and show the ties that WKJD has managed to establish during his time in Australia. Dr Haines also notes, for purposes of paragraph 8.3(4)(a)(iii) of the Ministerial Direction, that WKJD had lived in Australia for ‘almost 5 years’ before committing the index offences.
The Minister accepts that WKJD has contributed to the Australian community through periods of employment, and that WKJD has forged friendships and social links within the community, and that these do now become factors in favour of setting aside the decision made on 11 May 2022 to refuse to grant WKJD the requested Visa. However, the Minister also notes that WKJD arrived in Australia as a 28-year-old adult, and that it was during the course of employment as a taxi driver that WKJD committed sexual offences against female passengers. The Minister submits that these two factors serve to attenuate some of the weight favourable to WKJD that the Tribunal might otherwise attribute to Primary Consideration Three. The Minister also submits that any weight favourable to WKJD that is attached by the Tribunal to Primary Consideration Three is still necessarily outweighed by the contrary weight that attaches to both of Primary Consideration One,[37] and Primary Consideration Five.[38]
[37] PC1: Protection of the Australian Community.
[38] PC5: Expectations of the Australian Community.
The Tribunal takes the view that, in the face of enormous difficulties, WKJD has worked very hard to create a new life for himself in Australia with a clear intent to support his wife and child in Pakistan in the interim; with a longer-term ambition to eventually arrive at a point wherein WKJD is able to sponsor their migration to Australia, as well. As part of that, WKJD has evidenced a very strong work ethic, and has forged various ties and links with the Australian community. These factors must be attributed at least some weight, in favour of a decision to set aside the reviewable decision, and to not refuse the Visa.
Conclusion: Primary Consideration 3
This consideration weighs slightly in favour of a decision to exercise the power to not refuse WKJD the requested visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.4(1) of the Ministerial Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child in Australia affected by the decision.
WKJD has one minor child, a son, ‘SAA’, now aged about ten and still living in Pakistan, who will be impacted by a decision to either exercise or not exercise the power to refuse WKJD’s visa application. However, because SAA lives in Pakistan, he does not qualify as ‘a minor child in Australia’ for the purposes of the Ministerial Direction, such that his circumstances cannot be taken up for consideration by the Tribunal as part of its deliberations in relation to Primary Consideration Four, which remain circumbscribed by the specific strictures of the Ministerial Direction. The Tribunal amply recognises that the best interests of SAA cannot be ignored altogether, and these do legitimately raise the prospect of an ‘Further Other Consideration’ also requiring consideration as part of the Tribunal’s overall deliberation. The best interests of SAA will therefore be considered further by the Tribunal, later below, in the context of Other Considerations.
Conclusion: Primary Consideration 4
Primary Consideration Four is not relevant, and thus weighs neutrally during this deliberation.
PRIMARY CONSIDERATION 5 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Ministerial Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Tribunal is required to consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.5(2) of the Ministerial Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
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.
Paragraph 8.5(3) of the Ministerial Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Ministerial Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph 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.
Paragraph 8.5 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Primary Consideration 5
Dr Haines on behalf WKJD submits that, consistent with observations made by Senior Member Taylor in Maut,[39] Primary Consideration Five does not give rise to ‘an inflexible direction that supplants consideration of the totality of the primary and other considerations’ and that the Australian community would expect leniency in WKJD’s relevant circumstances,[40] which include the relatively less serious nature of the crimes committed by WKJD, coupled with the significant untreated trauma suffered by WKJD; and the further anxiety caused to WKJD by the dire jeopardy in which his wife and child are still living, in Pakistan. On this issue Dr Haines concludes by submitting:
‘We submit, … that the Australian community would expect a more lenient consideration of cases like [WKJD’s] involving mental health conditions which are capable of and are receiving treatment. Furthermore, the Australian community may determine that people like [WKJD] who have been assessed by a sentencing judge as “not a high risk of offending” in future and have been gauged, moreover, as deserving of Australia’s protection, should not be kept in indefinite detention at the expense of the taxpayer.’[41]
[39] Maut v Minister for Home Affairs (Migration) [2018] AATA 2754 at [43].
[40] Applicant’s SFIC (10 February 2023) paragraph [40].
[41] A2, p 13, [44].
However, the Minister notes that, consistent with paragraph 8.5(4) of the Ministerial Direction, the Australian communities’ expectations in respect of those who have engaged in serious criminal conduct apply, irrespective of whether or not WKJD, owing to his mental health, now poses any measurable risk of future physical harm to the community. Regardless of whether WKJD’s mental health conditions are treatable, or whether these may or may not cause him to offend again in the future, the Minister submits that WKJD has committed serious offences, while in Australia as a non-citizen. Accordingly, the Australian community expectation that the government would not allow WKJD to either enter or remain in Australia is enlivened. Further, as WKJD committed sexual offences against women who were in a vulnerable position, the Minister submits that WKJD’s conduct is of a kind that would lead the Australian community to expect that WKJD would not be granted a visa. Accordingly, the Minister submits that Primary Consideration Five strongly favours a decision to affirm the reviewable decision.
Ultimately, the Tribunal is required to consider all of the circumstances of WKJD and his offending, and is here required to give appropriate weight to each of the Primary and Other Considerations, and to do so in light of the deliberative requirements mandated by the Ministerial Direction. In the final analysis, Primary Consideration Five can only be viewed as ‘a deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief’.[42] In these circumstances the Tribunal concludes that it becomes inescapable that Primary Consideration Five requires that heavy weight be attached by the Tribunal to a decision in favour of affirming the original Visa refusal decision.
Conclusion: Primary Consideration 5
[42] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76], per Mortimer J.
Primary consideration Five weighs heavily towards a decision to exercise the power conferred by subsection 501(1) to refuse WKJD the requested Visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Ministerial Direction.
Other Consideration (a): Legal consequence of the decision under section 501
Paragraph 9.1 of the Ministerial Direction directs a decision-maker to take into account the following:
1Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
2A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
3International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
9.1.1 Non-citizens covered by a protection finding
1Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
2Section 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 501CA 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.
3Decision-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 Page 12 of 24 Direction No. 99 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA 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.
9.1.2 Non-citizens not covered by a protection finding
1Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
2However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
3Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.

