YMJZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 979

YMJZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 979 (21 April 2023)
Division:GENERAL DIVISION
File Number: 2023/0594
Re:YMJZ
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member R West
Date:21 April 2023
Place:Melbourne

The Tribunal affirms the decision under review.
........................[SGD]................................................
Member R West
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – application of Ministerial Direction 99 - primary considerations – protection of the Australian community from criminal or other serious conduct – whether conduct constituted family violence – strength, nature and duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – protection finding – legal consequences of the decision – extent of impediments if removed – impact on victims – impact of Australian business interests – other considerations – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
1901883 (Refugee) [2021] AATA 3216
CGX20 v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (No 2) [2020] FCA 1842
EPU19 v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (No 2) [2021] FCA 1536
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
NMBZ v Minister for Immigration and Border Protection [2014] FCAFC 38
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Direction No. 99 – Migration Act 1958 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Member R West
21 April 2023
Introduction

This matter concerns an application for the review of the decision of a delegate of the Respondent dated 30 January 2023 not to exercise the discretion under s 501CA(4) of the Migration Act 1958 (Cth) (Act) to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 – Five Year Resident Return visa (Visa) under 501(3A) of the Act.
background
The Applicant was born in Afghanistan in May 1982.
He arrived in Australia as an unlawful maritime arrival on 26 April 2000 and was granted a Temporary Protection visa.
On 8 April 2015, the Applicant was granted a Class BB Subclass 155 Five Year Resident Return visa (Visa).[1]
[1] See G5 at p.278.
After his arrival in Australia, the Applicant appeared before the courts in relation to numerous criminal offences, commencing in 2004.
On [date] 2019, the Applicant was convicted in the County Court of Victoria[2] of one charge of negligently causing serious injury, and two charges of supplying a drug of dependence to a minor and sentenced to an effective term of imprisonment of 5 years and 4 months for the three offences.[3]
[2] G5(B) at pp.31-38.
[3] The Applicant was held on remand from his arrest on [date] July 2017 until sentencing on [date] 2019, a total of 832 days. He was released from prison in late 2022 and taken into immigration detention where he has remained.
On 13 December 2019, the Visa was cancelled by a delegate of the Minister under
[4] G5(P) at pp.278-286.
s 501(3A) of the Act.[4]
On 8 January 2020, the Applicant requested that the Minister revoke the cancellation of the Visa.[5]
[5] G5(C) at pp.39-41.
On 30 January 2023, a delegate of the Minister decided not to revoke the cancellation of the Visa under s 501CA(4) of the Act (Reviewable Decision).[6] The Reviewable Decision was notified to the Applicant on 31 January 2023.[7]
[6] G3 and 4 at pp.9-27.
[7] G2 at pp.6-8.
On 2 February 2023, the Applicant applied to the Tribunal for a review of the Reviewable Decision (Application).[8]
[8] G1 at pp.1-5.
hearing
The Tribunal conducted a hearing of the Application on 4, 5 and 13 April 2023. The Applicant was self-represented. The Respondent was represented by Mr David Brown, a solicitor with the Australian Government Solicitor.
In conducting the review, the Tribunal had regard to:
(a)the documents produced to the Tribunal by the Respondent pursuant to s 501G(2) of the Act, sequentially numbered from G1 to G6, with pages numbered from 1 to 339 (G Documents), and supplementary documents produced under summons and lodged by the Respondent, sequentially numbered SG1 to SG2, with pages numbered from 340 to 1022 (SG Documents);
(b)the following documents tendered by the Respondent:[9]
(i)a Refugee Review Tribunal decision dated 29 August 2005 and Protection Visa Decision Record dated 11 January 2006 (Exhibit R1);
(ii)an unsigned and undated statutory declaration of MM (Exhibit R2);
(iii)an unsigned and undated statutory declaration of AB (Exhibit R3);
(iv)a letter of support for the Applicant from MO, dated 11 April 2023 (Exhibit R4); and
(v)a statutory declaration of MA, dated 12 April 2023 (Exhibit R5); and
(c)the oral evidence of the Applicant.
[9] Exhibits R 2,3,4 and 5 were served on the Respondent by the Applicant after 10 April 2023 and lodged with the Tribunal by the Respondent at the hearing on 13 April 2023.
legislative framework
Section 501CA(4) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation decision if it is satisfied that:
(a)the Applicant passes the character test as defined in s 501; or
(b)there is another reason why the cancellation should be revoked.
Section 501(6)(a) provides that a person is deemed not to pass the character test if they have a substantial criminal record. Section 501(7)(c) provides that for the purpose of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
In the Reviewable Decision, the delegate relied on the Applicant’s sentence on [date] 2019 to determine that the Applicant did not pass the character test.[10] The aggregate sentence of imprisonment for five years and four months imposed by the Court on [date] 2019 comprised:
(a)four years and six months on the conviction for negligently causing serious injury;
(b)nine months on conviction for supplying a drug of dependence to a child, with six months to be served concurrently; and
(c)eight months on conviction for supplying a drug of dependence to a child, with four months to be served cumulatively on the base sentence and each other sentence.[11]
[10] G2 at pp.10-11.
[11] G3 at p.38.
The Tribunal is satisfied that the sentence of four years and six months on the conviction for negligently causing serious injury is of itself sufficient to warrant a finding that the Applicant has a substantial criminal record as defined in s 501(7)(c) and by virtue of s 501(6)(a), the Applicant is deemed not to pass the character test.
Accordingly, the sole issue before the Tribunal is whether, under s 501CA(4)(b)(ii), there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked.
On 23 January 2023, the Minister issued Direction No. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 99) to commence operation from 3 March 2023.[12] Direction 99 provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked.[13] Section 499(2A) of the Act mandates that the Tribunal must comply with the directions in force at the time of its decision.[14]
[12] The Reviewable Decision was made at the time when Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 90) was in force.
[13] Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers.
[14] Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238.
Direction 99
Clause 6 of Part 2 of Direction 99 provides that decision-makers must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Clause 8 of Part 2 sets out five primary considerations:
(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) best interests of minor children in Australia;
(5) expectations of the Australian community.
Clause 9(1) of Part 2 sets out other considerations. These include, but are not limited to:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims;
(d)impact on Australian business interests
Clause 6 stipulates that the decision maker must be informed by the principles stated in cl 5.2 in assessing these considerations.
evidence
Applicant’s Criminal Record
The Applicant has an extensive criminal record, commencing in 2004. A complete statement of the Applicant’s criminal record is set out in a National Criminal History Check produced by the Australian Criminal Intelligence Commission.[15]
[15] G5(A), pp.29-32.
In summary his record is as follows:
(a)[date] 2019 – County Court – convicted – negligently cause serious injury – 54 months’ imprisonment; supply drug of dependence to child – use by that child (count one) – nine months’ imprisonment (three months of sentence concurrent) – supply drug of dependence to child – use by that child (count 2) – eight months’ imprisonment (four months of sentence concurrent).
(b)2 March 2016 – Magistrates’ Court – convicted of persistent contravention of family violence order (three charges) and threat to inflict serious injury – aggregate 90 days’ imprisonment.
(c)17 February 2015 – Magistrates’ Court – convicted of contravene family violence intervention order – 117 days’ imprisonment; use of a carriage service to harass – convicted and discharged.
(d)3 November 2014 – Magistrates’ Court – convicted of resist police – fined $400.00 with $75.50 statutory costs.
(e)10 October 2014 – Magistrates’ Court – convicted of false imprisonment (common law) – two months’ imprisonment (one month concurrent) – make threat to kill – 2 months’ imprisonment (one month concurrent); recklessly cause injury – three months’ imprisonment - unlawful assault – one month imprisonment (cumulative); fail to answer bail (three charges) – 12 month community correction order.
(f)31 October 2012 – Magistrates’ Court – convicted of recklessly cause injury – four months’ imprisonment.
(g)10 September 2009 – Magistrates’ Court – convicted of recklessly cause injury – assault by kicking – aggregate three months’ imprisonment, wholly suspended for 12 months.
