XBYJ and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 134
•6 February 2025
XBYJ and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 134 (6 February 2025)
Applicant/s: XBYJ
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/9688
Tribunal: Senior Member A Mercer
Place:Melbourne
Date:6 February 2025
Decision:Pursuant to section 105(c) of the ART Act 2004 (Cth), the Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that:
·the Applicant’s application for a Class XA subclass 866 Protection visa is not refused under s 501(1) of the Migration Act 1958 (Cth).
.................................[SGD].................................
Senior Member A Mercer
Catchwords
MIGRATION – refusal of Applicant’s permanent Subclass 866 (Protection) visa – sexually based offences involving a child – BVR – Direction 110 – Protection of the Australian community
Legislation
Migration Act 1958 (Cth)
Migration Amendment (Bridging Visa Conditions) Regulations 2024 (Cth)
Migration Amendment (Removal and Other Measures) Act 2024 (Cth)
Migration Regulations 1994 (Cth)
Cases
Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40
HWLJ v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 1039
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Minister for Home Affairs v HSKJ [2018] FCAFC 217
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
BHL19 v Cth of Australia (No. 2) [2022] FCA 313
AJL20 v Cth of Australia [2020] FCA 1305
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2021] FCAFC 48
Secondary Materials
Direction 110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a decision under s 501CA
Exhibit HB 1 – Hearing Book containing Minister’s and Applicant’s submissions and documents
Statement of Reasons
On 14 October 2024, the Administrative Appeals Tribunal (the AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
This matter concerns an application for review of a decision by a delegate of the Respondent to refuse to grant the Applicant a Class XA subclass 866 Protection visa pursuant to s 501(1) of the Migration Act 1958 (Cth) (the Act).
In reconsidering this matter, the Tribunal must decide if the Applicant passes the character test; and, if he does not, whether there is another reason the refusal of his visa should be set aside.
BACKGROUND
The Applicant was born in Iraq in September 1989. The Applicant is the youngest of 11 siblings, three of whom are deceased. Two older brothers of the Applicant died in separate accidents before the Applicant was born, while another older brother died in a bombing incident in 2016, after the Applicant had migrated to Australia. Of the Applicant’s remaining siblings, he has one older brother in the United States, one older brother in Jordan, one older brother in Australia, two older sisters in Iraq, one older sister in Jordan, and one sister in Australia. The Applicant’s parents are both deceased, his father having died in Iraq in 2014 and his mother in Jordan in 2019.
The Applicant and his family are members of the Chaldean/Assyrian Christian community in Iraq (and in Australia). In Iraq, the family resided in Baghdad.
In 2003, the United States sent troops into Iraq and conditions there deteriorated significantly. The Applicant was approximately 13 and a half at this time. During 2006, the Applicant was injured in a bomb blast from which he recovered after six months in hospital. He was able to complete secondary schooling to the age of approximately 15 and worked in an electrician business operated by his older brother(s). In 2011, the Applicant and his older brother and his older brother’s family fled Iraq for Turkey after the family received threats apparently relating to their religion and to work undertaken by the family electrician business for the occupying US forces.
In 2013, the Applicant and his older brother and his family were granted permanent Class XB subclass 200 Humanitarian visas and the Applicant arrived in Australia on 7 February 2013 as the holder of this visa. He lived with his brother and his brother’s family in suburban Melbourne. The Applicant obtained employment at a food company in 2013, a job he held until 2018 and which he recommenced in November 2024. He also worked as a cleaner for a period in addition to his early years of employment at the food company.
The Applicant married his wife, an Australian, on 4 June 2016. The Applicant’s wife is also a person of Iraqi Chaldean Christian background. The couple had a son in April 2017.
On 13 December 2017, the Applicant was committed for trial in the County Court of Victoria for the following offences, allegedly committed between 29 July 2017 and 30 July 2017:
(1)Using a carriage service to procure a person under 16 – s 474.26 of the Criminal Code; and
(2)Using a carriage service to solicit child pornography – s 474.19 of the Criminal Code.
The Applicant pleaded guilty to both offences, and on 27 April 2018, he was convicted of both offences. He received an aggregate sentence of 3 years’ imprisonment but was to be released on recognisance after 12 months, subject to him paying $1,000 and being under the supervision of the Community Corrections Service (CCS) for 24 months (this included attending any treatment or courses deemed suitable for him by CCS, notifying any change of address and not leaving Victoria without CCS permission). Pullen J of the County Court of Victoria also ordered that the Applicant be placed on the Sex Offenders’ Register for 15 years.
The Applicant commenced his 12-month term of imprisonment (minus 15 days he had already served in custody on remand) on 27 April 2018 and was transferred between various correctional facilities during his sentence.
On 4 June 2018, the Applicant’s subclass 200 visa was cancelled by a delegate of the Minister pursuant to s 501(3A) of the Act.[1] The Applicant applied to have the cancellation revoked.
[1] HB1, G5, Attachment Z, 25 July 2022.
On 11 April 2019, the Applicant completed his jail sentence and was then taken into immigration detention, initially at Melbourne Immigration Transit Accommodation (MITA) in Broadmeadows, Melbourne. He was subsequently transferred to immigration detention facilities in Perth, and then to Christmas Island, before he was transferred back to MITA via a brief period in Sydney.
On 3 December 2019, a delegate of the Minister refused to revoke the cancellation of the Applicant’s subclass 200 visa.[2]
[2] HB1, G5, Attachment D, 12 August 2022.
The Applicant sought review of that decision with the AAT (as it then was) and on 23 August 2022, the AAT (differently constituted) affirmed the delegate’s decision not to revoke the cancellation of the Applicant’s subclass 200 visa.[3] The Applicant sought judicial review of that decision.
[3] HB, R3, RTB1.
On 6 February 2024, the Applicant made an application for a Class XA subclass 866 Protection visa.
On 16 February 2024, the Federal Court of Australia (FCA) dismissed the Applicant’s appeal against the AAT’s non-revocation affirm decision. The Applicant sought judicial review of this decision.
On 8 May 2024, a delegate of the Minister found that the Applicant was owed protection by Australia (‘the protection finding’) as the delegate was satisfied that he would face a real chance of persecution on the basis of his religion if returned to Iraq now or in the foreseeable future.
On 16 September 2024, the Full Court of the Federal Court of Australia (FCAFC) dismissed the Applicant’s application for judicial review of the FCA decision of 16 February 2024.
On the same date, a delegate of the Minister sent the Applicant a notice of intention to refuse his subclass 866 visa application pursuant to s 501(1) of the Act, on the basis that he did not pass the ‘character test.’ The Applicant provided material in support of his case in response.
On 14 November 2024, a delegate of the Minister refused to grant the Applicant a subclass 866 visa on the basis that he did not satisfy the character test in s 501(1) of the Act.
On the same date, the Applicant was released from immigration detention and granted a bridging visa R (BVR) permitting him to remain in Australia in the community subject to a range of conditions, including wearing an ankle bracelet for monitoring purposes and reporting as directed to the Department. The Applicant resumed living with his older brother and his family. At this time, the Applicant also resumed employment at the food factory for whom he had previously worked.
On 22 November 2024, the Applicant applied to the Tribunal for review of the decision to refuse to grant him a subclass 866 visa on character grounds.
The Applicant continues to hold a Bridging R Visa (BVR) granted to him on 14 November 2024, which is subject to a range of conditions.[4]
[4] HB1, T3, 7 November 2024.
The Applicant attended a Tribunal hearing which took place over 21 and 22 January 2024. He was represented by Ms Amelia Faraone and Ms Rachel Mason of Victoria Legal Aid (VLA) and Ms Lauren Bull of Counsel. Ms Kaylia Theocharous, of Clayton Utz, represented the Minister at the hearing. The Applicant called three witnesses at the hearing, being his brother and his sister who reside in Australia, both of whom gave evidence and were cross examined on 21 January 2024, and his psychologist, Dr Helena Sandahl, who gave evidence and was cross examined on 22 January 2024.
LEGISLATIVE FRAMEWORK
Subsection 501(1) of the Act provides that:
… The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Subparagraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record.’ Subsection 501(7) of the Act provides that:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of these terms is 12 months or more; or
(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f) the person has:
(i) been found by a court to not be fit to plead, in relation to an offence; and
(ii) the court has nonetheless found that on the evidence available the person committed the offence; and
(iii) as a result, the person has been detained in a facility or institution.
The transcript of the proceedings of the County Court of Victoria at Melbourne dated 27 April 2018[5] records that the Applicant was sentenced to 3 years’ imprisonment, with 12 months of that to be served and 24 months to be suspended subject to the Applicant meeting particular conditions. In addition, the Applicant’s victim was aged 11 and a half at the time of the offending, which constitutes sexually based offending involving a child (regardless of whether the offence itself has the age of the victim as one of its elements).[6] The Tribunal is therefore satisfied that the Applicant has a substantial criminal record under the terms of s 501(1)(c) and has been convicted of a sexually based offence involving a child, and thus falls within s 501(6)(e)(i).
[5] R1, G2, Attachment B, 27 April 2018.
[6] HWLJ v MICMA [2020] FCA 1039 (per Abraham J) at [43].
Given this, the Tribunal finds that the Applicant does not pass the character test.
Accordingly, the Tribunal must determine whether to exercise its discretion in subsection 501(1) of the Act to refuse to grant the Applicant a subclass 866 visa.
THE DIRECTION
Under s 499(1) of the Migration Act 1958 (Cth) (the Act), the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any direction given by the Minster (s 499(2A)).
The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’) on 21 June 2024. It is expressed to apply to the Administrative Appeals Tribunal (AAT) in making a decision under s 501 or s 501CA of the Act, and the Tribunal must comply with the Direction (as noted above, this now applies to the Administrative Review Tribunal).
Clause 5.2 of Direction 110 provides principles to provide a framework to approach decision making. These 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. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5)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.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, 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.
(7)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.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[7]
[7] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’).
The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.[8]
[8] Direction 110, cl 7.
THE APPLICANT’S REQUEST NOT TO HAVE HIS VISA REFUSED ON CHARACTER GROUNDS
The Direction does not limit the matters the Tribunal can consider in deciding whether to grant a person a visa even if they do not pass the character test.