The Respondent Minister notes that a protection finding has been made in relation to WKJD. In consequence, WKJD will not be removed to Pakistan if the reviewable decision is affirmed, because of the effect of section 197C(3). WKJD will not be removed from Australia to Pakistan unless and until either:
·WKJD formally requests that he be removed to Pakistan; or
·WKJD is found to no longer engage Australia’s non-refoulment obligations.
The Minister concedes that if the Tribunal were to decide to affirm the reviewable decision, then WKJD would continue to be liable to detention in accordance with s.189 of the Act, such that it is acknowledged that the net result is that WKJD will be detained for an indeterminate period;[43] such that the fact of that becomes a prospect that should now weigh in favour of the setting aside of the reviewable decision. However, the Minister further submits that the prospect of indeterminate detention must still be assessed alongside the various Primary and Other Considerations, such that a Tribunal ‘may [still] conclude that Australia does owe non-refoulment obligations in respect of a person but that the risk to the Australian community posed by the person outweighs Australia[’s] compliance with those obligations, such that there is no ‘other reason’.[44] Ultimately, in the Minister’s submission, the prospect of indefinite detention for WKJD, although serious, is a matter that is still necessarily outweighed by each of Primary Considerations One, and Five.
[43] Al-Kateb v Goodwin (2004) 219 CLR 562
[44] Ali v Minister for Homes Affairs [2020] FCAFC 109 at [110].
In the Tribunal’s view, the prospect of WKJD being held in immigration detention on an indeterminate basis now becomes a very real prospect and, although lawful, remains especially troubling. Very heavy weight in favour of setting aside the reviewable decision and not exercising the power to refuse WKJD the requested Visa now attaches, because of the prospect of indeterminate detention arising, if the decision were to be otherwise.
Conclusion: Other Consideration (a)
Other consideration (a) weighs very heavily in favour of not exercising the power to refuse the visa.
Other Consideration (b): Extent of impediments if removed
Paragraph 9.2 of the Ministerial Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in terms of their re-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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Dr Haines submits that WKJD would face ‘severe’[45] impediments and a real risk to his personal safety at the hands of the Taliban if he were to return to Pakistan, and that WKJD’s mental health conditions are significant, and these will considerably worsen, in the event that WKJD is returned to Pakistan. In the event that WKJD were to return to reside with his wife and son in Pakistan, then the risks that the wife and son already face in that country would only increase, as well.
[45] A2, [57].
The Minister accepts that WKJD would face ‘significant’ impediments if removed to Pakistan, and accepts that, in an overall sense, this consideration now favours not refusing WKJD’s requested visa. However, the Minister submits that the weight that the Tribunal might attach to this consideration should still be moderated by the fact that WKJD would not be removed to Pakistan unless he made a formal request for that to occur, or if a finding were first made that non-refoulment obligations were no longer owed to WKJD.
The Tribunal is not persuaded that it is appropriate to moderate the weight that attaches to Other Consideration (b) on the grounds now contended by the Minister. Paragraph 9.2(1) of the Ministerial Direction requires the Tribunal to consider the extent of impediments that WKJD may face ‘if removed from Australia to their home country’, such that the deliberation is one to be undertaken in the context of a presumed removal to the receiving country.
WKJD is now aged 38 years. On the basis of the limited medical evidence that is available to the Tribunal, WKJD at least appears to be a man who is in ‘fair’ physical health, yet at the same time is assessed by the Tribunal as being a person who is in a ‘quite poor’ state of psychological health. WKJD clearly faces no substantial language barriers in Pakistan, yet as a member of the Shi’ia and Bangash minorities WKJD now faces very considerable – and even life-threatening – cultural barriers, in Pakistan. In the theoretical event that WKJD were to be returned to Pakistan, he will face what the Tribunal can only now consider would be insuperable daily difficulty.
Conclusion: Other Consideration (b)
Other consideration (b) weighs very heavily in favour of not exercising the power to refuse the visa.
Other Consideration (c): Impact on victims
Paragraph 9.3 of the Ministerial Direction directs a decision-maker to take into account the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence available before the Tribunal in relation to the impact of this Decision on victims WKJD’s Visa application either being granted, or refused. In the absence of such evidence this consideration may be given only neutral weight.
Conclusion: Other Consideration (c)
Other consideration (c) weighs neutrally.
Other Consideration (d): Impact on Australian business interests
Paragraph 9.4 of the Ministerial Direction directs a decision-maker to take into account the following:
1Decision-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.
While WKJD has a solid history of employment in Australia, there is no evidence that a decision in these proceedings could significantly compromise the delivery of a major project, or service. This consideration therefore attracts only neutral weight.