(h)22 September 2005 – Magistrates’ Court – convicted of intentionally cause injury – assault with weapon – aggregate four months’ imprisonment to be served by way of an Intensive Correction Order.
(i)17 November 2004 – Magistrates’ Court – convicted of obtain financial advantage (count one) – fined $1,600; obtain financial advantage (count two) – fined $1600.00 to pay $413.00 costs.
Sentencing Remarks
The sentencing remarks of His Honour Judge Lyon[16] summarise the factual basis for the Applicant’s convictions on [date] 2019 as follows:[17]
[…][18]^[[19]^]
[16] G5(B) at pp.31-38.
[17] His Honour noted that the names [Ms A] and [Ms E] were pseudonyms for the victims’ actual names.
[18] G5(B) at pp.32-33.
[19] [A quote has been redacted from the publishable version of this decision pursuant to a Confidentiality Order of the Tribunal.]
The Applicant
The Applicant gave evidence at the hearing. He affirmed a written statement provided to the Department in April 2021[20] and stated that:
[20] G5(G2) at pp.72-82.
(a)He was born in a village north-east of Kabul in Panjshir Province, Afghanistan in 1982. He identifies as Panjshiri. Dari is his first language. He considers himself Muslim but currently does not practice.
(b)He said he grew up in Afghanistan with his parents and seven sisters and three brothers.[21] All of his family, other than one brother, live in Afghanistan. This brother is now in Turkey.
[21] One other sister died at a young age.
(c)He said the family moved to Kabul when he was very young. He did some schooling in Kabul and later helped his father in his work. His father was a cook and worked for the UN and also ran a restaurant.
(d)He said his father was harsh on him as a child and at times was physically abusive and cruel. He said he was scared of his father who had a big emotional impact on him and on his mental health.
(e)He said the Taliban targeted Panjshiri people in Kabul including members of his family because they were known to oppose the Taliban. He said his father and his uncles were involved in fighting in the war with the Soviet Union and Panjshir Province is the home of Ahmad Shah Masood who led the fight against the Taliban.
(f)He said his father sent him out of the country fearing for his safety as a young boy who would be forced to fight.
(g)He said he travelled overland to Pakistan and then on to Indonesia where he travelled by boat to Australia. He arrived in Australia in April 2000 aged 17 and was detained in Western Australia.
(h)In 2000, he was granted a three-year Temporary Protection Visa and, after working in a recycling factory in Western Australia, he travelled to Victoria and commenced work as a machine operator at a car factory. From about late 2004, he had jobs truck driving and transport contracting for various employers. He said that he ran a middle eastern restaurant in Victoria from 2009 to 2013.
(i)He was granted permanent residence status in 2009. After being granted permanent residence, he travelled to Afghanistan to see his family for short periods, in 2009, late 2010, in late 2013, in 2015, and for the last time in 2016. He said that in 2013, he was forced into an arranged marriage in Afghanistan by his father and it was not until he returned to the country in 2016 that he was able to obtain a divorce
(j)He said he has had three main relationships while in Australia. His first relationship was in 2001 with an Australian woman. They had a son together, but the relationship ended in 2002. The child is an Australian citizen and is now 19. His second relationship was in about 2003 with a Turkish woman. They too had a son together in 2003, but the woman and their son returned to Cyprus. His third relationship and marriage was in 2004 to LB, a woman with whom he had four children, two daughters L (born June 2006) and M (born May 2007) and two sons E (born March 2005) and Y (born April 2008). He said he separated from his wife in 2009 and they were divorced in 2011. He said he had not had any contact with his ex-wife or his children since 2016, although in his final submissions the Applicant claimed that recently his daughters had added him on Facebook.
(k)He said that he was first diagnosed with HIV in 2009 and is currently taking medication for the condition and will need to do so for the rest of his life. He said that he began having sex with men in Australia from about 2011 although he is not openly bisexual within the Afghan community where homosexuality is not accepted.
(l)He said he has emotional/mental health issues and has struggled with life’s challenges. He said he tried to deal with it alone and he used drugs, mainly cannabis.
(m)He said that he had not used drugs for a long time and his prison drug screen tests[22] show this. He said that while in prison he had completed a number of programs[23] including drug use courses with Caraniche, and personal development programs with Relationships Australia. He said:
I have learnt a lot about positive communication and relationships – how to socialise better and how to deal with my daily life. I have learnt what caused me to go and use drugs. I don’t have a relationship with drugs – I don’t want to use them – I have used them to help with my life challenges. It has damaged me and there is no way I am going back to using drugs. I am much stronger mentally now – I know good diet, exercise and professional psychological help make me stronger and able to stay away from drugs. I want to be only helpful to my family and to others – not to cause any harm. I will seek out professional support in the community. Before I was shamed to ask for help…[24]
(n)He described how approximately four months previously, while in detention, he had a kind of epiphany or spiritual awakening and he had begun to pray and read the Qur’an privately. He also stated that he had been greatly influenced by the calm patience of a female detention officer when dealing with a violent and irrational detainee and said that this had provided a positive role model for him. He described his current state of mind as:
I am in a good state of mind now. I am not going back to those dark mental places. I see my future as very bright. I realise that I need to work very hard to get the trust of the community and to be a respectful person in the community. This is the road I want to go down. I am sorry for all that I have done wrong. My mental health has caused me a lot of problems – to use drugs and to act badly. I am hopeful to go forward now. I want to be a help to my children and I will work hard in the community.[25]
(o)He said that if he is released into the community, his plan is to get work to support himself and become financially secure. Longer term, he said he wanted to study business so that he can run his own business, preferably a restaurant. He said he would find a treating psychologist or psychiatrist in the community and obtain medical help for his HIV.
(p)He said he wanted to build a relationship with his children who he has not seen since 2016. He said he was very happy with the way his ex-wife had raised their children and he understood that he will need to take a soft approach and gradually build up relationships with the children again. He said he wants to do all he can to help and support them, as their father.
[22] G5(H1) at pp.114-119.
[23] See G5(H) at pp.99-113.
[24] G5(G2) at p.75 at [22].
[25] Ibid at [52].
In giving his oral evidence, the Applicant was questioned about his offending.
(a)He confirmed that his convictions on 17 November 2004 for obtaining financial advantage related to his receipt of Centrelink payment to which he was not entitled while in receipt of accident compensation payment from the Transport Accident Commission following a motor vehicle accident. He confirmed that the amount involved was approximately $20,000 of which he had repaid around $16,000.
(b)He said his conviction on 22 September 2005 related to an altercation with a group of young men over a dispute about a car. He said that all of the young men involved were armed and he had a baseball bat with which he hit one victim breaking his teeth, although he claimed he didn’t mean to injure the person.
(c)He described the circumstances regarding his convictions on 10 September 2009, 31 October 2012 and 10 October 2014, but was unclear which of the convictions related to which set of circumstances. In one incident, for which he was convicted on 10 September 2009, the Applicant admitted assaulting his mother-in-law following a verbal argument by pushing her to the ground. In that case, he was later convicted of assault by kicking but in his evidence the Applicant denied that he had kicked his mother-in-law. In a second incident resulting in the conviction on 31 October 2012, he claimed that a female employee at his restaurant refused to leave the premises after he had dismissed her and he pushed her out of the door causing her to fall to the ground. The third case involved an altercation with a neighbour who had asked the Applicant to move his car which was blocking his driveway. The Applicant stated that he brandished a knife to scare the neighbour away. This led to his conviction on 10 October 2014.
(d)In relation to the offences for which he was convicted on 17 February 2015, he was asked to comment on a police report dated 19 August 2012[26] which set out the alleged conduct upon which his conviction was based. The Applicant stated that he did not dispute the police record. The report noted that the Applicant was made subject to an intervention order on 6 July 2011 and had acted contrary to the order by contacting his wife by telephone on seven occasions between 18 March and 8 April 2012. His threats included a statement on 1 April 2012 that Don't worry, my bail is finished on the 8th of April and ill fix you· up then, and as for your name on Facebook, you'll get yours and on 8 April 2012 that Hey Dog, just to let you know watch your back, there are people coming after you and I'm going to get you.
