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

WRFG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3514 (30 September 2021)
Division:General Division
File Number(s): 2019/0645
Re:WRFG
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member Theodore Tavoularis
Date:30 September 2021
Place:Brisbane

The decision under review is affirmed.
.............................[sgd]...........................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – mandatory cancellation of the Applicant's Class XA Subclass 866 protection visa – Migration Act 1958 (Cth) s 501(3A) – Applicant fails to pass the character test – substantial criminal record – sentenced to a term of imprisonment for 12 months of more – whether there is another reason why the cancellation should be revoked – s 501CA – application of Direction No. 90 – international non-refoulement – where Applicant a citizen from Afghanistan – decision under review affirmed
Legislation
Criminal Law (High Risk Offenders) Act 2015 (SA)
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations For Removal) Act 2021 (Cth)
Cases
Commonwealth of Australia v AJL20 [2021] HCA 21
DRH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
Pretorius and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1869
Sullivan v Civil Aviation Safety Authority (2014) 184 CLR 23
Vargas and Minister for Home Affairs [2019] AATA 3409
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Introduction and background
An important procedural aspect of this matter
Issues
Does the Applicant pass the character test?
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
The principles in paragraph 5.2
The Primary and Other Considerations
PRIMARY CONSIDERATION 1 – Protection of the Australian Community
The nature and seriousness of the non-citizen’s conduct to date
Offence on 9 October 2013 (sentenced on 19 September 2016)
Offences on 16 July 2014 (sentenced on 25 November 2014)
Offences on 29 December 2014 (sentenced on 27 May 2015)
Application of other factors in paragraph 8.1.1(1)
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s contentions
The Respondent’s contentions
My Findings about recidivism
The Applicant’s recidivist risk
Conclusion: Primary Consideration 1
Primary Consideration 2: Family Violence
Primary Consideration 3: The Best Interests of Minor Children in Australia
Primary Consideration 4: Expectations of the Australian Community
Analysis – Allocation of Weight to this Primary Consideration 4
Conclusion: Primary Consideration 4
Other Considerations
Miscellaneous Other Considerations propounded by the Applicant
Impact of non-revocation decision on Applicant’s family in Afghanistan
(a) International non-refoulement obligations
(b) Extent of Impediments if Removed
(c) Impact on victims
(d) Links to the Australian community
Strength, nature and duration of ties
1. Impact of non-revocation on the Applicant’s immediate family
2. Strength, nature and duration of “other ties” – length of residence
3. Strength, nature and duration of “other ties” – family and other social links
Impact on Australian business interests
Weight allocable to Other Consideration 4: links to the Australian community
Findings: Other Considerations
Conclusion
Is there another reason to revoke the cancellation of the Applicant’s visa?
Decision
REASONS FOR DECISION
Senior Member Theodore Tavoularis
30 September 2021
Introduction and background

WRFG (“Applicant”) is a citizen of Afghanistan who is 63 years old. His Class XA Subclass 866 Protection visa was mandatorily cancelled by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister” or “Respondent”) on 11 May 2016 pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“Act”).[1]
[1]T1, 40.
He made representations to have the mandatory cancellation of his visa revoked, in accordance with s 501CA of the Act. The delegate decided not to revoke the mandatory cancellation decision on 29 January 2019.[2]
[2]T1, 3.
The Applicant appealed to this Tribunal on 6 February 2019.[3] On 12 April 2019, this Tribunal (differently constituted) affirmed the delegate’s decision.[4] The Applicant appealed to the Federal Court of Australia. On 2 December 2020, the Federal Court quashed the Tribunal’s first decision and remitted the matter to this Tribunal for re-hearing.[5]
[3]T1, 1–2.
[4]T1, 792.
[5]T1, 808.
A hearing was held before me in this Tribunal on 24 June 2021. The hearing received both written and oral evidence. The written evidence was described in an agreed Exhibit List, which is attached to this decision and marked Annexure A. The oral evidence was exclusively limited to that of the Applicant.
In the parties’ respective SFICs, there was a contest about how I should deal with certain evidence. The Applicant said that the material produced by the South Australian Police Service (“SAPOL”) under summons should not be received by the Tribunal. The Applicant relied on Sullivan v Civil Aviation Safety Authority which is authority for the proposition that (for present purposes) the Tribunal should have regard to the SAPOL material because, as a matter of common sense, it will assist the Tribunal in its fact-finding function to reach the correct and preferable decision.[6]
[6](2014) 184 CLR 23.
The pivotal question relates to the relevance of the material with specific reference to the discharge of this Tribunal’s power to determine this application. As noted by the Respondent, one of the purposes of the discharge of the Tribunal’s power (for present purposes) involves finding whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa. A primary consideration informing the exercise of that power involves the protection of the Australian community and whether, based upon past unlawful conduct, an applicant will or will not cause or threaten harm to individuals or the Australian community.
The SAPOL material may demonstrate the Applicant has engaged in criminal or other serious conduct and, as such, has a direct bearing on the discharge of the Tribunal’s power. I therefore reject the Applicant’s objection to the tendering of the SAPOL material.
An important procedural aspect of this matter
This matter contains an important procedural aspect which is best understood by reference to a timeline. As mentioned above, I conducted the hearing of this matter on 24 June 2021. I was intending to publish my reasons for decision on or about 18 August 2021. As will be noted later in these reasons, this is a case concerning an Afghan Applicant who holds a protection visa. Relevantly for the purposes of this case, there was a political episode or incident that occurred in or about the time I was intending to publish my reasons. That episode or incident involved a change of government and/or political system in Afghanistan following the withdrawal of foreign forces from that country.
Given the circumstances of that change of government and/or political system, I thought it appropriate, prior to publication of my reasons, to list this matter for a telephone directions hearing and invite the parties to further ventilate any impact they thought the change of government and/or political system in Afghanistan may have on this matter. I conducted this telephone directions hearing on 27 August 2021. At the request of the parties, I made certain further directions for the filing of additional written submissions. Attached to these reasons and marked Annexure B is a true and correct copy of those further directions. The respective written submissions of the parties were captured into evidence and allocated respective exhibit numbers.[7]
[7]See Exhibit A6 (for the Applicant’s written submissions); and Exhibit R3 (for the Respondent’s written submissions).
Issues
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this sub-section provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; 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.
As mentioned, the Applicant has previously made the necessary representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[8]
[8](2018) 267 FCR 320, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 [38] (North ACJ); Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal is compelled to find that the cancellation of the Applicant’s visa must be revoked.[9] I will address each of these grounds in turn.
[9](2018) 267 FCR 320 [21].
Does the Applicant pass the character test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant has been convicted to two separate terms of imprisonment of more than 12 months:
·On 19 September 2016, at the District Court of South Australia, he was sentenced to 20 months imprisonment; and
·On 27 May 2015, at the Mount Gambier Magistrates Court, he was sentenced to 2 years imprisonment.[10]
[10]T1, 14–15.
I am therefore satisfied the Applicant satisfies the definition in s 501(7)(c) of the Act and thus fails the character test. It follows that he cannot rely on s 501CA(4)(b)(i) of the Act for revocation of the mandatory cancellation.
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“Direction” or “Direction 90”) has application.[11] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[12]
[11]Direction 90 commenced on 15 April 2021. It revokes Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
[12]Direction, paragraph 6. See also Direction, paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to “provide a framework within which decision-makers should approach their task” under s 501 or 501CA, as the case may be. Summarised where appropriate, the principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” which I must be guided by in making my decision.
The Primary Considerations I must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[13]
[13]Direction, paragraph 8.
The Other Considerations which, where relevant, I must take into account “include but are not limited to”:
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests”[14]
[14]Direction, paragraph 9(1).
Paragraph 7 of the Direction also provides guidance as to how to take into account each primary and other consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)One or more Primary Considerations may outweigh other Primary Considerations.
The guidance in paragraph 7 of the Direction I have quoted above does not differ materially from the guidance which appeared in former directions. In Suleiman v Minister for Immigration and Border Protection, Colvin J said of the former Direction 65 that:
“…Direction 65 [a predecessor to Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 [(now Direction 90)] 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.”[15]
[15](2018) 74 AAR 545 [23].
I will now turn to addressing the abovementioned Primary and Other considerations.
PRIMARY CONSIDERATION 1 – Protection of the Australian Community
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I will consider each in turn.
The nature and seriousness of the non-citizen’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the factors set out in paragraph 8.1.1(1) of the Direction.
Any assessment of the nature and seriousness of the Applicant’s conduct requires, by definition, reference to the offences he has committed and, where available, the impression that his offending had on judicial sentencing officers who sentenced him.

