WLMG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

WLMG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5143 (7 December 2020)

AppID: WLMG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

MatterType: Migration

Division:GENERAL DIVISION
File Number(s): 2020/5694
Re: WLMG
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT

DECISION

Tribunal:Senior Member Damien O’Donovan
Date of Decision: 7 December 2020
Date of Written Reasons: 18 December 2020
Place:Canberra

The decision of the respondent made on 15 September 2020, is affirmed.

MIGRATION – non-revocation of mandatory cancellation of visa –where visa was cancelled under s 501(3A) because applicant did not pass the character test - substantial criminal record under s 501(7) – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 79 – risk of re-offending – the protection and expectations of Australian community – minor children – consideration of non-refoulement obligations - strength nature and duration of ties – impediments to establishing and maintaining basic living standards if applicant removed – giving meaningful consideration to risk of harm – decision affirmed

Migration Act 1958 (Cth)

Criminal Code 2002 (ACT)

Crimes Act 1900 (ACT)

Ali v Minister for Home Affairs [2020] FCAFC 109

Briginshaw v Briginshaw (1938) 60 CLR 336
BHL v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 929
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Khawar v Minister for Immigration & Multicultural Affairs [1999] FCA 1529
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56
Minister for Home Affairs v Omar [2019] FCAFC 188
Secretary to the Department of Justice and Regulation v LLG [2018] VSCA 155
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
WKMZ and Minister for Home Affairs [2019] AATA 4381
WKMZ v Minister for Home Affairs [2020] FCA 1127

1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Department of Foreign Affairs, DFAT Country Information Report – South Sudan, 5 October 2016
Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014
International Covenant on Civil and Political Rights and its Second Optional Protocol

Second Reading Speech, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, 25 September 2014

REASONS FOR DECISION

18 December 2020

INTRODUCTION

On 7 December 2020 I made a decision not to revoke the cancellation of the applicant’s protection visa. My reasons for that decision are set out below.
The applicant is a citizen of Afghanistan. He was born in Kabul in 1983. He and his twin brother ‘SH’ left Afghanistan in the late 1990’s and travelled via Iran to Indonesia. In 2001 the applicant boarded a boat to Australia. The boat was intercepted by Australian Customs off the coast of the Northern Territory and the applicant was taken into immigration detention at Woomera where he lived for several years. He was released from immigration detention in approximately 2004. He initially lived in Sydney with older brothers who had come from Afghanistan previously but then he moved to Canberra. In 2006 he was granted a Protection Visa.
Between 2005 and 2015 the applicant periodically interacted with the police and the criminal justice system. In 2005 police investigated one allegation of stalking and one allegation of sexual intercourse without consent made against the applicant. In 2008 the applicant was charged with sexual intercourse without consent in relation to a different incident. He was acquitted of that charge after a Supreme Court trial in 2011. In September 2011 the applicant was convicted of contravening a protection order and convicted of driving a motor vehicle with alcohol in his blood (with a reading of 0.188)[1].
[1] Exhibit A, 42.
On 12 November 2015 following a Family Court hearing in relation to the custody arrangements for his two children, the applicant got drunk and terrorised passing motorists at an intersection in the Canberra suburb of Belconnen.[2] The applicant struck one car with a machete. He then attacked a driver of a vehicle while her car was stopped who fortunately was able to flee the vehicle. He then attacked a taxi driver in his vehicle before being restrained by the passengers and ultimately arrested by police. At the time of arrest he was also in possession of a 5cm paring knife. He pleaded guilty to multiple offences including intentionally wounding, using an offensive weapon dangerous to a person and possessing an offensive weapon with intent. [3]
[2] Ibid, 310.
[3] Ibid, 5
He was sentenced to periods of imprisonment in relation to 7 offences. The sentences included a sentence of 15 months in relation to one of the use of an offensive weapon charges, with the sentence to finish on 11 August 2017, and a second sentence of 15 months in relation to the second use of an offensive weapon charge, with the sentence to commence on 12 August 2017. In total the applicant was sentenced to 3 years imprisonment commencing on 12 November 2015 and ending on 11 November 2018.
As a result of the applicant being sentenced to serve a term of imprisonment on a full time basis for a period of 12 months or more, the Minister was obliged to cancel his visa under section 501 of the Migration Act 1958 (‘Act’). A decision to cancel his visa was made on 9 March 2017. On 6 April 2017 the applicant made representations, pursuant to section 501CA(4) seeking revocation of the mandatory cancellation. These representations were made within the period and in the manner set out in the regulations. On 15 September 2020 a delegate of the Minister decided not to revoke the cancellation of the applicant’s visa.
The applicant seeks review of that decision.

Passing the character test is one of two grounds on which the Minister can revoke the visa cancellation pursuant to section 501CA(4). Given his criminal record the applicant does not pass the character test. It is not suggested by the applicant that he does.
Consequently, the only live question is whether there is another reason why the cancellation decision should be revoked (which is the other criteria specified in the subsection). I have reached the conclusion that there is not. I accept that the result of this decision is that the applicant will in all likelihood be returned to Afghanistan. The applicant has no connections left in Afghanistan and there is a risk that harm will come to him as a result of the civil unrest in that country. The impediments to the applicant maintaining basic living standards once returned are also significant. Notwithstanding this, I have formed the view that in light of the seriousness of the applicant’s past offending, the fact that he has regularly engaged in both criminal and serious conduct since arriving in Australia, his weak connection to the Australian community and his family more generally, an assessment of all of the relevant factors favours non-revocation of the decision to cancel his visa.

APPLICATION TO THE TRIBUNAL

The applicant applied for review by the Administrative Appeals Tribunal (Tribunal) on 17 September 2020.
G Documents were prepared by the respondent and filed with the Tribunal on 10 November 2020, which included all of the material before the delegate. Following the listing of the application for hearing, the applicant, whose brother acted as his representative, also filed:
a.A witness statement from the applicant dated 3 November 2020;
b.A witness statement from the applicant’s brother ’MS’ dated 5 November 2020;
c.A witness statement from the applicant’s brother ‘MS’ and sister-in-law ‘FS’ dated 4 November 2020;
d.A witness statement from the applicant’s twin brother ‘SH’ dated 4 May 2020;
e.A letter from Afghan Community Support Association President M. Nader Azamy dated 4 May 2020;
The respondent filed a statement of Facts, Issues and Contentions dated 9 November 2020. The respondent also filed a tender bundle consisting of:
a.Extracts of records produced under summons by the ACT Supreme Court;
b.Extracts of records produced under summons by the ACT Magistrates Court;
c.Extracts of records produced under summons by the Australian Federal Police;
d.Extracts of records produced under summons by the ACT Department of Justice and Community Safety;
e.A country information report on Afghanistan prepared by the Department of Foreign Affairs dated 27 June 2019 (‘DFAT Country Report’).
The matter was heard on 16 and 17 November 2020 using video conferencing software Microsoft Teams. The applicant appeared from Yongah Hill Immigration Detention centre and his brother MF appeared as his representative. All of the witnesses who provided witness statements for the applicant, with the exception of M Nader Azami, gave oral evidence and were questioned by the Tribunal. Both parties made oral submissions at the hearing.
After the hearing the Tribunal notified the parties that it intended to take into evidence a document entitled ‘Afghanistan – Return and Relocation’ prepared by the Country of Origin Information Services Section of the Department of Home Affairs dated 23 October 2020. The document had been provided to both parties on 3 November 2020 and both parties were given an opportunity to make further submissions in light of the reception of the document into evidence.

ISSUES

Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which relevantly provides:
(4) The Minister may revoke the original decision if:
(a) the person makes representations [about the revocation] in accordance with the invitation [proffered under subsection (3)]; and(b) the Minister is satisfied:
i.that the person passes the character test (as defined by section 501); or

ii.that there is another reason why the original decision should be revoked.

The applicant made the representations required by s 501CA(4)(a). As outlined at paragraph 45 of this decision, in relation to one of his offences the applicant was sentenced to a term in prison of 15 months. He was given a total sentence of 3 years in prison. Consequently, he does not pass the character test.[4] The only substantial issue to be determined on this review is whether the power to revoke the mandatory cancellation should be exercised in the applicant’s favour is because there is another reason the decision should be revoked.
[4] A person will not pass the character test if they have a ‘substantial criminal record’: Migration Act 1958 (Cth) ss 501(6)(a). A substantial criminal record includes if a person has been sentenced to a term of imprisonment of 12 months or more (section 501(7)(c)).
In considering that question, I approach the matter consistently with the observations made in Gaspar v Minister for Immigration and Border Protection:[5]
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked...[6]
[5] [2016] FCA 1166; (2016) 153 ALD 337, at [38].
[6] cited with approval by the Full Court in Minister for Home Affairs v Buadromo [2018] FCAFC 151. See also Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
Accordingly, I will consider whether there is another reason why the original decision should be revoked following an assessment and evaluation of relevant factors.

IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?