(e)In relation to the Applicant’s conviction on 2 March 2016, the Applicant claimed that the charge of use of a carriage service to harass resulted from a disagreement with his ex-wife over the children staying with him overnight. He claimed that his cousin became emotional and sent his ex-wife a message comprised of the lyrics of a rapper’s song which threatened killing. He denied that he sent the message, notwithstanding his conviction.
(f)In relation to the offences for which he was convicted on [date] 2019, the Applicant gave a version of event completely at odds with the Court’s findings as recorded in Judge Lyon’s sentencing remarks. He claimed that the two girls were friends of an Afghan man he knew and that he met them through this man. He said that he was trying to protect the girls from other men in the house, he denied having sex with either of the girls involved, claimed that he did not purchase the drugs, denied that he had unprotected sex and suggested that one of the girls appeared to have a mental disability and that she approached him for sex while he was in the shower, which he rejected.
[26] SG1, p.497.
Statements of Support

In an unsigned and undated statutory declaration, MM:[27] :
(a)stated that he has known the Applicant for almost 15 years having met him through the Afghan community and as a regular customer at the Applicant’s restaurant.
(b)attested to the Applicant’s strong work ethic.
(c)acknowledged that the Applicant has not always been as close with his children as he wanted but he wants to be a better father and would like the opportunity to connect with his children.
(d)stated that the Applicant has taken some time to accept responsibility for his actions; and
(e)said that the Applicant has had issues with paranoia in the past and has been seeking professional help and he had personally witnessed a profound improvement in the Applicant’s behaviour.
[27] Exhibit R2.
A statutory declaration dated 12 April 2023 in almost identical terms to that of MM was provided by MA,[28] a Halal butcher who had known the Applicant since childhood.
[28] Exhibit R5.
In an unsigned and undated statutory declaration AB,[29] a panel beater:
(a)stated he has known the Applicant for over 16 years having met him through friends and family in the Afghan community.
(b)described the Applicant as a talented and skilled individual who is determined and has a strong work ethic.
(c)also described the Applicant as a devoted family man, who always spoke about his family in a loving and caring manner. He said that if he is returned to the community the Applicant would strive to become the best version of himself and support his family to the absolute best of his ability.
(d)said the Afghan community will support the Applicant and welcome him back with open arms and that his friends and family care for him deeply; and
(e)said that continuing detention will likely negatively impact the Applicant’s mental health
[29] Exhibit R3.
In a letter of support for the Applicant dated 11 April 2023,[30] MO, a car salesman and former United Nations employee, stated that he has known the Applicant since 2001 but he was overseas when the Applicant was imprisoned. He said that the Applicant had shared with him his mental and psychological changes indicating that he has completely changed after several years in prison. He said he was confident that, if released, the Applicant would be able to adapt to his new environment with good behaviour and contribute positively to society.
[30] Exhibit R4.
Other Evidence
The G Documents contained:
(a)a Personal Circumstances Form[31] completed by the Applicant when applying for revocation of the cancellation of the Visa and setting out his personal details;
(b)various certificates and other records of the courses the Applicant had completed while in prison;[32]
(c)the results of urine samples taken while the Applicant was in prison[33] confirming his drug-free status;
(d)Movement Records confirming the Applicant’s departures and arrivals out of and into Australia and immigration passenger information cards completed by the Applicant when entering Australia;[34] and
(e)a family violence intervention order for the period 6 June 2012 to 6 June 2022[35] taken out against the Applicant for the protection of his ex-wife and his children.
[31] G5(G3) at pp.83-98.
[32] G5(H) at pp.99-113.
[33] G5(H1) at pp.114-119.
[34] G5(M) at pp.267-275; G5(N) at pp.276-277.
[35] SG1 at p.601.
The Respondent tendered a Refugee Review Tribunal decision dated 29 August 2005 and Protection Visa Decision Record dated 11 January 2006 to evidence the Applicant’s protected person status.[36]
primary considerations – CLAUSE 8 of part 2
[36] Exhibit R1.
Protection of the Australian community from criminal or other serious conduct
In considering the protection of the Australian community, the Tribunal has had regard to the matters set out in cl 8.1(1) and (2) of Part 2 of Direction 99.
Clause 8.1(2) requires decision-makers to give consideration to:
(a) the nature and seriousness of the non-citizen’s conduct to date; and
(b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
Clause 8.1.1(1)(a) provides that:
…without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii.crimes of a violent nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
Clause 8.1.1(1)(b) further provides:
…without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
iv.where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
The Applicant’s convictions on 22 September 2005 (intentionally cause injury, assault with a weapon), 10 September 2009 (recklessly cause injury, assault by kicking), 31 October 2012 (recklessly cause injury) and 10 October 2014 (false imprisonment, threats to kill, recklessly cause injury, and unlawful assault) all involved violence and are to be regarded as very serious.
The offences committed on 17 February 2015 (contravene family violence order) and 2 March 2016 (persistently contravene family violence order and threats to inflict serious injury) each involved acts of family violence and are also to be regarded as very serious.
The offences for which he was convicted on [date] 2019 included negligently causing injury by infecting the victim with the HIV virus in the course of sexual relations and as such is a crime of a sexual nature. The other two offences of supplying a drug of dependence to a minor, while associated with conduct of a sexual nature, were not in themselves crimes of a violent or sexual nature. However, the two victims of the crimes were minors, one of whom was in state care, and therefore vulnerable members of the community and for this reason the offences are to be considered serious crimes under cl 8.1.1(1)(b).
In addition, under cl 8.1.1(1)(c)-(h), decision-makers must have regard to the following factors in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date:
(c)the sentence imposed by the courts for a crime or crimes, other than crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i);
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour); and
(h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Judge Lyon, in his sentencing remarks on [date] 2019 stated, that each of the offences for which the Applicant was found guilty were serious instances of each offence and he commented on the serious nature of the offending as follows:
[…][37]^[[38]^]
[37] G5(B) at p.35 at [13]-[14].
[38] [A quote has been redacted from the publishable version of this decision pursuant to a Confidentiality Order of the Tribunal.]
The sentence of an aggregate of 54 months for the three offences on [date] 2019 was a substantial sentence reflecting the seriousness with which the court regarded the Applicant’s crimes. The seriousness is reinforced by the frequency and duration of the Applicant’s offending. His convictions span the period from 2004 to 2017 and exhibit a regular pattern of criminal behaviour involving nine separate court appearances over that period.
Further, the evidence shows that the Applicant failed on several occasions to declare his criminal offending in completing passenger arrival cards when entering Australia and thereby providing false or misleading information to the Department.[39] While this failure did not result in any conviction, it is conduct to which the Tribunal must have regard under cl 8.1.1(1)(f).
[39] G5(M) at pp.267-270.
The Tribunal also notes that the Applicant’s convictions have involved violence; the infliction of serious harm, harassment and threatening behaviour; the supply of drugs to minors; and dishonesty. The victims of his crimes have involved members of his immediate family, his mother-in-law, an employee, a neighbour, a group of young men with whom he had a dispute over his car and two teenage girls. The broad nature of his offending is reflective of a lack of moral character and sense of social responsibility.
Having regard to these factors the Tribunal finds that the Applicant’s conduct involved serious and sustained criminal conduct over a long period of time.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious misconduct
Clause 8.1.2(2) of Part 2 of Direction 99 relevantly states for the purpose of s 501CA of the Act that in assessing the risk that may be posed by a non-citizen to the Australian community, the decision-maker must have regard to, cumulatively:
(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non- citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the harm
For the reasons discussed, the Tribunal is satisfied that the Applicant’s offending is serious. The nature of his offending is also broad in its scope.