His National Police Certificate makes it plain that he has been convicted for 10 separate offences[16] canvassing offences ranging from driving offences, trespass, breach of bail, breach of a good behaviour bond and various assaults which, by their very nature, comprise his most serious offending and which, during the hearing before me, were referred to as the Applicant’s “three serious offences”.[17]
[16]Note: one of those “offences” comprises a conviction for “Breach of bond” for which the Applicant was convicted and sentenced to 3 months imprisonment.
[17]See Transcript, 34, line 20.
Offence on 9 October 2013 (sentenced on 19 September 2016)
On 19 September 2016 in the District Court of South Australia, the Applicant was sentenced to 20 months imprisonment with a non-parole period of 2 years 8 months for offending recorded as “commit an assault that causes harm – basic offence”. This offending involved the Applicant being in his home and having a social drink with a woman. He suddenly became angry which caused the complainant to form the intention to leave. She made her way to the front door on the way out of the residence, but he intercepted her and pushed the door closed against her wishes. Also against her wishes, he pushed her to the lounge and took a hold of her by the biceps. He proceeded to punch her in the face several times. This offending comprised the “assault that causes harm” charge resulting in the abovementioned conviction.
The judicial sentencing officer was his Honour Judge Cuthbertson who noted the following about the Applicant’s conduct in his sentencing remarks:
“There are photographs and other independent evidence showing the complainant had suffered injury to her face. The offender, according to the complainant, held her down on the lounge and tried to have intercourse with her. He eventually inserted his penis into her vagina. That is the charge of Rape in respect of which the offender was acquitted.
Both the offender and the complainant were somewhat intoxicated at the time. As I said, the jury returned a verdict of not guilty of the Rape charge but guilty of the Assault charge.
[…]
I must sentence the offender on the basis that in his home he punched the complainant several times to the face. I must not take into account that he had non-consensual intercourse with her following that because he is entitled to the benefit of the verdict of not guilty.
[…]
This is now the third offence involving a lone elderly woman with sexual overtones to it. The offender is making himself a danger to the Australian community. These two other offences are not previous convictions but they are a pointer to his likely rehabilitation.
[…]
The offence of Assault which he committed was a serious offence against a lone woman in his home.”[18]
[My emphasis and underlining]
[18]T1, 16–18.
This offending was canvassed with the Applicant at the previous hearing in this Tribunal. He adopted a very defiant position towards any suggestion that he became angry towards the victim. He suggested that he was “very calm toward her” and that he was otherwise “not angry with her”:
“MS JACKSON: The injuries to her face were from you punching her in the face, not her falling down.
INTERPRETER: No, I didn’t punch her. So I didn’t even touch her or attempt to punch her. So she was drunk and so she was - she didn’t remember what happened to her. So when the lawyer ask her, “What were you doing in front of the bank?” She told she was waiting to get some medication. I don’t remember the name of the medication, but the lawyer said that medication is addictive medication. So - and also when she was at my place she was smoking marijuana. She was drunk and under influence of drug as well, so - and I’m sure it happened outside of my place.
MS JACKSON: The judge found that the - well you were convicted of the charge of assault causing harm, and the judge found that that was you punching her in the face several times. Do you accept that?
INTERPRETER: No, I don’t. No, I don’t accept this. I didn’t punch her. I didn’t abuse her, so if I did such kind of conduct, I accept it. I would accept it, but no, I didn’t. I don’t accept this.
MS JACKSON: The victim says that after you punched her in the face, you then pushed her down onto the couch and had sex with her.
INTERPRETER: No. No. Our sex was with her permission, consent. No, it was not because - with force, no.
MS JACKSON: So you did have - - -
WRFG: Sorry.
INTERPRETER: No, there was not any fighting or any punching at all.
MS JACKSON: So you did have sex with her but it was with her consent, is that your evidence?
INTERPRETER: Yes.”[19]
[My emphasis and underlining]
[19]T1, 739.
It seems plain from the evidence upon which the Applicant was found guilty of the assault that caused harm that the Applicant’s position of denying he punched the complainant/victim is simply not tenable. There is simply no other credible or logical explanation as to why the victim was injured in the way she was. The only benefit to be afforded to the Applicant – for the instant purposes of applying the Direction – is, pursuant to the jury’s verdict of not guilty on the charge of rape, to not take into account this aspect of his conduct such as to render it a “sexual crime”.[20]
[20]Direction, paragraph 8.1.1(1)(a)(i).
Be that as it may, this offending episode is clearly violent.[21] It was also committed against a woman.[22] In the circumstances, paragraph 8.1.1(1) of the Direction dictates that I must find the conduct is very serious.
[21]Direction, paragraph 8.1.1(1)(a)(i).
[22]Direction, paragraph 8.1.1(1)(a)(ii).
Offences on 16 July 2014 (sentenced on 25 November 2014)
On 25 November 2014, at the Mount Gambier Magistrates Court, the Applicant was convicted on charges of “commit assault – basic offence”; “damage building”; and “trespass in residence (basic offence)”. The convictions involved the imposition of a custodial term of two months imprisonment, and an order that he pay compensation in the sum of $700. The custodial term was suspended upon the Applicant entering into a bond in the sum of $200 having an operational effect of 12 months.
The offending occurred in July 2014 while the Applicant was heavily intoxicated. He knocked on the front door of an elderly woman’s house while she was at home with her three children.[23] She asked him to leave and he refused. His refusal culminated in him kicking in the front door and smashing a window of the dwelling. The police arrived and arrested the Applicant. Upon questioning, the Applicant had no detailed recollection of the incident.[24]
[23]It is unclear if the victim of this offence is elderly from the police records. However, the sentencing remarks from 2016 record that “On 14 July 2014 at Kilburn the offender, heavily intoxicated, knocked on the front door of an elderly woman’s home […]”: See T1, 17.
[24]See T1, 206–208.
At the previous hearing in this Tribunal, he was asked about that offending. The Applicant took a primarily defiant approach to explaining his conduct. He tentatively accepted that his drunken state may have led him to cause the property damage to the front door and one of the windows of the dwelling. He denied that his conduct placed the woman in fear. He sought to suggest that despite kicking in the front door and breaking a window, he “had no plan to go in” to the subject property. Ultimately, he said “I don’t accept this charge.”:
“MS JACKSON: And that she told you somehow, I’m assuming through the door or through a window or something, she told you to leave. Is that right?
INTERPRETER: Yes, she - she asked me to leave and she told me I don’t know you, please leave. And I found it’s not my friend house, otherwise they open the door - they would open the door. And then I just said sorry and left.
MS JACKSON: The judge found that you then kicked in her front window, causing the window to smash and also punched her front door.
INTERPRETER: I was drunk, maybe (indistinct). I accept because I was drunk, maybe.
MS JACKSON: It is different to your evidence before that you walked away - what the judge found.
INTERPRETER: I was told I punched the door and I kicked the door, but I didn’t remember, I told them I don’t remember. But they said no you did it, and you have to pay $700 or $1,700 - $20 per week to cover the damage. But I told them I don’t remember.
MS JACKSON: Right. The police record also says that the victim, this lady, was scared because she thought you were going to enter her house and do something to her and her children who were in the house.
INTERPRETER: No, I didn’t have - I was not aiming to intrude to the house. I was looking for - just for my friends so maybe because I was drunk, maybe I just punched the door, but no I was not supposed - I had no plan to go in.
MS JACKSON: You were convicted of assault on the basis of the fact that she felt intimidated.
INTERPRETER: Yes.
MS JACKSON: So you accept that you did cause fear to her and that that was what you’ve been convicted of?
INTERPRETER: No, I don’t accept - I just - assault or made fear her, because I didn’t know that lady. And so I didn’t have any plan, even though I did not see her. So - but I don’t accept this charge.”[25]
[My emphasis and underlining]
[25]T1, 744–745.
I have checked through the material and cannot locate any reference to recorded sentencing remarks for this episode of the Applicant’s offending. There is, however, material relating to what the attending police officers observed and recorded:
“Count 1 - Criminal Trespass (Attempt).
On Wednesday 16th July 2014 at [redacted] the accused [WRFG] attempted to commit a criminal trespass at a residence belonging to [redacted], on [redacted] whilst the occupant was present. Nil injuries. Nil permission.
Count 2 - Property Damage.
On Wednesday 16th July 2014 at [redacted] the accused [WRFG] damaged the property of [redacted] by kicking her front window causing it to smash and by punching her front screen door causing damage to the door frame and the locking mechanism. Nil injuries. Nil permission. Estimated total damage is $700. Compensation is sought.
Count 3 - Assault.
