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

ZJFQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 4492 (5 October 2023)
Division:                  GENERAL DIVISION
File Number(s):      2023/5130
Re:ZJFQ
APPLICANT

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

DECISION

Tribunal:Senior Member Dr Linda Kirk
Date:5 October 2023
Date of written reasons: 15 November 2023
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the Reviewable Decision dated 12 July 2023 to refuse to revoke the Mandatory Visa Cancellation Decision and, in substitution, decides that the cancellation of the Applicant’s Global Special Humanitarian (Class XB) (Subclass 202) visa is revoked.
...................................[SGD].....................................
Senior Member Dr Linda Kirk

CATCHWORDS

MIGRATION – mandatory cancellation of Applicant’s visa – Applicant has a substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – other considerations – legal consequences of the decision – extent of impediments if removed – decision under review set aside and substituted
LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES

FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR and Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
Jal v Minister for Immigration and Border Protection [2016] AATA 789
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration v HSRN [2023] FCAFC 68

PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 587
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Viane v The Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13

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
WRITTEN REASONS FOR DECISION

Senior Member Dr Linda Kirk
15 November 2023

ZJFQ (‘the Applicant’) is a 29-year-old citizen of Afghanistan who arrived in Australia on 31 May 2017 as the holder of a Global Special Humanitarian (Class XB) (Subclass 202) visa (‘the visa’) that was granted on 13 March 2017.[1]
[1] Exhibit R1, G23, 121.
On 15 October 2021, the Applicant was convicted in the ACT Supreme Court of Attempt sexual intercourse without consent, Sexual intercourse without consent and two counts of Act of indecency without consent. He was sentenced to three terms of 12 months’ imprisonment respectively.[2]
[2]Ibid, G6, 35.
On 1 November 2021, the Applicant’s visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) (‘the Mandatory Visa Cancellation Decision’) because a delegate of the Minister (‘the Respondent’) was satisfied that the Applicant did not pass the character test in subsection 501(6) of the Act as he was considered to have, pursuant to subsection 501(7)(c), a ‘substantial criminal record’ within the meaning of section 501(6)(c) as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution: section 501(3A)(b).[3] At the time, the Applicant was serving a sentence of full-time imprisonment at the Alexander Maconochie Centre (‘AMC’) in the Australian Capital Territory (‘ACT’) for an offence against a law in Australia. The Applicant was invited to make representations to the Respondent about revoking the decision to cancel his visa within 28 days of receipt of the Mandatory Visa Cancellation Decision.5F[4]
[3] Ibid, G23, 121.
[4] Ibid, G23, 124.
On 6 December 2021, within the prescribed period, the Applicant made representations seeking revocation of the Mandatory Visa Cancellation Decision.[5]
[5] Ibid, G16, 94.
On 12 July 2023, a delegate of the Respondent decided, under subsection 501CA(4) of the Act, not to revoke the Mandatory Visa Cancellation Decision (‘the Reviewable Decision’).[6]
[6]Ibid, G4, 18.
On 5 May 2023, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Reviewable Decision under subsection 500(1)(ba) of the Act.8F[7]
[7]Ibid, G2, 4.
The matter was heard by the Tribunal on 25 September 2023. The Applicant attended the hearing in person, gave oral evidence and was self-represented. He was assisted by an interpreter in the English and Persian languages.
The material before the Tribunal consists of:
- Section 501 G-Documents (G1 – G26, pp. 1 – 156) filed 25 July 2023 – Exhibit R1
- Respondent’s Supplementary Documents (S1 – S24, pp. 1 – 340) filed 4 September 2023 – Exhibit R2
- Respondent’s Statement of Facts, Issues and Contentions dated 15 August 2023 (‘RSFIC’)
The Tribunal has reviewed the evidence before it and refers to relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7) of the Act provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)   been found by a court to not be fit to plead, in relation to an offence; and
(ii)     the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)   as a result, the person has been detained in a facility or institution.
Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision.
MINISTERIAL DIRECTION NO. 99
Sub-section 499(1) of the Act provides:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Sub-section 499(2A) of the Act provides that “A person or body must comply with a direction under subsection (1).”
On 23 January 2023, the Minister, for the purposes of section 499 of the Act, made a Direction titled Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The commencement date for operation of the Direction was 3 March 2023.[8]
[8] Upon its commencement, the Direction revoked the operation of “Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”.