Conclusion: Other Consideration (d)
Other consideration (d) weighs neutrally.
Further Other Considerations – (i) best interests of a minor child exposed to overseas danger
WKJD has submitted[46] that beyond those matters specifically identified in Ministerial Direction 99 as ‘other considerations’, the Tribunal needs to consider the plight of WKJD’s son in Pakistan, ‘SAA’, whom WKJD hopes to eventually sponsor to come to Australia, in the event that WKJD is granted the requested visa. SAA also faces danger from the Taliban and this ought now weigh as a further factor in favour of granting WKJD‘s visa application. As indicated previously, the Tribunal accepts that the best interests of SAA are now a relevant factor that must be considered by the Tribunal, as part of this deliberation.
[46] Applicant’s SFIC (dated 10 February 2023) p.10, paragraph [36] and p. 18, see also attachment F thereto, at p. 1.
The Minister acknowledges the prospect of danger to SAA in Pakistan, yet submits that, when considering whether or not to exercise the power to refuse the Visa, the Tribunal cannot consider the effect of this decision on any future visa applications: such as whether WKJD obtaining a visa in consequence of these proceedings will in the future permit WKJD to apply for a visa sponsoring his son to come to Australia. Indeed, in RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3602 (later affirmed on appeal),[47] the Tribunal found that it should not ‘speculate on the potential cost of immigration detention that is yet to occur, or future applications that are yet to be made’[48].
[47] RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1273.
[48] RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3602 at [181].
Here, the Tribunal observes that SAA has remained in Pakistan for the entirety of the period that WKJD has been in Australia, and even in the event of a favourable outcome for WKJD in these proceedings, SAA and his mother BS would still continue to remain in Pakistan – and thus to be exposed to further risk – for a considerable further period of time, before arrangements could be made for them to join WKJD in Australia. The Tribunal is however prepared to accept that SAA would be exposed to increased personal risk in Pakistan, in the event that WKJD were to be returned to Pakistan, to reside with his wife and child.
Because of RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs no weight can attach to the impact of any Tribunal decision on the future prospects of either or both SAA and BS being sponsored to come to Australia. Despite that, at least some weight attaches to the increased risk that SAA and BS may face, in the event that WKJD were to return to live with them in Pakistan.
Conclusion: Further Other Consideration (i) – best interests of a minor child exposed to overseas danger:
Some weight attaches in favour of a decision to set aside the reviewable decision and substitute it with a decision to not exercise the power to refuse the Visa because of this Consideration.
Further Other Consideration (ii): Indefinite Detention
Dr Haines has also submitted as another other consideration, the prospect of WKJD’s indefinite detention. In response, the Minister acknowledges the seriousness of the prospect of WKJD’s indefinite detention, yet contends that this consideration is (a), outweighed by Primary Considerations One and Five; and (b), constitutes a legal consequence of the Tribunal’s decision, such that consideration of it should be confined to the other consideration referable to indefinite detention that is already specifically identified in paragraph 9.1 of the Ministerial Direction.[49]
[49] R2, pp 11-13, [52]-[61].
The Tribunal considers that appropriate consideration and weight has already been given to the spectre of WKJD’s indefinite detention during the Tribunal’s consideration of Other Consideration (a), such that the Tribunal declines to consider this issue again here, in the context of it being claimed to also give rise to an additional Other Consideration.
Conclusion: Further Other Consideration (ii) – Indefinite Detention:
This claimed Further Other Consideration does not arise, such that no weight attaches to the claimed consideration.
Overall Assessment
It is necessary to weigh up all of the Primary and Other Considerations.
·Primary Consideration 1 weighs heavily against WKJD.
·Primary Consideration 2 weighs neutrally.
·Primary Consideration 3 affords slight weight in favour of WKJD.
·Primary Consideration 4 weighs neutrally.
·Primary Consideration 5 weighs heavily against WKJD.
·Other Consideration (a) weighs very heavily in favour of WKJD.
·Other Consideration (b) weighs very heavily in favour of WKJD.
·Other Considerations, (c) and (d) each weigh neutrally.
·Further Other Consideration (i) affords some weight in favour of WKJD.
·Further Other Consideration (ii) is found not to arise for discrete consideration.
Accordingly, the Tribunal determines that the proper application of the Ministerial Direction necessitates the Tribunal set aside the decision of the Delegate made on 11 May 2022 and to now substitute with a decision to not exercise the discretion to refuse to grant a subclass 790 (Class XE) Safe Haven Enterprise Visa.
DECISION
The Tribunal sets aside the reviewable decision of 11 May 2022 and substitutes it with a decision that the discretion to refuse the Applicant’s Subclass 790 (Class XE) Safe Haven Enterprise Visa under section 501(1) of the Migration Act 1958 (Cth) is not exercised.