On Wednesday 16th July 2014 at [redacted] the accused [WRFG], assaulted by intimidating her to open her door causing fear that the accused was entering her premises to assault her and her three children, who were present at the time. Nil injuries. Nil permission.
***VICTIM***
Victim in this matter is [redacted]. Victim states that at about 6.30 a.m. on Wednesday 16th July 2014 she was at her home address at [redacted] when she was woken by an unknown male ringing her front door bell, demanding entry. Victim states that after she refused the male entry to her premises, and told him to leave, the male kicked her front window causing the window to smash, then continually punched her front door causing damage to the door frame and locking mechanism.
Victim further stated that she believed that this male was going to gain entry through the window that he had previously smashed and was fearful that she and her three children were going to be assaulted if entry was gained. Nil permission was given to anyone to attempt to enter her residence, to damage any property at the premises or to assault any of the occupants of the residence. Compensation is sought for the cost of repair as a result of this incident. Damage estimated at $700.
Victim further states that the accused is unknown to her, and has never seen him before.”[26]
[26]T1, 207.
In a previous decision, when trying to conclude a view on the definition of violence relative to the Direction, I have had recourse to the Macquarie Dictionary (5th ed) which includes the following definition of violence: “any unjust or unwarranted exertion of force or power, as against rights, laws, etc.”[27] It is plain that the Applicant’s conduct was of a violent nature involving the direct infliction of force against the complainant’s front door and a window to her residence. It is also plain that the Applicant’s conduct created a fear of harm in the minds of the complainant and her children, as recorded in the abovementioned police summary. It is also plain that the Applicant was convicted of “commit assault – basic offence”. Taking these things in total, the seemingly obvious approach would be that this conduct constitutes a violent crime[28] and that it also constitutes a crime of a violent nature against a woman or children.[29]
[27]Pretorius and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1869 [60].
[28]Pursuant to paragraph 8.1.1(1)(i) of the Direction.
[29]Pursuant to paragraph 8.1.1(1)(ii) of the Direction.
Even if I am wrong in rendering this conduct as a crime of violence against a woman or children, or it is otherwise thought that this conduct does not fall within the ambit of paragraph 8.1.1(1)(a)(i) or (ii), I am mindful of the chapeau to this component of the Direction, which relevantly provides that “[…] without limiting the range of conduct that may be considered very serious […]”. This conduct could, to my mind, be safely captured by the chapeau to paragraph 8.1.1(1)(a) such that it constitutes conduct capable of being viewed very seriously by the Australian government and the Australian community. Caution should be exercised with reference to the extent of its seriousness. The Applicant was, after all, convicted and sentenced to a head custodial term of three months which is, in relative terms, much shorter than the sentences he received for his other criminal conduct involving violence.
Therefore, for the purposes of settling upon a description of the level of seriousness of this conduct, I think it is safe to find that (1) it is conduct that falls within the chapeau of paragraph 8.1.1(1)(a) of the Direction; (2) it is not a crime of violence against women or children; and (3) it is nevertheless conduct that is very serious involving the wanton and deliberate destruction of the complainant’s property causing fear both in her mind and in the minds of her children. The safe finding is that the conduct is serious.
Offences on 29 December 2014 (sentenced on 27 May 2015)
On 27 May 2015 at the Mount Gambier Magistrates Court, the Applicant was convicted of (1) “indecently assault a person – aggravated offence”; (2) “commit assault – aggravated other by use of offensive weapon”; (3) “failure to comply with bail agreement”; and (4) “breach of bond re 25/11/2014”. He was convicted and sentenced to a custodial term of two years imprisonment for the two offences against the person. For the breach of bail, he was convicted and fined the sum of $50. For the breach of bond, he was sentenced to a custodial term of three months.
The circumstances of the indecent assault offence occurred inside the victim’s home. The Applicant attended her house, bringing alcohol with him. She allowed him into the house and there followed a degree of socialising. He encouraged the victim to consume alcohol and she eventually became somewhat concerned about his conduct, particularly as a result of him apparently checking that there was no one else in the residence. The Applicant then indecently assaulted the victim by lifting her shirt and grabbing her breasts. At the same time, he attempted to put his hand down her trousers. She responded by trying to remove him from the house and actually told him to leave.
The circumstances of the assault with the offensive weapon occurred as the Applicant was leaving the complainant’s house. As she was going back inside the house, he struck her in the vicinity of her neck from behind with his walking stick.
The Applicant adopted yet another defiant posture when this offending was put to him at the earlier hearing in this Tribunal. According to him, the victim invited him to enter the property, the alcohol that he had with him was a gift requested by her, and he did none of the physically indecent things he was convicted of doing. He also denied striking the victim with his walking stick. The position taken by the Applicant at the previous hearing was that in recording the nature of his offending, the police “don’t listen” to him and that they “just made everything she had said as evidence against me”:
“INTERPRETER: I didn’t enter to the property by force, she invited me. And she asked me to take something with myself as a gift. I went on that invitation, so if I assault her that night why she didn’t report it immediately and she just left it for two to three days, and after two three days she complained and reported it to police? No.
MS JACKSON: It says in the police record that you put your hands down the front of your pants.
INTERPRETER: She lied, I didn’t do it. Also she has stated I had hitten her as well, with my stick, but everything she has told it is not true. And I don’t - and I don’t believe it. And I don’t accept it. I was looking as a - my mother or sister, but I didn’t know somebody of that age that can tell lie easily. So no, what she said is lie and I don’t agree.
MS JACKSON: So you deny that you grabbed her breasts, put her – your hand down the front of her pants and hit her with a stick, with your walking stick?
INTERPRETER: I deny everything she has told, so it’s lie - it’s not true. So when I was there, so she was playing music, she was dancing, she has clothing, and so she asked me - would you like to dance, I told her - then I find she’s not very stable so I just left, I wanted to left. And she asked me and grabbed from my back of neck and asked me to come back, I told her no, my friend is off waiting for me, I have to leave.
Now if it was true, if I did such kind of behaviour or conduct, why she didn’t report immediately to police? So no, I deny everything she has to - - -
MS JACKSON: So your evidence is that she took off her pants, or underwear and she was the one who was asking you to come back in? Is that your evidence?
INTERPRETER: Yes that’s right. So when I was aiming to leave the house, she walk toward me and behind me and asked me to return, to come back, and I told her no I’m not - I have to leave. And so I was escape because I was - I found maybe she’s looking to get something from me, because she asked money from me. And so, if it happened, she had to report immediately, but she was waiting for two to three days. She was hopeful if I give some money to her, but when she found I’m not aiming to give any money, so she reported and had gone to police. Sometimes police - I believe police didn’t listen to me and just made everything she had said as evidence against me.”[30]
[My emphasis and underlining]
[30]T, 747–748.
The sentencing remarks of the learned Mr Foley, SM, initially noted that the Applicant committed this offence while on a suspended sentence of three months imposed by Mr Foley for earlier offending. His Honour also noted that this offending breached a previously imposed good behaviour bond. With specific reference to the nature of the offending, Mr Foley SM said the following in his sentencing remarks:
“The offending that I am dealing with is clearly very serious. It occurred in and in the vicinity of [the victim’s] home, in circumstances where she was simply showing you hospitality. I regard a sentence of imprisonment as the only appropriate outcome for the remaining two charges.”[31]
[31]T, 21.
A number of the components of paragraph 8.1.1(1) of the Direction are immediately engaged. The Applicant’s conduct was violent, with a sexual content.[32] His offending was clearly a crime of a violent nature. His conviction for aggravated assault by use of an offensive weapon (striking her with a walking stick) is plainly a crime of a violent nature against a woman.[33] On the basis of these two components of the direction, the Applicant’s conduct must be viewed very seriously. Further, his offending involved a 64 year old victim and, as such, attracts operation of paragraph 8.1.1(1)(b)(ii) of the Direction as a crime committed against a vulnerable member of the community – in this case, an elderly woman. This offending must, pursuant to the Direction, be viewed as at least serious. Having regard to the nature of this conduct and the multitude of components of the Direction that apply to it, the only safe finding is that this episode of the Applicant’s offending must be found to be very serious.
[32]Direction, 8.1.1(1)(a)(i).
[33]Direction, 8.1.1(1)(a)(ii).
Application of other factors in paragraph 8.1.1(1)