In considering whether to exercise the discretion in section 501CA(4) of the Act, the Tribunal is bound, in accordance with s 499(2A), to comply with any lawful directions made under the Act. In this case Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (’the Direction’) applies.
Paragraph 6.2 of the Direction provides general guidance in relation to the exercise of the discretion. It relevantly provides:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens…The principles below…reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
Paragraph 6.3 of the Direction relevantly provides:
(1)…Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions…and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should cancel [non-citizens’] visas if they commit serious crimes in Australia or elsewhere;
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children should generally expect to forfeit the privilege of staying in Australia.
(4)…
(5) Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age.
(6)…
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether the non-citizen’s visa should be cancelled…
The Direction requires that, informed by the principles set out in paragraph 6.3 of the Direction and summarised in the paragraph above, I must take into account the considerations in Part C of the Direction in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[7] Part C commences at paragraph 13. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a.Protection of the Australian community from criminal or other serious conduct;
b.The best interests of minor children in Australia; and
c.Expectations of the Australian community.[8]
[7] The Direction, paragraph 7(1)(b).
[8] Ibid at paragraph 13(2)(a)-(c).
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
a.International non-refoulement obligations;
b.Strength, nature and duration of ties;
c.Impact on Australian business interests;
d.Impact on victims; and
e.Extent of impediments if removed.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Tribunal notes the significance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[9]
…Direction 65 [now Direction 79] 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 [now Direction 79] 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 [now Direction 79] 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 [now Direction 79] 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.[10]

THE APPLICANT'S BACKGROUND - WORK, SOCIAL AND CRIMINAL HISTORY

[9] [2018] FCA 594 at [23].

[10] Ibid at [23].

Fact finding principles

Set out below are my findings of fact. The evidence on which they are based is as cited. Before I set out those findings it is necessary to explain some of the principles I have applied in making these findings.
Direction 79 requires me to form a view about the applicant’s likelihood of re-offending. Consequently, it has been necessary to make a number of findings about the applicant’s criminal past. The judge who sentenced the applicant on the charges committed in 2015 following a guilty plea, did so on the basis of a statement of agreed facts[11] which informed his sentencing remarks. The agreed facts and sentencing remarks formed part of the evidence before me. The applicant at the hearing also gave evidence to the Tribunal about the circumstances of his crimes. The evidence the applicant gave was broadly consistent with the basis on which he was sentenced except in two important respects. First, the applicant always claimed, and continued to claim in these proceedings, that on the night of 12 November 2015, his drink was spiked. This was never accepted by the sentencing judge. Second, the applicant always claimed, and continued to claim in these proceedings, that his level of intoxication was such that he had no memory of any of the crimes he committed that night. For reasons discussed further below, this claim is to a degree inconsistent with the applicant’s plea of guilty to the charges of intentional wounding. The question then arises how I should resolve these inconsistencies.
[11] Exhibit A, 423 to 427.
In reaching my findings on the primary facts I must apply the principle, clarified by the Full Court of the Federal Court in HZCP v Minister for Immigration and Border Protection, that ‘…relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error’.[12] The Court made clear that a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as ‘another reason’ why the original decision to cancel should be revoked.[13]
[12] [2019] FCAFC 202 at [68] (‘HZCP’).
[13] Ibid at [195].

I do note however that the applicant is entitled, subject to some qualifications, to seek different findings from the Tribunal in relation to the criminal convictions which did not form the basis of the decision to cancel his visa. The principles to be applied by the Tribunal when considering evidence of this nature were comprehensively summarised by Justice Bromberg in HZCP.[14] These principles are pithily summarised in the following passage from Secretary to the Department of Justice and Regulation v LLG [2018] VSCA 155 at [42], cited with approval by Justice Bromberg:
The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the convictions are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
[14] [2018] FCA 1803 at [41] - [77].
Accordingly, in relation to the offences committed in 2015 it is not open to me to depart from the Judges sentencing remarks and the agreed facts on which they were based. In relation to the applicant’s other convictions I can depart from the relevant findings but the applicant has a heavy onus to discharge before I would do that.
In applying these principles I consider that there is a restraint on the findings I can make in relation to the incident which occurred in November 2015 as a result of the applicant’s guilty plea. The applicant’s account of events that took place at the hearing was very basic. He claims that his drink was spiked some time prior to the events in question and that he has no memory of anything until he woke up in a police cell. The applicant gave a more-or-less identical version on each occasion he spoke to someone about the events in question. I do not consider that it is legally open to me to accept that the applicant’s drink was spiked or that he was so drunk that he did not form the intention to wound the two victims he attacked with the machete.
In relation to the spiking of the drink, I cannot accept that version because it is contrary to the basis on which the applicant was sentenced. The sentencing judge made the following remarks:[15]
I note that the Report of Mr Bilboe refers to the possibility of your drinks on the evening in question having been spiked with some drug or other substance. This matter was not pressed by your counsel, and I think rightly so. There is simply no evidence to support it…
[15] G8, folio 32.
It is clear from these remarks that the Judge did not accept that the claim by the applicant that his drink was spiked was an appropriate factual basis on which to proceed when sentencing. I cannot proceed on that basis either.
In relation to the claim that the applicant simply remembers nothing concerning the night in question, the sentencing judge remarked: ‘you claim now not to have any recollection of these events, which if it is true, suggests a high-level of intoxication on this evening.’ [16]
[16] Ibid.
His statement ‘if true’ qualifies his acceptance of the proposition that the applicant had no recollection of events. Accordingly it is unclear whether or not the sentencing judge accepted that the applicant got so drunk that he could not remember the events which led to his convictions. On its own, the reservation expressed by the judge would not create a barrier to acceptance by this Tribunal of the proposition that the applicant was drunk to a point that it caused significant memory loss. Accordingly, that is the basis on which I will proceed. However, notwithstanding this finding, I cannot proceed on the basis that the applicant was so drunk that he was unable to form the intention to wound members of the public and then proceeded to do so.
On the applicant’s version the conduct he engaged in was completely out of character. He was not conscious of anything that happened on the night in question.
However, the applicant’s guilty pleas to the charges of intentional wounding prevent the Tribunal from accepting such a benign account of the evening’s events. The wounding offences require that intentional wounding be established.[17] In light of the authorities cited at paragraph [‎28] and the prohibition on accepting a version of events contrary to the essential conviction, I cannot accept a version of events which is inconsistent with the guilty pleas. The applicant’s version of events carries with it (at least implicitly) that he was so drunk that nothing which happened on the night of 12 November could be regarded (for present purposes) as intentional. However, such a version of events is inconsistent with the character of the crimes he was convicted of.
[17] See section 21(1) of the Crimes Act 1900 (ACT).
In the ACT, self-induced intoxication is not available as a means of avoiding criminal responsibility for crimes where a fault element of ‘basic intent’ exists. However, section 31 of the Criminal Code 2002 (ACT)[18] notes that a fault element of intention in relation to a result is not a fault element of basic intent. Accordingly, self-induced intoxication could have been advanced as a defence to the charge of intentional wounding on the basis that the wounding was not intentional on account of the applicant’s intoxication. The applicant did not do this. Accordingly, the convictions carry with them an unavoidable implication that the applicant formed the intention to attack his victims and then did so.
[18] Criminal Code 2002 (ACT) Note to section 31(1).
Consequently my acceptance of the applicant’s version of events concerning the offences which the applicant has given both orally and in the detailed written statement included in the G Documents[19] is qualified in the sense that while I accept that the applicant was extremely drunk and suffered significant memory impairment, he had sufficient capacity to form the intention to wound his victims and then proceeded to do so.
[19] G10, folio 36-41.
There is also a question concerning how to deal with the allegations of stalking behaviour and sexual intercourse without consent which have been made against the applicant. The applicant denies that any of the events alleged occurred and that the reports were simply false. Given that the matters were not proceeded with or resulted in an acquittal, I have proceeded on the basis that although complaints were made, the applicant did not engage in the conduct alleged.
In making my findings of fact I have generally approached the matter on the basis that where there is a conflict between the applicant’s evidence and the evidence from another source, including written police reports or other witnesses, I have for the most part preferred the evidence available to me from sources other than the applicant. I have done this because the applicant’s accounts of events have varied significantly over time. In some cases I am confident he was deliberately not telling the truth, but in some cases the inconsistency in versions may be the result of a memory affected by a long history of trauma, mental illness and drug use.
For example, the applicant has given a number of accounts of his life story. The statement which he submitted for consideration by the delegate was very detailed.[20] I have accepted his account of his early life as largely true. However, in that statement the applicant claims to have converted to Christianity even though he was not baptised. In his oral evidence the applicant disavowed any conversion to Christianity and insisted that he remained a practising Sunni Muslim.
[20] G10, folio 36-41.
His account of the whereabouts of his parents changed a number of times. He told a psychiatrist in 2010 that his parents were both killed by the Taliban.[21] The applicant said in his statement made in 2017 for the purposes of the reviewable decision that his parents passed away in 2010.[22] However, there was evidence given to this Tribunal that his mother died of cancer in India in 2018.[23]
[21] G19, folio 73.
[22] G10 folio 37.
[23] Transcript of proceedings, 16 November 2020, p77 at 15.
His evidence was also unsatisfactory in relation to events surrounding his conviction for a breach of a domestic violence order. In January 2011, the applicant’s ex-partner took out a domestic violence order. On 21 April 2011, the applicant visited premises within 20-30 meters of his ex-partner’s home. This was a breach of the domestic violence order. When asked about the incident in cross-examination in these proceedings, the Applicant stated that the reason he was on the premises was because it was his daughter’s birthday and he went to her foster carer to give her a gift, and he was unsure how he had breached the order. He denied that he had threatened the victim, as was outlined in the police report.[24] Given that the date on which the breach of the domestic violence order occurred was not the applicant’s daughter’s birthday, this account was clearly a concoction to minimise the seriousness of the applicant’s conduct on that occasion.
[24] Exhibit A, 101.
As a consequence of this false evidence and inconsistencies in his accounts of events I am satisfied that the applicant was an unreliable witness.

