WKJD and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

[2022] AATA 2997

WKJD and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 2997 (19 August 2022)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2022/4461
General Division	)

Re: WKJD
Applicant

And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent

DIRECTION

TRIBUNAL:Senior Member A George

DATE OF CORRIGENDUM:     13 September 2022

PLACE:Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.

1. At paragraph 9 the word ‘to’ is inserted after the words ‘another reason’;

2. At paragraph 18, the word ‘is’ is replaced by the word ‘are’;

3. At paragraph 23, the word ‘sort’ is replaced by the word ‘sought’;

4. At paragraph 59, the word ‘was’ is inserted after the words ‘non-parole period’;

5. At paragraph 68, the words ‘revocation of the cancellation of the Applicant's visa’ are replaced by the words ‘setting aside the decision under review’;

6. At paragraph 72, the word ‘stipulate’ is replaced by the word ‘stipulates’;

7. At paragraph 80, the words ‘revocation of the cancellation of the Applicant's visa’ are replaced by the words ‘setting aside the decision under review’;

8. At paragraph 84, the word ‘is’ is inserted after the words ‘cancellation decision’;

9. At paragraph 101, the words, ‘revocation of the cancellation of the Applicant's visa’ are replaced by the words ‘setting aside the decision under review’;

10. In paragraph 118, the word ‘member’ is replaced by the word ‘members’;

11. In paragraph 121, the word ‘in’ is replaced by the word ‘within’;

12. In paragraph 127, the word ‘as’ is inserted after the word ‘finds’.

.............................[Sgnd]......................

A GEORGE

(Senior Member)

Division:GENERAL DIVISION

File Number           2022/4461

Re:WKJD  

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member George

Date of Decision:               19 August 2022

Date of Written Reasons:      9 September 2022

Place:Adelaide

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 11 May 2022 under section 501(1) of the Migration Act 1958 (Cth) to refuse to grant the Applicant’s application for a Safe Haven Enterprise (Class XE) visa.

[sgnd]            
Senior Member George

Catchwords

MIGRATION – Refusal of a Safe Haven Enterprise (Class XE) visa – where Applicant does not pass the character test – consideration of Ministerial Direction No. 90 – offending very serious – decision under review affirmed

Legislation

Criminal Code 1899 (Qld)

Migration Act 1958 (Cth)

Cases

Afu v Minister for Home Affairs [2018] FCA 1311

ENT19 v Minister for Home Affairs [2021] FCAFC 217

FYBR v Minister for Home Affairs [2019] FCAFC 185

HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121

Minister for Home Affairs v Buadromo [2018] FCAFC 15

MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35

The Queen v A2 [2019] HCA 35

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIAL

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

REASONS FOR DECISION

Senior Member George

9 September 2022

INTRODUCTION AND BACKGROUND

1. WKJD (“the Applicant”) was born Pakistan in January 1985 and is currently aged 37 years.[1] He is a citizen of the Islamic Republic of Pakistan and he departed Lahore in April 2013.[2] The Applicant arrived in Australia in May 2013.[3]

   [1] Exhibit R1, s 501 G-Documents, G9, page 265.

   [2] Exhibit R1, s 501 G-Documents, G5, page 193.

   [3] Exhibit R1, s 501 G-Documents, G2, page 119.

2. The Applicant was an Irregular Maritime Arrival.[4] The Applicant was granted a Humanitarian Stay (Temporary) (Subclass 449) visa and a Bridging E (Class WE) Visa in July 2013, with further Bridging E (Class WE) Visas being granted in December 2014 and December 2015 and October 2016.[5]

   [4] Exhibit R1, s 501 G-Documents, G4, page 153-171.

   [5] Exhibit R1, s 501 G-Documents, G12, page 291.

3. In August 2016, the Applicant lodged an application for a Safe Haven Enterprise (Class XE) visa.[6] On 11 May 2022, following convictions for sexual assault and sentences of imprisonment,[7] the Applicant’s visa application was refused under s 501(1) of the Migration Act 1958 (Cth) (“the Act”). This refusal decision is the “reviewable decision”.[8]

   [6] Exhibit R1, s 501 G-Documents, G5, page 172-226.

   [7] Exhibit R1, s 501 G-Documents, G2, pages 28-29

   [8] Exhibit R1, s 501 G-Documents, G2, page 9.

4. Following the provision of the reviewable decision on 27 May 2022,[9] the Applicant lodged an application for review of the reviewable decision before the Tribunal on 2 June 2022.[10] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.

   [9] Exhibit R1, s 501 G-Documents, G2, pages 6-8.

   [10] Exhibit R1, s 501 G-Documents, G1, pages 1-4

5. The hearing proceeded on 4 and 5 August 2022 by audio-visual means with the assistance of an interpreter. The Applicant gave evidence at the hearing as did a consultant psychologist, Mr Tim Watson-Munro.