The Applicant and his representatives made submissions that the Applicant had experienced a traumatic adolescence in Iraq prior to coming to Australia via Turkey in 2013, which had had an ongoing effect on him.[9] They stated that they did not seek to minimise his offending but maintained that it was a one-off offence and that he was fully rehabilitated, having been assessed as not being at risk of reoffending.[10] They noted that the Applicant had undertaken counselling with the Foundation House, mostly via telehealth due to COVID19-related restrictions, while in immigration detention for PTSD, depression and anxiety from 2019 until his release in 2024 (apart from the period during which he was detained on Christmas Island and unable to access the services of Foundation House).[11] They further noted that since his release from immigration detention, the Applicant had started attending counselling through the Australian Community Support Organisation (ACSO) and it was asserted that this was further evidence of his commitment to maintaining stable mental health and his status of not being a risk to the community.[12]
[9] A1, Statement of Facts, Issues and Contentions, paragraph 3, 20 December 2024.
[10] Ibid, paragraph 5.
[11] Ibid, paragraph 16.
[12] Ibid, paragraph 18.
The Applicant also emphasised his strong family ties to Australia, noting that his son, his older brother and his older sister, and their families (comprising six nephews and nieces of the Applicant) were all Australian citizens. The Applicant’s parents were deceased and it was asserted that his surviving siblings overseas (one elder brother in the US, one older brother and one older sister in Jordan and two older married sisters in Iraq) were unable to provide support to him.
The Applicant and his older brother both indicated that the latter was effectively a father figure for the Applicant, as the Applicant had lived with his older brother and his family for much of his life in Turkey and in Australia (apart from the period when the Applicant was married and when he was jailed and then transferred to immigration detention). The Applicant, his older brother and their sister in Australia all indicated that they were a close-knit family that spent much time together, that the Applicant was close to his nieces and nephews. Reference was also provided to other members of the Applicant’s extended family in Australia, but few details were provided of who they were or the effect that refusal of the Applicant’s visa might have on them. At hearing, the Applicant said that the other family members in Australia to whom he was close were his aunt (his mother’s sister) and her children, and a number of cousins on his father’s side of the family. He had extended family members in Melbourne and Sydney and was close to a particular cousin in Melbourne who was his aunt’s grandson.
The Applicant, his brother and his sister provided statutory declarations which (amongst other things) stated that the refusal of the subclass 866 visa to the Applicant and his potential removal from Australia had had, and would have, a devastating effect on the family, especially since they had all been through considerable trauma in their lives to date. They confirmed this in their oral evidence at hearing.
The Applicant, his brother, sister and their local priest also indicated that the Applicant was a practising Christian and was involved in his local church. At hearing, the Applicant said that his ability to attend his local church was affected by his ankle monitor, which prevented him from being within 200m of a school or childcare facility, and the local church had both facilities attached to it. He indicated that he therefore mostly prayed at home or attended another church which did not have a school or childcare facilities attached. He further indicated that he had received support from several priests during and after his time in detention.
The Applicant’s employer provided written evidence that he had re-employed the Applicant in November 2024 in full knowledge of his offending and considered the Applicant a hardworking, reliable and loyal employee.[13] The Applicant and his sister and brother told the Tribunal at hearing that the Applicant was focussed on his work, and had taken on additional hours there while looking for a second job he could undertake in the afternoon. The Applicant said that ultimately, he hoped to establish his own business but at present, he was focussed on working as much as he could and rebuilding his life, including by now renting his own apartment and purchasing a vehicle.
[13] HB1, A2, Attachment 4 of 20 November 2024.
In relation to the Applicant’s Australian son, now aged approximately seven and a half, it was conceded that he lived with his mother and her parents and had had little contact with the Applicant since the Applicant was charged, convicted and jailed in 2018, when his son was an infant. However, the Applicant strongly believed that it was in his son’s best interests that he be able to see his father and the Applicant wished to play an active role in his son’s life by supporting him emotionally and financially. It was not disputed that the Applicant and his son’s mother’s marriage had ended.
At hearing, the Applicant gave evidence that he had not spoken with his son or his ex-wife since 2022, as his ex-wife had blocked contact. He further indicated that he and his ex-wife were now legally divorced, but had yet to obtain Church approval to be divorced in the eyes of the Church. However, he said that he was not opposing the Church recognising the divorce as he respected his ex-wife’s wishes in this regard. In relation to contact with his son, the Applicant gave evidence at hearing that he had tried to apply to the Family Court for a contact order to see his son but was advised by his lawyers that the Family Court was unlikely to consider that this was in his son’s best interests, due to the fact of the Applicant’s unresolved immigration status and the possibility that he might be removed from Australia. The Applicant gave evidence at hearing that if his permanent residence was restored, he would formally apply in the Family Court to have contact with his son and to enter into formal child support arrangements for him.
It was argued that the Tribunal should exercise its discretion not to affirm the refusal of the Applicant’s visa on character grounds for four primary reasons:
(1)the legal consequences of affirming the refusal decision were that the Applicant would become liable to removal to a third country (with a further period in immigration detention likely to precede this option) or potentially, removal to Iraq. Both options would be catastrophic for the Applicant and his family;[14]
(2)the Applicant’s personal history, including the relationship of his personal history with his criminal history and his extensive efforts at rehabilitation militated against such a disproportionate and unwarranted outcome;[15]
(3)the Applicant did not pose any risk of reoffending;[16] and
(4)the strength, nature and duration of the Applicant’s ties to Australia militated against refusal of his visa on character grounds.[17]
[14] HB1, Attachment A1, paragraph 20.
[15] Ibid, paragraph 21.
[16] Ibid , paragraph 22.
[17] Ibid, paragraph 23.
RESPONDENT’S CONTENTIONS
In the Respondent’s Statement of Facts, Issues and Contentions, the Respondent argues that the Applicant does not pass the character test because he has a substantial criminal record, and that the Tribunal should exercise its discretion to affirm the refusal decision because, taking into account the considerations in Direction 110, primary considerations 1 (protection of the Australian community) and 5 (expectations of the Australian community) weigh heavily in favour of the Tribunal refusing the visa, and to the extent that primary considerations 3 (strength, nature and duration of ties to Australia) and 4 (best interests of minor children in Australia), and any of the other considerations (such as the legal effect of a refusal and any impediments to removal of the Applicant), weigh in the Applicant’s favour, they are outweighed by primary considerations 1 and 5.[18]
[18] HB1, Attachment R2, paragraph 13.
The Respondent argued that the Australian government and Australian community regarded crimes of a sexual nature against children very seriously, and, that while it was conceded that the Applicant had one relevant episode of offending, it should be viewed as extremely serious, given:
·the victim was 11 and a half years old at the time of the Applicant’s offending. Although the Applicant was initially unaware of this, the victim subsequently told the Applicant via the social networking service on which they met that he was 12 years old;
·although the victim initiated conversation of a sexual nature, the Applicant responded and requested photographs of the victim and arranged to meet him at a park with the intention of engaging in oral sex;
·when the Applicant met the victim in person, it was clear that the victim was a child, and the victim told the Applicant again that he was 12 years old;
·after this meeting, the Applicant again asked to victim to send further explicit photographs to him and discussed wanting to meet him again in person; and
·the Applicant sent the victim of his own exposed genitalia via the social networking service.
While there was limited evidence of the impact on the victim of the Applicant’s offending, the victim had told the Applicant that he had been sexually abused by his own father, and it could therefore be inferred that the Applicant’s offending of procurement and solicitation of a victim of previous sexual abuse would have had a significant negative psychological impact on the victim.[19]
[19] HB1, Attachment R2, paragraph 32.
It was submitted that any repeat of the Applicant’s offending would result in a very serious harm to the Australian community, including young children within it, and that even if the Tribunal considered that the Applicant posed a low risk of reoffending, it should still find that such a risk was an unacceptable one. In particular, the Respondent questioned the weight that could be attributed to the report dated 25 March 2018 (with revision of 24 April 2018) by clinical psychologist Dr Michael King (in which he gave his opinion that the Applicant was not at risk of reoffending) as it initially appeared to have been prepared solely on the basis of the Applicant’s instructions that he had no sexual intentions towards the victim, without reference to the Applicant’s admissions in Court that he did. While this was corrected subsequently, and Dr King maintained that the Applicant was not similar to other sex offenders, it was submitted that limited weight could or should be given to this opinion as it did not give a clear indication of risk and was now over 6 years old.[20]
[20] HB1, Attachment R2, paragraphs 41 to 44.
The Respondent did not consider the counselling undertaken by the Applicant at Foundation House, and the reports from counsellors there (who appeared to be Social Workers but not necessarily psychologists) to be indicative that the Applicant had addressed the factors contributing to his offending (or that would assist him to not reoffend) given that the counselling he undertook appeared to focus on his traumatic experiences as a child and adolescent in Iraq and his apparent ongoing PTSD, depression and anxiety.[21] It was not proof that he was rehabilitated and posed no risk to the Australian community. On the contrary, the statement in the Applicant’s statutory declaration of 19 December 2024 that he ‘struggle[d] to understand the reasons for my offending. I wish that I better understood what exactly it was that motivated me to behave in such a terrible way towards a child,’ raised significant doubt about the Applicant’s insight into his offending and his ability to conduct himself lawfully in relation to children in the future.[22] This was consistent with observations of the sentencing judge that she was concerned that the Applicant had tended to minimise his offending when speaking with Dr King and in court, that he required ongoing treatment for at least 12 months, and that this would not be effective unless he fully acknowledged his behaviour/offending.[23]
[21] HB1, ibid, paragraphs 47 to 51.
[22] HB1, ibid, paragraphs 52 to 53.
[23] HB1, ibid, paragraph 54.
The Respondent acknowledged that the Applicant had not reoffended since 2018 but argued that this factor should not be given undue weight, given that the Applicant had been removed from the community between April 2018 and November 2024. His time in the community since his release from immigration detention on 14 November 2024 was brief, and therefore it was difficult to place much weight on the fact that the Applicant had not reoffended since his release.[24] Moreover, it was noted that there had been a number of issues when the Applicant was in immigration detention where he was abusive and/or threatened self harm if he was not transferred, and these were not consistent with his claimed rehabilitation and/or indicated an unwillingness or inability to follow rules.[25]
[24] HB1, ibid, paragraph 56.
[25] HB1, ibid, paragraphs 57 to 58.
In relation to the Applicant’s family ties to Australia, it was acknowledged that the Applicant’s son and six nieces and nephews (all of whom were under 18) were minor children whose best interests should be considered. However, it was noted that the Applicant had had very little opportunity to develop a parental relationship with his son who in any case had his mother providing a parental role to him. It was also unclear to what extent the Applicant would be able to re-establish a parent role with his son, and whether – considering the nature of the Applicant’s offending – this would have a negative impact on his son, whose views on these matters were unknown. It was also submitted that as the Applicant was presently in the community as the holder of a BVR, with no prospect at present of being removed to a safe third country, the Applicant and his son would not be permanently separated if the Applicant’s visa was to be refused.[26]
[26] HB1, Attachment R2, paragraph 82.