Applicant’s history

The applicant was born in Kabul, the capital of Afghanistan in 1983. He was raised in a household with his mother and father and three brothers. His two older brothers left Afghanistan when the applicant was a child and arrived in Australia many years before him. The applicant and his twin brother SH remained behind.
Growing up in Kabul was traumatic for the applicant. Many members of his large extended family were killed in violence there including an aunt who was four months pregnant when she was killed by a bomb landing near her house.
Notwithstanding the violence he was exposed to, the applicant attended school in Kabul and was a good student and achieved grades he was proud of. He also trained as a locksmith.[25]
[25] G19 folio 82.
When the applicant was about 14 he was injured in an incident in which two friends were killed when a bomb landed on his school. As a consequence of the bombing of his school the applicant and his twin brother decided to leave Afghanistan. They left for Indonesia travelling via Iran.
The applicant left his parents behind in Afghanistan.
In 2001 the applicant boarded a boat in Indonesia bound for Australia which was intercepted by Australian Customs off the coast of the Northern Territory.[26] The applicant was detained at Woomera Immigration Reception and Processing Centre. There is some doubt about how long he was held there. Information in the G Documents suggests that the applicant was found by the Refugee Review Tribunal to have a well-founded fear of persecution in 2002[27] however the applicant estimates that he was held there for approximately 4 years. The applicant was issued a permanent protection visa in 2006[28] but it is clear from other information that he was living in Canberra in the community by no later than 2005.[29] Accordingly I estimate that the applicant was released from immigration detention around 2004 and went to live in Sydney initially with his older brother MS and then another of his brothers FH.
[26] G31, folio 198.
[27] G6, folio 22.
[28] G32, folio 199.
[29] Exhibit A, 74-76.
The applicant obtained work in a rug store in Sydney but was later transferred to another rug store in Canberra.
The applicant met the mother of his children, S, in 2006 when he was working in a hardware store.
On 1 June 2007 the applicant’s first daughter N was born. Soon after she was born the applicant moved in with N and her mother.
In September 2007 police were called to the unit where S, the applicant and N lived. On that occasion the applicant and S had been having a verbal argument and the applicant had made threats that he would kill himself. S informed police that on a previous occasion the applicant had threatened to hit her in the stomach with a baseball bat while she was pregnant with N. S claimed that he had also threatened to smack N and to remove her from Australia without S knowledge. The applicant contends that those allegations were made up. Given the state of the evidence and the seriousness of the allegations, I am not satisfied that the allegations are true.
The applicant was asked to leave the premises by S and he agreed to do so and removed his belongings and went to stay with one of his brothers. It is unclear whether this was the last time that the applicant lived with S, but I am satisfied that the relationship with S was finished by the second half of 2010.
At 11pm on Sunday 29 June 2008 a complaint was made at Canberra Hospital by a person claiming that she had been sexually assaulted by the applicant earlier that evening at the applicant’s unit.[30] The applicant was known to the complainant as he was a security guard at the unit complex where she lived and she said she had agreed to attend his apartment and watch a movie with him.
[30] Exhibit A, 84.
The applicant was charged with sexual intercourse without consent. The charge was heard in the ACT Supreme Court between 17 and 18 November 2011. The complainant and a number of police witnesses were called. The applicant gave evidence in his own defence. On 19 December 2011 he was found not guilty. For present purposes it is not necessary for me to determine what happened on 29 June 2008. I will proceed on the basis that the applicant did not engage in criminal conduct that night given the acquittal.
In the period after the applicant was arrested in relation to the alleged sexual assault, but before his acquittal, there were a number of further concerning incidents.
On 30 October 2010 at around 8am in the morning, the applicant’s then former partner S phoned police concerned that the applicant was coming over to collect N and exercise visitation rights. At that point in time there were no Family Court orders in place. She was concerned that the applicant would take N causing her daughter stress and putting her health at risk as he had no proper car seat. There was no concern that the applicant would be violent towards S but concern about the applicant’s propensity to self-harm. When police spoke to the applicant he was upset.
At 3.45pm the same day the applicant was driving along an 80km/h road at approximately 100km/h when he attempted to overtake another vehicle. Whilst attempting to return to the left lane before a median strip commenced, he lost control of his motor vehicle and flipped the car onto its roof. Bystanders assisted in removing the applicant from the car.[31] When he was removed from the vehicle the applicant made statements to the effect that he wished to end his own life. He was described by witnesses as being moderately intoxicated and his blood alcohol level was 0.188. On 27 September 2011 the applicant was convicted of a drink driving charge and given a good behaviour order.[32]
[31] Exhibit A, 97-99.
[32] Exhibit A, 148.
Following that incident the applicant was interviewed by a psychiatrist on 30 November 2010. He took a detailed history. He was told by the applicant that he worked on a farm and as a locksmith in Afghanistan and in Australia he had worked as a traffic controller and in hospitality. He said his longest period of employment was 5 months as a security guard. He disclosed a history of depression over the previous 3 years. He claimed that he did not use alcohol or substances. The psychiatrist indicated that his symptoms were suggestive of chronic PTSD in association with elements of borderline personality disorder.[33]
[33] G19, folio 84.
On 24 January 2011 S was granted a Domestic Violence Order which prohibited the applicant from being within 100 metres of her. On 21 April 2011 the applicant attended one of S’s neighbours’ units asking whether she had seen S and N. During the course of the conversation the applicant said ‘I’m going to do something bad to her’. The residence was less than 100 meters from S’s residence and S was home at the time. That conduct constituted a breach of the Domestic Violence Order.
The applicant was subsequently arrested and remanded in custody for a period.[34] While remanded he reported significant anger directed towards his ex-partner and anger about small incidents with fellow inmates.[35] In July 2011, the applicant verbally assaulted an officer and threatened that officer with a bowl of hot water.[36] In September 2011 it was reported that the applicant gets angry with fellow inmates over simple things, and that the main source of that anger was a lack of access to his child and his ex-partner’s behaviour.[37]
[34] G19, folio 89.
[35] G19 folio 92.
[36] Exhibit A, 209.
[37] G19, folio 92.
On 12 May 2011 S gave birth to her second child with the applicant, a daughter called SD.[38]
[38] Exhibit A, 103.
On 28 September 2011 the applicant was convicted in relation to the charge concerning breach of the domestic violence order, sentenced to time served and released on parole.[39]
[39] Exhibit A, 103.
From that point onwards the applicant had very limited contact with his children. He was allowed 2 hours of supervised access each month. The access was facilitated by community organisation Marymead. The applicant was very dissatisfied with such limited access and in 2015 applied to the Family Court for shared custody.[40] The application was unsuccessful and on 12 November 2015 the Family Court made orders allowing the applicant only 1 hour of supervised access each month.[41]
[40] G10 at 40.
[41] G10 at 40.
That evening at about 9pm the applicant approached his neighbours in the Canberra suburb of Belconnen and asked them if he could socialise with them. The applicant’s neighbours asked him in and the six men played cards and drank from a single bottle of Jagermeister (a strong spirit) straight. Each drank at their own pace until the bottle was finished. At about 11pm the men decided to go to a nightclub, however the applicant was not invited and he remained at the apartment complex. At around 11.20 the applicant left the apartment complex and headed to a large intersection closer to Belconnen town centre. He was wearing a black hat and gloves and was carrying a machete about 40cm in length. The applicant’s first victim approached the intersection in her car, saw the applicant and drove past him. As she did so she heard him yell something and at the same time he struck her car. She drove straight to Belconnen Police Station to report what had happened.
Shortly after that, the applicant’s second victim arrived at the intersection in her car. The applicant ran towards the front passenger window of the car and started to strike the passenger window and top of the door frame with the machete. He then opened the passenger door and sat in the front passenger seat. He held the machete against the second victims throat and cut her neck with the blade of the knife. At the same time he screamed at her in a language that she could not understand. The second victim managed to unbuckle her seatbelt and at the same time pushed the knife away with her hand, this caused a cut to her finger. She then opened the driver side door and jumped out of the car. She ran away from the car briefly looking back to see the applicant standing behind her car as it rolled forward hitting the side of a building.
The second victim then noticed blood coming from her neck and tried to wave down a taxi which was approaching the intersection. However it had occupants and did not stop for her. The applicant walked out into the street and caused the taxi to stop. The second victim then took the opportunity to run back to her car and drive away.