6. The Applicant was represented by Ms Yu of Counsel instructed by Legal Aid New South Wales and the Respondent was represented by Ms Ervin of Clayton Utz.

7. The Tribunal received the written evidence that is listed in the Exhibit Register marked “Annexure A”.

   LEGISLATIVE FRAMEWORK

8. The issue in this application is whether the correct or preferable decision is to set aside the reviewable decision.

9. There are two alternate conditions precedent to the exercise of the discretion to set aside the reviewable decision: either the Applicant must be found to pass the character test; or, the Tribunal must be satisfied that there is another reason set aside the reviewable decision.

   Does the Applicant Pass the Character Test?

10. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

11. On 21 October 2019, following pleas of guilty, the Applicant was convicted of two sexual assaults contrary s 352(1)(A) of the Criminal Code 1899 (Qld) (“the Code”) in the District Court of Queensland at Toowoomba.[11]

    [11] Exhibit R1, s 501 G-Documents, G8, page 250.

12. On the first sexual assault, occurring in December 2017, the Applicant was convicted and sentenced to a period of six months’ imprisonment.[12]

    [12] ibid.

13. On the second sexual assault, occurring in January 2018, the Applicant was convicted and sentenced to a period of 15 months’ imprisonment.[13]

    [13] ibid.

14. The terms of imprisonment for both sentences were served concurrently and the Applicant’s parole eligibility date was 21 February 2020, being a non-parole period of four months.

15. The operational effect of ss 501(6)(a) and 501(7)(c) is such that the Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test.

    Is there another reason why the refusal of the Applicant’s visa application should be set-aside?

16. In considering whether to exercise its discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[14]

    [14] 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.

17. For the purposes of deciding whether to refuse or cancel a non-citizen’s visa, or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 of the Direction where relevant to the decision.

18. The principles that are found in paragraph 5.2 of the Direction is stated as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other 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.

    (5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

19. Paragraph 6 of the 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.

20. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:

    (1)  protection of the Australian community from criminal or other serious conduct;

    (2)  whether the conduct engaged in constituted family violence;

    (3)  the best interests of minor children in Australia; and

    (4)  expectations of the Australian community.

21. Paragraph 9 of the Direction sets out the Other Considerations which must be taken into account. These considerations are:

    a)   international non-refoulement obligations;

    b)   extent of impediments if removed;

    c)   impact on victims; and

    d)   links to the Australian community, including:

    i)        strength, nature and duration of ties to Australia; and

    ii)       impact on Australian business interests

22. Paragraph 7(2) of the Direction provides that the “primary considerations should generally be given more weight than the other considerations”. Paragraph 7(3) provides that “[o]ne or more primary considerations may outweigh other primary considerations.”

    BACKGROUND and offending

23. The Applicant has sort refuge in Australia from Pakistan, having left Pakistan because “My life was in risk in Pakistan, there was Taliban and lashkar-e Jangaway, who killed my father an threaten me as well”.[15] The Applicant chose Australia as his destination because “Australia is a safe place and there is humanity valued”.[16]

    [15] Exhibit R1, s 501 G-Documents, G4, page 162.

    [16] Exhibit R1, s 501 G-Documents, G4, page 170.

24. The Applicant’s evidence is that “My ethnicity, Bangash, and my Shi’ia branch of Muslim, make me a member of two minorities in my country”.[17] He has written:

    We are a minority and without a strong central government able to control the majority Sunnis, we will always be victims. When I returned from Karachi which my family encouraged me to do, I knew that I could not stay long as the area around our village is extremely dangerous.[18]

    [17] Exhibit R1, s 501 G-Documents, G5, page 210.

    [18] Exhibit R1, s 501 G-Documents, G9, page 268.

25. In a report dated 11 July 2022, Mr Watson-Munro, a consultant psychologist, wrote of the Applicant:

    He had five sisters of which one was murdered by the Taliban, in addition to a 42 year old brother. All siblings are domiciled in Pakistan and he is the youngest in the family. His mother died when he was 3 months of age and his father was murdered with his sister in 2008.[19]

    [Emphasis added]

    [19] Exhibit A3, page 4.

26. A similar account is relied upon in the report of Ms Victoria Barclay-Timmis, a clinical psychologist, dated 12 September 2019.[20]

    [20] Exhibit R1, s 501 G-Documents, G2, page 57.

27. The report of a murder of a sister is incorrect and the Applicant’s evidence is that his sisters are all alive.[21]

    [21] Exhibit A2, page 5.

28. It is unclear how the murder of a sister was incorrectly repeated in two psychological reports. It is concerning that this inaccuracy was reflected in mitigation in the sentencing remarks of Porter DCJ,[22] who seems to have relied upon the report of Ms Barclay-Timmis. However, the Tribunal also notes that Porter DCJ did not accept substantial aspects of this report.[23] His Honour found with regard to the risk of recidivism as follows:

    However, 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. For example, there’s nothing to persuade me that you have any real insight into how this came about when you are a man otherwise of good character.[24]

    [Emphasis added]

    [22] Exhibit R1, s 501 G-Documents, G2, page 34.