I certify that the preceding 131 (one-hundred and thirty-one) paragraphs are a true copy of the reasons for the decision herein of Member McLean Williams

.....................................[SGD]..............................
Associate
Dated: 28 April 2023

Dates of hearing:

Advocate for the Applicant:

8 and 9 March 2023

Dr Timothy Haines

Emulink Migration & Intercultural Consultancies

Solicitor for the Respondent:

Kate Ervin

Clayton Utz

Annexure A – List of Exhibits

EXHIBIT DESCRIPTION OF EVIDENCE DATE OF DOCUMENT DATE RECEIVED

R1
Remittal Bundle
(RB1-RB6, pages 1-523)
Various 4 January 2023

R2
Respondent SFIC
(pages 1-15)
23 February 2023 23 February 2023

A1
Applicant SFIC
(pages 1-135)
31 January 2023 31 January 2023

A2
Applicant updated SFIC
(pages 1-23)
10 February 2023 10 February 2023

A3
List of Authorities
(1 page)
10 February 2023 10 February 2023

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
R1	Remittal Bundle (RB1-RB6, pages 1-523)	Various	4 January 2023
R2	Respondent SFIC (pages 1-15)	23 February 2023	23 February 2023
A1	Applicant SFIC (pages 1-135)	31 January 2023	31 January 2023
A2	Applicant updated SFIC (pages 1-23)	10 February 2023	10 February 2023
A3	List of Authorities (1 page)	10 February 2023	10 February 2023