Paragraph 5.1 sets out the objectives of the Direction. Sub-paragraphs 5.1(1) and (2) provide:
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
(2)Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
Paragraph 5.1(4) provides:
(4)The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of the Direction sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse a visa under section 501 of the Act. These principles are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable (sic) 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 noncitizens 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 cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens 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 non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(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 [sic] risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘information and evidence from independent and authoritative sources should be given appropriate weight.’
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[9] Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as Kenny and Mortimer JJ stated in their joint judgment in Jagroop v Minister for Immigration and Border Protection and Another, ‘the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under section 501’.[10]
[9]Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
[10](2016) 241 FCR 461 [57].
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account. They are:
1)protection of the Australian community from criminal or other serious conduct;
2)whether the conduct engaged in constituted family violence;
3)the strength, nature and duration of ties to Australia;
4)the best interests of minor children in Australia; and
5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
a)legal consequence of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
ISSUES FOR DETERMINATION
Before the power in subsection 501CA(4) of the Act to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by subsection 501CA(4)(a) of the Act. The issue before the Tribunal is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo,13F[11] the Full Court of the Federal Court of Australia made the following observations in relation to sub-section 501CA(4):
[11] [2018] FCAFC 151.
there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view ...[12]
[12] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are:
1)whether the Applicant passes the ‘character test’; and
2)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Migration to and life in Australia
The Applicant was born in Shiraz in Iran in 1994.[13] He is one of eight children and the eldest son. The Applicant and his family are of Hazara ethnicity and the Shia Muslim religion.[14] The Applicant’s parents were born in Afghanistan and moved to Iran before he was born. He does not have Iranian citizenship and has never resided in Afghanistan.[15] He speaks Persian and Dari.[16]
[13] Transcript of proceedings, 25 September 2023, 4.
[14]Ibid, 43.
[15]Ibid, 5.
[16]Ibid, 9.
The Applicant had a difficult childhood characterised by poverty. He was required to commence work from a young age to support his family. His father neglected him and perpetrated physical violence towards members of the family, including him.[17] The Applicant completed schooling in Iran to the equivalent of year 8. He was then employed as a tailor and a hairdresser.[18] The Applicant migrated to Australia with his parents and five of his siblings in 2017. His two older sisters remained in Iran with their families.[19]
[17]Exhibit R1, G11, 72, [14]; Exhibit R2, S18, 119.
[18]Exhibit R1, G11, 72, [16].
[19] Transcript of proceedings, 25 September 2023, 8.
In Australia, the Applicant studied English full-time for a period of three months at the Canberra Institute of Technology and received a Level 1 certificate.[20] He worked as a tailor, an apprentice barber and, for the month prior to being incarcerated, as a labourer.[21] Before being incarcerated, the Applicant lived alone in a Housing ACT property.[22]
[20]Exhibit R1, G16, 96.
[21]Exhibit R1, G11, 72, [16]; Transcript of proceedings, 25 September 2023, 49.
[22]Exhibit R1, G11, 72, [15].
Drug use
The Applicant became addicted to opioid medications when he was between 17 and 19 years old. He irregularly smoked cannabis while in Iran, but he abstained for several months once he arrived in Australia. In the months preceding his incarceration, the Applicant increased his use of cannabis to two grams per day as a coping mechanism for his stress and because of antisocial influences on his life.[23] He has also used synthetic cannabis.[24] He has not engaged in any interventions specifically targeted toward addressing his cannabis addiction. He has previously engaged with Companion House, although not specifically in relation to his drug use.[25]
[23]Ibid, G11, 72, [17].
[24]Transcript of proceedings, 25 September 2023, 17.
[25]Exhibit R1, G11, 73, [17].
During his oral evidence at the hearing, the Applicant told the Tribunal that he used cannabis when he was in prison. He can access cannabis and smokes it ‘sometimes’ in Villawood Immigration Detention Centre (‘VIDC’).[26]
[26] Transcript of proceedings, 25 September 2023, 16, 18.
Criminal history in Australia