Similarly, while it was acknowledged that it was to some degree in the interests of the Applicant’s nieces and nephews that the Applicant’s visa was not refused, it was submitted that this should not be given significant weight, given that (as above) it was unlikely that the Applicant would be removed from Australia and could thus maintain contact with them, and the Applicant did not hold a parental role in relation to any of them. As above, it was unclear whether the nature of the Applicant’s offending would have a negative impact on them.[27]
[27] HB1, ibid, paragraph 83.
It was submitted that primary consideration 5 weighed heavily in favour of the Tribunal affirming the decision under review, as the expectation of the Australian community should be taken to favour refusal in relation to a serious sexual offence involving a child, regardless of the Applicant’s individual circumstances and specific level of risk to the community.[28]
[28] HB1, ibid, paragraphs 91 to 94.
It was acknowledged that the Applicant was the subject of a protection finding within the meaning of s 197C(5)(a) of the Act by virtue of the Department’s decision that he satisfied ss 36(2)(a) and 36(1C) of the Act on 8 May 2024. Given this, the Applicant would not be removed from Australia to Iraq, unless one of the exceptions in s 197C(3)(c) applied. However, affirming the decision to refuse him a subclass 866 protection visa would mean that the Applicant remained subject to s 48A of the Act, and would be unable to apply for any further protection visa application in the migration zone (Australia) unless the Minister lifted the bar to allow him to do so. He was also prevented from applying onshore for most other classes of visas by virtue of s 48 of the Act. While this was acknowledged as a disadvantage, it was submitted that, despite the Migration Amendment Bill 2024 and the Migration Amendment (Removal and Other Measures) Bill 2024 becoming operational in early December 2024, there were no current arrangements by which the Applicant could be removed to a safe third country, and therefore this possibility should be regarded as remote and speculative.[29]
[29] HB1, Ibid, paragraph 101.
It was, however, acknowledged that although the Applicant was able to remain in the Australian community as the holder of a BVR, some of the conditions of that BVR (most notably, the requirement for the Applicant to wear a monitoring ankle bracelet) were onerous for him, as was the lack of certainty regarding his immigration status generally.[30]
[30] HB1, ibid, paragraphs 102 to 103.
This was also a reason for the Tribunal to give neutral weight to the factor concerning the impediments that the Applicant would face if removed from Australia.[31]
[31] HB1, ibid, paragraphs 104 to 106.
It was acknowledged that the Applicant had employment ties to Australia, being his employment with the food factory from 2013 to 2018 and from 2024 ongoing; however, this should not be given significant weight in favour of granting the Applicant a visa given that there was no evidence that the company’s ability to deliver any major project or important service in Australia, nor that the Applicant could not be replaced by another employee if necessary.[32]
[32] HB1, ibid.
THE PRIMARY CONSIDERATIONS
The Direction contains five primary considerations, which are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia;
(5)expectations of the Australian community.[33]
[33] The Direction, cl 8.
The Tribunal has considered each one in turn, keeping in mind the principles in cl 5.2 of the Direction.
The protection of the Australian community
The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.[34]
[34] Ibid cl 8.1(1).
The Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[35]
[35] Ibid.
Decision-makers should consider the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[36]
[36] Ibid cl 8.1(2).
Nature and seriousness of the conduct
The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[37]
Criminal offending
[37] Ibid cl 8.1.1(1)(a).
The Applicant’s convictions are set out above at paragraph 9 and 10 above.
Sentencing remarks, 27 April 2018
Her Honour Justice Pullen observed that the Applicant’s offending was serious and concerning, particularly because:
·it involved a child, of which the Applicant was aware from a relatively early stage of his communications with the victim;
·it was sexual in nature, although this was initially downplayed by the Applicant in his dealing with the police and with Dr Michael King;
·it progressed to the stage of a meeting, and the Applicant continued to try to arrange another meeting despite being aware of the victim’s age and his previous sexual abuse; and
·although the Applicant did not initiate conversation of a sexual nature, he engaged in it with the victim and sought to have another meeting with him after the initial one; and
·he also sought and exchanged explicit photographs with the victim after knowing his age and prior sexual abuse.
In the Applicant’s favour, Pullen J noted that he had no criminal record and had pleaded guilty at the earliest opportunity, indicating remorse and saving resources and sparing the victim from further involvement. Pullen J also noted that on the agreed facts, the Applicant did not seek out contact of a sexual nature with an underage person, that no physical sexual contact did take place between the Applicant and the victim, and that the offending took place in a confined period. Her Honour also recognised that the Applicant’s marriage had ended, he had limited contact with his son, he had resigned from his employment, and was in financial hardship as a result of his offending.
In relation to the Applicant’s cooperation with the authorities after being charged, Pullen J agreed that he had broadly cooperated but expressed some concern that he sought to minimise the sexual nature of his offending and/or deflect attention from this aspect of his offending when talking with the police and clinical psychologist Dr King. Her Honour noted that the report(s) of Dr King were therefore of limited value in assessing the Applicant’s level of risk of reoffending. While Dr King indicated that he considered that the Applicant was ‘not similar to’ habitual sex offenders and appeared to have acted from a mixture of a desire for friendship and a desire for sexual gratification, Dr King did not explicitly state that the Applicant was at low or no risk of reoffending.
Having regard to all of these matters, Pullen J concluded that a sentence of imprisonment was warranted, deciding on 3 years, with 2 years of that to be suspended as a recognisance release order, and for the Applicant to pay $1,000. Her Honour stated that she had ‘some concerns’ about the Applicant’s rehabilitation prospects and therefore concluded that he needed to be closely monitored and assisted (that is, by counselling/treatment) over a significant period. The conditions of his recognisance release order were that he was to be of good behaviour for 24 months and that he was to be under the supervision of Community Corrections Services (CCS) for 24 months (including reporting upon release from jail, notifying of any change of address and undertaking any assessment and/or treatment for sex offender programs). Pullen J also placed the Applicant on the Sex Offender Registration Act for 15 years.
Given that the Applicant’s sexual offending involved a child, the Tribunal regards this offending as very serious, as indicated by paragraphs 8.1.1(a)(ii) and (b)(ii) of Direction 110.
The Tribunal considers that this is reflected in the fact that the Judge imposed a custodial sentence on the Applicant for the offences, albeit a relatively short one of 3 years (2 of which were suspended) (in the context where the maximum penalty that could be imposed was 15 years), and placed the Applicant on the sex offenders register for 15 years.
There was no direct evidence before the Tribunal regarding the impact of the offending on the victim, such as a victim impact statement. It was conceded, however, by the Applicant and his representatives, that the impact of the Applicant’s offending on the victim would have been significant, particularly given the victim’s age and his assertion that he had been the victim of previous sexual abuse.
There is, however, in the Tribunal’s view, no trend of increasing seriousness in the Applicant’s offending. Moreover, the Tribunal acknowledges that the Applicant has not offended since his release from immigration detention approximately 3 months ago.
There is no indication that the Applicant provided false or misleading information to the Department, including by not disclosing prior criminal offending. In fact, the Applicant provided the Department (and the Tribunal) with considerable information about his offending, his sentence and the various programs with which he has been involved since his convictions (although the Tribunal acknowledges that he has only been out of jail and immigration detention for approximately 3 months as at the time of the Tribunal decision, as noted by the representative for the Minister).
There is no indication that the Applicant has reoffended after being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending to his migration status.
The above factors, and the Applicant’s acknowledgement of the likely effect of his offending on his victim, weigh somewhat in not refusing the Applicant’s visa.
However, overall, the Tribunal considers the sexual offences for which the Applicant was convicted to be very serious and this weighs in favour of refusing his subclass 866 protection visa application.
Other conduct
The Direction specifies at cl 4(2) that serious conduct includes behaviour or conduct of concern that does not constitute any criminal offence.
Apart from the criminal offences discussed above, there is no evidence of serious behaviour or conduct of concern in relation to the Applicant, apart from the incident reports over the period during which the Applicant was in immigration detention between April 2019 and November 2024, which are listed in paragraph 57 of the Respondent’s Statement of Facts, Issues and Contentions[38] and which were canvassed in detail at the Tribunal hearing.
[38] HB1, Attachment R2, paragraph 37.
While not condoning these incidents, the Tribunal does not consider them to be serious character concerns, given the Applicant’s circumstances and the stress he experienced, particularly when detained at length on Christmas Island, which significantly affected his ability to remain in contact with his family and to undertake counselling. The Tribunal also notes that the majority of these incidents were characterised by the immigration detention authorities themselves as ‘minor[39].’ Of the major ones, most of these relate to the Applicant refusing food and some relate to altercations with other detainees, all but one being verbal.
[39] HB1, Attachment R1, Attachment G21, pp 433 – 470.
The Applicant gave detailed evidence at hearing about some of these incidents, and the Tribunal accepts that most occurred when he was under considerable stress, and that in the cases involving fellow detainees and in one case a staff member, these disputes were generally resolved by agreement between them. The Tribunal does not consider that these incidents are indicative that the Applicant is normally aggressive, combative or unwilling to follow rules. The Tribunal further notes that the Applicant has undertaken a course on Anger Management while in detention to better equip himself to deal with such situations.
The Tribunal does not give these incidents any weight in favour of refusing the Applicant’s visa.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Clause 8.1.2 of the Direction states, in part:[40]
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[40] See also Direction 110, cl 8.1(2)(b).
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[41] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[42] There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[43]
Nature of the harm
[41] Direction 110, cl 8.1.2(2)(a).
[42] Ibid cl 8.1.2(2)(b).
[43] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community, should the Applicant reoffend.[44]
[44] Direction 110, cl 8.1.2(2)(a).
The Tribunal considers that the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct is very serious, given his past offending was sexual offences involving a child. This weighs in favour of refusing his subclass 866 protection visa.
Likelihood of the non-citizen engaging in further criminal or serious conduct
The Tribunal is to consider evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the Applicant’s most recent offence.