Of particular concern is the Applicant’s conviction for negligently causing serious injury by infecting his victim with the HIV virus as the result of unprotected sex when knowingly possessing a high viral load of the virus at the time. The Applicant remains HIV-positive and a repeat of this conduct has the potential to inflict a life-long injury on his victim. The sentencing judge noted the serious consequences of HIV infection for the victim in handing down sentence on [date] 2019:
[…][40]^[[41]^]
[40] G5(B) at p.34 at [12].
[41] [A quote has been redacted from the publishable version of this decision pursuant to a Confidentiality Order of the Tribunal.]
For these reasons, the Tribunal is satisfied that, should the Applicant engage in further criminal or other serious conduct of the kind for which he was convicted, he would pose a threat of significant harm to members of the Australian community generally.
Likelihood of engagement in further criminal or other serious conduct
The Applicant’s plea to the Tribunal is that he is now not a risk of reoffending if released into the community. He expressed remorse and said he accepted full responsibility for his prior offending and stated that he has had a changed outlook over the last four or five months in particular. He said he has had a kind of religious awakening and now sees people differently. He said he now prays and reads the Qur’an and is more conscious of keeping physically active. He said that he has a strong work ethic and if released would seek employment and try to re-establish his relationship with his children.
He said that he recognises that he has challenges with his mental health but is committed to seeking help. He stressed that he has taken steps to cease using drugs and, save for one or two occasions in detention when he smoked cannabis and took ice as an experiment to test his reaction, he has been drug-free for around five years while in prison and detention. He gave evidence of having attended a drug treatment course while at a correctional centre in 2019[42] and of having returned negative urine tests while in prison in December 2017, May and July 2018, April 2019, and January and September 2020.[43]
[42] G5(H) at pp.103 -104.
[43] G5(H1) at pp.114-119.
The Applicant placed significant emphasis in his submissions on his awakening experience approximately four months previously while in detention and the fact that he has not been involved in any incidents since being taken into detention in late 2022. The Tribunal accepts that there are positive signs in the Applicant’s current demeanour following this epiphany, but this change is only recent. The Applicant has not been tested in the community. The Applicant’s claims to have reformed as a result of his experience are entirely self-realised. He has not sought or received professional guidance on psychological or spiritual matters or any formal treatment for his underlying psychological issues.
Notwithstanding the Applicant’s statements of remorse, the Tribunal is not satisfied that the Applicant is genuinely remorseful for his actions. He did not plead guilty to the charges against him on the most recent occasion and subjected the young victim to an eight-day trial. He maintained his innocence in his submissions. Judge Lyon noted in his sentencing remarks that there was an absence of remorse from the Applicant[44] and he considered the prospects of rehabilitation for the Applicant to be rather poor.[45] The Applicant was taken to each of the offences in his criminal record in his oral evidence and, in each case, he sought to minimise his own misconduct as far as he could and place the burden of responsibility on others. In particular, in relation to the offences for which he was convicted on [date] 2019, he claimed that he was trying to protect the girls from other men in the house, he denied having sex with either of the girls involved, claimed that he did not purchase the drugs, denied that he had unprotected sex and sought to suggest that one of the girls appeared to have a mental disability and that she approached him for sex while he was in the shower, which he rejected. His claims are completely at odds with the findings of the Court.
[44] G5(B) at p.37 at [26].
[45] G5(B) p.38 at [29].
The Tribunal accepts the Applicant’s evidence that he has been able to avoid drug use since 2017 while in prison and, and save for some experimentation, also while in detention, but it gives this fact limited weight in assessing the risk of reoffending. First, the Applicant indicated in his evidence that, prior to his incarceration, he used drugs such as cannabis and cocaine with alcohol when attending parties and used ice to achieve an energy boost or to enhance his sexual experience. He described his use of ice as like medication. He stated in his oral evidence that, if he is released he intends to return to the party scene including the use of alcohol, although he sought to resile from this evidence in his final submissions. Secondly, the Tribunal notes that drug use was not indicated to be a causal factor that contributed to the Applicant’s offending. The only reference to drugs or alcohol in the Applicant’s criminal record is in relation to his offences of supplying a drug of dependence to minors. In that context, the drugs were the subject of the crime. While the sentencing judge noted that the Applicant had taken ice at the time of his offending, he did not identify the Applicant’s drug use as a contributing factor to his behaviour.
A more significant factor in assessing the likelihood of the Applicant re-offending is his mental health. The Tribunal notes that the Applicant has not been definitively diagnosed as suffering from a mental illness. However, there is strong evidence that he is very likely to have an undiagnosed mental health condition which has contributed to his violent offending. The Applicant freely admitted to his struggle with an unspecified mental health issue which he said was a factor in his violent offending. He said in his Personal Circumstances Form that Psychologists and psychiatrists have said that I have had mental health issues, such as depression and anxiety and paranoia.[46] In his sentencing remarks, Judge Lyon referred to the psychological report of a Mr [H] tendered on the plea in which Mr [H] concluded that the Applicant was a rather seriously disturbed man, mentally and emotionally, and that [he had] an underlying psychotic state.[47] His Honour also noted an earlier report of Dr [O], psychiatrist, that the Applicant had long-standing mental health issues which had not been addressed while he was remanded in custody awaiting trial.[48]
[46] G5(G3) at p.95.
[47] G5(B) at p.36 at [23].
[48] G5(B) at pp.36-37 at [24].
The Applicant gave evidence of a very disturbed and traumatic childhood. He grew up in a war-torn country in which he was exposed to violence and traumatic events. His father and other relatives fought in the war against the Soviet Union and members of his family were killed. His home was in Panjshir Province which was a centre for resistance to the Taliban and made his family the target of the Taliban. He recounted an incident in which he was captured by the Taliban with his uncle. He witnessed his uncle being beaten and his uncle later disappeared and is presumed killed. He said he was also beaten and threatened with sexual assault by the Taliban guards before being released.
He described his relationship with his father as very difficult. He said that he was regularly beaten by his father, causing him to be hospitalised on at least one occasion. He said that he never understood what his father wanted him to do and what he needed to do to earn his love and respect. He recounted that when he was 14 or 15, he had taken revenge on a relative who had wronged his family by shooting the person in the legs. He said he did so because he thought it was what his father expected. He said that he later shot and wounded another three people in similar circumstances.
There is evidence that the Applicant participated in a rehabilitation course entitled Mapping a Way Forward conducted by Relationships Australia in September/October 2019 while in prison,[49] although the Applicant said in his oral evidence that the course didn’t work for me. Otherwise, there is no evidence that the Applicant has undertaken any professional counselling or treatment for his mental health issues.
[49] G5(H) at pp.99-102.
This background of violence and trauma and the Applicant’s subsequent convictions for violent offences suggests that the Applicant has untreated mental health issues as noted in the psychological reports tendered at his sentencing hearing. This factor weighs significantly in an assessment of the likelihood that the Applicant could re-offend.

It is also relevant that the Applicant has a history of repeated offending notwithstanding periods of incarceration and other forms of punishment. The consequences imposed on him by the law to date have not deterred the Applicant from further offending.
Further, the evidence indicates that the Applicant continued to experience difficult and sometimes violent inter-personal contact with other prisoners and officers while in prison. The SG Documents include a number of incident reports from Corrections Victoria. The Applicant was asked to comment on these incident reports in his oral evidence. The Tribunal notes that the reports are not a proper basis to make any specific findings of fact or to draw any firm conclusions on the factual circumstances of the incidents. However, the Tribunal notes the Applicant’s response to each of the specific allegations in the reports:
(a)In a report dated 13 June 2018,[50] it was alleged that the Applicant had threatened to shiv Koori prisoners,[51] the Applicant said he knew nothing about the allegation.
(b)In a separate report dated 13 June 2018, it was alleged that the Applicant had stated that he was going to stomp on the head of an officer in his unit due to a perceived personal issue.[52] The Applicant stated that the allegation was clearly made up, but he acknowledged that he had been moved to another unit after a confrontation with an officer.