    [23] Exhibit R1, s 501 G-Documents, G2, page 35.

    [24] Exhibit R1, s 501 G-Documents, G2, page 35.

29. From His Honour’s remarks that “no analysis and explanation of how the correlation gives rise to causation is contained in the report”, the Tribunal infers that Ms Barclay-Timmis did not conduct an actuarial risk assessment such as with the STATIC-99R. Instead, Ms Barclay-Timmis outlined the static and dynamic factors of the Applicant’s predictors of criminal recidivism. Relying on the Minnesota Multiphasic Personality Inventory-2, she then diagnosed the Applicant with a Major Depressive Disorder and, “as a direct result of being charged by police”, an Adjustment Disorder with anxiety. Ms Barclay-Timmis reported the Applicant’s risk of sexual recidivism in the following terms:

    After careful consideration of the specific factors of this case (outlined herein), a low risk of reoffending has been identified. Important protective factors included [WKJD]’s lack of offending history, no deviant sexual interests, no history of mental illness or substance use/abuse, display of victim empathy, and compliance with the legal processes.[25]

    [Emphasis added]

    [25] Exhibit R1, s 501 G-Documents, G2, page 57.

30. In the Applicant’s Application for a Safe Haven Enterprise (Class XE) visa of 19 October 2016, he detailed that his parents were deceased. He had a brother living in the United Arab Emirates[26] and five sisters living in Pakistan, none of whom were deceased. His son was born in December 2011.[27] The Applicant was married in February 2011.[28] The Applicant’s wife and son lived in Pakistan. He spoke by mobile phone “every few days to my wife in Pakistan”.[29] Mr Watson-Munro’s report indicates that the Applicant has continued to speak to his wife and son “utilising WhatsApp, Skype and the telephone”.[30]

    [26] Medical evidence suggests this brother may have been living in Pakistan in 2020: Exhibit A2, page 66.

    [27] Exhibit R1, s 501 G-Documents, G5, page 190.

    [28] Exhibit R1, s 501 G-Documents, G5, page 188.

    [29] Exhibit R1, s 501 G-Documents, G5, page 192.

    [30] Exhibit A3, page 5.

31. In the reviewable decision, the delegate wrote that the Applicant “… was found to be owed protection due to his ethnicity and religious beliefs of being Shia Muslim”.[31] The delegate went on to write:

    I am aware that the Delegate who considered [WKJD]’s protection visa application made a protection finding for [WKJD]. Specifically, the Delegate was satisfied that [WKJD] satisfied the criterion in s36(2)(a) of the Act with respect to Pakistan and also satisfied the criterion in s36(1C).[32]

    [31] Exhibit R1, s 501 G-Documents, G2, page 19.

    [32] Exhibit R1, s 501 G-Documents, G2, page 19.

32. This assessment was completed on 1 August 2018 and the Applicant was found to have a refugee claim based on persecution on “religious grounds”.[33] The effect of the assessment was that the Applicant was not considered to be a danger to Australia’s security or, in the words of s 36(1C)(b), was not “a danger to the Australian community” as a result of “having been convicted by a final judgment of a particularly serious crime”.

    [33] Exhibit A2, page 65.

33. At the time of the assessment, the Applicant was on bail for charges of “Enter Dwelling with Intent at Night” contrary to ss 419(1) &(3)(A) of the Code, “Sexual Assaults” contrary to s 352(1)(A) of the Code, and “Assault with Intent to Commit Rape” contrary to s 351 of the Code.[34] The Applicant breached this bail in March 2018, although in May 2018 the Magistrates’ Court of Queensland in Toowoomba did not record a conviction.[35]

    [34] Exhibit R1, s 501 G-Documents, G7, page 235.

    [35] Exhibit R1, s 501 G-Documents, G2, page 31.

34. The applicant was a taxi driver in Pakistan,[36] which is an occupation he continued in Australia.[37] The Applicant was also employed as a meat process worker in Australia,[38] which also reflects similar previous employment in Pakistan.[39] He had various other casual employment. Mr Watson-Munro has described the Applicant’s employment efforts in Australia as being “[r]eflective of a strong work ethic”.[40]

    [36] Exhibit R1, s 501 G-Documents, G5, page 213.

    [37] Exhibit R1, s 501 G-Documents, G7, page 235.

    [38] Exhibit R1, s 501 G-Documents, G2, page 76; Exhibit A2, page 6.

    [39] Exhibit R1, s 501 G-Documents, G5, page 201.

    [40] Exhibit A3, page 2.

35. It was whilst working as a taxi driver that the Applicant committed two separate sexual assaults against two women. The first offence occurred in December 2017 and the second offence occurred in January 2018.

36. The sentencing remarks of Porter DCJ are before the Tribunal.[41] These have been heavily redacted, no doubt to protect the privacy of the Applicant’s victims. Accordingly, it is only necessary to broadly summarise the facts of the offending.