The Applicant has provided the following reports from psychologists and/or counsellors:
·report(s) of clinical psychologist Dr Michael King, 26 March 2018 and 24 April 2018;[45]
·report of counsellor advocate Dashiell Rees, Foundation House, 3 December 2019;[46]
·updated report of Dashiell Rees, Foundation House, 28 August 2020;[47]
·report of clinical psychologist Dr Helena Sandahl, 7 January 2025;[48] and
·engagement letter from Mr Adam Love, Dual Diagnosis Clinician, Australian Community Support Organisation (ACSO), 10 January 2025.[49]
[45] HB1, Attachment R1, G4.
[46] HB1, Attachment A2, p 29.
[47] HB1, ibid, p 34.
[48] HB1, Attachment A4, p 45.
[49] HB1, ibid, p 60.
In addition, the Applicant provided evidence of having undertaken the following courses while in immigration detention, of his own volition (apart from the SMART meetings, the remainder of the courses undertaken were undertaken online via a provider called Udemy):
·SMART recovery meetings;
·Attraction, Love and Sexual Attitudes;
·The Ultimate Sexual Addiction and Porn Addiction Treatment;
·Accredited Professional Counselling Diploma for Sexual Abuse;
·Sexual Grooming of Children;
·Prevention of Sexual Harassment;
·Sexual Harassment Training for Employees in the Workplace; and
·Anger Management and Conflict Resolution Program.[50]
[50] HB1, Attachment A1, Applicant’s SOFIC, paragraph 40.
In summary, the combined reports of Dr King indicate that in his opinion:
·the Applicant did not have aberrant sexual thinking and was determined by Dr King to be not at risk of future sex-related offences;
·the Applicant came from a profoundly traumatic background in which he experienced the loss of many people and of the sense of being a child himself;
·he was of average intelligence but showed a ‘dramatic collapse’ in capacity for logical reason when faced with complex situations, but was capable of planning, learning from his errors and working towards improved decision making; in particular, he did recognise the wrongness of his intentions and actions;
·the best explanation for the offending was that the Applicant had formed a social media relationship with a much younger person, which might at least have been partly due to a desire to create and experience some aspect of youth/adolescence;
·an analysis of the Applicant’s current mental state with regard to PTSD demonstrated that he had blurred and general memories, rather than clear and specific personal history recollections, and this was likely due to early life trauma, and added another layer of coherence to the overall interpretation of his case; and
·overall, the Applicant was not at risk of further offending but would benefit from continued Clinical Psychological counselling, which he had indicated he was willing to undertake. Dr King states that the Applicant has a need for close clinical monitoring and assistance over a significant period (at least one year).
The health assessments provided by Mr Rees, a counsellor/advocate at Foundation House, indicate (in summary) that the Applicant had a close family but that there had been family-specific trauma (the deaths of several siblings) and external trauma (as a result of periodic conflict in Iraq, he had witnessed the death and injury of various people in bombings and attacks by militias and had himself been seriously injured in 2006). As a result, he remained affected by PTSD symptoms (hyper-arousal, intrusive symptoms, avoidance), depression (low mood, energy, self-blame, loss of interest and motivation) and anxiety (rumination, nervousness and psychosomatic symptoms such as dizziness, headaches and heart palpitations). In relation to the Applicant’s offending, Mr Rees stated that the Applicant appeared initially reluctant and ashamed to discuss this in detail, but he now acknowledged the inappropriateness of his actions and was remorseful and self-critical. Mr Rees noted that in immigration detention, the Applicant’s mental health deteriorated when he was transferred from the MITA to Yongah Hill in Perth in September 2020 before being transferred again a month later to Christmas Island (including 3 hunger strikes and threats to self harm) until he was ultimately transferred back to MITA in October 2023. Mr Rees observed that this was a positive development as it meant that the Applicant could now receive family visits again.
Mr Rees observed that the Applicant had now started to take ‘ownership’ of his situation and legal matters and was also focussed on undertaking suitable courses to assist him to cope and not to reoffend, but had been frustrated by the limited ability to do so while in immigration detention. Mr Rees concluded that he concurred with his colleague at STARTTS that the Applicant should continue psychological treatment and such treatment should focus on strengthening the Applicant’s existing coping mechanisms and stress reduction strategies, preferably outside detention, in a community placement setting if possible.
In her report, Dr Sandahl made the following points (in summary):
·she interviewed the Applicant at two sessions over two consecutive days;
·his family life in Iraq was close but marked by trauma, both personal and more broadly (as described by other psychologists and counsellors above);
·his marriage in Australia was essentially an arranged marriage with a woman from the same Chaldean Christian Iraqi community but who was not related to the Applicant, and occurred eight months after the couple met, which the Applicant appeared to consider might have been too quick;
·the Applicant was also significantly affected by the deaths of his father the year before and of an older brother in Iraq shortly after the Applicant’s marriage in June 2016;
·he felt depressed after this but did not appear to have received any specific treatment for this until after he was convicted and saw Dr King. He found his session(s) with Dr King positive and wished to continue to see him but was unable to do so after he was incarcerated;
·while in immigration detention in Melbourne, the Applicant had regular counselling through Foundation House and spoke highly of this; however, this ceased when he was moved to Perth and then Christmas Island. This also cut short his contact with his family, and his mental health deteriorated, and he became desperate to be transferred back to Melbourne. He had difficulty sleeping, was agitated with others and on occasions refused food and/or threatened self harm. He requested mental health counselling but was given anti-depressant medication which he took for a while but ceased due to side effects;
·he had contact with his wife until he was moved interstate, and she filed for divorce in 2023, which he accepted but he very much wished to continue to have a relationship with his son. He was not able to do so at the time he was charged and convicted as he was ordered to leave the family home when his son was about eight months old by Child Protection Services and thereafter could only have supervised visits. These ceased when he was jailed and while he was in immigration detention;
·the Applicant grew up in a strictly religious family and had little sexual experience prior to his marriage in Australia, but did not identify as gay and did not claim to be attracted to children. At the time of his offending, he enjoyed chatting to different people online, but as friends, not as potential sexual partners;
·it was through a non-sexual social networking service (Skout, which advertises as a site on which to make friends and/or potential romantic connections) that he met the victim, though he could not remember who initiated contact. He initially thought that the victim was around his age (30) but then found out he was chatting with a young boy. He found it difficult to explain why he sent a picture of his penis and arranged to meet in person, though he maintained that nothing sexual happened when he did meet the victim;
·when asked what motivated him to pursue contact with a young boy, he ultimately said that he thought that it was due to a prolonged period of abstinence due to his wife’s pregnancy and the birth of his son, but could not explain why he pursued contact with the victim rather than an adult woman. He indicated he felt very ashamed of this, confused by it, and also sorry for the victim when the latter disclosed he had been abused by his father;
·while in jail and immigration detention, the Applicant wished to do courses and targeted treatment for his offending but the risk assessment from the Specialised Offender Assessment and Treatment Service (SOATS) assessed his risk of reoffending as low to moderate, which did not qualify him for their program(s). Instead, he took other courses that were available to him, including vocational study and certificates, but also online courses dealing with sexual issues run by the provider Udemy, although he was not certain how much benefit he had obtained or how much he could relate to the material provided;
·he was extremely glad to have returned to work at his old employer on a full-time basis, particularly since it was a small workplace and like another family for him. He felt more positive when he was working;
·he was extremely concerned about the stress his brother and sister in Australia were under as a result of his situation, and he was extremely fearful of being removed from Australia to a third country, where he would know no one and be at potential risk of being removed from that country to Iraq, where he would face serious harm due to his religious affiliation;
·psychometric testing and assessment indicated that the Applicant had no strong evidence of antisocial tendencies, nor an entrenched disregard of social customs or norms. He had the capacity to resolve interpersonal problems of adjustment in other ways. However, his test profile showed a marked elevation on the scale for immaturity, and he tended not to display responses, attitudes, viewpoints and perceptions that were usual and expected for his age level. He would sometimes have difficulties understanding the behaviour of others and had limited understanding of individual differences;
·the Applicant could be categorised as friendly, responsive to praise, affectionate, uncritical and dependent;
·there were marked elevations on the scales for Withdrawal-depression and Social Anxiety. The Applicant tended to be insecure around others and self-blaming, and he tended to resolve a lack of satisfaction with self and others by passive escape or isolation, but he felt sad and alone;
·the primary treatment goal for the Applicant should focus on how his behaviour has affected others and vice versa. It would also help him to learn skills to manage impulsivity and to remain calm when anxious, stressed or frustrated;
·the Applicant’s responses indicated that he was able to express himself clearly in English as a second language (though his spelling tended to be phonetic) and his focus was on religion and family. He felt supported by his family but simultaneously worried that he would lose their love. His responses indicated a consistent remorse and guilt over his offending. He clearly expressed a tendency to keep difficulties, including sadness and depressed states, to himself, but did hold a positive and optimistic view in relation to learning and creating work and a future for himself. He was extremely remorseful and showed sincere victim empathy;
·the Applicant presented with high levels of anxiety that has been enduring and persistently interfering with his behaviour and social functioning. His background was very traumatic and his immaturity should be considered an effect of a lost childhood and adolescence;
·the Applicant did not receive any specialised treatment for his offending behaviour while incarcerated as he did not qualify for it, and he had very limited mental health treatment while in immigration detention;
·however, with the support of treatment, the Applicant would integrate well into the community and have the capacity to make valuable contributions to it. He had been able to return to his former employer, to whom he was committed and dedicated, which had had a stabilising effect on him, as had the support from his family in Australia;
·given the nature and seriousness of the Applicant’s offending, the level of risk on file review would fall within the medium range. However, no other risk factor associated with the offending was present, and there was no evidence of bizarre thinking, no atypical sexual thinking and no behavioural pattern that would indicate a risk of reoffending. This was consistent with the SOATS assessment of the Applicant being in the low to moderate risk category and thus ineligible for their treatment;
·the Applicant was well supported by his siblings, his work and his church, and these were significant protective factors against the risk of reoffending. In addition, the Applicant recognised well the wrongness of his actions and there was nothing to indicate that the remorse, guilt and shame evident in his presentation was not genuine. This insight and awareness constituted a further protective factor against reoffending;
·on balance, the risk of the Applicant committing any offence against a member of the Australian community was low to average; that is, no greater than that of the general population;
·to further reduce or eliminate the risk of the Applicant reoffending, a stable and meaningful routine and predictability in his everyday life would support him in his psychological well-being. His work was of great benefit and assisted him to build pro-social bonds in the community. He needed psychological treatment on a regular and frequent basis, likely for at least 12 months. This would act as a protective factor. His attitude to date indicated that he was bewildered by his past actions and was curious, willing and able to engage in treatment, including one on one sessions with Dr Sandahl;
·it would take regular and frequent psychological treatment to identify and address what could have constituted the main risk factors at the time of the Applicant’s offending. There was plenty to suggest that he had experienced difficulties in becoming a husband and a father, and it seemed likely that his childlike position, no doubt the result of the severe obstacles along his developmental path, was a risk factor. He gave the impression as being rather easily influenced when left without any real guidance, and in need of being led to find a place to belong and be appreciated. Treatment would help him develop more self-confidence and agency;
·there were evident signs and symptoms of traumatic stress and anxiety consistent with PTSD, which were chronic. He also reported feeling sad, which was best understood in the context of loss and mourning, rather than depression. A formal diagnosis had not been made given that the Applicant had only recently been released from several years of detention. The recommendation that he have regular and frequent treatment sessions to assess, monitor and treat his mental health was reiterated;
·the available evidence indicated that the Applicant’s imprisonment and (in particular) immigration detention had a seriously detrimental effect on his mental health, particularly as his mother died during this period and he had quite limited contact with his family when he was transferred away from Melbourne;
·the Applicant had experienced tremendous indirect and direct trauma, and it was impossible to predict what would be the effect on his mental and/or emotional state if he were removed to a third country and potentially detained therefore for an uncertain or indefinite period of time. However, it was very difficult to see how it could not have a negative effect, given the Applicant had significant treatment needs that would not be addressed if he were removed to a third country. He was trying to improve his trajectory in life and an interruption to his efforts would be most detrimental to his mental health, including the possibility that he might not survive yet another trauma and could become acutely unwell and not be able to recover. This might include suicidal thoughts and behaviour;
·the Applicant’s mental health would benefit greatly from gaining certainty about his situation; that is, by having a permanent visa. This would allow him to make plans and create routines which would benefit his mental wellbeing. He would need help with this and would need to access psychological treatment;
·the nature and conditions of the Applicant’s immigration status, including the possibility of removal to a third country, functioned as ongoing stressors for him, and potentially exposed him to further trauma. This was detrimental to his mental and emotional state as his personality style benefited from safety, predictability, order and routine;
·in addition, the nature and conditions of his immigration status were having negative consequences for his Australian siblings’ psychological health. The fact that they were suffering in turn exacerbated the Applicant’s own emotional and psychological suffering.