(c)In a report dated 4 November 2019, it was alleged that the Applicant had approached staff in an intimidating manner and, when they did not attend to his needs, he became aggressive and abusive.[53] The Applicant said that he asked an officer to assist him by faxing some documents to his lawyer but she said she couldn’t do anything about it and he became angry and kicked a chair and was taken down by other officers.
(d)In a report of 28 November 2019, it was alleged that the Applicant entered a cell and assaulted another prisoner with his fists and a kettle.[54] The Applicant acknowledged that he was involved in the incident but said that another prisoner had used the kettle and that he had just helped a prisoner get out of the cell and took some shoes which belonged to another Afghan prisoner.
(e)In a report of 1 December 2019, it is alleged that the Applicant was aggressive and abusive towards a staff member and threatened to meet up with him when he was released.[55] The Applicant said he remembered the incident but said he didn’t make a threat and explained it as a joke. He said that he apologised to the officer on three separate occasions, and only got upset when confronted with the allegation in a meeting attended by the Governor.
(f)In a report of 26 May 2019, it was alleged that during the unlock inspection of his cell the Applicant’s cellmate was found to have a swollen eye and abrasions indicating that he had been assaulted.[56] The Applicant stated that an altercation with his cellmate arose over the use of the television which led to his cellmate punching the Applicant and the Applicant retaliating. He said they exchanged punches, but he later apologised to his cell mate and gave him Panadol.
(g)In a report of 25 January 2022, it was alleged that a number of prisoners had reported that the Applicant had become threatening towards his fellow prisoners.[57] The Applicant acknowledged that he had a disagreement with other prisoners, some of whom were very religious, over him sharing his cottage with a gay prisoner.
(h)In a report of 22 February 2022, it is alleged that a prisoner claimed that he was stood over and received unwanted sexual encounters from the Applicant while sharing a cottage.[58] The Applicant denied that he had had sexual relations with the prisoner and said that they had just discussed having sex with men on a few occasions.
[50] SG2 at p.652.
[51] That is, assault some unspecified Aboriginal prisoners with a knife.
[52] SG2 at p.653.
[53] SG2 at p.665.
[54] SG2 at p.669.
[55] SG2 at p.671.
[56] SG2 at p.663.
[57] SG2 at p.681.
[58] SG2 at p.682.
The incident reports also include some alleged complaints by the Applicant. A report dated 13 August 2018 stated that the Applicant had alleged that he had been assaulted by another prisoner on 10 August 2018.[59] In a separate report of 9 October 2018, it is alleged that the Applicant was assaulted from behind by another prisoner.[60] In a report of 30 March 2019, the Applicant is alleged to have requested a relocation because of threats from another prisoner.[61] In a report of 28 November 2019, it was alleged that the Applicant was involved in an altercation with another prisoner where they were pushing and shoving each other.[62]
[59] SG2 at p.655.
[60] SG2 at p.659.
[61] SG2 at p.662.
[62] SG2 at p.670.
The Applicant acknowledged in his oral evidence that in general he had problems while in prison because of his psychological problems. He said he was a protected prisoner while on remand because of the nature of the charges he was facing and that he was moved a lot because of threats by other prisoners and because he got into fights. He said that things followed me.
Having regard to these reports and the Applicant’s responses, the Tribunal is satisfied that the Applicant has had continuing interpersonal difficulties with other prisoners and prison staff which have involved some degree of violence or threats of violence. These difficulties must be considered in the context of the prison environment but, even taking this into account, they do suggest that the Applicant’s underlying mental health issues may make it difficult for the Applicant to avoid interpersonal issues with members of the community and there is a risk of him committing violence if released.
The Tribunal also notes that the Applicant was not able to identify any specific stable relationship in the community to support him upon his release. He has had three unsuccessful relationships and has been subject to family violence intervention orders for the protection of his ex-wife and children whom he has not seen since 2016. He stated that he only has one family member in Australia, an uncle with whom he ran a restaurant for some time. He said he is estranged from his uncle who had deterred people from visiting him in prison and who has rejected him because of his bisexuality and the nature of his offences. He is also estranged from his family in Afghanistan. He confirmed that he has not had any contact with anyone other than his brother, who is overseas, since his arrest in July 2017.
In addition, the Tribunal is not satisfied that the Applicant would be likely to garner support from the Afghan community. The Applicant acknowledged that some members of the Afghan community are aware of and disapprove of his offending and are prejudiced against him because of his bisexuality. He expressed his own rejection of the Afghan community in his oral evidence. The Tribunal gives little weight to the statements of support from MM, AB, MO and MA in assessing the Applicant’s support in the community. None of the people who made the statements have had any direct contact with the Applicant for at least six years and many of their statements make assertions which are at odds with the Applicant’s own evidence.
It is also significant that the nature of the Applicant’s offending over the period from 2004 to 2017 is very broad. His offending extends for some 13 years. It has involved violence and the infliction of serious harm, harassment and threatening behaviour, the supply of drugs to minors and dishonesty. His victims include members of his immediate family, his mother-in-law, an employee, a neighbour, a group of young men with whom he had a dispute over his car and two teenage girls. His harassment of his ex-wife in contravention of intervention orders continued until as late as 2016 even though he separated from his wife in 2009. This broad criminality indicates that the Applicant’s offending is based on a general lack of moral character rather than being the result of any particular causal factor.
The Applicant also expressed a confusing set of priorities if he is released. He stated that he intends not to have anything to do with the Afghan community in Australia and described the community as ignorant and backward. He said he wanted nothing more to do with them and said he wanted to start a new life. He said that he intended to continue to attend house parties where he had access to sexual encounters, alcohol and drugs because he needed the pleasurable experience. He said he would balance this with his religion. However, he said he had not followed Muslim teachings as they did not make sense to him until recently when he had begun to pray and read the Qur’an by himself which he said gave him a unique happiness and answered his questions. He also said he would attempt to make contact with his children and would work towards establishing a parental relationship if that is what they wished. If not, he said he would likely move away from Melbourne and seek work interstate. He gave no indication that he would be able to connect with any particular individual or group in the community but said he would try to find a person to be a friend who would understand him and support him.
Finally, the Applicant continues to suffer from the HIV virus and is likely to do so indefinitely. In his oral evidence, he said that he intends to pursue a sexually active lifestyle if released. This would necessitate that he maintain his medication and practice safe sex at all times to avoid possible further offending. The fact that the Applicant has failed to do this in the past and his failure to acknowledge key aspects of his offending in his oral evidence, adds to the risk of him re-offending.
Having regard to these matters, the Tribunal is satisfied that there is a significant risk that the Applicant would commit further serious criminal conduct if released into the community and accordingly, the protection of the Australian community, a primary consideration under Direction 99, weighs heavily in favour of not revoking the cancellation of the Applicant’s visa.
Family Violence
Clause 8.2(1) of Direction 99 states:
The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen…
Clause 4(1) of the Direction defines family violence to mean violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family[63] (family member) or causes the family member to be fearful. Examples of behaviour that may constitute family violence include, relevantly, assault, stalking and repeated derogatory taunts.
[63] Clause 4(1) provides that a member of the person’s family, for the purposes of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.
In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)the extent to which the person accepts responsibility for their family violence related conduct;
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence,^[[64]^] noting that the absence of a warning should not be considered to be in the non-citizen’s favour.
[64] This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence: cl 8.2(3)(d).
The Applicant has two convictions for breaching a family violence intervention order, which relate to his conduct up to 2016. The breaches have involved threatened assaults, harassment and repeated derogatory taunts directed at his ex-wife. In both cases, the court imposed a significant custodial sentence indicating the seriousness of the offending. In addition, the Applicant was convicted in 2009 of assaulting his mother-in-law by kicking and recklessly causing her injury. He also admitted in his oral evidence that he slapped his ex-wife on one occasion, although he contended that it was in retaliation for her slapping him. Such conduct directed at a family member constitutes family violence. There is no evidence or other information from independent or authoritative sources indicating that the Applicant has been involved in perpetrating further family violence.
The Applicant’s most recent conviction for a family violence offence was in March 2016. There is no evidence that there have been any further incidents of family violence since then. The Applicant has been in prison and detention continuously since his arrest in about August 2017 and he has had no contact with his immediate family since 2016.