    [41] Exhibit R1, s 501 G-Documents, G2, pages 32-36.

1. In the December 2017 offending, the Applicant had sexually assaulted an older female passenger in her home. The victim had been at a function and booked a taxi. The Applicant took her home and having done so, asked to use her toilet. After returning to the victim’s lounge room, the Applicant kissed the victim on the lips for about three seconds. She was shocked and pulled back. The Applicant then tried to kiss the victim again. The Applicant left after being told firmly to do so.

2. In the January 2018 offending, the Applicant sexually assaulted a younger female passenger after she fell asleep in his taxi. This offending was more violent.[42] The Applicant opened the front passenger door, where the victim was sitting, and pulled her out of the taxi. He kissed her on the lips and, after the victim resisted, the Applicant persisted in further attempts to kiss her. After pinning the victim to the taxi, the Applicant put his hands down the victim’s pants and touched the top of her vagina. The victim fell back into the taxi and demanded to be taken the short distance home, whereupon she paid the fare and ran into the house.

   [42] Exhibit R1, s 501 G-Documents, G2, page 35.

3. His Honour made the following comments about the Applicant’s offending:

   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.[43]

   [Emphasis added]

   [43] Exhibit R1, s 501 G-Documents, G2, page 34.

4. As already noted, His Honour did not accept Ms Barclay-Timmis’ opinion that the Applicant possessed a low risk of reoffending. Nevertheless, and in his later report prepared for these proceedings, Mr Watson-Munro noted that “I respectfully concur with the opinions expressed by Ms Barclay-Timmis”.[44]

   [44] Exhibit A3, page 9.

5. In a mental health consultation on 24 January 2022 with Mr Geoffrey Fox, it was reported of the Applicant that “He stated that he only kissed his victims and was not thinking of anything more than that”.[45] When cross-examined on this evidence regarding the efficacy of any treatment of the Applicant, Mr Watson-Munro stated:

   There’s certainly a degree of minimisation in relation to the second offence, and of course, there was very disturbing conduct surrounding both offences. I might add that this type of minimisation and denial is not uncommon in individuals charged with this type of offending, indeed, more generic offending. It’s something that would need to be worked on in therapy in terms of confronting the reality of what is done. To answer your question, it doesn’t minimise the efficacy of the treatment, but it’s certainly one issue that would need to be addressed in treatment as to why he made that comment.[46]

   [45] Exhibit A2, page 29.

   [46] Transcript, page 18, lines 37-45.

6. During cross-examination in these proceedings, the Applicant explained his reasons for the first sexual assault were because:

   So, at that time my mental health was not in its right place. There was a huge load of my past trauma that was hanging over my head, and I was depressed as well. That’s why.[47]

   [47] Transcript, page 24, lines 44-46.

7. The Applicant’s reasons for the second sexual assault were similar:

   It was the same issue, the same problem. My past trauma was weighing heavily in my mind on my head, and I just couldn’t cope or deal with the separation that I had with my wife and my children - being separated from my wife and my children for so long. I couldn’t deal with it anymore. I couldn’t handle it.[48]

   [48] Transcript, page 25, lines 18-22.

8. These reasons are not reflected in Mr Watson-Munro’s report, but they are consistent with the minimisation and denial addressed by Mr Watson-Munro under cross-examination.

   PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

9. In considering this Primary Consideration 1, paragraph 8.1 of the 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 should have particular regard to the principle that entering or remaining in Australia is a privilege that this country 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.

10. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:

    a)   The nature and seriousness of the non-citizen’s conduct to date; and

    b)   The risk to the Australian community should the non-citizen commit further   offences or engage in other serious conduct.

    The Nature and Seriousness of the Applicant’s Conduct to Date

11. 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 Direction specifies that decision-makers must have regard to a number of factors. The Tribunal will now turn to addressing these considerations.

12. Sub-paragraph (a) of paragraph 8.1.1(1) of the 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.

13. The Applicant has committed two sexual assaults against women in the course of his employment, both of which were “the kind of assault which is every woman’s nightmare”.[49]

    [49] Exhibit R1, s501 G-Documents, G2, page 34.

14. Previous submissions made by the Refugee Advice and Casework Service on 5 August 2021, and not pressed at the hearing, were that:

    There were no aggravating circumstances in [WKJD’s] case. Moreover, we submit that his minimal sentence of 4 months without parole is at the low end of sentencing for sexual assault cases and that this supports a finding that, in the context of sexual assault offences, his offending is on the lower scale of seriousness.[50]

    [50] Exhibit R1, s501 G-Documents, G2, page 40..

15. The maximum penalty for a sexual assault under s 352 of the Code is 10 years’ imprisonment. A circumstance of aggravation, such as being armed with a dangerous or offensive weapon or being in company with any other person, renders a person liable to a maximum period of imprisonment of life under s 352(3) of the Code. That a lack of such aggravating circumstances should somehow minimise the seriousness of the Applicant’s criminal conduct is unpersuasive.