In his engagement letter, Mr Love of ACSO made the following points (in summary):
·he was writing in his capacity as dual diagnosis clinician within the Reintegration Pathways Program, which aimed to provide offence-related therapeutic support and services to individuals from the NZYQ cohort;
·this voluntary program aimed to increase participant capacity for prosocial community engagement and compliance with bridging visa conditions, decreasing the likelihood of further contact with the criminal justice system;
·so far, the Applicant had attended three counselling sessions, during which he had completed a forensic needs assessment. He had engaged well during sessions and had been open and reflective. He had demonstrated motivation to continue attending appointments with weekly phone sessions arranged;
·during these sessions, the Applicant had reported currently struggling with his mental health and experiencing symptoms of anxiety and depression and of struggling to transition to life outside incarceration. He had expressed a desire to explore the reasons for his offending and had identified further goals of meeting his visa conditions, learning psychoeducation strategies, managing his symptoms of depression and anxiety and learning to manage his emotions to make better decisions.
Dr Sandahl gave evidence and was cross-examined at the Tribunal hearing. In addition to her written evidence in her report, she confirmed that she is a clinical psychologist with close to 20 years’ experience, and over 10 years of experience dealing with sexual offences involving children. Specifically, she confirmed that her assessment was that the Applicant was at low risk of reoffending, and posed no greater risk of offending than any other member of the Australian community who had not offended previously. Asked to indicate how she formed this assessment, Dr Sandahl said there were no cases in which there could be said to be no risk of reoffending at all. She further explained that the nature and seriousness of the Applicant’s offending meant that the objective starting point was that there was a medium risk of the Applicant reoffending. However, she identified a number of ‘protective factors’ which she considered reduced this medium risk to the lowest risk possible, being:
·the Applicant had no history of sexually deviant behaviour (apart from the offending which led to his convictions), and there was no evidence that he had sexual fantasies involving children. Nor did he have a history or tendency towards grooming or trolling for sexual encounters with children;
·the Applicant had no issues with substance abuse;
·the Applicant had no prior or subsequent criminal history to his offending;
·the Applicant had no evidence of severe psychopathology; and
·the Applicant had strong family support, steady employment and future plans.
Asked specifically about the fact that the Applicant had said in previous written statements and in his evidence at the hearing that he did not fully know why he offended, and whether this adversely affected his risk profile, Dr Sandahl indicated that she did not believe that it did. Rather, in her opinion, it was a positive factor as it indicated that the Applicant was concerned to address his offending and any underlying or surrounding issues, and to undergo treatment, and these were in themselves protective factors.
Dr Sandahl conceded that the Applicant was yet to undertake ongoing treatment with her but stated that he wished to do so and would be able to have 10 sessions at minimal cost under a GP Mental Health Plan. However, she said that it would be advisable for him to continue treatment on a holistic basis with her for longer than this, ideally weekly for at least a year. When asked what she meant by holistic treatment, Dr Sandahl explained that this meant addressing the Applicant’s offending, trying to understand the reasons for it and implementing strategies to ensure that he did not reoffend but also addressing broader issues such as the trauma he experienced growing up and working on his personal development so that he coped better with stress, had more agency and made better decisions. She said that it would be feasible and desirable for her to work with the ACSO sex offender counsellor to achieve these goals with the Applicant.
Dr Sandahl identified that the stress related to the Applicant’s unresolved visa status (and his potential removal from Australia) constituted an impediment to treatment, as it was harder for any patient to address long term psychological issues when they were in a state of ‘crisis management’ due to immediate stressors in their life.
At hearing, the Applicant emphasised that, although he did not yet fully understand the impetus for his offending, he was working on it to the best of his ability, was sincerely and deeply remorseful for his actions and did not seek to downplay them, he was aware (and regretted) the effect on the victim, and was determined and confident that he would not reoffend. In asserting this, the Applicant said that he was now in his 30s and more mature than he had been at the time of the offending, he had effectively been out of society and separated from his family for 7 years and lost his wife and son as a result of his actions and had no wish to ever be in such a situation again, and he also extremely conscious of the effect his offending and its aftermath had had on his brother and sister and their families in Australia and was committed to ensuring that he never put them in such a situation again. The Applicant also indicated that he had better coping strategies than in the past, noting that if he was stressed or depressed now, he had a list of people to contact (his siblings, his priest) and/or activities to undertake to address his negative feelings (such as going for a drive, going for a coffee or listening to music). In particular, the Applicant stated that he felt that he was able to discuss difficult issues more frankly with his siblings than he had in the past when he was younger and the ‘baby’ of the family, and that this was helpful for all of them.
The Applicant also identified his employment and his recent rental of his own property and purchase of a car as contributing to his sense of security and providing incentives not to reoffend, as did his plan to apply to have renewed contact with his son in future (although he noted that this plan was affected by his unresolved immigration status, as he had been advised that this would be a disincentive to the Family Court making contact orders for his son).
The Applicant emphasised that he had made sincere and consistent efforts to address his offending and minimise any change of reoffending by undertaking any courses he could while in jail and immigration detention that addressed these issues. He said that he was assessed as not being suitable or eligible for SOATS (Specialised Offender and Assessment Treatment Services) so was unable to attend their programs while in jail. However, he attended SMART Recovery meetings in jail, which were for people who had substance use problems and/or other problematic behaviours (although he had never had any substance use problems) and he also undertook a number of vocational courses in jail to maximise his employment chances upon release. While in immigration detention, he undertook counselling with Foundation House and undertook a number of online courses through a provider called Udemy which largely addressed sexual behaviour and harassment and anger management. The Applicant said that the Foundation House counselling did not focus on his offending but rather on his traumatic experiences in Iraq and Turkey, and that he found this very helpful, especially because there was a continuity of care during this treatment. He stopped this only when he was transferred interstate. The Applicant said that he did not engage deeply with the mental health service while in immigration detention as he found it distressing to have to deal with a new person every time he sought assistance, and the general response to him raising issues was to deal with them via medication, which he did not find helpful. The Applicant acknowledged that there were a number of incidents reported involving him (and others in some cases) while he was in immigration detention, but he maintained that these arose due to the very stressful conditions he found himself in (particularly when he was on Christmas Island for 3 years) and were not reflective or indicative of his character and his usual behaviour.
The Applicant acknowledged the observations of Mr Love of ACSO that upon release from immigration detention, the Applicant initially felt quite discombobulated but stated that his mental state was much more positive now due to the strong support of his family, church and employer, the fact that he was now working full time in a job he enjoyed, and that he had recently rented his own place and bought a car, giving him more flexibility and independence. In her evidence at hearing, Dr Sandahl observed that it was typical of people released from jail or other forms of detention to experience an initial feeling of ‘unreality,’ but this was a transitional state for most people.
The Applicant’s brother and sister both gave evidence that they believed that the Applicant was truly remorseful for his offending, based on their close knowledge of him, and that neither of them thought that he would reoffend, nor that he posed any risk to their own children (the Applicant’s nieces and nephews). They and the Applicant confirmed that the Applicant is not prevented from seeing his nieces and nephews by the terms of his BVR or his being listed on the Sexual Offenders Register, so long as there is another adult present, and that he sees them frequently, either when he visits their parent’s house or when their parents bring them to see him. The Applicant’s brother and sister agreed with the Applicant that he would not reoffend at least in part because he was conscious of the effect that his offending had had on them and wished to avoid causing any similar stress in future.
The Applicant’s representatives asked the Tribunal to give weight to the fact that the Applicant had not reoffended. In doing so, they acknowledged that he had not been out of immigration detention for very long but they noted that given part of his offending involved sexual contact with a minor using a mobile phone app, this could have occurred in detention but did not (despite the stress that the Applicant was frequently under).
In response, the Minister’s representative acknowledged most of the above points but emphasised that:
·the Applicant’s recent release from immigration detention into the community did not give a substantial or durable basis on which to assess his risk of reoffending;
·this was particularly so given the Applicant was yet to undergo targeted, ongoing treatment related to offending, and this had been limited up until the present;
·the Applicant’s ability to reoffend in jail or immigration detention was very limited, so his lack of reoffending during these periods was not significant as an indicator that he was now at low or no risk of reoffending;
·although remorseful, the Applicant still lacked insight into the reasons or causes of his offending, and given this, it was hard to be confident that he would not reoffend in future, particularly since many of the protective factors identified by Dr Sandahl – such as strong family and church support and steady employment – were in place at the time of his offending; and
·his treatment to date had not focussed on his offending but rather on his traumatic upbringing.