The applicant, having stopped the taxi then started to strike the bonnet of the taxi with the machete. The applicant then walked to the driver side door and opened it. He still had the machete in his right hand. The applicant then said:
I have lost my kids, I will stab you, you black cunt
The applicant then leaned forward and swung the machete at the taxi driver. The machete struck him on the chin, his chin started bleeding.
The taxi driver grabbed the applicant by the wrist holding the machete and pulled him into the taxi to prevent him from cutting him with the blade again and yelled – he stabbed me he stabbed me.
The passengers in the taxi got out and ran around to help the driver. Two other members of the public then assisted in restraining the applicant until the police arrived.
When arrested the applicant was highly agitated and he continued to scream and kick at police until he was placed in handcuffs. Police located and seized the machete from the taxi.
The applicant was charged with multiple offences and remanded in custody. From the time he was remanded in custody the applicant denied having any memory of the events of that evening. He consistently claimed that his drink had been spiked and even claimed that he vomited in the lock up and saw pills in his vomit that he had not taken.[42]
[42] Exhibit A, 310.
The applicant attempted suicide in custody (by drinking bleach)[43] and reported delusions including that his food was being drugged and that he was being sexually assaulted. [44]
[43]G19, folio129
[44] G19 folio 128
In March 2016 he assaulted his cell mate – grabbing him around the throat and punching him repeatedly.[45]
[45] G, G19, folio 128.
While on remand he was diagnosed with borderline personality traits.
He eventually pleaded guilty to the following offences:
a.Two counts of using an offensive weapon;
b.Three counts of damage to property; and
c.Two counts of intentionally wounding.
He was given a head sentence of three years commencing on 12 November 2015 with a non-parole period of 22 months.
The judge specifically accepted that it is unlikely that the applicant would re-offend if the applicant accepted treatment and also if he avoided excessive consumption of alcohol. The judge also commented that he did not accept that the applicant’s mental health conditions were causally connected with the present offences, but noted that they do operate as part of the background in relation to the applicant as a person before the court.[46]
[46] G8, folio 33.
While remanded in custody the applicant began seeing doctors and social workers about his mental health. He confessed to a history of daily use of cannabis and moderate daily drinking.
He acknowledged that alcohol was a big trigger for him and was not good.[47] He participated in the following courses:
a.Stress Less - to help manage depression and anxiety[48]
b.Cognitive Self-Change Program[49]
c.Harm Minimisation Session[50]
d.First Steps to Anger Management[51]
e.SMART Recovery Alcohol and Drug Program[52]
[47] G19 folio 162-163.
[48] G22, folio 164
[49] G22, folio 166
[50] G28, folio 192
[51] G21, folio 162.
[52] G19, folio 144.
There were also incidents in prison, in which the Applicant committed acts of violence against other detainees and prison staff.[53] He otherwise made numerous threats of violence towards other detainees and staff and was reported to have said that he was going to kill eight people and then kill himself.[54]
[53] G19, folio 144.
[54] Exhibit A, 230.
In November 2015 he described the difficulty with managing his anger, and described going into rages.[55]
[55] G19, folio 105.
In March 2016 he reported that he grabbed his cellmate around the throat and officers reported that he punched the cellmate repeatedly.[56] The applicant states that he “snapped” and told hospital staff that he may do this again.[57]
[56] G19 folio 140; 144.
[57] G19, folio 144.
In March 2016 he was also seen by an officer throwing punches at another detainee because he had stolen some milk, and disciplinary action was taken in relation to that matter.[58] In May 2016 it was again reported that he was prone to physical displays of anger.[59]
[58] Exhibit A, 651; 658,
[59] G19, folio 154.
In March 2017 other detainees called guards as they feared for their safety.[60] In September 2017 the applicant admitted to fighting with another detainee because the other detainee had spilt milk on the floor that he had mopped.[61]
[60] Exhibit A, 483.
[61] Exhibit A, 460; 667.
The applicant was not charged or convicted in relation to those offences. In cross-examination, the applicant denied that he had fought or attacked anyone in prison but had merely defended himself once or twice. He said that the reports were fabricated.
The evidence before this tribunal confirms that on a number of those occasions the applicant had either admitted to those instances of violence whilst incarcerated, or was formally disciplined in relation to those matters.[62]
[62] Exhibit A, 667.
On his release the applicant was transferred to Villawood Detention Centre[63] and then he was moved to Yongah Hill Immigration Detention in WA. While in Immigration Detention he completed further courses.
[63] G23, folio 167.
On 4 May 2020 the applicant submitted a Request for Revocation of a Mandatory Visa Cancellation under s501(3A).
He provided family information which indicated that his mother was deceased but his father was ‘missing’[64] although later on in the same form he identified his father as ‘deceased’.[65]
[64] G26, folio 180.
[65] G26 ,folio 185.
In response to the minor children question in the form the applicant identified his daughters N and SD. He described his relationship with his children as loving and caring. He went on to say:
When I was separated with my wife, I used to see my children every fortnight and during that time we used to go out to restaurants, shopping and movies. I have always tried to be a loving, caring and kind father to them, because I love them. I am begging you and requesting you to please give me a second chance to see my children again…
In response to the question concerning the impact on his children if his visa cancellation is not revoked he said:
I was very close to my children as I loved them dearly and they loved me the same way. I believe that a negative decision outcome will have a very bad impact on my children as it will have on myself. I really miss them so much because they are my life and my world. I know for a fact that my children miss me a lot, and that they will be very upset if the decision outcome is negative.
In response to the question ‘what address to you intend to live at upon a return to the community’, the applicant wrote: [ADDRESS REDACTED]. This is the address of his twin brother.
In describing the impact on family members the applicant noted:
My only family is my brothers who live in Australia. I have no other family members. I know that it will have a very bad impact on my family if my visa is cancelled, because if I go back to Afghanistan I have no place to stay and my life will be in a big danger as it is not a safe place.
In relation to his criminal offending the applicant said as follows:
As I have mention earlier that I have made huge mistakes and bad choices in life which I’m really regretting, but I’m a human being who is capable of making mistakes. At the time of offending I was intoxicated and drunk and could not recall of what I had done, I only found out when I was out of intoxication the following day. I know what I did was wrong and disgusting. I had bad anger management and I take full responsibility for my actions, but I’m a changed person a better person who deserves a second chance.
He then listed courses he had undertaken:
a.CBT for Depression and Anxiety;
b.Cognitive Self Change Program
c.Harm Minimisation session
d.Smart Recovery Australia Program
e.Anger Management
In relation to his risk of re-offending the applicant wrote:
I believe that I’m a completely changed person for the better thanks to the rehabilitation program and courses that I have completed. Now I know that life is very precious and valuable and cannot be wasted. I want to be given a second chance to work hard and be part of the great community and achieve the best of what life has to offer. I can assure you that I’m not a threat to the community, rather a person who will try to contribute to the community to the best of my ability.
In relation to his work and study history the applicant identified a Certificate II in Tool Maintenance and a period of self-employment in 2014 working as ‘Jack Trading Alln1’
The applicant said that he participated and contributed as a volunteer to the Afghan Community by providing help to elders and the pensioners and volunteering on ‘Australian Cleaning Day’.
The applicant also wrote that he believed that his community would miss him ‘as they have for the past few years that I have been away’.
The applicant identified himself as having the following diagnosed psychological conditions:
Anger management, depression, anxiety – but they are all under control due to extensive training and rehabilitation programs which were provided to me during my sentence.
The applicant identified his concerns about return to his country of citizenship as:
…my life will be wasted. I have no one and no place to stay in. As you know situation in Afghanistan is very bad because of the war and bombings, suicide attacks and killings my life will not be safe at all and I could end up dead.
In relation to problems he would face if returned the applicant said:
…the current situation is that the current government are negotiating with the Taliban, and majority of the country is controlled by Taliban who will execute any afghan foreigners.
He also said:
I sincerely request the decision-maker to please be lenient in making the decision by giving me a second chance to go back to the community and see my family and my two beautiful daughters and to give me the chance to prove myself to be a better person and a great contributor to the community.
He enclosed:
a.A certificate of participation for a ‘Harm Minimisation Session’;
b.A Certificate II in Maintaining Tools and Equipment
c.A certificate II for Contributing to Health and Safety of Self and Others
d.A reference from his twin brother indicating that the applicant would live with him if given another chance; and
e.A reference from the Afghan Community Support Association.
In support of his application, the applicant also provided a submitted a statement from Claire Shapiro, a friend he met around 2010, dated 4 April 2017. In the statement, Ms Shapiro detailed their relationship as forming when she was working at the Multicultural festival on the Interfaith and Multicultural Family stall. The applicant showed an interest in getting involved in the groups and they formed a friendship. In the statement, Ms Shapiro advised that she recently moved to Queensland, but was prepared to support the applicant as a friend where she was able.[66] Ms Shapiro appears to have provided support to the Applicant, including paying an invoice for his migration agent for approximately $178 as the cost for obtaining his medical health records from ACT Health.[67] In May 2018, the applicant advised that he would live with Ms Shapiro following his release from prison; when contacted, Ms Shapiro advised she was not in a position to provide the applicant with accommodation.[68]
[66] G12, folio 51.
[67] Exhibit A, 475.
[68] Exhibit A, 141.
The applicant remains in immigration detention at the present time.