16. As to the submission that the offending is on the lower scale of seriousness, this is not clearly supported by His Honour’s sentencing remarks. On the contrary, general deterrence was a very significant consideration for His Honour.

17. Accordingly, the Applicant’s offending is viewed very seriously by the Tribunal.

18. Sub-paragraph (b) of paragraph 8.1.1(1) of the 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;

    (i)   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));

    (ii) 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.

19. In sentencing, His Honour remarked that “the second woman was preyed on in a circumstance where she was particularly vulnerable having fallen asleep”.[51]

    [51] Exhibit R1, s501 G-Documents, G2, page 34.

20. Accordingly, the Applicant’s second offence is viewed particularly seriously by the Tribunal.

21. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) 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.[52]

    [52] Pavey and Minister for Home Affairs [2019] AATA 4198, [44].

22. On the first sexual assault, occurring in December 2017, the Applicant was convicted and sentenced to a period of six months’ imprisonment. On the second sexual assault, occurring in January 2018, the Applicant was convicted and sentenced to a period of 15 months’ imprisonment.

23. Although the terms of imprisonment for both sentences were served concurrently, and the non-parole period four months, that a first offender was sentenced to a term of actual imprisonment reflects the objective seriousness of the Applicant’s offending.

24. Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.

25. The increase in sentences of terms of actual imprisonment between the first sexual assault and the second sexual assault reflects the increased seriousness of the second offence. His Honour relevantly remarked that “it is disturbing that you were more persistent and aggressive with the second younger woman after having been easily repelled by the discouragement of the first woman”.[53] This is despite the “fierce resistance” demonstrated by the second woman.[54]

    [53] Exhibit R1, s501 G-Documents, G2, page 34.

    [54] Exhibit R1, s501 G-Documents, G2, page 34.

26. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.

27. There is no evidence before the Tribunal of the cumulative effect of an Applicant’s sexual offending against two different victims on separate occasions, notwithstanding that both attacks occurred in a relatively confined locale and community. Therefore, the Tribunal does not regard this factor to be relevant.

28. Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.

29. There is no evidence before the Tribunal that the Applicant has provided false or misleading information to the Department. Therefore, the Tribunal does not regard this factor to be relevant.

30. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about 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. The Tribunal notes that the absence of a warning should not be considered to be in the non-citizen’s favour.

31. There is no evidence before the Tribunal that the Applicant was formally warned about the consequences of further offending in terms of his migration status as a non-citizen. Therefore, the Tribunal does not regard this factor to be relevant.

32. The Tribunal does not consider factors (e), (f) or (g) of paragraph 8.1.1(1) of the Direction applies to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.

    The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

33. Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.

34. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

35. 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; and

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    (i)information and evidence on the risk of the non-citizen re-offending; and

    (ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

    (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

36. The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulate that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.

37. His Honour’s sentencing remarks were unequivocal that “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”.[55]

    [55] Exhibit R1, s501 G-Documents, G2, page 34.

38. To date, the Applicant has sexually offended twice and in escalating circumstances. The Australian community’s tolerance for the harm caused by such offending becomes lower as the seriousness of the potential harm increases. Indeed, the Applicant’s second persistent and aggressive sexual offending against a vulnerable woman is so serious that any risk that it may be repeated is unacceptable.

    Likelihood of engaging in further criminal or other serious conduct

39. The best evidence regarding the likelihood of the Applicant engaging in further criminal or serious conduct is that of Mr Watson-Munro. This is because Mr Watson-Munro’s evidence is the most recent, has had the benefit of the most complete material for consideration, and was tested in the hearing. Mr Watson-Munro concluded that:

    Taking all factors into account, I believe that the risk of him reoffending in this manner is low. I anticipate that with ongoing support and treatment, his overall prognosis from a forensic perspective [is] positive.[56]

    [Emphasis added]

    [56] Exhibit A3, page 11.

40. Mr Watson-Munro’s view is that the Applicant would not be returning to taxi driving if he were released into the Australian community, so that risk factor is no longer existent.[57] The Tribunal notes that taxi driving was not a specific risk factor previously addressed by Ms Barclay-Timmis or Mr Watson-Munro in their reports, but that employment was a protective factor.[58] In any event, the substance of the Applicant’s evidence is that his mental health was suffering due to past trauma and that is why he offended on both occasions.

    [57] Transcript, page 17, lines 38-43.

    [58] Exhibit A3, page 11.

41. There is no clear explanation before the Tribunal as to the reason why the Applicant’s sexual offending escalated. As Mr Watson-Munro observed, the Applicant has minimised his offending particularly regarding the second offence. Mr Watson-Munro nonetheless opined that motivational and supportive psychotherapy would benefit psychological treatment of the Applicant,[59] thus reducing his risk of recidivism. The Tribunal places weight on this opinion, but also observes that the Applicant has not yet completed such specialised treatment. This may not be his fault due to the unavailability of some treatment options in detention.[60] He has completed short courses in stress management and anger management.[61] Nevertheless, the fact remains that the Applicant has not completed specialised psychological treatment.