Overall, the Tribunal considers that the Applicant has made genuine efforts while in jail and immigration detention to address his personal issues, notably, but not only, his offending. He has not reoffended while in jail and immigration detention or since he has been released into the community. He has undertaken several online courses while in detention addressing sexual offending issues and anger management, and broader psychological counselling on a regular basis, at his own expense, and is continuing to do so (noting that he is currently arranging to continue seeing Dr Sandahl via a GP Mental Health Plan for 10 sessions and to continue seeing her and his ACSO counsellor on a longer term basis).
The reports from his treating professionals indicate that the Applicant is actively participating in his treatment, has developed insight into his behaviours, and that he is trying to both address the underlying causes and to implement strategies to minimise the chances of reoffending and to learn and implement further strategies to improve his life. The Tribunal accepts that the Applicant is sincere about this. It also takes into account the Applicant’s relatively young age (indicating that he has the potential for change.
The Tribunal has some concerns about the durability of the Applicant’s rehabilitation efforts, for the following reasons:
·he has only been out of immigration detention for approximately 3 months, which is an objectively short period on which to assess the extent to which he does or does not face a risk of reoffending;
·he is yet to fully understand or articulate the reasons for his offending; and
·several of the ‘protective factors’ against reoffending identified by the Applicant and Dr Sandahl were present at the time that the Applicant originally offended.
However, having reviewed the available medical and correctional evidence, the Tribunal considers that it largely supports the contention that the Applicant is at low risk of reoffending. While the Tribunal concurs with the representatives for the Minister and the Applicant that limited weight can be placed on the reports of Dr King, given his first report was given on the incorrect basis that the Applicant had no sexual intention towards the victim, the second report he provided (24 April 2018)[51] was made on the full facts of the case, and it remained Dr King’s opinion that the Applicant’s profile was not typical of entrenched predatory sex offenders and that the Applicant now recognised the wrongness of his intentions and actions. However, as noted by the Minister’s representative, both Dr King’s reports were now 6 years old and neither gave a specific risk ‘rating.’
[51] HB1, R1, Attachment G7, p 267.
The Tribunal has a more up to date assessment in the form of Dr Sandahl’s written report of 7 January 2025[52] and her oral evidence at hearing on 22 January 2025. In summary, Dr Sandahl’s view was that while it was impossible to ever say a person posed no risk of (re)offending, the Applicant posed a low risk and was at no greater risk of offending than any other member of the Australian public. Dr Sandahl gave her opinion noting that the nature of the Applicant’s offending meant that her risk assessment started from the assumption that he had a medium risk of reoffending, but that a significant number of protective factors in his case reduced that risk to essentially a minimal one. Dr Sandahl’s evidence was that this remained so even though to date, the Applicant had had limited capacity to undertake ongoing and regular treatment with her (and/or any other professional specialising in sexual offending) but was willing to do so.
[52] Ibid, A4, Attachment 1, pp 1 – 15.
As also noted by Dr Sandahl[53] and addressed by the Applicant at hearing, Justice Victoria’s SOATS in 2018 assessed the Applicant as having a low to moderate risk of reoffending and therefore found that he was ineligible for their specialised treatment for sex offenders.
[53] HB1, Attachment A4, Attachment 1, p 56.
The Tribunal acknowledges that in the protection visa assessment record of 8 May 2024,[54] the Minister’s delegate who assessed the Applicant’s case found, amongst other things, that there was no reason to consider that there was any real or significant risk or possibility that the Applicant might offend in a similar way, or that he would cause serious harm to any member of the Australian community. The delegate concluded that any risk that the Applicant would be a danger to the Australian community was remote.
[54] Ibid, Attachment R1, Attachment G2, pp 243 – 264, at p 199.
When raised by the Tribunal with the Applicant’s and the Minister’s representatives at hearing, it was conceded by both that little, if any weight, ought to be given to this finding as the test considered by the delegate in the Applicant’s protection visa application was different than the character test and Direction 110 considerations in the present case. The Tribunal notes that the delegate’s finding on this issue was also given without the benefit of more recent information, such as Dr Sandahl’s evidence and the fact that the Applicant has now been released from immigration detention. Accordingly, the Tribunal does not give this finding any weight in its assessment of the level of risk of reoffending posed by the Applicant.
Overall, the Tribunal considers that the Applicant is at low risk of reoffending and at lower risk still if he continues treatment with Dr Sandahl and/or his ACSO counsellor, which he has indicated he intends to do. Although it cannot be said that the Applicant presents no risk of reoffending, the available forensic evidence indicates that that risk is low, on a par with any other member of the community in Australia. However, given the seriousness of the risk, the Tribunal considers that even an appreciable risk is unacceptable.
The Tribunal gives this factor moderate weight in favour of refusing the Applicant’s subclass 866 visa.
Family violence committed by the non-citizen
Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
The Direction states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.[55]
[55] Direction 110, cl 8.2(1).
There is no evidence of any family violence committed by the Applicant, and therefore the Tribunal gives this factor neutral weight in favour of refusing to grant the Applicant’s visa.
The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Clause 8.3 of the Direction provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Immediate family
The Applicant’s older brother and older sister reside in Melbourne, Australia and are Australian citizens. The Tribunal accepts that they are supportive of the Applicant and are fully aware of the circumstances of his offending. They both provided statutory declarations in support of the Applicant’s visa not being refused (and earlier, in support of his subclass 200 visa not being cancelled) and oral evidence at the hearing to the same effect. The Tribunal accepts that the Applicant has a number of Australian cousins, one of whom he is particularly close to, and a number of aunts and uncles in Australia, all of whom the Tribunal accepts wish the Applicant to remain in Australia.
The Tribunal accepts that it would cause significant emotional distress to the Applicant’s Australian siblings in particular if the Applicant’s visa was not refused, although this might be somewhat mitigated by the fact that it is not clear when or if the Applicant will be removed from Australia and that he currently has the right to reside here as the holder of a BVR.
Even if the Applicant were to be removed from Australia, the Tribunal considers that his siblings (and other extended family members in Australia) would be able to maintain contact by such methods as telephone, messaging applications and video conferencing, methods which are commonly used now by family members in different countries or locations. There is no suggestion that the Applicant’s siblings and their families or any extended family members were dependent on the Applicant for care or financial support, and the Tribunal notes that the Applicant’s siblings in Australia are both married with children resident in Australia and would therefore not be without family support if the Applicant was forced to leave Australia.
The Tribunal accepts that the Applicant also has 6 Australian nieces and nephews, who are under 18 years of age. The effect on them, and on the Applicant’s son, also under 18 years of age, will be discussed in more detail below.
Overall, the Tribunal considers that the adverse effect on the Applicant’s family members in Australia if the Applicant’s visa is refused weighs in favour of not refusing him a visa.
Other ties with to the Australian community
As noted above, the Applicant arrived in Australia in 2013 at the age of 24. He is now 35 years old and has not left Australia since his arrival.
On his own evidence, the Applicant does not have many close friends in Australia and his marriage has ended. Apart from the church, he is not a member of any sporting or cultural groups. The Applicant’s secondary education is incomplete due to the unstable situation in Iraq during his childhood and adolescence. However, he has completed a number of vocational courses while in jail in Australia and worked in electronics and fashion retailing while in Iraq.
The Applicant’s employment history in Australia is steady with the food factory from 2013 to date, although with a significant disruption between mid-2018 and late 2024 due to the Applicant’s incarceration and immigration detention. The Tribunal accepts that he has been working regularly for the food factory before and after he was incarcerated. The statutory declaration[56] dated 20 December 2024 provided by his employer indicates that he is aware of the circumstances of the Applicant’s offending and his time in jail and immigration detention and was happy to re-employ him. The Applicant’s employer further indicates that the Applicant is a skilled, loyal, hardworking employee who is valued by the business and his workmates.[57]
[56] HB1, Attachment A2, Attachment 4.
[57] Ibid.
As noted above, the Applicant presently lives in a rental property, having secured this accommodation in late 2024. His residence is near his sister and brother’s houses and he is a frequent visitor at their homes.
As also noted above, the Applicant arrived in Australia as an adult in 2013, albeit a relatively young adult, aged 24. There is little in the way of countervailing contribution to the Australian community to weigh against these factors apart from the Applicant’s employment at the food factory and his family ties to Australia.
Overall, the Tribunal considers that the Applicant has been in Australia for a reasonably long period (some 12 years), and that he has strong personal ties here. He also has strong employment ties to Australia. However, the Tribunal finds that the Applicant’s offending started quite soon after he moved to Australia (within 4 years of his arrival as a young adult).
On balance, the Tribunal considers that the majority of these factors weigh in favour of not refusing to grant the Applicant a subclass 866 visa.
Best interests of minor children in Australia affected by the decision
Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under cl 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501 of the Act is or is not in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
Applicant’s son
It is not disputed that the Applicant is now legally divorced from his wife and has not had contact with her or their son, now aged approximately 7, since March 2022. The Applicant’s evidence was that he did maintain contact with his son via his wife while he was in jail and for part of the period that he was in immigration detention, via phone calls and videoconferences. The Applicant did not consider that it was in his son’s best interests to visit the Applicant in in person in jail or immigration detention, a view apparently shared by the Applicant’s ex-wife.
The Applicant further indicated that since then, he had sought legal advice from a family lawyer, who advised him that while he remained in immigration detention and/or potentially subject to removal as the holder of a BVR, the Family Court was unlikely to decide it was in his son’s best interests to have regular contact with the Applicant due to the uncertainty over the Applicant’s immigration status and the effect on his son if contact was re-established and then the Applicant had to depart Australia permanently.
The Applicant stated that he strongly wished to re-establish contact with his son and play a part in his life as his father, to be able to provide his son with financial and emotional support and have him be part of the Applicant’s side of the family. He further indicated that he understood and accepted that the proper way to do this was to make an application in the Family Court in due course and that he intended to do so if his permanent residence was confirmed.
The Tribunal accepts that it is normally in the best interests of minor children to have ongoing contact with both their parents, where possible, and this has been recognised in Australian case law, such as Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177. However, in this case, it notes that the Applicant’s son has not had contact with the Applicant since approximately March 2022 and has essentially been in the care of his biological mother (with support from her parents) since the Applicant was convicted and jailed in 2018. The Applicant’s evidence was that his son remains in her care, and she has not permitted contact for some period. It is unclear whether the Applicant will be able to obtain permission from her and/or the Family Court to have ongoing contact with his son in future.