PRIMARY CONSIDERATIONS

As noted above, in determining whether there is another reason why the original decision should be revoked I am obliged to take into account the considerations outlined in Part C of the Direction. Those considerations are divided into Primary Considerations and Other Considerations. The Primary Considerations are:
a.Protection of the Australian community (which includes other considerations within it);
b.Best interests of minor children in Australia affected by the decision; and
c.Expectations of the Australian community.
The other considerations are:
a.International non-refoulement obligations;
b.Strength, nature and duration of ties;
c.Impact on Australian business interests;
d.Impact on victims; and
e.Extent of impediments the applicant will face to establishing themselves and maintaining basic living standards if removed.
This is a non-exhaustive list of relevant considerations.

Primary Consideration A: The protection of the Australian Community

Paragraph 13.1 (1) notes that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Paragraph 13.1(2) of the Direction further provides that decision-makers should 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.
In relation to this criterion the applicant did not contest that his offending on 12 November 2015 was very serious. His brother submitted in oral submissions to the Tribunal that:
…he brought a lot of shame in our family but he’s apologised. He has remorse, he’s regretting it. Everybody deserve another chance. Please give my brother another chance. He’s served his time. He’s served even longer what he’s – he’s supposed to be out but he served even longer, in detention centres, in gaol.’[69]
[69] Transcript of proceedings, 17 November 2020, 102-103.
In relation to the risk that the applicant will commit further offences the applicant highlighted the fact that he has undertaken anger management courses and will be supported by brothers and their families when he is released.
In relation to this criterion, the respondent submitted in their Statement of Facts, Issues and Contentions:
…

29.The applicant’s offending should be viewed as very serious for these reasons:
a.The applicant seems to accept that his offending was serious. His lawyer submitted that “[he] appreciates the gravity of the crimes he engaged in” – G11/45.
b.The applicant has committed multiple violent offences. Crimes of that nature must be viewed very seriously by the Tribunal (paragraph 13.1.1(1)(a) of Direction 79). There is no discretion to view violent offending in some lesser or different light (Minister for Home Affairs v Stowers [2020] FCA 407 at [45]).
c.The Tribunal must also view crimes against women as being very serious (paragraph 13.1.1(1)(a) of Direction 79). One of the victims of the applicant’s violence on the evening of 12 November 2015 was a woman (G8/31, [6]-[7]). The applicant entered her car without permission, began screaming at her, and then cut her neck with a machete. (Respondent’s tender bundle, AFP statement of facts at 3). She had to use her hand to push the knife back towards the applicant before she could flee the vehicle (Respondent’s tender bundle, AFP statement of facts at 3). The victim was completely unknown to the applicant (G8/31, [6]).
d.The applicant has committed other crimes against women. The victim of his contravene protection order offence in 2011 was his former partner and the mother of his children (G7/29).
e.Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy (PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22] per Senior Member Poljak). Accordingly, where a Court has sentenced an offender to a term of custodial imprisonment, this must be viewed as a reflection of the objective seriousness of the offences involved.
f.The conduct that led to the applicant’s conviction in 2011 for drive motor vehicle with alcohol in blood (G7/29) is also very serious. The applicant appears to have drunk a bottle of wine before driving his car dangerously resulting in it rolling over and hitting a tree (G19/76).

Risk of harm to the Australian community
30.In assessing whether the applicant represents an unacceptable risk of harm to the Australian community, regard must be had to paragraph 13.1.2 of Direction 79, which provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In considering the risk 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 available information and evidence on the risk of the applicant re-offending.
31.The nature of the harm that could occur if the applicant were to reoffend is very serious. If the applicant commits further violent offending then the nature of the harm that may result includes physical harm, including the possibility of death. Offending of that nature may also have ongoing psychological consequences for the victims. It will also have broader financial and other consequences to the justice system and the health system. Financial harm may ensue if he commits further property damage offences. Physical, psychological and financial harm could also ensue if the applicant again chooses to drive whilst intoxicated. Applying Principles 6.3(3)-(4) and paragraph 13.1.2(1) of Direction 79, the seriousness of the potential harm that would be caused should the applicant’s past offending be repeated is so serious that any risk that it might be repeated is unacceptable.
32.There is, in any event, insufficient independent evidence before the Tribunal to demonstrate that the applicant is rehabilitated, and the fact that he is not rehabilitated means that the risk of harm arising out of him reoffending is real rather than remote. The conclusion that the applicant is not rehabilitated and that there is a real risk that he will reoffend flow from the following matters:
a.The applicant blames his violent 2015 offending on the emotional effect the custody dispute concerning his children was having on him at the time (G10/40, [33]). The medical records provided demonstrate that the applicant appears to have significant anger problems stemming from a lack of access to his children (G19/92; G19/105) and that all of the applicant’s offences have been committed in the context of this family dynamic and alcohol abuse (G19/76; G19/104). However, the custody dispute appears to be ongoing. The applicant has not seen his children for nearly five years from which it can be inferred that their mother does not support contact with him (G10/40-41, [32], [41). If the applicant’s visa is returned to him then he plans to get a lawyer and resume his attempt to rebuild a relationship with his children (G10/41, [41]). In short, despite identifying the custody dispute as the trigger for the violent offending that led to the cancellation of his visa, he proposes to reactivate the custody dispute if his visa is returned to him.
b.If the cause of the applicant’s violent offending was in fact a latent anger management issue then there is very little evidence to suggest that he has addressed those problems in the five years that have passed since the offending occurred. There are brief references to the applicant undertaking an anger management course in prison (G10/40, [38], G16/56, G21/162, G25/176, G26/188) but the benefit the applicant derived from it, if any, is not known to this Tribunal. The applicant appears to have assaulted another detainee in prison in March 2016 because he “snapped” (G19/144). He told hospital staff that he may “do this again” (G19/144). That does not bode well for the applicant’s claim to have his anger under control.

c.The applicant’s medical records suggest the applicant abuses illicit drugs (cannabis, having 2-3 cones a day) and alcohol (consuming two six packs every few days) (G19/103). Alcohol was involved in the applicant’s 2015 offending (G8/31, [5]). There is no evidence to suggest that the applicant has undertaken any rehabilitation in relation to his misuse of those substances.
d.The applicant has suffered from mental ill-health since at least 2008 (G19/66-67, 73, 78 141). It is unclear what treatments he is currently undertaking other than an anti-depressant medication (G10/41, [39]). A 2015 Canberra Hospital record notes that the applicant has a history of escalating behaviours when he perceives his needs are not being met (G19/141). The 2015 offending could be seen as symptomatic of that issue and there is nothing to suggest it has been resolved since then.
e.The applicant claims to have the support of friends and family however he had the same support in the past and it did not prevent him from offending nor is there any compelling evidence to suggest that the same support would be any more effective now (LQZW and Minister for Home Affairs (Migration) [2019] AATA 93 at [93]).

33.Accordingly, the Minister submits that the primary consideration of the protection of the Australian community weighs heavily against the revocation of the cancellation of the visa.

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 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Amongst those factors are:
a.The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b.The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c.The principle that 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, are serious;
d.Subject to paragraph (b) above, the sentence imposed by the courts for a crime or crimes;
e.The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f.The cumulative effect of repeated offending;
g.Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h.Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s immigration status…
…
I am satisfied that the applicant’s conduct to date has involved very serious offending.
The offences which led to the applicant’s visa being cancelled were violent offences which involved physical injuries to his victims and would undoubtedly have engendered real fear in the minds of his victims. One of his most violent attacks was directed at a woman. The three year sentence imposed reflects the objective seriousness of the offences. This was not the applicant’s first offence and there is a trend of increasing seriousness in the applicant’s offending.
The triggering event for the incident was clearly the Family Court decision limiting the applicant’s access to his children but the conduct could not be regarded as entirely out of character.
On a previous occasion in 2010 where the applicant had suffered a setback in relation to access to his older daughter, he also got drunk and drove a motor vehicle in a manner which endangered his life and the lives of other road users. Accordingly the applicant is capable of reacting in an angry and violent way when issues arise in relation to his children. His violent attacks on members of the public involve very serious offending.