    [59] Transcript, page 20, lines 1-20

    [60] Transcript page 16, lines 25-31; Exhibit R1, s501 G-Documents, G2, pages 83-87.

    [61] Exhibit R1, s501 G-Documents, G2, pages 79, 81.

42. The Applicant has rightly submitted that “there is no such thing as no risk. The real question is whether there is an unacceptable risk”.[62]

    [62] Transcript, page 33, lines 41-44.

43. Considering all the material before it, the Tribunal regards the risk of the Applicant reoffending in the manner of his antecedents as low if released into the Australian community. However, the Tribunal cannot ignore the escalating and very serious nature of those antecedents. They were nightmarish. The Applicant clearly requires specialised psychological treatment to reduce his risk of recidivism. The Applicant’s second persistent and aggressive sexual offending against a vulnerable woman is so serious that any risk that it may be repeated is unacceptable. Accordingly, the Tribunal regards the Applicant’s risk of engaging in further criminal or other serious conduct as unacceptable.

    Conclusion: Primary Consideration 1

1. Primary Consideration 1 weighs very heavily against revocation of the cancellation of the Applicant’s visa.

   PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

2. Paragraph 8.2 of the Direction provides:  

   (1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

   (2)This 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.

   (3)In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:

   a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;

   b)the cumulative effect of repeated acts of family violence;

   c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

   i.the extent to which the person accepts responsibility for their family violence related conduct;

   ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

   iii.efforts to address factors which contributed to their conduct; and

   d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.

3. Issues of family violence do not arise in this matter and therefore this consideration is not relevant.

   Conclusion: Primary Consideration 2

4. Primary Consideration 2 is not relevant.

   Primary Consideration 3: The best interests of minor children in Australia AFFECTED BY THE DECISION

5. Paragraph 8.3(1) of the Direction compels 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 affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

6. The Direction sets out a number of factors in paragraph 8.3(4) to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

   a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

   b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements

   c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

   d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

   e)whether there are other persons who already fulfil a parental role in relation to the child;

   f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

   g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

   h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

7. It is not in contest in this matter that the Applicant does not have any minor children in Australia. It is instead contended that “The applicant is the biological father of one child who is currently living in Pakistan with the applicant’s wife”,[63] and that “He consistently worked two jobs in order to support his family in Pakistan and hoped to have his wife and son eventually join him”.[64]

   [63] Exhibit A1, page 3, paragraph [4].

   [64] Exhibit R1, s 501 G-Documents, G2, page 57.

8. The Respondent has contended that Primary Consideration 3 is not relevant because “… the Applicant’s son lives in Pakistan and is not a minor child in Australia for the purposes of Direction 90”.[65] The Applicant has submitted that Direction 90 is “not conclusive in its terms” and that the Tribunal possesses discretion “to consider any relevant factors”.[66]

   [65] Exhibit R2, page 8, paragraph [30].

   [66] Transcript, page 32, lines 30-33.

9. The heading of paragraph 8.3 of the Direction is unequivocal that it relates to the “Best interests of minor children in Australia affected by the decision”. The Tribunal notes that the wording “in Australia” is not repeated in paragraph 8.3(4) when specifying the factors the Tribunal must consider. However, the terms “minor” and “affected by the decision” are also not specified.

10. Of the use of headings in statutory construction, Kiefel CJ and Keane J held in The Queen v A2 [2019] HCA 35, at [40]:

    They may point the way towards and be used to identify the mischief to which the provision is directed and its purpose.

11. Examining the text of paragraph 8.3 of the Direction as a whole, including its heading, the Tribunal is satisfied that it is directed to the consideration of the best interests of minor children in Australia affected by the decision under review. The purpose of paragraph 8.3 is then to cause the Tribunal to consider these interests having regard to the relevant factors listed in paragraph 8.3(4).

12. Accordingly, the Tribunal does not regard Primary Consideration 3 to be relevant as there are no minor children in Australia who will be affected by the decision under review.

    Conclusion: Primary Consideration 3

13. Primary Consideration 3 is not relevant.

    PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

14. In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.

15. Paragraph 8.4(2) of the 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.

16. Paragraph 8.4(3) of the 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.

17. Paragraph 8.4(4) of the 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.

18. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[67]

    [67] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.

19. Paragraph 8.4 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 – Allocation of Weight to this Primary Consideration 4

20. Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:

    (a)The Applicant moved Australia when he was 28 years old and is now aged 37 years.[68]

    (b)The Applicant maintains community connections in Australia.

    (c)The Applicant’s has an employment history in Australia and prospects of further employment if released into the Australian community.

    (d)The Applicant has committed two sexual offences against women in the course of his employment.

    (e)The Applicant’s sexual offending escalated in seriousness. The second offence was more violent than the first and the victim was more vulnerable.