With specific reference to paragraph 8.1.1(1)(c) of the Direction, it is necessary to have regard to the introductory words of that paragraph comprising “with the exception of”. Applied to the instant case, it will be noted that the sentences that have been imposed by courts for this Applicant’s offending has been for offences captured by paragraphs (a)(ii) (crimes of a violent nature against women or children). They are, predominantly, crimes of violence, most usually against women, often containing a sexual element. Accordingly, while I have outlined the sentences for the three offending episodes, none of those sentences fall within the ambit of this sub-paragraph (c) for the purposes of assessing the nature and seriousness of the Applicant’s conduct.
The corollary of this finding is that one must then go to paragraph 8.1.1(1)(a) which stipulates that the type of offending for which the Applicant has been convicted is “viewed very seriously by the Australian government and the Australian community.” I so find.
For completeness, it should be noted that the Applicant has convictions for less serious offending that has been punished by the imposition of fines, a discharge without the imposition of a penalty and the imposition of a bond. These sentences are obviously not at the same level of seriousness as the offences of a violent nature against at least three female victims. These punishments do not displace my finding that the Applicant’s offending against three female victims is very serious.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
At first blush, it may be thought that the Applicant’s convictions for 10 offences across a sentencing history that runs from November 2012–October 2016 constitutes “frequency” in his offending. But this is to tell only half the story. The stark reality for this Applicant is that his very serious offending – indeed, all of his offending – has occurred within a much more compact or confined period of time. In or about 2012, he committed a couple of driving offences involving driving under the influence, and driving without due care. He was promptly sentenced for those offences in November 2012.
He has been removed from the Australian community as a result of being in prison and then immigration detention since 29 December 2014.[34] Stated chronologically, he committed the offences that comprise his very serious offending in the following sequence:
·9 October 2013 – this was the abovementioned offending for which the Applicant was sentenced on 19 September 2016 (1 offence);
·16 July 2014 – this was the abovementioned offending for which the Applicant was sentenced on 25 November 2014 (3 offences); and
·29 December 2014 – this was the abovementioned offending for which the Applicant was sentenced on 27 May 2015 (4 offences).
[34]This inference can be drawn from the sentencing remarks of Magistrate Foley, who noted that the Applicant “has been in prison since 29 December” in his sentencing remarks which were delivered in May 2015: T1, 19–22.
Therefore, in chronological terms, the Applicant has committed eight of his 10 offences within a 14 month period. On any objective view, this level of very serious offending can only be described as frequent.
Put another way, the totality of his offending – in terms of sentencing episodes involves the commission of 10 offences across an approximate four year sentencing period. This equates to 2.5 offences per annum which, again, on any reasonable view, comprises frequent offending. The only safe finding pursuant to this paragraph 8.1.1(1)(d) is that the Applicant’s offending has been frequent.
I turn now to the question of whether the Applicant’s offending demonstrates any trend of increasing seriousness. I am of the view that it does. His offending pattern commences with low-level driving offending for which he was convicted in November 2012. Making further reference to the above chronological sequence of his very serious conduct, it will be noted that after these two driving offences, the Applicant did, on 9 October 2013, commit the offending for which he was punished on 19 September 2016. This offending involved the Applicant pushing a door closed against a victim, pushing her to the lounge, taking hold of her by the biceps and proceeding to punch her in the face several times. On any reasonable view, this offending committed in October 2013 is significantly more serious than the two driving offences for which he was convicted in November 2012.
In chronological terms, the next offence committed by the Applicant occurred on 16 July 2014, for which he was sentenced on 25 November 2014. It will be recalled that this offending involved him attending a woman’s house while she was at home with her three children. She asked him to leave and he refused to do so. This culminated in him kicking in the front door and smashing the window of a dwelling. The police record confirms this conduct had the effect of inducing fear in the minds of the victim and her children. It is not a stretch of the evidence to suggest and find that this conduct committed in July 2014 is, if not at the same level as the offending he did in October 2013, it is nevertheless very close in seriousness. I accept that this offending committed in July 2014 did not involve “skin on skin” physical contact between the Applicant and a victim. But it was nevertheless very serious conduct.
The next offending episode in chronological terms was committed in 29 December 2014 for which he was sentenced on 27 May 2015. On 29 December 2014, the Applicant found himself inside the victim’s home and engaged in a degree of socialising. Alcohol was consumed and he then indecently assaulted her by lifting her shirt and grabbing her breasts. He attempted to put his hand down her trousers after she told him to leave. On his way out, he decided to strike her with his walking stick as she was walking back into the residence. It is safe to find that this offending is, without a doubt, squarely within the realm of the most significant level of seriousness of his offending. While perhaps not a significant leap in terms of increasing seriousness, this offending is at least as serious as the most serious of the Applicant’s offending committed in this country.
Stated across his entire offending history, there is to my mind, little to cavil with the proposition that there is a trend of increasing seriousness running from the point of his commission/conviction for the drink driving offences in 2012 up to his commission of the final of his very serious offences in December 2014. This paragraph 8.1.1(1)(d) of the Direction therefore strongly militates in favour of a finding that the totality of the Applicant’s offending has indeed been very serious.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending. To my mind, there are four cumulative effects discernible from the Applicant’s repeated offending.
First, he has failed to understand that he must moderate and control his conduct in accordance with lawfully imposed obligations. He has respective convictions for a failure to comply with a bail agreement together with a conviction for breaching a bond. He has thus failed to accept the lawful authority represented by Australian laws over its citizens. Second, he has respective convictions for trespassing into another’s property and for damaging that property wantonly and recklessly. He has thus failed to develop any measure of respect for the property rights of others.
Third, he has demonstrably failed to develop any measure of respect for the rights of women in the Australian community. At the very least, at least three women have been the victims of his very serious offending. One of those victims has provided a victim impact statement which I will particularise in greater detail later in these reasons.[35] His offending against women has been simply appalling and almost beyond excuse or redemption. Perhaps the greatest concern arising from this cumulative effect of his offending can be seen in the approach he took to this specific issue both at the previous hearing and in the one before me. At the previous hearing, he said these things:
“MS JACKSON: You would also agree that your three most serious offences involve some aspect of violence against women?
INTERPRETER: He’s asking me to repeat the question. I don’t understand the question. Could you re-phrase?
MS JACKSON: Looking back at your offences and looking at the pattern in them, all three of these serious offences, so not the driving offence, involve some aspect of violence or assault towards women?
INTERPRETER: I don’t accept making any violence toward women, because I’m not naturally or not a violent person. You can ask my family, my wife, I’m not such kind of person, so I don’t accept I made violence toward women in these three cases.”[36]
[My emphasis and underlining]
[35]See [‎151]–[‎152], below.
[36]T, 750–751.
In the hearing before me, he stated his position more succinctly thus:
“MS STOKES: You don’t accept that you have been violent towards women?
INTERPRETER: No.”[37]
[My emphasis and underlining]
[37]Transcript, 22, lines 21–23.
Fourth, it is difficult to cavil with the proposition that his offending has consumed its fair share of the community’s law enforcement and court resources. It is a relatively short history yet one that has involved the commission of some 10 offences and, most importantly, the commission of very serious offending against three female victims, one of whom – via her victim impact statement – makes it clear that she has ongoing emotional and other difficulties as a result of her experiences at the hands of the Applicant.
These four cumulative effects must, to my mind, strongly militate in favour of a finding that the totality of the Applicant’s offending has been very serious.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. I have checked the material and cannot find any reference to any such conduct by this Applicant. This sub-paragraph is not relevant.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. I have checked the written material, including the Transcript. I can find no reference to either party propounding the application of this sub-paragraph (g). I cannot find any letter from the Respondent warning the Applicant about the impact of his offending on his migration status to remain here.
I have had regard to all of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to my analysis of the weight allocable to sub-paragraphs (a)(ii), (b)(ii), and (c)–(e) inclusive, I am of the view that the Applicant’s offending can be readily characterised as “very serious”.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Sub-paragraph 8.1.2(2)(a) compels an inquiry into the risk to the Australian community in the event the Applicant were to re-engage in further criminal or serious conduct. Specifically, this sub-paragraph requires an assessment of the nature of the harm likely to be suffered by or occasioned upon individuals or the Australian community were the Applicant to re-offend.
The Applicant has convictions for a multiplicity of areas of offending. First, he has two convictions for relatively low-level driving offences. Were he to again drive under the influence of alcohol or drive without due care, it could conceivably result in an adverse outcome for other users of Australian carriageways. Second, he has convictions for property-type offending involving damaging a building and for trespassing onto another’s private property. Similar or further offending of this type would doubtless involve material loss and damage to the property of another and it would also interfere with another person’s right of quiet enjoyment of the property they inhabit.
Third, and most significantly, this Applicant has the abovementioned convictions for very serious convictions against at least three women victims. It transpires that all of the substantive offences involved alcohol and three of them involved violence against female victims. There is no requirement to recount the factual circumstances of this aspect of his offending. It suffices to say that there is a palpable risk of harm that may be caused to the community if the Applicant were to re-commit such offences. If he repeats this type of offending, it may result in emotional or physical harm to a victim, quite conceivably to a catastrophic level.
It therefore follows that were the Applicant to re-commit any of his past offences, within any of the categories or themes attributable to his past offending, the impact on the Australian community could range from (at one level) the loss of property or other material loss or interference with enjoyment of that property, to very serious physical or psychological harm including to a potentially catastrophic level.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Prior to making a finding about the Applicant’s level of recidivist risk, it is necessary to summarise the competing contentions respectively put by the parties.
The Applicant’s contentions
The Applicant made various contentions about his recidivist risk in the material he filed. As best as I understood the various sources, the following contentions are put on the specific issue of recidivist risk:
·it is said the Applicant is precluded from adducing expert psychological or psychiatric evidence on his risk of recidivism as a result of a lack of funds. It is said that the Tribunal should not infer from the absence of such evidence that this is “not a case where the Applicant has made a forensic decision to not obtain or provide reports because they would not assist or would be detrimental to his case.”[38]
[38]A1, [17].
·the Applicant has not engaged with the rehabilitative process while in prison or immigration detention because (1) he is “[…] plainly limited to what programs are made available to him”; (2) his “limited English” makes his participation in such courses difficult; and (3) any participation in psychological treatment or rehabilitation programs is thus “completely beyond the control of the applicant […]” The Tribunal is consequently urged to accept the Applicant’s “[…] intention of undertaking further psychological treatment upon release” as “sufficient in these circumstances”;[39]
[39]A1, [18].
·there has been little opportunity for the Applicant’s capacity to abstain from abusing alcohol while in the broader community to be tested given his removal from the Australian community in either prison or immigration detention since the end of 2014. The Tribunal is urged to accept that the existence of a testing regime tends to prove there is alcohol and drugs in prison. As a result of that, the contention goes, the Tribunal should accept that “[…] there is evidence that the Applicant has abstained while in prison.”;
owhile not directly contended either in oral or written submissions, it should be noted that the material does contain favourable drug testing results for this Applicant. He was tested (by way of urinalysis) for illicit drugs in his system on 16 March 2015, 10 December 2015 and 5 April 2017, and on each occasion a “Urinalysis Negative” result emerged.[40] Further, in a document titled “Client Plan” the following is noted:
“[The Applicant] has had three drug tests since he was imprisoned and all have returned a negative result. Prisoner stated he never uses drugs and will remain drug free throughout his sentence.”[41]
·A “Sword of Damocles” hangs over the head of the Applicant because were he to in future meet the criteria for the imposition of a sufficiently serious head custodial term, it would again trigger the mandatory cancellation provisions of the Act such as to again place his visa status in jeopardy.[42] It is said that the Applicant “knows exactly what is on the line, what will happen to him, and what will happen to his loved ones if he reoffends […]”.[43] This threat of future difficulties with his visa is now propounded to be the most significant means of explaining that, despite the Applicant’s re-commission of offences while previously subject to bonds and bail conditions, he now represents a much lower recidivist risk:
“MR SIMMONS: He would be right back in the same situation, and described that this would destroy his life. Now, we accept that WRFG has previously reoffended when subject to bonds and bail conditions, but we say that the critical difference here is that when he previously offended, WRFG was not aware of the implications for his visa status and his ability to sponsor his family. He did not know that it would mean that he could face indefinite detention over and above any prison sentence, and he did not know that it would impact on his ability to sponsor his family.”[44]
·Any assessment of recidivist risk by this Tribunal must take into account that there can never be a “zero” risk of reoffending.[45]
·Any assessment of recidivist risk must also take into account the fact that there was no application for an extended supervision order pursuant to the Criminal Law (High Risk Offenders) Act 2015 (SA) by the Attorney-General of South Australia. The contention goes that the South Australian Attorney-General therefore did not consider the Applicant to represent a high recidivist risk.[46]
[40]T1, 134.
[41]T1, 133.
[42]A1, [22].
[43]A1, [22].
[44]Transcript, 27, lines 28–35.
[45]A1, [20].
[46]A3, [19].
In the final analysis, it is propounded on behalf of the Applicant that in the absence of psychological or psychiatric evidence on the risk of recidivism, the recidivist issue should be approached thus:
“In the absence of psychological or psychiatric evidence on the risk of recidivism, we contend that the assessment of the risk of reoffending should take into account the following:
a. [WRFG] has now been detained in either immigration detention or prison for several years. Any physical dependence he had on alcohol will therefore have ended.
b. Now that [WRFG] has spent several years in jail, and a further period in detention, he is acutely aware that any further offending will see him lose further precious years of his remaining active life and result in his deportation to Afghanistan were he faces persecution, and will mean there is no prospect of his family being permitted to migrate to the safety of Australia.
c. His experiences in being detained will therefore have had a salutary effect that deters any further criminal behaviour that operates irrespective of whether the Tribunal is satisfied that he displays appropriate remorse”[47]
[47]A1, [21].
The Respondent’s contentions