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

Paragraph 13.1.2(1) of the Direction provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
i.Paragraph 13.1.2(1)(a) requires the Tribunal to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
ii.Paragraph 13.1.2(1)(b) requires the Tribunal to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.

The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

Any 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, can be properly informed by the nature of his conduct revealed in his criminal history and police reports to date. Given the applicant’s history, it is likely that if the applicant engaged in criminal conduct or serious conduct in the future, it would take the form of violent crime involving members of the public. I form that view based on the applicant’s previous criminal offending which has for the most part involved people he did not know well or didn’t know at all.
I am satisfied that any re-offending by the applicant would result in significant harm to the Australian community.

The likelihood of the non-citizen engaging in further criminal or other serious conduct

Under the Direction I must also have regard to the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.
The applicant in his submissions repeatedly emphasised that he had changed, that he had undertaken courses which helped him and that he was a completely changed individual who just needed a second chance to demonstrate that change. The applicant’s family witnesses expressed support for that change having occurred and indicated that they would supervise him now and help him to get a job and support his family.[70]
[70] Transcript or proceedings, 17 November 2020, 101.
I discount significantly the family witness assessments of the applicant’s likely conduct. It is clear that for most of the applicant’s time in Canberra their exposure to the applicant has been extremely limited with the applicant on some occasions describing them as estranged.[71]They were only aware of the applicant’s criminal offending that occurred in 2015 and were not aware of his other crimes or charges. It was clear that the applicant’s brother MS had no knowledge at all of the applicant’s earlier charges and crimes even though he was representing the applicant.[72] Significant contact with the applicant was only re-established after he was released from jail and placed in immigration detention in Villawood. Accordingly, I do not give much credence to the applicant’s relatives’ assessment that the applicant is a changed person.
[71]G19, folio 73.
[72] Transcript of proceedings, 17 November 2020, 103
The applicant is also insistent that he has learned his lesson and will not repeat the behaviour. These claims are difficult to accept. It is reasonably clear that the applicant has historically had significant problems with alcohol. It is unclear the extent to which these have been addressed. The applicant claims that he has not touched alcohol since he did courses in prison. I accept that that is the case. However, until his capacity to resist is tested in the community it is difficult to draw a firm conclusion that the applicant will not return to alcohol use on his release.
Denial of access to the applicant’s children is also a significant trigger for his behaviour. All of his criminal offending has to a greater or less degree had something to do with access to his children. The drink driving offence committed in October 2010 was the direct product of a dispute about access he was having with the mother of his children. His breach of the DVO occurred when the applicant’s ex-partner was heavily pregnant with his second child and in circumstances where his access to his first child was limited. The serious violent offences for which the applicant was incarcerated followed Family Court orders being made which gave the applicant only very limited access to his children.
The applicant still has unrealistic expectations about the extent to which he will have access to his children and involvement in their lives. In the statement provided to the delegate for consideration, he talks about living in Queensland and having access visits with them in school holidays.[73] The Family Court, when it last considered access arrangements in 2015, appears to have reduced the applicant’s access to his children from 2 hours per month to 1 hour.[74] Significant involvement in his children’s lives appears unlikely for the applicant but his current thoughts are a long way from accepting that. Given his past behaviour, there appears to be a significant risk that the ongoing separation from his children and his desire to re-connect with them will trigger another serious event in the future. I consider the applicant a moderate risk of re-offending given his unrealistic hopes in relation to his children. His behaviour in jail suggests that he is not yet in control of his anger and is a further cause for concern.
[73] G10, folio 41
[74] G10 at 40.
The applicant takes little responsibility for any of his offending. He blames his 2015 crimes on spiked drinks. He blames his ex-partner for his breach of the domestic violence order and makes up lies to cover up his own responsibility
I am satisfied that there is a moderate risk of the applicant being involved in violent re-offending.

Conclusion: Primary Consideration A

The applicant’s offending is very serious and there is a moderate risk that he will engage in criminal conduct in the future. If the applicant engages in similar criminal conduct in the future, it will cause serious harm to Australians and the Australian community. There is a good chance that any crimes committed will be violent and perpetrated on members of the general public. Protection of the Australian community favours strongly a non-revocation decision.

PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a minor child who may be affected by the cancellation of the applicant’s visa. Paragraphs 13.2(2) and 13.2(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 revoke the mandatory cancellation decision is 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.
Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned children. Those factors comprise:
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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h.Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The applicant has two children of his own. In addition he has had some contact with his siblings children. I will consider the interests of each of these children.

The applicant’s daughters

The applicant’s first daughter N was born on 1 June 2007 and is now thirteen years old. The applicant’s second daughter SD was, according to the applicant, born on 12 May 2012. It seems unlikely that this date is correct. The applicant himself admitted to some uncertainty about the year of SD’s birth. Police records suggest that SD was in fact born on 12 May 2011.
The applicant’s relationship with his daughters’ mother broke down permanently around 2010 and SD was born after the relationship was over and the applicant was remanded in custody.
After the relationship breakdown, the applicant has had limited contact with his daughters. Before being incarcerated the applicant’s access arrangement allowed him two hours of supervised access per month. Since incarceration in late 2015 the applicant has not had any contact with his daughters. Neither daughter gave evidence to the Tribunal and it is unclear where the applicant’s former partner is. It appears that the applicant has had no meaningful contact with his former partner or his daughters since his incarceration.
The applicant’s submissions in relation to his daughters are as follows:[75]
a.He is very close to his children;[76]
b.He loves his children;[77]
c.When he had the opportunity he spent as much time with them as he was allowed – he would take them to restaurants, shopping and movies[78] and play cards and baseball with them;[79]
d.He wanted more access to them;[80]
e.They mean the world to him;[81]
f.If he is returned to Afghanistan he will lose contact with them;[82]
g.If his visa is cancelled the children will not have a father.[83]
[75] G Documents, G26, folio 178-190
[76] G26, folio 184;
[77] G26, folio 184.
[78] G26, folio 184.
[79] G10, folio 39.
[80] G10, folio 40.
[81] G26, folio 184.
[82] G10, folio 41.
[83] G10, folio 41.
The applicant’s daughters are in the full-time care of their mother S.
Their interests are not identical because N had a longer period to form a bond with her father and there were periods where N and both her parents were living in the same home.
However, the current circumstances of both daughters are the same. They have both been separated from their father for an extended period. In the years leading up to the applicant’s incarceration, contact has been limited and supervised. It will be difficult for any meaningful relationship to form given the extended absence and the limited access which is likely to be forthcoming following the applicant’s release. It appears likely that the applicant’s children continue to live in Canberra, but the applicant proposes living in Sydney with his brother. In these circumstances it is unlikely that close father-daughter relationships will be formed with either daughter. This is very much contrary to the wishes of the applicant. He has a strong desire to have a relationship with his daughters but in the present circumstances it appears very unlikely that he will be able to realise that goal.
There is no direct evidence before me about the extent to which the applicant might be able to continue contact with his daughters if he is removed from Australia to Afghanistan, but there is evidence that indicates that he and his siblings were able to maintain contact with their mother up until her death (noting that she died in India but lived in Afghanistan prior to her illness).[84] Accordingly, removal to Afghanistan will not eliminate completely the possibility of contact with his daughters using the internet. However the applicant’s poor relationship with his daughters’ mother will continue to represent a significant barrier to the applicant maintaining contact just as it will if the applicant remains in Australia.
[84] Transcript of proceedings, 17 November 2020, 73
In relation to the criteria in paragraph 13.2(4) of the Direction:
a.The relationship between the applicant and his daughters has not been a significant one for many years. The applicant had a meaningful father/daughter relationship with N after her birth but now there have been long periods of limited contact followed by long periods of total absence. Although the applicant’s relationship with N and SD is a parental one, it is a weak and distant one.
b.It is unlikely that the applicant will play a positive parental role in his daughters’ life. This is not due to the absence of any willingness on the part of the applicant who feels very deeply the separation from his daughters. However, the relationship with his daughters’ mother is such that it is unlikely that she will permit him to have significant involvement with his daughters and to date the indications are that the Family Court will support her in that decision. There are poor prospects that the applicant will play a positive parental role. There is however the possibility that if the applicant remains in Australia he might be able to provide some financial support to his children.
c.There is no evidence that the applicant’s past criminal conduct has impacted negatively on his daughters. There is potential that future criminality could impact negatively on them, but at present his daughters appear to have been insulated from the applicant’s conduct as a consequence of the fact that he has not lived with their mother for many years and for the most part his criminal offending has not been directed at their mother.
d.If the applicant were removed from Australia permanently, this would remove all possibility of physical contact. It would also probably eliminate the possibility of the applicant providing material and financial support for his daughters. However, given that personal contact has been a limited feature of the relationship to date and there is no evidence of him providing any significant financial support, that impact is significantly less than it might otherwise be. The evidence suggests that maintaining a relationship over the internet is feasible so the possibility of the applicant having some involvement in his daughters’ lives remains open even if his visa remains cancelled.
e.S, the girls’ mother, plays the parental role.
f.No evidence was provided as to either girls’ view about the impact on them if their father was removed from Australia.
g.There is no evidence of abuse or neglect of either girl.
h.There is no evidence that either girl has suffered trauma as a result of the applicant’s conduct.
Generally speaking it is better that a child has access to their father and the emotional and financial support that he can offer. However, in the applicant’s case, there has been so little support of any kind for either daughter to date, and so little prospect of much going forward, that it is difficult to give much weight to such general considerations.