The Applicant’s National Criminal History Check dated 25 February 2022 records his criminal convictions in Australia.32F[27]
[27]Exhibit R1, G6, 34-37.
January 2020 offending
On 20 November 2020, the Applicant was convicted of Sexual Intercourse/10 years old under 16 years and was sentenced to a term of imprisonment of one year and three months, and a good behaviour bond of 18 months.[28]
[28]Ibid, G6, 36.
The facts of the Applicant's offending were summarised by Mossop J in his judgment as follows:[29]
[29][2021] ACTSC 272; Exhibit R1, G11, 71 at [2]–[6].
…
2.On 17 January 2020, the victim, who was 16 years old at the time, had been hanging out with her friends at the Woden shopping centre. When her friends decided to go home, she decided to meet up with someone called Jacob who she had met on Snapchat about a month earlier but had never met in person. She met up with Jacob outside David Jones. Jacob arrived with a friend, the offender. The males said they were going to smoke “weed”. The victim accompanied Jacob and the offender in the offender’s car to their apartment. The men were smoking on the balcony and talking to each other in a foreign language that the victim could not understand. They then moved into the lounge room.
3.Jacob said he wanted to have a nap. The offender asked Jacob to sleep in the other room so that he could spend some time with the victim. The offender came close to the victim and kept trying to touch her on her legs and knees. She felt uncomfortable. The offender forced her to touch his penis and she said she did not want to do anything. The victim moved rooms to sit near Jacob. Jacob then left the unit. The offender moved his mattress into the living room, lifted the victim up and put her on the mattress. He tried kissing her while she was moving her head from side to side and he was holding her arms (This is count 1 – act of indecency without consent).
4.At one point, the offender pulled down his pants and tried to take the victim’s underwear off and put his penis in her vagina (This is count 2 – attempted sexual intercourse without consent).
5.When the victim told the offender to stop doing this, he got up and tried to put his penis in her mouth. The tip of his penis was in her mouth for a couple of seconds until she was able to pull her head back and remove it (The offender intentionally putting his penis into the victim’s mouth gives rise to count 3 – sexual intercourse without consent).
6.The offender then masturbated and ejaculated onto the victim’s face and shirt (This is count 4 – act of indecency without consent).