    (f)The Applicant’s crimes are serious and raise character concerns.

    [68] Exhibit R1, s 501 G-Documents, G5, page 193; G9, page 265.

21. The Tribunal is satisfied that the Applicant has breached the Australian community’s expectations of him to obey Australian laws while in Australia by engaging in serious conduct.

    Conclusion: Primary Consideration 4

22. Primary Consideration 4 weighs very heavily against revocation of the cancellation of the Applicant’s visa.

    Other Considerations

23. It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. The four stipulated sub-paragraphs are considered at (a), (b), (c) and (d) respectively.

    (a) International non-refoulement obligations

24. The Applicant makes claims with respect to Australia’s non-refoulement obligations and the Respondent has accepted that such obligations are owed to the Applicant.[69] The Protection Assessment makes clear that an obligation arises from the Applicant’s ethnicity and religion.[70]

    [69] Exhibit R2, page 9, paragraph [39].

    [70] Exhibit A2, pages 65-73.

25. In its notice of intention to consider refusal of the Applicant’s visa application of 8 July 2021, the Department of Home Affairs wrote:

    The Department has identified you as a non-citizen for whom a protection finding was made in the course of considering your application for a protection visa, and the exceptions under section 197C(3)(c) do not apply to you. That means you cannot be removed to Pakistan even if the decision maker decides to refuse your visa application and you become an unlawful non-citizen as a result. Consequently, a decision to refuse your visa application would mean you must remain in immigration detention unless you are granted another visa or you can be removed to a country other than Pakistan. This means that your detention may continue for an indefinite period.[71]

    [Emphasis added]

    [71] Exhibit R1, s 501 G-Documents, G10, page 271.

26. The Tribunal accepts the Applicant’s submission that it is highly unlikely that he would be the subject of a future visa grant under the Minister’s discretionary power under the Act.[72] This submission is based on Wigney J’s findings in MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35, at [72]:

    In short, having urged upon the Tribunal that the cancellation of the appellant’s visa on character grounds should not be revoked, including because he presented an unacceptable risk to the Australian community, it is hardly likely that the Minister would do a complete about-face and grant the appellant another visa, be it a protection visa or a visa under s 195A of the Act.

    [72] Exhibit A1, page 5, paragraph [12], citing MNLR.

27. The Tribunal notes the Applicant’s submissions regarding acts of cruel, inhuman and degrading treatment or punishment and of universal human rights. The Applicant has further submitted that Australia will be in breach of international laws “relating to arbitrary and indefinite detention”.[73] In closing, the Applicant submitted that:

    Indefinite detention would have a particularly deleterious impact on the applicant in circumstances where he has a number of diagnosed mental health issues. For example, adjustment disorder, depression, anxiety and post traumatic stress.[74]

    [73] Exhibit A1, page 7, paragraph [16(b)].

    [74] Transcript, page 31, lines 42-45

28. Article 9(1) of the International Covenant on Civil and Political Rights provides that:

    Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

    [Emphasis added]

29. Given the present proceedings, the Applicant’s immigration detention cannot be characterised as arbitrary.

30. Regarding the prospect of any indefinite detention of the Applicant, in ENT19 v Minister for Home Affairs [2021] FCAFC 217 at [107] Katzmann J, with whom Collier and Wheelahan JJ agreed, observed that:

    … the prospect of indefinite detention for, unless the detention were for a lawful purpose, detaining the appellant indefinitely could put Australia in breach of its obligations under the ICCPR.

    [Emphasis added]

31. The Tribunal accepts the Applicant’s submissions that his detention will cause him great difficulty in his efforts to reunite with his family, financially provide for them, and maintain a meaningful relationship with his son.[75] However, the lack of a “lawful purpose” for detention that could put Australia in breach of its international legal obligations has not been made out.

    [75] Exhibit A1, page 7, paragraph [16(c)-(e)].

32. Given that the Applicant’s detention may continue for an indefinite period, Australia’s international non-refoulement obligations weigh heavily in favour of setting aside.

    (b) Extent of Impediments if Removed

33. As a guide for exercising the discretion, paragraph 9.2 of the 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 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.

34. Upon arrival in Australia, the Applicant did not declare any health concerns or pre-existing health conditions.[76] Nevertheless, in 2020 he reported the removal of kidney stones in 2015 and treatment for hypertension.[77] In 2021, the Applicant reported insomnia that commenced after his imprisonment and lower back pain.[78] There are significant quantities of health records before the Tribunal that indicate the fragility of the Applicant’s mental health, in particular the reports of Mr Watson-Munro and Ms Barclay-Timmis.[79]

    [76] Exhibit R1, s 501 G-Documents, G4, page 164.

    [77] Exhibit R1, s 501 G-Documents, G2, page 59.

    [78] Exhibit R1, s 501 G-Documents, G2, pages 61 & 63.