The offences indicate that the family violence of the Applicant was frequent prior to his conviction in March 2016 but there is no evidence before the Tribunal as to the cumulative effect of the family violence on the members of the family. The Applicant has not identified any rehabilitation that he has undertaken other than the Mapping the Way Forward course[65] he completed in prison which he said didn’t work for him, and he has not wholeheartedly taken responsibility for his conduct. He denied the true nature of his conduct in the assault on his mother-in-law and attributed the sending of messages to his ex-wife in the 2016 conviction to his cousin. The Applicant was aware or should have been aware of the consequences of further family violence when he was convicted and sentenced to prison in 2015 and yet he was subsequently convicted of similar offences in 2016.
[65] G5, p.36-37 at [24].
The Tribunal is satisfied that the Applicant’s conduct has involved serious family violence and that he has not fully taken responsibility for his actions or engaged in any meaningful rehabilitation. Whether the Applicant’s conduct constituted family violence is a primary consideration under Direction 99 in favour of not revoking the cancellation of the Applicant's Visa and attracts significant weight. However, the Tribunal acknowledges that the offending occurred before 2016 and that the Applicant has not had any contact with his ex-wife and children since 2016. While the Applicant has been incarcerated for most of that time, the fact remains that there is no evidence of further family violence for around six years. The Tribunal accepts that the weight to be given to this consideration is diminished to some extent by the effluxion of time but, having regard to the seriousness of the offending, gives this consideration substantial weight.
The strength, nature and duration of ties to Australia
Clause 8.3 of Direction 99 requires that decision-makers:
(1) 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) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to
a.the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
The Applicant has resided continuously in Australia since his arrival in 2000, save for brief visits to his home country to see his family. This is a significant period of some 23 years and is the Applicant’s entire adult life. However, the Applicant was not ordinarily resident in Australia during his formative years, having arrived shortly before he turned eighteen.[66] He commenced offending soon after arrival, recording his first conviction for obtaining financial advantage in 2004. Having regard to cl 8.3(4)(iii), the Tribunal gives the length of time the Applicant has lived in Australia less weight than might otherwise have been the case.
[66] The Applicant was born in May 1982 and arrived in Australia in late April 2000: see G5(G2) at p.72.
The Applicant has not provided any evidence of the impact of a decision to revoke or not to revoke the cancellation of his Visa on his family members who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. The Applicant has not seen his children or his ex-wife LB since 2016 and prior to that he had limited contact for reasons discussed at [97] below. His relationships with his first and second partners ended in 2002 and 2003 respectively. He lists his son by the first relationship as [First Name] (unsure family name) on his Personal Circumstances Form,[67] and gave no evidence of having had any actual involvement with him since 2002. His second partner moved to Cyprus with their son many years ago and has not maintained contact. The Applicant listed his extended family as all living outside Australia,[68] except for his uncle in Australia from whom he is estranged.
[67] G5(G3) at p.91.
[68] Ibid at p.91.
While the Tribunal acknowledges the Applicant has ties to his four children with LB as their biological father, it gives those ties limited weight in assessing this consideration because there is no evidence of any actual contact between the children and the Applicant for at least 6 years. There is no evidence of any meaningful ties between the Applicant and the children of his first two relationships or even that those children are now in Australia.
As to the strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely, there is little evidence presented by the Applicant beyond the four statements of support tendered by the Respondent.[69] The weight to be given to these statements is diminished by the Applicant’s admission that none of the people involved have had any contact with the Applicant since at least before his arrest in July 2017.
[69] Exhibits R2, R3, R4 and R5.

There is no evidence that the Applicant has any current significant social or business relationships. However, he was regularly employed in the years after his arrival in Australia and, for a period from 2009 and 2013, he was the proprietor of a restaurant business. Even without actual evidence, the Tribunal is prepared to accept that the Applicant will have developed some relationships with members of the Australian community through those activities, and that his involvement in these activities represent ties to Australia in themselves.
The Applicant said in his written statement that he would have some good positive supports in the Afghan community if he is released into the community. He described the supporters as people who are not judgemental and who will help him get back on his feet in the community.[70] However, he acknowledged that he may not attract support from at least sections of the Afghan community because of his bisexuality and past offending. He stated that there is a religious and cultural non-acceptance of his bisexuality in the Afghan community, and:
The Afghan community in Victoria knows me. The crime I have been convicted of in 2019, which was passing HIV to a 16 year old girl, is looked upon very badly. People know about it now. […[71]][72]
[70] G5(G2) at p.82 at [55].
[71] [The information in square brackets in this quote has been redacted from the publishable version of this decision pursuant to a Confidentiality Order of the Tribunal.]
[72] G5(G2) at p.78 at [38]. See also press cuttings at G5(L) at pp.260-266.
In his oral evidence, the Applicant contradicted these statements by saying that he intends not to have anything to do with the Afghan community in Australia if he is released. He described the community as ignorant and backward. He said he wanted nothing more to do with them and said he wanted to start a new life.
Having regard to these matters, the Tribunal finds that the Applicant’s family ties or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely are not strong and enduring.
Conclusion
The Applicant has ties to Australia. He has lived here for all of his adult life and he has some family and social ties, albeit there is no evidence that they are strong and enduring relationships. This consideration is a primary consideration and weighs in favour of revocation. However, for the reasons discussed, the Tribunal gives it limited weight.
Best interest of minor children in Australia affected by the decision
Clause 8.4(1) requires that decision-makers must determine whether non-revocation under s 501CA of the Act is, or is not, in the best interests of a child affected by the decision.[73] The best interests of each child must be given individual consideration to the extent that their interests differ.[74]
[73] This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made: cl 8.4(2) of Direction 99.
[74] Clause 8.4(3) of Direction 99.
The Tribunal notes that cl 8.4 of Part 2 of Direction 99 requires the Tribunal to consider the interests of the child affected by the decision. The Applicant expressed his desire to remain in Australia to be a father to his children. While the interests of the Applicant are able to be considered generally under other parts of the Direction, cl 8.4 requires the Tribunal to focus on the best interests of the child. The question is not whether it is in the Applicant’s best interests to remain in Australia with his children.
The Applicant has identified three minor children with his ex-wife LB whose best interests require consideration. They are his daughters L (16 years 10 months) and M (15 years 11 months) and a son, Y (15 years).
The Tribunal is not satisfied that the Applicant has identified any particular differences between the interest of the three children which would provide a justification for addressing their interests individually.
The Tribunal accepts that it is generally in the best interests of minor children to have ongoing contact with their parents and that it would not be in the three children’s interests for the Applicant to be denied the right to continue to live in Australia. However, the weight to be given to this consideration is to be assessed having regard to the factors identified in cl 8.3(4), namely:
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has acknowledged that he has not had any contact with his three minor children since 2016 and an examination of the facts shows that he has had very little opportunity to have direct contact with his children since 2016.[75] The Applicant gave evidence that he continued to be involved with his children after separating from his ex-wife in 2009 until 2016. However, the evidence shows that the Applicant’s opportunities for contact with the three children was limited prior to 2016. First, he was separated from his family and subject to family violence intervention orders restricting his access to his children from at least 6 July 2011[76] until his arrest in July 2017. Secondly, he was sentenced to spend four months in prison in October 2012, five months in October 2014 and almost four months from February 2015.[77] Thirdly, he was overseas in Afghanistan for around six months from 25 April to 14 October 2013 and for around six weeks from 21 April to 7 June 2015.[78]
[75] In March 2016, he was sentenced to 90 days in prison: G5(A). He was in Afghanistan from 7 July to 25 September 2016 (G5(O) at p.276) and on [date] July 2017 he was arrested and detained on remand until [date] 2019 when he was sentenced to 54 months in prison: G5(b). He has remained in prison or immigration detention since being convicted. He was subject to a family violence intervention order from 6 June 2012 to 6 June 2022.
[76] SG1 at p.521.
[77] G5(A).