In both written and oral submissions, it was propounded that there are four principal reasons for the Applicant representing “a real chance of […] re-offending.”[48]
·First, it is said that the Applicant’s offending has occurred while he has been intoxicated. Given the predominant element of intoxication in his offending, it is critical for the Tribunal to be satisfied that the Applicant’s capacity to avoid alcohol must be tested outside the closed confines of prison or immigration detention. The fact that this has not yet occurred, contends the Respondent, militates in favour of a finding that the Applicant represents a “real” recidivist risk.[49]
·Second, it is said that there is a dearth of evidence about the Applicant’s engagement in any rehabilitative treatment plan, program or process. In particular, it is said there is no evidence that the Applicant has sought any clinical or therapeutic intervention in the areas of alcohol addiction, anger management, or sexual behaviour. There is a limited concession that while he was referred to a Violence Prevention Program and Sexual Behaviour Clinic in 2015, there is little or no evidence that he undertook and/or completed those programs or that these programs otherwise had any kind of measurable effect on his risk of recidivism. As against that, the material, specifically Exhibit A4, contains a number of certificates and course completion certifications.
·Third, the Applicant has a history of demonstrating a persistent disregard for Australian laws. This is said to be evidenced by his breach of a bail agreement and a good behaviour bond.
·Fourth, the Respondent refers to a difficulty with the Applicant’s claimed levels of remorse and insight into his offending. Support for this contention is sought from:
oa previously filed statement where the Applicant seeks to configure the circumstances of his offending on the basis that he was not the aggressor and that the female victim was primarily responsible for the circumstances of his offending;[50]
othe evidence he gave at the previous Tribunal hearing where he denied his behaviour constituted violence towards women;[51]
othe content of the Applicant’s SFIC filed on 20 May 2021 which suggests he has insight in relation to the impact his detention will have on him and his family, rather than insight into his offending or remorse for committing those offences.[52]
[48]See Transcript, 35–36; R1, [33]–[35].
[49]R1, [34].
[50]See T1, 699–700
[51]T1, 739, 743, 745–747, 750–751.
[52]R1, [33.4].
My Findings about recidivism
Having regard to the respective sets of contentions about the Applicant’s recidivist risk, I make the following comments:
·Inference to be drawn from the absence of independent and clinical expert reports. It would be unsafe and procedurally unfair for the Tribunal to draw an inference that the absence of expert clinical evidence on the Applicant’s recidivist risk suggests that such opinion might not assist him. The Tribunal accepts the Applicant’s limited resources preclude him from obtaining such expert opinion evidence. It is likewise trite to speculate about what such expert opinion might say if it were obtained. The safest approach is to look at the extent of courses or therapy the Applicant has undertaken during his removal from the Australian community and the extent to which those interventions may have ameliorated his recidivist risk;
·The Applicant is limited to whatever programs or services have been made available to him in prison or immigration detention. I reject the contention that because of the limited range of rehabilitative programs and courses available to the Applicant during his removal from the Australian community, the Tribunal should now accept that his mere statement of intention to undertake further psychological treatment upon a return to the community is somehow sufficiently ameliorative of his future recidivist risk.
The contention should be rejected on two grounds. First, it would be inherently unsafe to form a view about recidivist risk on the basis of rehabilitative treatment yet to be undertaken. This would be to engage in uncertain speculation. It is also contrary to the Direction, which requires me to take into account “evidence of rehabilitation achieved by the time of the decision”.[53] Second, while it may be true to say he has undertaken some course and programs, the real question is this: to what extent have those courses and programs ameliorated his recidivist risk thus far?
[53]Direction, paragraph 8.1.2(2)(b)(ii).
There is an initial conflict in the evidence which can be readily resolved. In its SFIC, the Respondent contends that while the Applicant was referred to a Violence Prevention Program and Sexual Behaviour Clinic in 2015, there is no evidence he ever undertook those programs.[54] The Respondent further contended that no evidence has been filed to support the Applicant’s contention that he has attended rehabilitative programs during his time in prison and immigration detention.[55]
[54]See R1, 33.2.
[55]R1, [33.2].
During closing submissions, the Respondent’s representative changed their position and accepted that in his oral evidence, the Applicant did talk about participation in some programs while in detention, and that such participation is evidenced in the written material.[56] The resulting task is to ascertain the nature and extent of courses the Applicant can be safely found to have completed. He makes reference to those courses and programs in both his evidence in chief and in cross examination. In evidence in chief, he said the following:
[56]See Transcript, 35, lines 45–46; 36, lines 1–13.
“MR SIMMONS: The certificates that you’ve provided, they indicate that you’d been enrolled in a men’s group program and a life skills program, is that right?
INTERPRETER: Men’s program and what was the other one, sorry the - - -
MR SIMMONS: Life skills.
INTERPRETER: Yes, I joined lots of program.
MR SIMMONS: I’ll start off with the men’s group program. How often would you attend that program?
INTERPRETER: Every Thursday from 10 to 12.
MR SIMMONS: What type of things have you learnt about in that program?
INTERPRETER: Whatever they teach me, I learn that and including behaviours, how (indistinct) my emotional (indistinct), how to not interfere with other people’s (indistinct).
MR SIMMONS: We can see from those certificates that some of the topics covered include anger management and dealing with violence. Have you learnt, in those programs, skills that reflect on your offending?
INTERPRETER: Yes, I learned those ones and after I learn what is the effect of alcohol on the body that’s how it’s harmful for your mind or your kidney. I believe he said, for the liver and also, I learn that how alcohol affect the behaviour.
MR SIMMONS: Based on what you’ve learnt in those programs, has it caused you to think about what led you to the behaviours that caused the offending?
INTERPRETER: Yes, that affect me a lot, it completely make me a different person, it change me.”[57]
[57]Transcript, 11, lines 42–46; 12, lines 1–30.
Also during evidence in chief, the Applicant sought to demonstrate some level of insight into the role alcohol has played in his offending profile in Australia:
“MR SIMMONS: Let’s say you were to be released, what would you be doing differently with your life?
INTERPRETER: Whatever I did in the past, I’m not proud of it, that was very bad thing. This time, I will not touch alcohol, or I ask the God to not give that power to go back to alcohol and doing those bad things.[…]
[…]
MR SIMMONS: I’ll ask the question again. You were involved in three different incidents and each of them involved alcohol and yet, each time, you kept drinking and you kept offending. What’s changed? What’s going to be different this time?
INTERPRETER: After seven years I am suffering because of that, it’s enough. I will not do that again.”[58]
[58]Transcript, 12, lines 32–37; 13, lines 27–33.
There are three difficulties with this professed level of insight into the role alcohol has played in his very serious offending and the extent to which the Applicant can now be trusted to abstain from alcohol and to consequently offend. First, the claimed epiphany about the adverse impact of alcohol on his behaviour is something reported by the Applicant alone. It is little more than ‘self-reporting’ by the Applicant. It is not something that has been measured by an independent or suitably qualified clinician. Accordingly, this self-reported evidence must be received with caution.
Second, while the Applicant (1) appears to acknowledge that all of his offending has occurred when he has been adversely affected by alcohol, and (2) expresses a resolve to abstain from alcohol in future, the extent to which he can be reliably expected to so abstain has not been tested outside the controlled environments of criminal custody and immigration detention. I have earlier referred to the clear result achieved by the Applicant when he undertook urinalysis testing in prison for illicit drugs in his system. While this clear result is to the Applicant’s credit, neither this result alone, nor the absence of evidence of the Applicant consuming either alcohol or illicit drugs in prison can be safely relied upon as a basis for finding he will not return to substance abuse if returned to the community. There will be no random urinalysis testing in the community. Alcohol and illicit drugs will be freely available to him, and others may pressure or tempt him to use alcohol again. In contrast, the administrators of prisons and immigration detention facilities have a variety of powers and tools to regulate the conduct of all prisoners/detainees to the best extent possible.
Third, there is no independent clinical opinion before the Tribunal to confirm that any of the programs said to have been undertaken by the Applicant in prison or immigration detention have had (or can be expected to have) any genuine effect on his recidivist profile. The highest the evidence goes is that (1) he has participated in some courses while removed from the Australian community; and (2) his own self-reported evidence that the status of his relationship with alcohol is “[…] it’s enough. I will not do that again.”
·There can never be a ‘zero’ risk of re-offending. It is contended on behalf of the Applicant that there can never be a ‘zero’ risk of re-offending. This contention is sought to be grounded on an earlier decision of mine where I discussed this concept.[59] It is correct that in that earlier decision, I couched my findings on the basis that:
[59]Vargas and Minister for Home Affairs [2019] AATA 3409, [102]–[103].
“[…] such a concept can only exist on a hypothetical basis and, to the extent it exists at all, it can only apply to a narrow sector of our community such as the very young or infantile population. The simple physical reality is that every able-bodied or otherwise physically self-sufficient member of our community can harm any other member of our community at any time.”
The point of departure between me and this contention put on behalf of the Applicant is that he is (and his past conduct has demonstrated him to be) an able-bodied and physically self-sufficient man who has very seriously offended against at least three female victims of the Australian community during his time in this country. He is nowhere near a ‘zero’ recidivist risk and it would be inherently unsafe to suggest his risk profile is approaching that limit.
·The threat of future visa cancellation is said to ameliorate the Applicant’s recidivist risk. It is said that any future offending punished by the imposition of a head custodial term (aggregate or singular) of 12 months or more exposes the Applicant to a future visa cancellation and thus acts as a type of “Sword of Damocles” above his head militating in favour of a lower risk of recidivism. Two things can be said about this contention. First, one does not have to read the sentencing remarks in the material all that closely to accept that past judicial sentencing officers had warned or otherwise urged the Applicant to temper his conduct. This also occurred by virtue of him receiving the benefit of non-custodial terms for his offending. Yet he re-offended and very seriously so.
Second, allied to this contention is the suggestion that a future mandatory cancellation of his visa will result in a “[…] permanent exclusion from Australia and thereby a ‘life-sentence’”. It is said that this aspect of deterrence “[…] must be considered over-and-above the impact already felt by [the Applicant] in serving a term of imprisonment.” Any traction allocable to this contention is surely outweighed by the Applicant’s history of offending in this country and the ongoing and unresolved risk of future re-offending that he represents. In the past, he has not prioritised bringing his family to the relative safe-haven of Australia over and above his own self-interested offending.
·The South Australian Attorney-General (“AG”) did not apply for an extended supervision order. The contention put on behalf of the Applicant is that the South Australian AG did not apply for an extended supervision order and thus did not consider the Applicant represented a high recidivist risk. Putting to one side the fact that there is no evidence before the Tribunal that the South Australian AG ever actually turned their mind to applying for such an order, there are two difficulties with this contention: temporal and legislative. The temporal difficulty is that any assessment of the Applicant’s recidivist risk made by the South Australian AG related to unlawful conduct committed over half a decade (or more) ago. Whatever recidivist risk he represented then, cannot be safely relied upon now to establish the level of his current recidivist risk.