(b) Strength, nature and duration of ties

The principles in the Direction relevantly provide:
Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.[105]
[105] The Direction, paragraph 6.3(5).
This principle is relevant in assessing the strength, nature and duration of the applicant’s ties.
It should also be noted that the Direction sets out two main factors to consider when assessing the strength, nature and duration of a person’s ties to Australia:
a.How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child noting that (i) less weight should be given where the non-citizen began offending soon after arriving in Australia, and (ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b.The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia.

Applicant’s submissions

The applicant submits that his ties to Australia are strong.
In the submissions made to the delegate the applicant submitted:
WLMG has lived more than half his life in Australia. He considers himself Australian and Australia his home. Prior to his criminal offence, WLMG maintained consistent employment and contributed to the Australian community. His parents having been killed in 2010. He has two brothers (with their families) who live in Sydney and are Australian citizens, his Australian citizen children are the ones he feels extremely close to as well as his good friend Claire. There would be an emotional impact on them, if WLMG was removed. If returned to Afghanistan, WLMG would have no social or financial support and would likely face religious persecution and a degradation of mental health.[106]
[106] G10, folio 41
The applicant submitted in his original request for revocation as follows:[107]
I have participated and contributed as a volunteer to the Afghan Community by providing help to elders and the pensioners. And I also volunteered in participating of Australian Cleaning Day.
I believe that my community will miss me as they have for the past few years that I have been away.
[107] G26, folio 187-188.
The evidence given at the hearing suggested that the applicant was now developing close ties with his brothers and their families but that this was a relatively recent development.
Prior to the applicant’s incarceration the applicant and his brothers and sisters in law would speak only rarely and see each other only on the odd occasion. Prior to attending the hearing, the applicant’s older brother MS was unaware of the applicant’s difficulties with the law. This suggests that the relationship was not a close one until recently.
The applicant also could only identify one close friend in the course of the review. She did not give evidence at the hearing but provided supportive letters during the review process. I am prepared to accept that he is very close with that person but she is resident in Queensland and the ongoing relationship will be pursued primarily over the telephone.
A letter of support from Mr Nader Azamy, President of the Afghan Community Support Association was also filed in support of the application[108] although Mr Azamy was not called. The statement says that the applicant ‘has been an active member of the community providing help and support to those in need specially the Afghan youth. I have known him to be of a great character, he is very polite, kind and caring person who had always tried to reach out to help others.’
[108] Exhibit A5.
Given that Mr Azamy is based in Sydney and the applicant has lived in Canberra for most of his time out of incarceration, it is unclear how much contact Mr Azamy has had with the applicant which would allow him to express the views he does in the reference he has given. Notwithstanding that the letter is a very weak form of evidence I will accept it at face value in so far as it describes the applicant’s involvement with the Afghan community.
Two of the applicant’s brothers and his sister in law gave evidence which showed the regard they had for the applicant.
The respondent accepted that the applicant’s brothers will miss the applicant but notes the following. The applicant has spent some 19 years in Australia. He has made contributions to the country through his employment. He has some family members in Australia but there is minimal evidence as to the effect the applicant’s departure would have on them. The applicant appears to be estranged from two of his three siblings but not the third.[109] The evidence also suggests that that the applicant has at least one friend in Australia.

Assessment

[109]G19, folio 73.

Although the applicant has been in Australia for 19 years, the strength nature and duration of his ties are quite weak.
He has three brothers in Australia, including a twin brother, but the evidence suggests that he had very little connection with his older brothers or their families until after he was incarcerated for his most recent offences. He was clearly closer to his twin brother but they lived in different cities for most of the applicant’s time in Australia.
The applicant only identified one close friend who now lives in Queensland. His work history is patchy and he had no significant period with any one employer. He did have contact with his local Afghan community and made some contribution to that community.
Accordingly it is fair to say that:
a.The applicant has a lengthy connection to Australia – more than half his life has been spent here;
b.The applicant has family ties to Australia (and no equivalent ties to Afghanistan). All of his immediate family including brothers, sisters in law, children, nephews and ex-partner are in Australia;
c.The applicant has at least one close friend in Australia;
d.The applicant has ties to his ethnic community; and
e.The applicant has worked for periods while he is in Australia.
This consideration weighs in favour of revocation of the cancellation. Australia is the applicant’s home and all of the important relationships he has in life are to be found here. Those relationships are, generally speaking, weak, but the length of time the applicant has spent in Australia and the nature of the relationships which tie him to Australia, persuade me that this consideration weighs in favour of revoking the cancellation.

(c) Impact on Australian business interests

There is no discernible impact on Australian business interests if the applicant’s visa remains cancelled. He does not suggest otherwise. There is no suggestion that the applicant has any skills which could not be matched by other employees available in Australia nor could there be any suggestion that he has employment links which if broken ‘would significantly compromise the delivery of a major project, or delivery of an important service in Australia.’[110] This consideration has no impact on my consideration.
[110] Direction, 14.3(1).

(d) Impact on victims

The respondent submits that there is no evidence available of the impact of a decision not to revoke the cancellation decision on the victim of the applicant’s offending. The respondent contends that this factor should be treated as neutral.
Given the absence of any evidence on this question I accept that submission.

(e) Extent of impediments if removed

Paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country).
The relevant country for consideration of this criteria is Afghanistan.
The Tribunal must take into account the criteria set out in paragraphs 14.5(1)(a), (b) and (c) of the Direction which are:
(a)the non-citizen’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.

Applicant’s submissions

The applicant submitted in his original Request for Revocation of a Mandatory Visa Cancellation under section 501(3A), that he has the following concerns or fears about what would happen if he returned to his country of citizenship.
Under the heading of ‘Health Information’ in his original submission, the applicant ticked ‘yes’ to the question ‘Do you have any diagnosed medical or psychological conditions?’ He provided the following details:
Anger management, Depression, Anxiety but they are all under control due to extensive training and rehabilitation programs which were provided to me during my sentence.
He provided no information about any medications he was taking.
The applicant ticked ‘yes’ to the question ‘Do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship?’ He gave the following written response:
My concerns are that if I go back to Afghanistan my life will be wasted. I have no one and no place to stay in. As you know situation in Afghanistan is very bad because of the war and bombings, suicide attacks and killing my life will not be safe at all and I could end up dead.
In relation to the question ‘Are there any other problems you would face if you have to return to your country of citizenship?’ the applicant responded:
Yes, the current situation is that the current government are negotiating with the Taliban, and majority of the country is controlled by Taliban who will execute any Afghan foreigners.
When the applicant provided a statement for the purposes of the review of the cancellation decision he provided the following relevant information:[111]
I am also taking my anti-depressant medication prescribed to me by doctors at the prison and feel like my mental health is much better now than it was in the past…
…there is nothing left for me in Afghanistan. If I go back I am worried for myself. …It has been over 20 years since I was in Afghanistan, a country that I fled due to the violence and fear for my life. All of my family have either moved to Australia and have had a family of their own or have died. I no longer have anyone I know in Afghanistan and I have no doubt that I will be homeless, with no access to medication for my mental health or counselling services. I would suffer without my children and family and without support, I fear I may hurt myself or be killed. I further am in great fear that I will not be able to practice my Christian beliefs and if found out, I would certainly be killed.
[111]G10, folio 41
I note that the applicant specifically disavowed any conversion to Christianity at the hearing.
The delegate in addition to the above noted that the applicant has a back and leg injuries which may require medical attention.
In submissions to the Tribunal the applicant submitted:[112]
As you are aware my birth country Afghanistan’s situation is extremely bad and is deteriorating day by day especially since the Taliban have come back, there are too many suicide bombings and killings. My life will be in a big danger if I go back because I was involved in the communist regime and the Taliban are looking to kill anyone who was involved in such regime. Therefore, I request the minister to save my life from going back to Afghanistan and give me a last chance to make a better living for myself and my family in Australia. I do not have anyone or any place to go in Afghanistan, my dad died from prostate cancer and my mum also died from pancreatic cancer.
[112] Exhibit A1.
In oral submissions the applicant’s brother submitted that Afghanistan is not a safe place. The applicant needs medication and Afghanistan is not going to provide it. He said that his family cannot support him in Afghanistan. There are no jobs in Afghanistan. In Afghanistan in the last 30 days there have been suicide bombers in mosques and a university. The Taliban is meeting with the US with a view to bringing back the Taliban. The Taliban are Pashtun and do not get along with Tajiks which is what the applicant is. The applicant does not have a house back in Afghanistan.[113]
[113] Transcript of proceedings, 17 November 2020, 102.