Mossop J assessed count 1 (the act of indecency) as ‘low to mid- range’, count 2 (attempted sexual intercourse) as ‘mid-range’, count 3 (sexual intercourse without consent) as ‘low to mid-range’ and count 4 (indecency without consent) as ‘above the mid-range’.[30]
[30]Exhibit R1, G11, 72, [9]–[12].
The Applicant told the Tribunal that he pleaded not guilty to these offences.[31] He said that he believed that the sex he had with the victim ‘was 100 percent consensual.’[32] He was asked how he knows a person consents to sexual activity with him. He stated:[33]
Well, reading body language and making sure that – for example, not bringing – not being – breaking their boundaries in any way … or make her upset in any way …
[31] Transcript of proceedings, 25 September 2023, 23.
[32]Ibid, 24.
[33]Ibid, 23, 24.
May 2020 offending
On 15 October 2021, the Applicant was convicted in the ACT Supreme Court of Attempt sexual intercourse without consent, Sexual intercourse without consent and two counts of Act of indecency without consent.
The facts of the Applicant's offending were summarised by Burns J as follows:[34]
…
4.The Crown's Statement of Facts states that between March and May 2020 you and the victim, who was 14 years old at the time, were in a relationship. You were 26 years old. The two of you met through a mutual friend.
5.You and the victim exchanged messages through SnapChat including declarations of love for one another and plans for the victim to visit you at your home. Between April and May 2020, the victim attended your residence at a suburb in Canberra on five or six occasions. She told police that on each such occasion you asked her to have sex with you. She told you she did not want to have sex which you accepted.
6.On 14 May 2020, however, the victim attended your residence and you engaged in penile-vaginal sexual intercourse with her. She had told you that she was 14 years old and you told her that you were 23 years old. It has been accepted that there was a true sense of affection between you and the victim.
[34][2020] ACTSC 335; Exhibit R1, G12, 77 at [4]–[6].
Burns J assessed the objective seriousness of the offending as ‘on the border of the lower and mid-range for such offences'’[35]
[35]Exhibit R1, G12, 77 at [9].
The Applicant told the Tribunal that he pleaded guilty to these offences.[36]
[36] Transcript of proceedings, 25 September 2023, 20.
Other offending
Information produced by ACT Police records that a Family Violence Order (‘FVO’) was imposed on the Applicant on 30 August 2018 following a physical altercation with his sister on 29 August 2018.[37] During her interview with the police, the Applicant’s sister said that the Applicant slapped her on the face and grabbed her by the collar.[38] The FVO was for a period of 12 months during which time the Applicant was not permitted to go near his family or the family home.[39] On the evening of 30 August 2018, the Applicant went to the family home in contravention of the FVO and he was arrested.[40] On 4 September 2018, the Applicant was convicted in the ACT Magistrates Court of Contravene Family Violence Order and given a 12 month good behaviour bond.[41]
[37]Exhibit R2, S22, 182-188.
[38]Ibid, S22, 187.
[39] Transcript of proceedings, 25 September 2023, 12.
[40]Exhibit R1, G13, 80-81.
[41]Ibid, G6, 37.
In his oral evidence, the Applicant explained that the FVO was imposed after his mother contacted the police following an argument between him and his sister about the whereabouts of his toothbrush.[42] He told the Tribunal that his mother contacted the police due to her ‘mental health issue.’[43] He said he does not remember going to the family home in contravention of the FVO.[44]
[42] Transcript of proceedings, 25 September 2023, 11.
[43] Transcript of proceedings, 25 September 2023, 10.
[44]Ibid, 14.
On 17 December 2020, the Applicant was convicted in the ACT Magistrates Court for the offences of Driver/driver trainer prescribed drug in oral fluid/blood, Drive while licence suspended by law, Drive with prescribed drug in oral fluid/blood, and Aggravated furious/reckless/dangerous driving, for which he was sentenced to a total term of five months’ imprisonment. He was also convicted and fined for the offences of State false/misleading to RTA/auth off./police and Fail to appear after bail undertaking-crt.[45]
[45]Exhibit R1, G6, 35-36.
In his oral evidence, the Applicant told the Tribunal that he drove after he had used cannabis which did not affect his driving or behaviour.[46] He said he was a regular cannabis user, and he was often caught driving with it in his system and he lost his licence. He agreed that he was speeding and was caught.[47] He told the Tribunal that he would now not drive after using cannabis because he ‘would like to respect that and go by the rules.’[48]
[46] Transcript of proceedings, 25 September 2023, 14.
[47]Ibid, 15.
[48]Ibid, 16
Remorse and responsibility for offending
An ACT Corrective Services Pre-Sentence report dated 6 October 2021 stated:[49]
[The Applicant] did not fully agree with the facts surrounding his current offences and did not take responsibility for his actions. His lack of empathy for the victim was evident as he blatantly commented the victim had been lying and was seeking financial gain from this incident. [The Applicant] has several unaddressed criminogenic needs, although it is noted he is currently ineligible for these interventions at the AMC.
[49]Exhibit R2, S19, 131.
In a statement included with his revocation request, the Applicant wrote:[50]
4. About the criminal conviction
I maintain my innocence despite the conviction and imprisonment. It was on legal advice that I did not appeal the conviction.
[50]Exhibit R1, G16, 96.