The legislative difficulty with the contention derives from a reality that there is no evidence of what the South Australian AG might take into account in deciding whether to exercise the discretion to apply for an extended supervision order. If the Tribunal assumes the South Australian AG’s hypothetical risk assessment was conducted according to the factors the Supreme Court of South Australia would have had to consider in deciding the application, the prevailing South Australian legislation, namely, the Criminal Law (High Risk Offenders) Act 2015 (SA) (“High Risk Offenders Act”), provides a lengthy list of factors. Sections 7(5)–(6) of the High Risk Offenders Act specify the matters to be taken into consideration in determining whether an extended supervision order is to be made.
For present purposes, paragraphs 8.1.2(2)(a) and (b) of the Direction stipulate factors that this Tribunal must cumulatively take into account in the assessment of recidivist risk. Apart from the South Australian legislation’s reference (at s 7(5)) to a “paramount consideration” of “the safety of the community” in the making of any extended supervision order, the machinery of the South Australian legislation cannot be said to be on all fours (or even remotely similar to) the indicia of risk assessment factors appearing at paragraphs 8.1.2(2)(a) and (b) of the Direction.
The South Australian AG’s assessment (if there was one at all) of risk has thus been conducted at a different time and pursuant to different legislative machinery. It is not informative of the Applicant’s risk profile for instant purposes.
·The Applicant’s level of insight and remorse; acceptance of responsibility for his offending. In oral evidence given in cross-examination, the Applicant recounted his level of engagement with the rehabilitative process. He spoke of participating in English-language programs as well as behavioural programs involving anger management and alcohol abuse. His evidence took on an epiphany-like tone whereby he now purports to say that he must control and modify his conduct in order to avoid sexual-based violence and to respect the safety and rights of women in the Australian community:
“MS STOKES: I’m now going to ask you some questions about some of the courses that you have done. I think you’ve got some certificates showing you’ve done some literacy programs, so that’s English, while in prison. Is that right?
INTERPRETER: I did alcohol and other course.
MS STOKES: The question I asked was about English programs; have you done English courses?
INTERPRETER: Yes, I did. Yes.
MS STOKES: Would you say your English has improved since doing those courses?
INTERPRETER: Okay, not that.
MS STOKES: You can understand enough to have a conversation with somebody?
INTERPRETER: No.
MS STOKES: You also gave some evidence before about some life skills and men’s group sessions that you’d done in detention. Were those sessions conducted in English?
INTERPRETER: Yes, with the help of interpreter.
MS STOKES: Good, okay. You said you attended every Thursday 10 till 12, the men’s group sessions, are you still doing that?
INTERPRETER: In two years in the centres, I did around, like say 24 certificates and also, I’ve done three certificate while I was in prison, total, I’ve done 27 certificates, like, that’s I’ve done and then I stopped it now.
MS STOKES: You’ve finished it, okay. How often did you attend the life skills program?
INTERPRETER: The life skill, what is it?
MS STOKES: Yes, the life skills program, so I think - - -
INTERPRETER: Life skill program.
MS STOKES: The Thursday 10 till 12 was just a men’s group, so I was just asking about the life skills program.
INTERPRETER: That was two class run on Thursday, every class for one hour. The first hour I did men’s behaviour, the second class it was in the alcohol or behaviour one.
MS STOKES: You said you’ve learnt about alcohol in those courses and your behaviours, have you also learnt about skills to help you deal with anger management?
INTERPRETER: Yes, I did, I learned those sort of the skills, for example, I learned when I get angry how to breathe in, breathe out.
MS STOKES: Did you also learn anything about sexual based violence?
INTERPRETER: Yes, I’ve been taught that you do not - you shouldn’t force people, it need to be in her will.”[60]
[60]See Transcript, 19, lines 17–46; 20, lines 1–31.
He was specifically asked about his evidence regarding his abuse of alcohol. It transpires that he had a level of familiarity with alcohol before coming to Australia but that he started drinking more heavily in 2013 when two of his children apparently went missing in Pakistan. He said he used alcohol to “numb” the emotional pain arising from the apparent disappearance of two of his children. He suggested he would not drink in future. He was specifically asked whether ongoing separation from his family would compel a return to alcohol abuse. He conceded that the ongoing tension arising from prolonged separation from his family would give rise to ongoing “tension” in his life and make him “mad”:
“MS STOKES: I’m just now going to ask you a few more questions about your drinking. Mr Interpreter? How often did you drink before you arrived in Australia?
INTERPRETER: I did a little bit of drink before, but I start more drinking since 2013 after my children were missing, because of the tension.
MS STOKES: You started drinking more heavily to help numb the pain, was that your evidence?
INTERPRETER: Correct.
MS STOKES: What do you think will happen when you have alcohol readily available to you again? Do you think you might be tempted to use it as pain relief again?
INTERPRETER: No, no. No, no, I will not drink anymore, because my life is already finished. I do not want to drink more.
MS STOKES: What happens if you continue to have, sort of, stress and emotional problems? For example, if your family aren’t able to be sponsored to come over here, do you think that you might still have a problem dealing with that stress and emotion?
INTERPRETER: Yes, I might be a tension to think, but think about them, thinking a lot makes people mad.”[61]
[61]Transcript, 21, lines 12–37.
The Applicant was then (in cross-examination) asked about his offending. He refused to accept he had committed any of the offences. He refused to accept he had made any past mistakes giving rise to his offending and consequent convictions. He refused to accept the authority of the Australian government to prosecute wrongdoers. Perhaps most significantly, he point-blank refused to accept his very serious conduct involved him being violent towards women:
“MS STOKES: I’m now going to ask you some questions about the actual offending. There were three main offences that involved violence that you were convicted of. Do you recall that?
INTERPRETER: Yes.
MS STOKES: When you went to court to face each of those three charges, you pleaded not guilty to them, is that right?
INTERPRETER: Yes, it was just I consider it was totally my, I have - I am not guilty at all about any of those charges.
MS STOKES: Your evidence is that you pleaded not guilty and you still say you are not guilty of them?
INTERPRETER: (Indistinct).
MS STOKES: I’m sorry, Mr Interpreter, could you repeat that?
INTERPRETER: He said, no, I haven’t done any mistake in the past.
MS STOKES: In your most recent statement, which Senior Member is A3, you have said that you accept you are guilty of the offences against me [sic]. Are you now saying that that is not your evidence?
INTERPRETER: Yes, I am saying that I haven’t done, I’m not guilty, but I cannot do anything with the government if they force me, whatever they can do.
MS STOKES: You don’t accept that you have been violent towards women?
INTERPRETER: No.”[62]
[62]Transcript, 21, lines 39–46; 22, lines 1–24.
[My emphasis and underlining]
This posture of denial, obfuscation and refusal to accept what he has done (and been convicted of) is not new. He propounded the same thing at the earlier hearing before this Tribunal (differently constituted). He was taken to the three instances of his violent conduct towards women. With reference to one incident, he said this:
“MS JACKSON: The injuries to her face were from you punching her in the face, not her falling down.
INTERPRETER: No, I didn’t punch her. So I didn’t even touch her or attempt to punch her. […]
[…]
MS JACKSON: The judge found that the - well you were convicted of the charge of assault causing harm, and the judge found that that was you punching her in the face several times. Do you accept that?
INTERPRETER: No, I don’t. No, I don’t accept this. I didn’t punch her. I didn’t abuse her, so if I did such kind of conduct, I accept it. I would accept it, but no, I didn’t. I don’t accept this.”[63]
[63]T1, 739.
[My emphasis and underlining]
When asked about a further instance of his unlawful conduct towards women, he said this:
“MS JACKSON: The judge found that you then kicked in her front window, causing the window to smash and also punched her front door.
[…]
INTERPRETER: I was told I punched the door and I kicked the door, but I didn’t remember, I told them I don’t remember.
[…]
MS JACKSON: Right. The police record also says that the victim, this lady, was scared because she thought you were going to enter her house and do something to her and her children who were in the house.
INTERPRETER: No, I didn’t have - I was not aiming to intrude to the house.
[…]
MS JACKSON: You were convicted of assault on the basis of the fact that she felt intimidated.
INTERPRETER: Yes.
MS JACKSON: So you accept that you did cause fear to her and that that was what you’ve been convicted of?
INTERPRETER: No, I don’t accept - I just - assault or made fear her, because I didn’t know that lady.”[64]
[64]T1, 745.
[Errors in original; My emphasis and underlining]
His evidence about a further instance of his unlawful conduct towards women was similarly obfuscatory and defiant:
“MS JACKSON: The police - well the police and the judge both say that there was - you then assaulted her, indecently assaulted her.
INTERPRETER: I didn’t enter to the property by force, she invited me.
[…]
MS JACKSON: It says in the police record that you put your hands down the front of your pants.
INTERPRETER: She lied, I didn’t do it. Also she has stated I had hitten her as well, with my stick, but everything she has told it is not true.
[…]
MS JACKSON: So you deny that you grabbed her breasts, put her – your hand down the front of her pants and hit her with a stick, with your walking stick?
INTERPRETER: I deny everything she has told, so it’s lie - it’s not true. […]
Now if it was true, if I did such kind of behaviour or conduct, why she didn’t report immediately to police? So no, I deny everything she has to - - -
MS JACKSON: So your evidence is that she took off her pants, or underwear and she was the one who was asking you to come back in? Is that your evidence?
INTERPRETER: Yes that’s right.”[65]
[65]T1, 747.
[Errors in original; My emphasis and underlining]
Ultimately, at the previous hearing (and consistent with his evidence at this hearing) he refused to accept any of his very serious unlawful conduct constituted violent conduct towards women:
“MS JACKSON: You would also agree that your three most serious offences involve some aspect of violence against women?
[…]
MS JACKSON: Looking back at your offences and looking at the pattern in them, all three of these serious offences, so not the driving offence, involve some aspect of violence or assault towards women?
INTERPRETER: I don’t accept making any violence toward women, because I’m not naturally or not a violent person. You can ask my family, my wife, I’m not such kind of person, so I don’t accept I made violence toward women in these three cases.”[66]
[Errors in original; My emphasis and underlining]
Having regard to the totality of the Applicant’s evidence across two Tribunal proceedings, it is difficult to accept he has developed any measure of insight into the nature and extent of his very serious unlawful conduct towards women. If he refuses to accept the illegality and wrongfulness of his conduct, it is very difficult to now accept he is remorseful for it.
This lack of insight and remorse must, to my mind, cast into severe doubt, and render as less than credible, any purported benefit he says he derived from the behavioural management courses where he says he was taught “when I get angry […] breathe in, breathe out” and on the topic of sexual activity, he “shouldn’t force people, it need to be in her will.”
In light of what he says he has been “taught”, how can he how propound a position of outrightly denying the conduct ever occurred? How can he now deny that what he did to those three female victims was not against their “will”? How can this position speak to a level of insight and remorse that is anything other than poor?
His evidence also contained a refusal to accept the lawful authority represented by Australian law and legal processes. He attributes his convictions to decisions by the “government Australia”[67] who, he says, “force”[68] him into a position of guilt because they “follow their own rule”.[69] He casts himself into an apparently oppressed minority of one, to whom (he says), no one is listening:
“whatever I say, no one listening. Everyone, when I say something now, you just write down whatever you want.”[70]
[66]T1, 750–751.
[67]Transcript, 22, line 39.
[68]Transcript, 22, line 18.
[69]Transcript, 22, line 40.
[70]Transcript, 22, lines 40–41.
The Applicant’s recidivist risk