The Tribunal acknowledges that subparagraph 8.4(4)(a) of the Direction indicates that less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact). It further acknowledges that the Applicant has had a long period of absence in Charbel’s life and the primary parental role for Charbel is played by his mother.
The Applicant’s son’s personal views are unknown and the Tribunal concurs with both the Applicant’s and the Minister’s representatives that it would be inappropriate to seek his views, given he is a young child, nor to seek the view of the Applicant’s ex-wife since they are now legally divorced.
However, given the Applicant’s son’s young age, the Tribunal considers that there is scope for the Applicant to re-establish an active parental role (whether that is initially supervised or not) in his life prior to his son turning 18.
The Tribunal has considered the potential impact on the Applicant’s son of the Applicant’s prior offending (especially since it involved a child) but gives weight to its assessment that the Applicant poses a very low risk of reoffending, and that he is not prevented from having contact with his siblings’ minor children in Australia (albeit with the proviso that another adult is present). It also appears that any involvement by Child Protective Services (CPS) in Victoria has ceased.
While the Tribunal acknowledges that the Applicant is presently living in the community as the holder of a BVR and there is no indication of when or if he will be removed, the Tribunal accepts that the Applicant’s present immigration status is an inhibiting factor on his wish to regain contact with his son, given the legal advice he received in relation to his proposed application to the Family Court for contact orders.
The Tribunal finds that it would be in the best interests of the Applicant’s son that the Applicant’s visa not be refused so that he has the opportunity to re-establish his relationship with the Applicant if he (the Applicant’s son) chooses to do so. The Tribunal considers that the right to have a relationship with his father attaches to the Applicant’s son, and not the Applicant
The Tribunal gives this factor significant weight in favour of not refusing the visa.
Applicant’s nieces and nephews
The Applicant has six nieces and nephews in Australia. Three (a niece aged 14, and nephews aged 11 and 10 respectively) are the children of the Applicant’s sister, while three (a nephew aged 14 and nieces aged 16 and 8 respectively) are the children of the Applicant’s brother.
From the oral and documentary evidence, the Tribunal accepts that the Applicant is close to his nieces and nephews, particularly since he lived with his brother and his brother’s family in Turkey and Australia prior to marrying and obtaining his own place. The Tribunal accepts that the Applicant is not prevented from seeing his nieces and nephews by the terms of his BVR or any correctional orders (so long as another adult is present) and both the Applicant’s brother and sister gave evidence that they had no concerns about the Applicant having contact with their children, and that this occurred frequently, either when the Applicant visited their houses or when they visited his.
Given the above, the Tribunal accepts that the Applicant is close to his nieces and nephews, and they to him, and that it would cause some disruption and emotional upheaval to their lives if he were to have to depart Australia permanently. As noted above, it is not clear when or if he will have to do that, and he is presently able to see them while living in the community as the holder of a BVR, although the Tribunal accepts that the Applicant feels self-conscious about them seeing his ankle bracelet monitor.
The Tribunal also notes that the Applicant does not play a parental role for his nieces and nephews as they each have their parents with whom they live and who are their primary carers and providers.
The Tribunal gives this factor some weight in favour of not refusing to grant the Applicant a subclass 866 visa.
Expectations of the Australian Community
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Clause 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government would not allow them to enter or remain in Australia.
Clause 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence.[58]
[58] Direction 110, cl 8.5(2).
Clause 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.[59]
[59] Ibid, cl 8.5(1).
In weighing this consideration, the Tribunal is guided by the principles in cl 5.2 of the Direction. In applying these principles, and given the fact that the Applicant’s crimes were against an 11-year-old child, the Tribunal considers that the Australian community would expect the Applicant’s visa to be refused, and finds this consideration weighs in favour of exercising the discretion to refuse the visa.
Other considerations
Clause 9 of the Direction states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
d)impact on Australian business interests.
Legal consequences of decision under section 501 or 501CA
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[60]
[60] Direction 110, cl 9.1.
There are a range of legal consequences of a decision to refuse the Applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
·unlawful status;
·the likelihood of becoming subject to detention and/or removal;[61]
·refusal of other visa applications and cancellation of other visas;[62]
·a prohibition on applying for other visas;[63] and
·periods of exclusion and special return criteria may apply.[64]
[61] Migration Act 1958 (Cth) ss 189, 196, 197C, 198.
[62] Ibid s 501F.
[63] Ibid s 501E.
[64] Ibid s 503, special return criteria (SRC) 5001.
Generally, if a visa is refused, the visa applicant becomes an unlawful non-citizen 28 days after being notified of the decision, unless he or she has been granted another visa. Under s 189 of the Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198 if he becomes an unlawful non-citizen.[65]
[65] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful at [112]-[122].
The Tribunal is satisfied that the Applicant would normally be subject to removal as soon as practicable under s 198, and to be detained under s 189 until then. However, the Applicant is subject to a protection finding pursuant to s 197C by virtue of the earlier decision by a delegate of the Minister on 8 May 2024,[66] so cannot be removed to Iraq.
[66] HB1, Attachment R1, Attachment 0, pp 179 – 200.
As a result of the High Court of Australia case of NZYQ v MICMA [2023] HCA 37, the Applicant cannot be detained where there is ‘no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future at the time of the Tribunal’s decision’ (at [54]). As noted above, the Applicant was granted a BVR on 14 November 2024, which was subject to a range of conditions, including the requirement to wear a monitoring ankle bracelet. It requires the Applicant to report daily to the Department by telephone, notify of changes to his address, employment and of any material changes to his circumstances, restricts his employment in certain sectors and/or with certain chemicals, forbids him from living or working with children or contacting any of his victims, and requires him to (in summary) cooperate with any efforts by the Australian government to remove him from Australia.
The Tribunal is satisfied that the Migration Amendment Act 2024, passed on 29 November 2024, came into operation on 5 December 2024. In summary, s 76AAA of the new legislation provides for a person’s BVR to cease if:
·that person has permission to enter and reside in a foreign country;
·that foreign country is a party to third country reception arrangements with Australia; and
·the person:
o does not have a protection visa application on foot that has not been finally determined; or
o the person cannot be removed to that country because of a protection finding in relation to that country; or
o the person is under 18.
This means that where a protection finding has been made in respect of a person for a particular country and the person cannot be removed to that country because of that finding under s 197C of the Act, the person can be removed to a different country that is a party to a third country reception arrangement as defined in s 198AHB of the Act, and the person has permission to enter and reside in that country. Other provisions in the Migration Amendment Act require the person to cooperate with steps for their removal to a foreign country and the Migration Amendment (Removal and Other Measures) Act 2024 (Cth) (which came into operation on 4 December 2024) creates a criminal offence if the person does not cooperate with these steps.
At hearing and in his pre-hearing submissions, the Applicant and his Australian family members expressed concern that he would be removed to a ‘safe third country’, where he knew no one and would have no support. They also feared that he could be removed from any safe third country to Iraq, despite the fact that he has a protection finding in relation to Iraq made in Australia by the Department.
The Tribunal must make its assessment of the legal effect of refusing the Applicant’s subclass 866 protection visa application at the time of this decision. At this time, the amending Acts have now commenced; however, there is no evidence before the Tribunal as to what (if any) arrangements have been made with third party countries, it is unknown what countries might be party to any such arrangements, and it is unknown if the Minister would seek permission for the Applicant to enter and reside in any other country. No submissions about these matters were made by the Minister.
Nevertheless, it is clear that it is the intention of the Australian Government to enter into safe third country arrangements and to remove non-citizens with criminal convictions who fail the character test, including BVR holders, and the Applicant falls within this cohort. While it cannot be said that it is clear when or if the Applicant will be removed from Australia to a safe third country, it is now possible that he may be. The Applicant expressed considerable concern about this possibility, and the Tribunal accepts that if he were to be removed to a safe third country, he would have no family support (as his family is either in Australia, the United States, Jordan and Iraq, none of which are likely to enter into safe third country arrangements with Australia), and that where he may not speak the language or have any obvious means to support himself (particularly since he has had a limited education and a relatively limited work history in Iraq and Australia).
The Tribunal accepts that while affirming the refusal of the Applicant’s visa will not result in his detention and that currently he will remain in the community as the holder of a BVR, it is now possible that he could be removed to a third country at some time in the future. The Tribunal further accepts that this uncertainty would have an adverse psychological effect on the Applicant in a situation where he already has vulnerable mental health. The Tribunal is also satisfied that such an outcome would have an adverse effect on the Applicant’s Australian siblings, in the context where the family as a whole has already experienced considerable trauma.
Another adverse consequence of the cancellation not being revoked is that there are significant restrictions on the Applicant being able to apply for another visa. As his subclass 866 Protection visa has been refused, he is now subject to s 48A of the Act and would not be able to apply for another protection visa while in the migration zone (Australia) unless the Minister considers that it is in the public interest to lift the bar under s 48B. Moreover, an application for any visa other than a protection visa would be subject to s 501E – the Applicant could not make an application in the migration zone for any other visa than a BVR as prescribed by cl 2.12AA of the Regulations. The Applicant would have to be invited to make such an application.
These factors weigh in favour of not refusing the Applicant’s subclass 866 visa application.
In relation to the legal effect of the Applicant remaining in Australia on a BVR in the meantime, the Tribunal notes that a BVR allows the visa holder to remain in Australia and ceases on the Minister giving notice that the Minister is satisfied that the visa holder’s removal from Australia is reasonably practicable, or the holder has breached a condition to which the visa is subject. In addition, failing to comply with the conditions on the BVR may result in the Applicant committing offences under the Act, and, if convicted, the Court must impose a sentence of imprisonment of at least 12 months (s 76DA).
The Applicant’s most recent BVR granted 14 November 2024 contains the following conditions:
8303 – no violent or disruptive activities
8513 – notify of residential address
8514 – no material changes to the conditions in relation to which the BVR was granted
8541 – must assist with removal
8542 – report for removal from Australia
8543 – facilitate removal from Australia
8551 – obtain approval for certain occupations (those involving chemicals of security concern, aviation, maritime or facilities that handle security-sensitive biological agents)
8552 – notify change in employment details
8553 – must not be involved in activities prejudicial to security
8554 – must not acquire specified goods (weapons, explosives)
8615 – notify of associations and memberships
8561 – must attend interview if directed
8563 – must not undertake specified activities (involving weapons or explosives)
8612 – notify of person residing with the applicant
8614 – notify of travel
8622 – must not work with minors
8623 – must not approach school or childcare centres
8624 – must not approach victim or victim family member
8625 – notify changes in personal details
8626 – notify of changes in online details
8621 – for 12 months, wear monitoring device at all times
Breaches of particular conditions still constitute offences under various provisions of the Migration Act and/or may result in cancellation of the Applicant’s BVR (for instance, failure to report as directed without a reasonable excuse may result in a penalty of 5 years of imprisonment or 300 penalty units or both, as does working in a prohibited field, breaching the condition not to approach a school or daycare centre, and contacting any victims of the applicant’s offences).