During his oral evidence at the hearing, the Applicant stated:[51]
… I am remorseful about my action, about my charges or conviction. I’m not going to re-offend, I’m going to open a healthy relationship, open a healthy life, besides my (indistinct). Yes, and I can guarantee that I’m not going to re-offend.
[51] Transcript of proceedings, 25 September 2023, 21.
During cross-examination, it was put to the Applicant that his statement of remorse is inconsistent with his earlier claim that he maintains his innocence. He responded as follows:[52]
Yes, I did maintain my innocence at that time.
…
Now I changed my mind, and I decided to live after this and continue my life. Yes, I found that I can get more happiness out of my life, If I let go whatever it was in the past. So continually not trying to fight it, you know what I’m saying, I was living with it so, yes.
[52]Ibid, 22.
He was asked whether he accepts that he did something wrong. He stated:[53]
If you’re asking me that I did commit the crime, no. I’m admitting that my behaviour wasn’t the same as it should, or my goals were, you know, the goals that I have, I didn’t have the same behaviour, so I guess that’s why I had a different (indistinct) and, yes.
[53]Ibid.
The Applicant explained to the Tribunal how he is remorseful for his behaviour:[54]
Well, as I said, I have been changing my behaviour. I am remorseful for my action, which was, like, getting into this kind of relationship, that’s why I’m remorseful, and disappointed of myself. So if I don’t – going to have such kind of relationship, or connection, then I’m going to have a healthy relationship, getting married, (indistinct words). Not having communication with strangers, I would say. Well, I’m not going to have such a problem again, would I?
[54]Ibid, 24.
The Applicant told the Tribunal that when he met the 14 year old victim, he believed she was over 18 years of age, but ‘she ended up being 14 years old.’[55] He said that after they had been together for a while, he found out she was underage, and he ‘tried to ask her that (sic) we should end this relationship as it’s illegal’ but ‘she wouldn’t accept that.’ They ‘both agreed to stay with each other’ and he ‘got caught after.’[56] He continued:[57]
Because after the fact that I knew, I still stayed with her. So I accept that and I plead guilty. But in my heart, I don’t feel guilty, because I was trying (indistinct). I wasn’t trying to take advantage ...
[55]Ibid, 25.
[56]Ibid, 26.
[57]Ibid.
The Applicant was asked whether he has thought about how his actions may have impacted on his victim. He stated:[58]
Well, what I see is like, she was happy to even stay with me, you know. She didn’t have, like, sometimes place to go. She wasn’t happy with her mums (sic). She wasn’t happy from her parents, her family, her brothers, her father. She explained all that to me … so while she was there with me, I didn’t see anything bad going to impact her life in future.
…
I even had messages on my last phone which I didn’t get it from the police, that she was saying that, like, five, four, 4 o’clock, 5 o’clock in the morning she was calling me, messaging me that, ‘I’m going purple from cold. Got nowhere to go. Would you come pick me up?’. So I go and pick her up and bring her home, and grab her food, you know.
[58]Ibid, 27.
The Applicant was asked whether he believes that he took advantage of the victim’s vulnerable situation. He replied, ‘Not at all.’[59] He disagreed with the proposition that he has, or had in the past, a ‘poor attitude towards women.’[60]
[59]Ibid, 28.
[60]Ibid, 31.
The Applicant was asked whether he accepts that he has sought to minimise his offending, which he denied. He stated:[61]
I disagree with this kind of crime. I do not like it. That’s why I have consider everywhere in my life I can picture everything, I decided to go ahead with a healthy relationship beside my family. Not, for example, behave like I were – or used to.
[61]Ibid, 29.
In his statement, the Applicant wrote:
I have changed my behavior. I wish to get married in the future and will never re-offend.
During cross-examination, he was asked how he plans to change his behaviour. He said in the future he would not go to the places he and his friends previously frequented.[62] He is no longer in contact with Jacob.[63]
[62]Ibid.
[63]Ibid.
Risk of re-offending
An ACT Corrective Services Community Corrections Pre-sentence Report dated 18 November 2020, prepared for the Applicant’s offence of Sexual intercourse 10 years old under 16 years committed in January 2020 stated:[64]
[The Applicant] attempted to justify his actions by claiming he was unaware that the victim was underage. He further attempted to justify his actions and stated she ‘looked older’ and alleged she lied to him about her age. [The Applicant] claimed he terminated the relationship and made attempts to cease communication with the victim after he was made aware that he had committed an offence.
[The Applicant] appeared to minimise his offending behaviour by placing accountability on the victim, stating she would not ‘leave him alone’ and made it clear she did not want their relationship to end. It is concerning that [the Applicant] appeared to focus on the impact the current offence had on him rather than the victim, and made it clear he should not be incarcerated as a result of his offending behaviour.
[64]Exhibit R2, S19, 126.
With respect to the likelihood of the Applicant engaging in further criminal or other serious conduct, Mossop J stated in his judgment as follows:
Obviously of concern is the attitude of the offender to sexual offending, as disclosed in the pre-sentence report and the attitude to sexual relations disclosed in the evidence in the case, referred to in the earlier reasons: see … [2021] ACTSC 157 at [117]-[132]. The foundation for these attitudes is not clear. I accept the opinion of the author of the pre-sentence report that the risk of sexual reoffending is above average. The accuracy of that is reflected in the fact that following the offending in the present case, the offender committed a further offence involving an underage girl.
Another ACT Corrective Services Community Corrections Pre-sentence report dated 6 October 2021, prepared for the purpose of sentencing the Applicant for the sexual offences he committed in May 2020, stated:[65]
[The Applicant] did not fully agree with the facts surrounding his current offences and did not take responsibility for his actions. His lack of empathy for the victim was evident as he blatantly commented the victim had been lying and was seeking financial gain from this incident. [The Applicant] has several unaddressed criminogenic needs, although it is noted he is currently ineligible for these interventions at the AMC. Based on his pattern of sexual offending, he would benefit from participating in the Sex Offender Treatment Program, which would encourage the offender to develop skills, abilities, knowledge and commitment to prevent further sexual reoffending. This program is available at the AMC and in the community.
[65]Ibid, S19, 130.
In relation to the risk of the Applicant re-offending, the report stated:[66]
[The Applicant] is a 27-year-old man assessed as medium risk of general reoffending and above average risk of sexual reoffending. His criminogenic needs are related to his beliefs and attitudes towards consent and sexuality, substance dependency issues, mental health including trauma, and antisocial influences. [The Applicant] reported having some familial support, however this could not be confirmed. While [the Applicant] has a current tenancy in Phillip, his residency visa may be liable for cancellation after sentencing.
[66]Ibid, S19, 131.
Programs and courses
When he was in prison, the Applicant completed the following courses: Self-Esteem, Thrive1, Keeping Myself Well, Goal Setting, Introduction to Recovery and the Healthy Relationships Program.[67] He told the Tribunal that the Healthy Relationships Program included six sessions a week every week, and he learned ‘heaps’ including ‘the way I look at other people’s opinion’.[68]
[67]Ibid, S17, 108-113.
[68] Transcript of proceedings, 25 September 2023, 32.
In the statement included with his revocation request, the Applicant explained the reason for why he had not undertaken rehabilitation programs in prison, including the Sex Offender Treatment Course:
The rehabilitation programs, courses and counselling normally offered by AMC have been suspended due to COVID. Once they are being offered again, I am more than willing to take these programs, courses and services.[69]
[69]Exhibit R1, G16, 96; Transcript of proceedings, 25 September 2023, 32.
The Applicant was eligible to undertake the EQUIPS Addiction course in gaol, and he attended for three weeks but did not complete it.[70]
[70] Transcript of proceedings, 25 September 2023, 34.
Behaviour in prison
ACT Corrective Services reports record that the Applicant was involved in a number of verbal and physical altercations with prison staff and other detainees.[71] In his oral evidence, the Applicant was asked whether he had ‘multiple problems with guards and other prisoners’ to which he replied, ‘guilty as charged.’[72] He told the Tribunal that he had both verbal and physical fights with officers and fellow prisoners, and he had to ‘stand up’ for himself and ‘fight back’.[73] He stated:[74]
I got pushed into lots of pressure, mentally or physically. And as I said, I was in lots of anger so I snapped. So I did misbehave, break the law …
[71]Exhibit R2, S13-S15.
[72] Transcript of proceedings, 25 September 2023, 38.
[73]Ibid, 40, 41.
[74]Ibid, 52.
The Applicant was asked whether he would react badly and be argumentative with people who provoked him if he returned to the community. He stated, ‘Not a chance, to be honest’ and said he would not ‘pay that much attention.’[75]
[75] Ibid, 39.
One report records that a search of the Applicant’s cell in October 2021 identified items including a bong, an insulin needle cap, a manual tattooing implement, numerous torniquets and an ‘unknown substance’.[76] The Applicant told the Tribunal that he and his cell mate were sharing the bongs and the substance found which was cannabis. He said he had ‘no idea’ about the insulin needle cap or the manual tattooing implement that was found in the cell.[77] He had to ‘take the blame’ and he ‘went to segregation.’[78]
[76]Exhibit R2, S13, 38.
[77] Transcript of proceedings, 25 September 2023, 18.
[78]Ibid, 19.
Mental health
In October 2020, the Applicant reported to an ACT Corrections Officer that he had experienced depression from childhood, which was exacerbated when he experienced family issues following his arrival in Australia.[79] The Applicant’s counsellor from Companion House reported that he engaged with their service a number of times during 2018 and 2019. He reported symptoms of anxiety and difficult family relationships, including not feeling safe in his family home. The counsellor also noted the Applicant’s long history of trauma in Iran and often presenting as anxious.[80]
[79]Exhibit R2, S18, 120.
[80]Ibid, S18, 120.
The Applicant has not sought professional help to manage his feelings of anxiety and unaddressed childhood trauma.[81] He has been prescribed with medication for his anxiety and sleeping difficulties.[82] He told the Tribunal that he asked to see someone about his mental health when he was in prison, but he ‘never got treatment’.
[81] Transcript of proceedings, 25 September 2023, 35.
[82]Exhibit R1, G11, 73, [18].