In its SFIC, the Respondent accepts, in broad terms, that this Other Consideration (b) militates in favour of revocation. The Respondent’s contentions about Other Consideration (b) are couched thus:
“It is accepted that the Applicant would face difficulty establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens in Afghanistan) if he were removed. It is also accepted that his age and health will impact his ability to obtain work. However, he speaks the language, has an employment history in Afghanistan and spent most of his life there (from 1957 to 2001).
Further, it is accepted that he has an elevated risk of contracting COVID-19 given his age and health issues.
The Tribunal ought to give this factor some weight in favour of revocation.”[111]
[Internal citations omitted]
[111]R1, [59]–[61].
While there is a dearth of medical information or diagnoses about his claimed health issues, I accept the Applicant does suffer from diabetes, back issues and poor vision. It is undeniable that he is a man of advanced years and, as such, would be a less attractive employment proposition than a younger person. It is not difficult to reach a finding that the level of healthcare facilities in Afghanistan does not approach those that would be available to the Applicant in Australia. While there is no evidence before the Tribunal that he would be completely denied or otherwise be unable to access treatment for his conditions, there are the two added complications of (1) his ethnicity as a Shia Hazara acting as a preclusive element to him sourcing and obtaining necessary treatment in circumstances where Afghanistan has been taken over by the Taliban; and (2) the level of political instability impacting upon the entire healthcare system in that country and its capacity to provide the necessary care required for the treatment of the Applicant’s claimed conditions.
It is thus safe to find that the Applicant’s age and state of health[112] may present an impediment to him upon a return to Afghanistan. The prevailing political instability superimposes an additional difficulty such that this sub-paragraph (a) of Other Consideration (b) militates in favour of the revocation of the mandatory cancellation decision.
[112]Direction, 9.2(1)(a).
The next component of Other Consideration (b) compels an inquiry into whether there are substantial language or cultural barriers impeding the Applicant’s return to Afghanistan. Turning first to the issue of language, I make reference to the following portion of the ITOA, which says the following about the Applicant’s language arising from his ethnicity:
“[The Applicant] claims to be of Hazara ethnicity. His RSA interview was conducted with the assistance of a Hazaragi interpreter. Hazaragi is a dilect [sic] of the Dari language spoken primarily by Hazaras living in rural areas of Afghanistan”[113]
[Internal citations omitted]
[113]R2, 5.
I therefore find that there is no substantial language barrier impeding the Applicant’s return to Afghanistan. The second issue relates to cultural barriers impeding a return. Once again, assistance is found in the ITOA. The ITOA’s author made the following findings relating to difficulties confronting Shia Hazaras in Afghanistan:
“Shia Hazaras in Afghanistan
Hazaras continue to be the target of attacks in Kabul and elsewhere in Afghanistan. In its 2018 Eligibility Guidelines, the UNHCR noted there has been a significant increase in harassment, intimidation, kidnappings and killings at the hands of the Taliban, ISK and other anti-government elements in recent years. In its latest civilian casualties report, UNAMA found anti-government elements continued to conduct attacks against Shia Muslim religious minority, most of whom also are also ethnic Hazara. Consistent with trends observed in 2016 and 2017, in the first nine months of 2018, these attacks caused 705 civilian casualties, and, with the exception of one suicide improvised explosive device attack, were all claimed by ISK. In February 2019 UNAMA reported that it continued to document high levels of sectarian-motivated violence by ISK against the Shia Muslim religious minority population, most of whom also belong to the Hazara ethnic group. UNAMA remained gravely concerned about the safety and security of this religious minority population, and about the extent to which these attacks are impeding their freedoms of religion and movement and quality of life.
From 1 January to 31 December 2018, UNAMA documented 19 incidents of sectarian-motivated violence against Shia Muslims resulting in 747 civilian casualties (223 deaths and 524 injured). This represents a 34% increase in civilian casualties from such attacks as compared to 2017, continuing the trend of extreme harm to civilians from this community initially documented by UNAMA in 2016. Seven of the 19 incidents were claimed by and attributed to ISK, amounting to 711 civilian casualties (212 deaths and 499 injuries). […]”[114]
[Internal citations omitted]
[114]R2, 16.
It is thus safe to find that while there are little or no language barriers impeding his return, the Applicant’s religion and ethnicity as a Shia Hazara does represent a cultural impediment[115] to him returning to Afghanistan. This cultural impediment engages sub-paragraph (b) of Other Consideration (b) and militates in favour of the revocation of the mandatory cancellation decision.
[115]Direction, 9.2(1)(b).
The final component of Other Consideration (b) requires an enquiry as to the extent of the Applicant’s social, medical and economic support[116] available to him in Afghanistan. I have earlier mentioned the strong likelihood that in Afghanistan, the Applicant will not have access to the same level of medical care and support as he has in Australia. There seems to be little in the evidence to contradict the proposition that the Applicant has next to no social network, family or other connections available to support him upon a return to Afghanistan. It is difficult to see how he will secure safe and stable lodgings. It is likewise difficult to see how he will find remunerative employment. While the material contains little or no details about the levels of government support for unemployed and economically disadvantaged people in Afghanistan, it is safe to conclude that the Applicant would not have the same level of governmental support in Afghanistan as he would have upon any return to the Australian community.
[116]Direction, 9.2(1)(c).
While consideration of this component of Other Consideration (b) is conditioned in terms of “what is generally available to other citizens of that country”, Afghanistan is a country that has been so affected by sectarian violence and conflict that one cannot be sure what, if anything, is generally available to other citizens of Afghanistan in terms of governmental support. Looking forward, the picture seems more bleak than optimistic in this regard.
I am of the view that the Applicant will be confronted with social and medical and economic support impediments upon a return to Afghanistan. This third component of Other Consideration (b) thus militates in favour of the revocation of the mandatory cancellation decision. Having regard to the respective weights I have allocated to the three components of paragraph 9.2(1) of the Direction (ie, Other Consideration (b)), it can be safely found that this Other Consideration militates in favour of revocation of the mandatory cancellation decision.
However, any such weight must be mitigated by the reality that a protection finding has been made in relation to the Applicant which prevents his removal to Afghanistan.[117] The componentry of paragraph 9.2(1) of the Direction is predicated upon a pending removal. This Applicant does not currently face a pending removal. Therefore, the weight allocable to this Other Consideration (b) is reduced to a moderate weight.
[117]See Transcript, 37, lines 22–29.
(c) Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of a section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
I have interpreted the configuration of paragraph 9.3(1) to require evidence of a victim (1) knowing of a non-citizen’s possible removal from Australia; and (2) expressing an opinion or apprehension about the continued presence of the non-citizen in Australia who perpetrated the offending upon them. Here, the material contains a victim impact statement in which the victim recounts the circumstances of the Applicant’s attack upon her and her consequent difficulties in living a normal life. The victim impact statement says nothing about the victim’s state of knowledge about the Applicant’s visa status, and she consequently has nothing to say about how she feels in the event the Applicant were allowed to remain here.
In any event, this victim impact statement was not put to the Applicant at the hearing before me. Further, at the earlier hearing, the Respondent’s representative noted that “[t]here’s no evidence of any impact on […] victims […]”[118] The victim impact statement to which I have referred dates from January 2015[119] and pre-dates both hearings before the Tribunal. The only safe finding is that this Other Consideration (c) is of neutral weight.
[118]T1, 781, lines 32–33.
[119]T1, 677.
(d) Links to the Australian community
Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.
There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature and duration of ties to Australia; and (2) the impact on Australian business interests. I will consider each in turn.
Strength, nature and duration of ties
With reference to the first part of this Other Consideration, it is necessary to consider three elements. First, it is necessary to have regard to the impact of any non-revocation decision on the Applicant’s “immediate family” where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to assess the strength, nature and duration of any family or social links the Applicant may have with people who have an indefinite right to remain in Australia. I will address each component in turn.
1. Impact of non-revocation on the Applicant’s immediate family
In both his oral evidence in chief, and in cross-examination, it became clear that he has no immediate family in Australia and that his wife and children all reside outside Australia. This first component of his strength, nature and duration of ties to Australia is not relevant.
2. Strength, nature and duration of “other ties” – length of residence
The first enquiry relevant to determining the extent of the Applicant’s “other ties” involves the question of how long he has resided in Australia and whether he came here as a young child. The Applicant arrived in Australia in January 2010 as a 52 year old. He was thus not a young child when he came here. He has resided here for about a decade.
There are two tempering sub-elements to be taken into account in the determination of weight allocable to this second component of paragraph 9.4.1. I have noted that he has offending history in this country commencing in late 2012 involving respective convictions for driving under the influence and driving without due care. He then committed the first of his very serious offences in October 2013. I therefore find that the Applicant began offending “soon after arriving in Australia”. On that basis, I temper and limit any weight allocable to him pursuant to paragraph 9.4.1(2)(a)(i) of the Direction.
The next enquiry occurs pursuant to paragraph 9.4.1(2)(a)(ii) of the Direction and is involved with ascertaining the extent to which the Applicant can be said to have positively contributed to the Australian community. The transcript of the hearing before me contains, at best, only tangential references to the Applicant’s work history in Australia.[120] There is a slightly more substantial reference to a work history in Australia in a statement tendered at the earlier hearing in this Tribunal. There, the Applicant said:
“[…] then one day I went to centreline they are send me to ARA Job network. ARA send me to Bardstown I Work hire Two Years and Seven months […] When I was working in the meat job my back injured I left my job went to the doctor I still living in Bardstown when I need to see the doctor I have to go Adelaide doctor […]”[121]
[Errors in original]
[120]See Transcript, 10, lines 40–44; See also Transcript, 28, lines 43–45.
[121]T1, 699–700.
I was not able to locate any employment-related references in the material, nor is there any suggestion that the Applicant will promptly return to employment upon a return to the Australian community. I am, however, mindful of the Applicant’s work-related injury. I was not able to find anything in the material relating to any charitable or community-based contributions made by the Applicant during his time here. Based on the Applicant’s relatively limited level of work contributions to the Australian community, I am of the view (and I find) that only a moderate measure of weight is allocable to him pursuant to paragraph 9.4.1(2)(a) of the Direction.
3. Strength, nature and duration of “other ties” – family and other social links
The only relevant person[122] falling within this category of paragraph 9.4.1(2)(b) of the Direction comprises another Hazari inmate of the Applicant in immigration detention. In a statement put before the Tribunal at the previous hearing, the Applicant said the following about his connection with this inmate:
“During my time in prison, I have formed a strong friendship with another Hazara inmate who understands my background and who wants to help support me If I am released back into the community.
To finally have this support means everything to me -he has talked about how he and his family will help to make sure that I get the treatment that I need and help to keep me on track so that I am no longer a risk to anyone. Given that I have been separated from my family for so long, to have this sense of family has given me new strength to focus on taking responsibility for my life and trying to get my family to the safety of Australia.”[123]
[122]Note: while there was no mention of prison or detention centre visits to this Applicant in the proceeding before me, I am mindful of the reference to “[…] once two people from Australian community, so they are our elders, so they just visited me and they grant me a mobile phone and I appreciate them” in the Transcript of the previous hearing before this Tribunal: See T1, 732–733.
[123]T1, 77.
With reference to paragraph 9.4.1(2)(b) of the Direction, I am of the view (and I find) that the strength, nature and duration of the Applicant’s links with this Hazara inmate is of slight weight in favour of restoration of his visa status to remain in Australia.
Impact on Australian business interests
I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on “Australian business interests”. This phrase is sought to be given some measure of definition in the text of paragraph 9.4.2(3) because weight can “generally only” be allocated in this instance where a non-revocation decision “would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”
There is no reference to this component of Other Consideration (d) in the SFIC filed on behalf of the Applicant. Neither party otherwise ventilated this component of Other Consideration (d). I am not satisfied that removal of the Applicant from Australia, despite his work history in Australia, would significantly compromise delivery of a major project or an important service in Australia. Accordingly, this second part of Other Consideration (d) is not relevant.
Weight allocable to Other Consideration 4: links to the Australian community
Referring firstly to the first part of this Other Consideration (the strength, nature and duration of the Applicant’s ties to Australia), I am of the view – after having analysed its three specific elements – that the totality of the evidence points to the allocation of a moderate weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant. Overall, the Applicant’s links to the Australian community can only, at best, weigh moderately in favour of a finding that his visa status to remain here should be restored to him.
Findings: Other Considerations
I refer firstly to weight allocable to the propounded miscellaneous other considerations and the Applicant’s family in Afghanistan. I allocate weight to them thus:
(a)miscellaneous other considerations: at best, only minimal weight in favour of revocation;
(b)impact of non-revocation decision on Applicant’s family in Afghanistan: merits a certain level of weight in favour of revocation.
Next, with reference to the Other Considerations contained in the Direction, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations 1 and 4, each of which weigh in favour of non‑revocation. The weight allocable to the Other Considerations (nominated in the Direction) relevant to the present matter can be summarised as follows:
(a)international non-refoulement obligations: of considerable, but not necessarily determinative weight;
(b)extent of impediments if removed: of moderate weight in favour of revocation;
(c)impact on victims: of neutral weight; and
(d)links to the Australian community: at best, moderate weight 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 discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1 carries a strong, but not on its own, determinative weight in favour of non-revocation;
·Primary Consideration 2 is not relevant;
·Primary Consideration 3 is not relevant;
·Primary Consideration 4 weighs very heavily in favour of non-revocation; and
·I have outlined the weight attributable to the Other Considerations (in the Direction) as well as the further items mentioned at paragraph [‎166] of these Reasons. I do not consider that the totality of the weight attributable to the relevant Other Considerations (a), (b) and (d), even when combined with the weight I have allocated to the further items mentioned at paragraph [‎166] of these Reasons, outweigh the significant, combined and determinative weight I have attributed to Primary Considerations 1 and 4;
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.
·Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
Decision