The Tribunal notes that curfew and monitoring conditions have been reintroduced by the Migration Amendment (Bridging Visa Conditions) Regulations 2024 (‘the BVR Amendments’) which applied from 10:13am on 7 November 2024. The BVR Amendments require conditions 8621 (monitoring device), 8617 (receipt and transfer of sums over $10,000), 8618 (incurring debts of over $10,000 or becoming bankrupt) and 8620 (curfew) to be imposed where:
·the visa is granted because there is no real prospect of the person being removed; and
·the Minister is satisfied on the balance of probability that the holder poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence; and
·the imposition of these conditions is reasonably necessary and reasonably appropriate and adapted for the purposes of protecting any part of the Australian community from serious harm by addressing that substantial risk.
The Tribunal notes that a BVR holder can seek review of imposition of these conditions from the Minister, and has Tribunal review rights as well.[67] There is no indication that further conditions (such as a curfew) will in fact be imposed on the Applicant’s BVR, and even if they are, he will have the right to seek review of any such decision.
[67] S 76E of the Act and r 2.25AD of the Migration Regulations 1994.
In practical terms, the Applicant’s BVR permits him to live in the community, does specifically not prevent him from working (except in certain fields or with certain materials, and his evidence was that it did not prevent him from resuming work at the food factory) and he has access to health care via his Medicare card. The Tribunal acknowledges that holding a bridging visa of any kind (including a BVR) may be a deterrent to some employers, as it is not a substantive visa, but it considers that the Applicant’s criminal record also affects his employability, and that in any case, the Applicant has been able to find steady full-time employment with his previous employer since being released from immigration detention.
At hearing, the Applicant said that he found the ankle monitoring bracelet condition to be quite oppressive, as were some of the conditions requiring him not to be within a certain distance of a childcare centre or school. He felt self-conscious about people seeing it, and it required him to get up early in order to charge it before he went to work. However, the Tribunal notes that he now has his own place so has more flexibility to wear clothes that do not cover the bracelet, and to charge it, and none of the present BVR conditions prevented him from working 5 days per week on a regular basis and at times on weekends. It further notes that the Applicant is subject to similar reporting and location restrictions because he is a registered sex offender.
However, the Tribunal acknowledges that the potential loss of Australian permanent residence is the loss of a valuable right, not least to the Applicant’s sense of security and certainty, in circumstances where his life has been marked by uncertainty and upheaval, and where it clearly would not benefit his mental health to be under prolonged uncertainty or to be removed to a third country without family or other supports, or access to trusted mental health professionals.
Accordingly, and on balance, the Tribunal considers that the legal effects of refusing the visa on the Applicant weigh in favour of not refusing his subclass 866 visa application.
Extent of impediments if removed
Clause 9.2 of the Direction provides that, taking into account the matters identified in sub-clauses 9.2(1)(a), (b) and (c) of the Direction, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under sub-clauses 9.2(1)(a), (b) and (c) are:
·the Applicant’s age and health;
·whether there are substantial language or cultural barriers; and
·any social, medical and/or economic support available to the Applicant in their country.
At present, the Applicant cannot be removed from Australia to Iraq due to the protection finding made in May 2024 in respect of him by a delegate of the Minister. Although the amending legislation relating to removal to a safe third country has now come into effect, there is no evidence before the Tribunal that the Australian Government has made any third country agreements at present. If the Applicant’s subclass 866 visa remains refused, he will remain in the community as the holder of a BVR for the moment. He will not be removed from Australia, unless other events occur, such as a decision that a protection finding would no longer be made under s 197D, or a foreign country gives the applicant permission to enter and reside in that country and his BVR ceases. No country has been specified for removal, and an assessment of impediments the Applicant might face is difficult to make in the absence of a country being identified. However, the Tribunal accepts that, although he is a relatively young man in good physical health, the Applicant would have no family support or obvious means of support from other sources (including employment) if removed to a safe third country, and might well face language and cultural barriers depending on the country. It is also possible that he would not have access to the counselling and mental health supports that he has been able to access in Australia, and the Tribunal accepts that this would have a detrimental effect on his mental health.
The Tribunal therefore gives this factor some weight in favour of not refusing the Applicant’s subclass 866 visa.
Impact on Australian business interests
Clause 9.3 of the Direction states:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal notes that Direction 110 indicates that this factor is generally only given weight where decision would significantly compromise the delivery of a major project or important service in Australia. It was conceded by the Applicant that this was not the case with his employment at the food factory. While the Tribunal accepts that the Applicant is working 5 days per week at present (with some weekend work) and is a valued employee, this does not fall within the category of a major project or important service in Australia.
Accordingly, the Tribunal considers that this carries neutral weight in favour of refusing the visa.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Act, and the Tribunal must consider whether his subclass 866 visa should be refused, having regard to the primary and other considerations in the Direction.
Clause 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed.
There has been extensive judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Ministerial Directions (considering a number of Ministerial Directions preceding the Direction).[68]
[68] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (‘CRNL’) said ‘[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.’[69]
[69] [2023] FCAFC 138, [28].
In determining the weight to be applied to each consideration, the Tribunal has considered the primary and other considerations and weighed them in light of the evidence and findings using the guidance provided by the Direction.
Greater weight must generally be given to the protection of the Australian community than other primary considerations.[70] Greater weight will also generally be given to primary considerations. In examining what this requires, the Full Court in CRNL stated that this means greater weight will be given unless there is some reason why that general approach should not be adopted.[71]
[70] Direction 110, cl 8.1(1).
[71] Ibid [27].
In the circumstances of this case, including consideration of the Applicant’s efforts at rehabilitation, the Tribunal considers that the general approach should be adopted that greater weight is given to the protection of the Australian community, and to the other primary considerations. The fact that the Applicant’s conduct constituted sexual offending against a child, and the expectations of the Australian community, weigh in favour of refusing the visa. The Applicant’s ties to Australia carry strong weight in favour of not refusing the visa. The best interests of minor children (particularly the Applicant’s son Charbel) also carry strong weight in favour of not refusing the visa in this case. Of the other considerations, the legal consequences of the decision and the extent of the impediments to the Applicant were he to be removed to a safe third country carry moderate weight in favour of not refusing the visa.
In relation to the primary consideration of the protection of the Australian community, the Tribunal considers that (as noted above) although it cannot be said that the Applicant presents no risk of reoffending, the available forensic evidence indicates that that risk is very low, on a par with any other member of the community in Australia. Moreover, although the Applicant has only been in the community for approximately three months after being released from jail and immigration detention in November 2024, he has not reoffended, has undertaken what treatment he could access while in jail and immigration detention to address his offending and his broader psychological issues, and has demonstrated a commitment to undertaking treatment to address his offending and broader mental health issues as a result of his experiences prior to coming to Australia. He has ongoing treatment lined up with a clinical psychologist who has expertise in sex offending, and a counsellor at ACSO who also has this specialty.
The Applicant has the support of his family in Australia, and the Tribunal is satisfied that the Applicant is genuinely remorseful for his offending and has taken, and will take steps to minimise his chances of reoffending, not least because he does not wish to return to jail or immigration detention, does not wish to cause his family members any further distress, wishes to continue his full time employment, and wishes to re-establish a parental relationship with his son. The Tribunal considers that these do constitute significant protective factors against the possibility of the Applicant reoffending, as do his strong family ties, his employment and his membership of his church. This is so even though some of these factors existed at the time that the Applicant offended. The Tribunal considers that the Applicant has demonstrated significant progress in his awareness of the effect of his offending, even though he is still not able to fully articulate why that offending occurred. The Tribunal is satisfied that he has a greater degree of communication with his sister and brother in Australia as well as access to appropriate treatment, and a greater insight into his emotional state and behaviour, all of which it considers to be protective factors.
Accordingly, the Tribunal is satisfied that the Applicant currently poses a very low risk of reoffending, but given the seriousness of the offending, what risk there is is unacceptable and this weighs in favour of refusing the visa.
The Tribunal concludes that while the primary considerations of protection of the Australian community and the expectations of the Australian community weigh in favour of refusing the visa, in this case they are outweighed the primary considerations in favour of not refusing the visa; namely, the strength, nature and duration of the applicant’s ties to Australia, and the best interests of a minor child, the Applicant’s son. Also weighing in favour of not refusing the visa are the non-primary considerations of the legal consequences of the decision and the extent of impediments if the Applicant is removed from Australia.
Although the Tribunal has given the consideration of the protection of the Australian community greater weight than the other primary considerations, it has concluded that the combined weight of the considerations that weigh in favour of not refusing the Applicant a subclass 866 visa outweigh those in favour of refusing the visa. The Tribunal considers that the primary considerations of the best interests of the Applicant’s minor child, along with the strength, nature and duration of the Applicant’s ties, together with consideration of the legal consequences of the decision, cumulatively weigh in favour of exercising the discretion not to refuse the visa.
Having weighed up the factors, the Tribunal considers that the Applicant’s subclass 866 visa application should not be refused, and the decision under review should be remitted.
The Tribunal notes that the Applicant’s representatives requested that if the Tribunal made a favourable decision, that decision be in the form of a decision to set aside the refusal decision and substitute a decision that the Applicant ought to be granted a protection visa (rather than remitting the matter back with an order that the Applicant’s visa is not refused). The Tribunal has considered this request but, for the reasons set out in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2021] FCAFC 48, declines to accede to it as it considers its power is limited to remitting with an appropriate direction.
DECISION
Pursuant to section 105(c) of the ART Act 2004 (Cth), the Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that:
·the Applicant’s application for a Class XA subclass 866 Protection visa is not refused under s 501(1) of the Migration Act 1958 (Cth).
Date of hearing: 21 and 22 January 2025
Counsel for the Applicant: Ms Lauren Bull
Solicitors for the Applicant: A Faraone, R Mason, Victoria Legal Aid
Solicitor Advocate for the Respondent: K Theocharous, Clayton Utz
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