    [79] Exhibit R1, s 501 G-Documents, G2, pages 52-58. Exhibit A3; Exhibit A4.

35. Given the protection finding that has been made in relation to the Applicant, and the prohibition against removal contained in s 197(C)(3) of the Act, there is no evidence before the Tribunal that removal to Pakistan is a reasonably foreseeable outcome. Accordingly, this Other Consideration is not relevant.

    (c) Impact on victims

36. This Other Consideration (1)(c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

37. There is no evidence before the Tribunal to indicate the impact of the refusal of the Applicant’s visa application on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims. Accordingly, this Other Consideration is not relevant.

    (d) Links to the Australian Community

38. In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:

    ·the strength, nature, and duration of ties to Australia; and

    ·the impact on Australian business interests.

    The strength, nature, and duration of ties to Australia

39. The Tribunal is bound to consider the impact of its decision on the Applicant’s immediate family member in Australia, where those family members have citizenship, permanent residency, or an indefinite right to remain in Australia.

40. The Applicant made limited vocational contributions to Australia in the period between July 2013 and December 2017 where he resided in the community prior to offending, noting that the offending occurred in the course of Applicant’s employment.

1. The Applicant also made several friends in Queensland, New South Wales and Victoria who all regard him highly;[80] although only one expressly addressed the issue of his sexual offending.[81] One character referee goes as far as to say that it is the Applicant who “… is a victim of bad circumstances”.[82] Such characterisation is not accepted by the Tribunal where to do so may trivialise the sexual crimes committed by the Applicant against his victims and “the impact of this kind of random attack”.[83]

   [80] Exhibit R1, s 501 G-Documents, G2, pages 68-72; Exhibit A2, pages 18-28.

   [81] Exhibit R1, s 501 G-Documents, G2, pages 66-67.

   [82] Exhibit R1, s 501 G-Documents, G2, pages 69.

   [83] Exhibit R1, s 501 G-Documents, G2, pages 34.

2. As required by paragraph 9.4.1(2) of the Direction, the Tribunal also attaches less weight to the Applicant's period of residence in circumstances where he began offending in a relatively short period after his arrival.

3. Given the Applicant’s strength, nature and duration of his ties to Australia the Tribunal places slight weight in favour of setting aside the reviewable decision.

   Impact on Australian business interests

4. The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction. 

   Findings: Other Considerations

5. The application of the Other Considerations in the present matter can be summarised as follows:

   (a)international non-refoulement obligations: weighs heavily in favour of setting aside;

   (b)extent of impediments if removed: not relevant;

   (c)impact on victims: not relevant; and

   (d)links to the Australian community: carries slight weight in favour of setting aside.

   CONCLUSION

6. There are two alternate conditions precedent to the exercise of the discretion to set aside the reviewable decision: either the Applicant must be found to pass the character test; or, the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to set aside the reviewable decision. As noted and found above, the Applicant does not pass the character test.

7. Having regard to the Direction and to the totality of the evidence, the Tribunal is of the view that there is not another reason to exercise the discretion to set aside the reviewable decision.

8. In reaching that conclusion, the Tribunal has had regard to the considerations referred to in the Direction. The Tribunal finds follows:

   (a)Primary Consideration 1 weighs very heavily against setting aside;

   (b)Primary Consideration 2 is not relevant;

   (c)Primary Consideration 3 is not relevant;

   (d)Primary Consideration 4 weighs very heavily against setting aside; and

   (e)The weight attributable to the four-listed Other Considerations as found above.

9. The Tribunal considers that the totality of the very heavy weight it has attributed to Primary Considerations 1 and 4, outweighs the weight it has allocated to the remaining Primary and Other Considerations;

10. A holistic view of the considerations in the Direction therefore favours the affirming of the decision under review.

11. Consequently, the Tribunal cannot exercise the discretion to set aside the reviewable decision.

    Decision

12. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 11 May 2022 under section 501(1) of the Migration Act 1958 (Cth) to refuse to grant the Applicant’s application for a Safe Haven Enterprise (Class XE) visa.

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

.............................[sgnd]..................................

Associate

Date of Decision:

Date of Written Reasons:

19 August 2022

9 September 2022

Date of Hearing:

4 August 2022

Counsel for the Applicant:

Solicitor for the Applicant:

Ms M Yu
Frederick Jordan Chambers

Ms K Anandasivam
Legal Aid New South Wales

Solicitor for the Respondent:

Ms K Ervin
Clayton Utz

Annexure A – Exhibit Register

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
A1	Statement of Facts, Issues & Contentions	A	Various	8 July 2022
A2	Applicant’s Evidence Bundle	A	Various	8 July 2022
A3	Report and CV of psychologist, Mr Watson-Munro	A	11 July 2022	12 July 2022
A4	Bundle of International Health and Medical Services documents	A	Various	28 July 2022
R1	Section 501 G-Documents	R	Various	16 June 2022
R2	Statement of Facts, Issues & Contentions	R	22 July 2022	22 July 2022