The decision under review is affirmed.

I certify that the preceding 170 (one hundred and seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

...........................[sgd].........................................
Associate
Dated: 30 September 2021

Date(s) of hearing: 24 June 2021

Date final submissions received: 10 September 2021

Advocate for the Applicant: Mr M Simmons, Solicitor

Solicitors for the Applicant: MSM Legal

Advocate for the Respondent: Ms C Stokes, Senior Lawyer

Solicitors for the Respondent: Australian Government Solicitor
ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

T1

Agreed Bundle (paged 1–⁠833)

Various

12 Apr 2021

R1

Respondent’s Statement of Facts, Issues and Contentions (15 pages, 67 paragraphs)

17 June 2021

17 June 2021

R2

International Treaties Obligations Assessment (28 pages)

4–⁠5 July 2019

17 June 2021

R3

Respondent’s Post-Hearing Submissions
(paged 1–4)

10 September 2021

10 September 2021

A1

Applicant’s Statement of Facts, Issues and Contentions (14 pages, 41 paragraphs)

20 May 2021

20 May 2021

A2

Applicant’s Reply (6 pages, 19 paragraphs)

21 June 2021

21 June 2021

A3

Applicant’s Statement (unsigned)
(6 pages, 31 paragraphs)

21 June 2021

21 June 2021

A4

Various certificates (30 pages)

Various

21 June 2021

A5

Senate Estimates Documents (129 pages)

Various

21 June 2021

A6

Applicant’s Post-Hearing Submissions
(5 pages, 25 paragraphs)

2 September 2021

2 September 2021

ANNEXURE B

[2021] AATA 3514

30 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Date(s) of hearing:	24 June 2021
Date final submissions received:	10 September 2021
Advocate for the Applicant:	Mr M Simmons, Solicitor
Solicitors for the Applicant:	MSM Legal
Advocate for the Respondent:	Ms C Stokes, Senior Lawyer
Solicitors for the Respondent:	Australian Government Solicitor

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
T1	Agreed Bundle (paged 1–⁠833)	Various	12 Apr 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (15 pages, 67 paragraphs)	17 June 2021	17 June 2021
R2	International Treaties Obligations Assessment (28 pages)	4–⁠5 July 2019	17 June 2021
R3	Respondent’s Post-Hearing Submissions (paged 1–4)	10 September 2021	10 September 2021
A1	Applicant’s Statement of Facts, Issues and Contentions (14 pages, 41 paragraphs)	20 May 2021	20 May 2021
A2	Applicant’s Reply (6 pages, 19 paragraphs)	21 June 2021	21 June 2021
A3	Applicant’s Statement (unsigned) (6 pages, 31 paragraphs)	21 June 2021	21 June 2021
A4	Various certificates (30 pages)	Various	21 June 2021
A5	Senate Estimates Documents (129 pages)	Various	21 June 2021
A6	Applicant’s Post-Hearing Submissions (5 pages, 25 paragraphs)	2 September 2021	2 September 2021