[78] G5(O) at p.276.
These facts indicate that the Applicant has had limited meaningful contact with the three children since 2009 and suggest that less weight should be given to this consideration.
Since 2009, the Applicant’s ex-wife LB has been solely responsible for parenting the three minor children. Given the Applicant’s history of family violence and his estrangement from the family for at least six years it is reasonable to expect that even with goodwill on all sides, it would take some considerable time for the Applicant to assume a meaningful parental role. Given the ages of the three children, there is little time to do so before they each reach adulthood.
In addition, the Applicant’s multiple convictions for breaches of family violence intervention orders and for acts of family violence further diminish the weight that ought to be accorded to this consideration.
There is no evidence of the views of the children or of any actual physical or emotional trauma experienced by them as a result of the Applicant’s conduct but the Applicant’s history of family violence and violent offending generally, including his offences in relation to supplying drugs to minors, satisfies the Tribunal that it cannot rule out the possibility that the three children may be exposed to physical, emotional or psychological harm if the Applicant were to remain in Australia.
Taking all of these considerations into account, the Tribunal is prepared to accept that it may be in the best interests of the three children L, M and Y for the Applicant to remain in Australia, but that finding is qualified by the concern that the views of the children and their mother are not known and there is otherwise no objective assessment available as to each child’s circumstances and the effect of the Applicant’s past conduct has had on them. This and the other reasons identified mitigate against giving this consideration substantial weight.
Conclusion
The Tribunal is satisfied that the best interests of the Applicant’s three minor children L, M and Y weigh in favour of revocation, but even though this is a primary consideration under Direction 99, the Tribunal gives it limited weight for the reasons identified.
Expectations of the Australian Community
Clause 8.5 of Part 2 of Direction 99 provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. 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 to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, 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. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The majority of the Full Court of the Federal Court has explained that cl 11.3 of the former Direction 79, which mirrors the wording of cl 8.5(1) and (2):
…should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasizes that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[79]
[79] FYBR v Minister for Home Affairs [2019] FCAFC 185, [75]-[76].
The Applicant’s criminal conduct raises significant character concerns. His conduct as found by the court and recorded in the decision of Judge Lyon of [date] 2019 constitutes a very serious breach of the standards expected by the Australian community. The Applicant’s lack of respect and sense of responsibility toward the two teenage girls involved in supplying them with hard drugs and his negligence in exposing one of them to the serious health consequences of the HIV virus is reprehensible. This offending is to be viewed against a broad pattern of criminal conduct over an extended period. The Applicant’s offences have involved violence and harassment against his own family, violence against women and others including the use of weapons and significant dishonesty.
The expectation of the Australian community as expressed in cl 8.5 is a primary consideration under Part 2 of Direction 99. The Tribunal is satisfied, given the nature and extent of the Applicant’s offending, that it is appropriate for the Tribunal to act in accordance with that expectation and to attribute to it significant weight in favour of not revoking the cancellation of the Applicant’s Visa.
Other Considerations – CLAUSE 9 of Part 2
Legal Consequences of the Decision
On 29 August 2005, the Refugee Review Tribunal, in considering an appeal from a decision of the Minister to refuse to grant the Applicant, a citizen of Afghanistan, a protection visa, determined:
Having considered the evidence as a whole, the Tribunal is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant satisfies the criterion set out in s.36(2) of the Act for a Protection Visa.[80]
[80] Exhibit R1.
On 11 January 2006, a delegate of the Minister granted the Applicant a Protection Visa (Class 785) and in so doing was satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention.[81]
[81] Ibid.
On the basis of these matters, the Tribunal is satisfied that the Applicant is a person for whom a protection finding (as defined in section 197C of the Act) has been made in respect of Afghanistan and he is a person to whom international non-refoulement obligations are owed.
Clause 9.1.1 of Part 2 of Direction 99 requires the Tribunal to consider the legal consequences of its decision given this finding and it must confront the legal and practical consequences of a decision not to revoke the cancellation of the Visa.[82]
[82] NBMZ and Minister for Immigration and Border Protection [2014] FCAFC 38 at [10].
The protection finding is significant as it relates to s 197C(3) of the Act which relevantly provides that:
(3)… section 198 does not require or authorise an officer to remove an unlawful non-citizen to a country if:
(a) the non-citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non-citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non-citizen is complete within the meaning of subsection 197D(6);
(iii) the non-citizen has asked the Minister, in writing, to be removed to the country.
This means the Applicant cannot be removed to Afghanistan in breach of Australia’s non-refoulement obligations if an adverse visa decision under s 501CA is made. In that event, the Applicant would continue to be an unlawful non-citizen and liable to remain in immigration detention indefinitely.
A further legal consequence of a non-revocation decision under s 501CA is that the Applicant will be prevented by s 48A of the Act from making a further application for a protection visa while he is in the migration zone[83] and he will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa.[84]
[83] Unless the Minister determines that s 48A does not apply: see ss 48A and 48B of the Act.
[84] See s 501E of the Act and Reg 2.12AA of the Migration Regulations 1994 (Cth).
In practical terms there are only four ways in which indefinite detention could be brought to an end.
First, circumstances in Afghanistan may change so that the risks to the Applicant are removed or diminished to the point where he can be deported without infringing Australia’s non-refoulment obligations. There is no evidence before the Tribunal to support a conclusion that this is likely to be the case for the foreseeable future.
Secondly, the Applicant could choose to relocate to Afghanistan voluntarily. In this context the term ‘voluntarily’ is misleading. The Tribunal has previously characterised this as a form of forced removal and questioned whether it is, in reality, a breach of Australia’s non-refoulment obligations:
We question whether there is a real choice between prolonged detention and returning to a country where the applicant believes there to be a real chance of persecution or a real risk of significant harm. As observed by Deputy President Britten-Jones in XDJD and Minister for Immigration and Border Protection (Migration), a written request by an applicant to be removed from Australia may still constitute refoulement if an applicant requests that he be refouled “out of despair due to his prolonged detention”. We agree with this statement of principle.[85]
[85] 1901883 (Refugee) [2021] AATA 3216 at [114].
Whether one accepts the genuineness of the choice involved in this option or not, the fact remains that it is very unlikely the Applicant would choose to take it up as to do so it would put his safety at risk and expose him to very significant detriment.
Thirdly, the Applicant may be offered the opportunity to be resettled in a third country. There is no evidence that this option is anything other than a possibility at some stage in the future.
Finally, there are limited options for the exercise of Ministerial discretion. The Minister may act personally under s 48B to determine that s 48A does not apply and allow a further application for a Protection Visa, or the Minister may exercise a non-compellable power in ss 195A or 197AB to allow the Applicant to remain in Australia otherwise than in detention. The Respondent gave no indication that either of these options would be utilised and the irrationality of doing so was commented on by Perry J in EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2).[86] The Tribunal is also mindful of the approach to this issue by the majority of the Court in NBMZ and Minister for Immigration and Border Protection where it was stated:
It is true, too, that the Minister may grant a detainee a visa in the circumstances described in s 195A of the Act. But, as Buchanan J points out in his reasons, there was no reference to the possibility or the willingness of the Minister to contemplate a visa under s 195A in either the briefing paper to him, or in his reasons. We agree with Buchanan J that the applicant is entitled to have this application determined on the hypothesis that he will be indefinitely detained and that any question of a visa under s 195A is, at best, a matter of speculation. There is no foundation for any assumption that the Minister will grant any relevant visa.[87]
[86] [2021] FCA 1536, [130]–[131] (Perry J).
[87] [2014] FCAFC 38 (per Allsop CJ and Katzmann J) at [4].

Accordingly, the likelihood is that the Applicant will remain in indefinite detention without any clear prospect for release if the cancellation of his Visa is not revoked. The Applicant has been in prison and detention since [date] July 2017. He has undiagnosed and untreated mental health issues and suffers from HIV. It can be anticipated that indefinite detention will be very detrimental to the Applicant and this consideration weighs heavily in favour of revoking the cancellation of his Visa.