Respondent submissions

The respondent accepted that the applicant will face practical, financial and emotional hardship upon return to Afghanistan including separation from his social network. However the respondent contended that it was unclear whether the applicant’s parents are deceased (a submission which I find could not be maintained in light of the evidence given at hearing). The respondent also accepted that ‘it seems likely that the familial and social support he will have available to him in Afghanistan will be limited.’
The respondent does however note that the applicant lived in Afghanistan for the first 17 years or so of his life. He attended school there and describes himself as having been a gifted student. The applicant has done ‘lots of work’ in ‘different jobs’ in Australia. His intelligence and adaptability will be of assistance to him in gaining employment and re-establishing himself in Afghanistan. The respondent does accept however that the applicant will face financial challenges given the absence of a social security system in Afghanistan.
The applicant notes that DFAT Country Information indicates significant improvement in the Afghan health system since 2001. 85% of the population now have access to basic health services. The respondent accepted that ‘there are significant barriers to accessing treatment for mental health issues, including a considerable cultural stigma surrounding mental illness and a lack of outpatient mental health services. The respondent notes that ‘although the applicant has mental health issues, he says they are under control’. That submission needs to be approached with care. The applicant’s mental health issues are controlled by the use of medication. It cannot be assumed that the applicant will have access to that medication if returned to Afghanistan and it is likely that his mental health conditions will not be ‘under control’ if he is returned.
The respondent accepts that there are real and substantial impediments for the applicant if he were returned to Afghanistan and that this factor weighs in favour of revocation.
Analysis
The Full Federal Court in the decision of Minister for Home Affairs v Omar[114] emphasised that:
...where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people.
[114] [2019] FCAFC 188.
In order to do that I have considered, in addition to the submissions and evidence provided by the parties, a document prepared by the Country of Origin Information Services Section (‘COISS’) dated 23 October 2020 entitled ‘Return and Relocation’. That document was provided to both parties ahead of the hearing of the matter.
The document paints a very grim picture of Kabul, the likely destination for the applicant. Kabul has an estimated population of 4.222 million people. It notes that for returnees from Europe or Australia the most significant challenges once returned are income and networks.[115] Returnees who have no support networks are forced into shared housing where they are questioned by the community about their origins. Although returnees are generally welcome it is difficult to adjust back into Afghan society and returnees are exposed to targeting by AntiGovernment Elements (‘AGE’), crime, intercommunal violence and robbery because of a lack of local networks. Other problems identified include:
[115] Return and Relocation – Afghanistan – Country of Origin Information Section (COISS) effective 23 October 2020, 2.
a.Returnees in Kabul without family or extended family ties will face difficulties in renting accommodation;
b.Returnees without some form of connections have difficulty finding employment;
c.The unemployment rate is more than 53 percent;
d.The conflict in Afghanistan continues to kill civilians. The civilian death toll in Afghanistan in the first six months of 2020 is 1,282 with targeted killings including mass shootings the leading cause of civilian deaths.
e.The economy has contracted because of COVID 19 and food prices have spiked;
f.Returnees have limited access to health care due to geography and a lack of financial means. Returnees said that the healthcare system was bad or very bad.
g.Many returnees have lost their income and assets and cannot afford the limited health care services available;
h.Kabul however does present returnees with more economic opportunities than rural areas, and is ethnically diverse; and
i.Returnees from the west have been targeted for kidnapping and extortion because of perceived wealth.[116]
[116] Ibid, 6-9.
It seems reasonable to conclude that if the applicant is returned to Afghanistan he will face very significant obstacles to establishing and maintaining basic living standards.
While he has the benefit of having grown up in Kabul and speaking Dari and understanding the culture, he has significant health problems, particularly mental health problems which are likely to go untreated in Afghanistan and which will make establishing himself there extremely difficult. The evidence also indicates that the applicant has no social or family network to return to and will receive no governmental economic support on his return. Accordingly, if the applicant is removed to Afghanistan, the impediments to the applicant establishing and maintaining even a basic living standard are very significant.
This consideration weighs heavily in favour of revocation.

Other considerations

In addition to the conditions described above creating severe difficulties for the applicant in establishing and maintaining basic living standards, they also create risks that the applicant will suffer other kinds of harm.
The applicant made submissions about the return of the Taliban and the dangers that this poses for him in light of his previous communist associations. He also made submissions in relation to the risks that he faces as a consequence of being returned from a western country and how that makes him a target. The applicant noted the significant civil unrest and violence in Afghanistan noting the risks that he faces of being killed by a random act of violence such as a suicide bombing.
While the applicant presented an exaggerated picture of these risks when regard is had to (a) the very low prospect of a random civilian death (1,282 civilians were killed in the first six months of this year in a country of more than 36 million people), (b) the low risk of being targeted as a returnee (see DFAT Country Information) and (c) the limited country information support for the claim that there is targeting of former communists in Kabul, the concerns are genuine and there cannot be any doubt that the applicant will face dangers in Kabul that he would not face if he were to remain in Australia. This weighs in favour of revoking the cancellation.

SUMMARY OF FINDINGS – OTHER CONSIDERATIONS

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

International non-refoulement obligations: I am satisfied that it is most unlikely that the applicant will be returned to Afghanistan in breach of Australia’s non-refoulement obligations. Those obligations are currently being assessed and the present commitment from the Australian Government is that it will not return a person to their country of origin in breach of Australia’s international treaty obligations. The legal means for implementing this policy are in place. There is however significant uncertainty as to what the result of the ITOA assessment will be. There is a reasonable prospect that Australia will satisfy itself that it does not owe the applicant non-refoulement obligations and return the applicant to Afghanistan. In light of this uncertainty this consideration does not weigh strongly either way in and of itself, but the fact that there remains a significant chance that the applicant will be returned to Afghanistan (but not in breach of any non-refoulement obligation) this has a practical impact on how other factors are considered;

Strength, nature and duration of ties: this favours revocation.
Impact on Australian business interests: not significant and does not support revocation.
Impact on victims: no evidence to consider.
Extent of impediments if removed: weighs heavily in favour of revocation.
Other harms faced in Afghanistan: weighs heavily in favour of revocation.

CONCLUSION

Is there another reason to revoke the cancellation of the applicant’s visa?

Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the applicant’s visa: either the applicant must be found to pass the character test, or the Tribunal must be satisfied that there is another reason why the original decision should be revoked. In exercising the power, the Tribunal must take into account the considerations in Part C of the Direction and other relevant considerations. As I have noted in my decision, the applicant does not pass the character test. Having regard to the Direction and to the totality of the evidence before me, I am not satisfied that there is another reason for the Tribunal to revoke the cancellation of the applicant’s visa.
Contrary to the expectations of the Australian community, the applicant committed several criminal offences in his time in Australia culminating in violent attacks on strangers with a machete. The offences committed that evening were very serious offences justifying a significant custodial sentence. That crime was committed in a context where the applicant had two other criminal convictions. This history weighs very strongly in favour of non-revocation. The offences committed were very serious and for the reasons explained above, I am satisfied that there remains a moderate risk that he will re-offend. If he does, the harm to the Australian community could take the form of violence to other Australians.
The expectations of the Australian community and the need to protect the Australian community from the risk of further offending by the applicant, weigh heavily in favour of not revoking the visa cancellation.
Notwithstanding that the applicant has two minor children of his own and is involved in the lives of other minor children, for the reasons explained at paragraph [46] above and following, this factor does not weigh heavily in the analysis.
What weighs most heavily in the applicant’s favour are his close ties to the Australian community, his almost total absence of connection to Afghanistan and difficulties that he will face if he is returned to that country. Those matters are almost sufficient to persuade me that revocation of the cancellation is the appropriate decision. However, protection of the Australian community remains a key consideration in matters of this kind. The applicant’s offending has got more serious over time. While the consequences of him being returned to Afghanistan are terrible for him, the consequences of leaving the applicant free in the Australian community have a significant prospect of resulting in injury to an innocent member or members of the community. In light of this risk, I give greater weight to primary factors (a) and (c).

DECISION

The decision of the respondent made on 15 September 2020, being a decision of the delegate of the then Minister for Home Affairs not to revoke the cancellation of the Applicant’s Humanitarian visa under s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.

I certify that the preceding 239 (two hundred and thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O’Donovan

......................................................................

Associate

Dated: 18 December 2020

Date(s) of hearing:	16 and 17 November 2020
Applicant:	Self-represented with MS
Respondent’s representative:	Ms Elle Tattersal, Sparke Helmore Lawyers

[2020] AATA 5143

7 December 2020

Key Legal Topics

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Immigration

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