Extent of impediments if removed
Clause 9.2(1) requires that:
Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The Tribunal is satisfied that the Applicant would face significant impediments in establishing himself in Afghanistan and maintaining basic living standards. Of paramount concern would be the risk to his personal safety. The Tribunal accepts that the Applicant would face possible persecution from the Taliban as a returnee and by reason of his family’s past association with Westerners and internal opposition forces. In addition, as a bisexual person he would be particularly vulnerable to harm, not only from the authorities but also from his own family. As an HIV sufferer and someone in need of support for his mental health issues, he would face limited medical support.
Notwithstanding this, the fact that a protection finding has been made in relation to the Applicant means that pursuant to s 197C(3) of the Act, the Applicant will not be forcibly removed to Afghanistan.
Accordingly, this consideration carries no weight.
Impact on the victims
Clause 9.3(1) of Part 2 requires:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The relevant impact under cl 9.3 is the adverse impact likely to result from the non-citizen being granted a visa.[88] There is no evidence before the Tribunal of any impact on specific members of the Australian community, including victims of the Applicant’s criminal behaviour, and the family members of the victims.
[88] CGX20 v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (No 2) [2020] FCA 1842 [17]-[21], which considers the analogous consideration at cl 14.4 of Direction No 79.
Accordingly, this consideration is neutral and carries no weight.
Impact on Australian business interests
Clause 9.4 (1) requires:
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 Applicant at best offers Australian business interests the employment services of a semi-skilled worker and possibly a potential small business proprietor. There is no evidence that the decision in this matter would significantly compromise the delivery of a major project or important service in Australia.
Accordingly, this consideration is neutral and carries no weight.
Other Considerations
The considerations stated in cl 9 of Part 2 are not exhaustive.
The Applicant has expressed his desire to remain in Australia so that he can be a father to his children. This is a matter which warrants separate consideration. The Applicant’s desire was qualified by his recognition that his children may not want to re-connect with him. He stated that he would allow them to decide whether to do so and if they did not want him in their lives, he would move interstate and live his life without them. Notwithstanding this qualification, the Tribunal accepts that the Applicant’s desire to resume his role as father to his four children with LB could not be realistically achieved unless his Visa is restored and this is a factor which weighs in favour of revocation.
However, the Tribunal gives this consideration limited weight as there is no indication that there is a realistic possibility that the Applicant’s desire to be a parent could be realised. The Applicant asserted in his final submissions that his daughters have recently added him to their Facebook page, but he gave no other evidence of any contact with his ex-wife or his four children since 2016 and the Tribunal is mindful that, prior to 2016, the Applicant’s relationship with his immediate family was marked by incidents of family violence and extended separation due to the breakdown in his marriage in 2009, the imposition of family violence intervention orders from 2011 and periods of incarceration and absence overseas.
The Applicant did not demonstrate that there was any realistic possibility that he would be able to assume a role as parent with his other two children with whom he has never had any parental relationship.
The Tribunal is also mindful that a decision not to revoke the cancellation of the Applicant’s Visa can be expected to adversely affect his mental health. In the absence of a proper diagnosis, the Tribunal cannot reliably assess the likely effects of its decision on the Applicant but it is satisfied that there is a risk that an adverse decision will be detrimental to him and this is a matter which weighs in favour of revocation.
CONCLUSION
In Gaspar v Minister for Immigration and Border Protection,[89] North ACJ elaborated on how to approach the exercise of the discretion under s 501CA(4)(b)(ii) of the Act:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.
[89] [2016] FCA 116, [38].
Factors against revocation
There are three primary considerations which weigh against revoking the cancellation of the Applicant’s Visa:
(a)There is a significant risk that if released into the community the Applicant would commit further serious criminal conduct and threaten significant harm to members of the Australian community. The protection of the Australian community, a primary consideration under Direction 99, weighs heavily in favour of not revoking the cancellation of the Applicant’s Visa.
(b)The Applicant’s conduct has involved serious family violence which is a primary consideration under Direction 99 in favour of not revoking the cancellation of the Applicant's Visa and, even though there is no evidence of family violence for around six years, the Tribunal gives this consideration substantial weight.
(c)Given the nature and extent of the Applicant’s offending it is appropriate for the Tribunal to act in accordance with the expectation of the Australian community as expressed in cl 8.5 that:
(i)non-citizens should obey Australian laws while in Australia; and
(ii)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 Government should not allow such a non-citizen to enter or remain in Australia.[90]
Given that the Applicant’s offences have included acts of family violence and the commission of serious crimes against children and women, the Tribunal attributes significant weight to this consideration, which is a primary consideration under Part 2 of Direction 99, in favour of not revoking the cancellation of the Applicant’s Visa
[90] Regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community: cl 8.5(3).
Factors in favour of revocation
There are considerations in favour of revocation.
(a)The Applicant has ties to Australia. He has lived here for all of his adult life and he has some family and social ties, albeit they do not appear to be strong and enduring relationships. This consideration is in favour of revocation and is a primary consideration under Part 2 of Direction 99 but, for the reasons discussed, the Tribunal gives it limited weight.
(b)The best interests of the Applicant’s three minor children L, M and Y also weigh in favour of revocation and this is a primary consideration under Part 2 of Direction 99, but, for the reasons discussed, the Tribunal gives it limited weight.
(c)The likelihood that the Applicant will remain in indefinite detention without any clear prospect for release if the cancellation of his Visa is not revoked, while not a primary consideration under Part 2 of Direction 99, weighs heavily in favour of revoking the cancellation of his Visa.
(d)A decision not to revoke the cancellation of the Applicant’s Visa would effectively prevent the Applicant from resuming his role as father to his four children with LB and could be expected to adversely affect his mental health, and these are factors which attract limited weight in favour of revocation.
Conclusion
Clause 7 of Part 2 of Direction 99 provides guidance on how relevant considerations are to be assessed. It states that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Weighing the factors for and against revocation requires the Tribunal to give both primary and other considerations appropriate weight. This requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[91]
[91] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594.
In assessing the relative weight to attribute to factors for and against revocation, the Tribunal has had regard to the principles set out in cl 5.2 of Direction 99 which provide the framework for decision making under s 501CA of the Act. Those principles are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
There are three strong factors favouring non-revocation which accord with the principles stated in cl 5.2 and which are primary considerations. The Applicant’s offending is serious and although there should be some tolerance for him because he has lived in Australia for 23 years, the nature of his crimes and especially the crimes for which he was convicted on [date] 2019 and the harm that would be caused if repeated are so serious that they weigh heavily against the countervailing factors.
There are two primary considerations which weigh in favour of revocation, but for the reasons discussed the Tribunal has determined that it is appropriate to attribute a lesser weight to those factors. On the other hand, the legal consequence of not revoking the cancellation of the Applicant’s Visa is so serious for the Applicant that it is appropriate to attribute to it the substantial weight which the Direction accords to a primary consideration. To this can be added the additional consideration of the impact on the Applicant’s desire to become a father to his four children with ex-wife LB and the risk to the Applicant’s mental health which may result from an adverse decision.
Weighing these considerations, the Tribunal is satisfied that the considerations against the revocation of the cancellation of the Visa outweigh the considerations in favour. Accordingly, the Tribunal is not satisfied that there is another reason to revoke the cancellation of the Applicant’s visa pursuant to s 501CA(4)(b)(ii) of the Act.
Decision
The Tribunal affirms the decision under review.

I certify that the preceding 143 (one hundred and forty-three) paragraphs are a true copy of the reasons for the decision herein of Member R West

............................[SGD]............................................
Associate
Dated: 21 April 2023

Dates of hearing: 4, 5 and 13 April 2023

Applicant: Self-represented

Advocate for the Respondent: David Brown

Solicitors for the Respondent: The Australian Government Solicitor

Dates of hearing:	4, 5 and 13 April 2023
Applicant:	Self-represented
Advocate for the Respondent:	David Brown
Solicitors for the Respondent:	The Australian Government Solicitor