When the Applicant was transferred to VIDC in April 2023, an initial mental health assessment was undertaken and he said that he did not have any mental health concerns.[83] The Applicant told the Tribunal that mental health treatment ‘wasn’t available’ to him in VIDC and so he managed himself.[84] He said that he recently requested to see someone about his mental health, but this has not occurred:[85]
I did ask that, specifically, that I said, ‘Look, I am getting concerned. I can’t get my things done, all of my mental health. I need to really help, support, maybe even, too, because I have been late for my legal processing, so can I please get help?’ … They – they said they going to, like, get someone to come to see me, but I haven’t had anything.
[83]Transcript of proceedings, 25 September 2023, 37
[84]Ibid, 35.
[85]Ibid, 36.
The Applicant told the Tribunal that if he returns to the community, he will speak to a doctor about the medication he is taking, and get some advice about seeing a psychologist or counsellor about the panic attacks and anxiety he has experienced.[86]
[86]Ibid, 48.
Applicant’s family members
The Applicant has immediate family members who reside in Australia, being his mother (SAM), father (AMA), older sister (SAS), younger sister (MAS), younger brother (HAB), and two minor aged brothers FAB1, aged 16 years, and FAB2, aged 12 years.[87]
[87]Exhibit R1, G17, 103.
In the statement included with his revocation request, the Applicant wrote:
My parents and most of my siblings are Australian permanent residents. They will be deeply upset if I am removed from Australia. I am close to my family members here especially my mother and sisters. We speak with one another regularly.
In his oral evidence, the Applicant told the Tribunal that his mother, three brothers, and one sister visited him once when he was in prison.[88] Currently, he speaks to his mother on the phone twice a week, and to his father every two or three weeks. He is not regularly in contact with his siblings.[89]
[88] Transcript of proceedings, 25 September 2023, 7, 8.
[89]Ibid, 6.
The Applicant’s younger brother, FAB2, provided a statement dated 7 December 2021 in which he stated that he misses his big brother ‘a lot’ and that he never wants to lose him, nor does he want to see his mother cry.[90] The Applicant’s other minor aged brother FAB1 provided a written statement dated 7 December 2021 in which he wrote that his brother is a ‘nice guy’ and that he ‘takes good care of his family’, and the Applicant’s current situation has made his mother cry.[91]
[90]Exhibit R1, G20, 118.
[91]Ibid, G21, 119.
The Applicant’s older sister, SAS provided an undated statement in support of the Applicant.[92] She wrote that the Applicant understands that he ‘faced the consequences of his actions’ and he has promised her that ‘he has learned from his mistakes.’
[92]Ibid, G22, 120.
Future plans
The Applicant’s evidence is that if he is permitted to return to the community, he will live with his parents in Canberra until he finds his own house.[93] He is ‘confident’ he will find a job as he has skills in tailoring, hairdressing, and construction.[94]
[93]Transcript of proceedings, 25 September 2023, 45, 49, 51.
[94]Ibid, 45.
The Applicant told the Tribunal that his mother has arranged for him to be married to a woman in Iran. She is two or three years younger than him, and he met her in around 2014-15 before he left Iran. He plans to travel back to Iran and bring his prospective spouse with him back to Australia.[95] He agreed that the marriage will not happen until he has found a job and is ‘back on his feet’.[96]
[95]Ibid, 47.
[96]Ibid, 50.
Fear of harm on return to Afghanistan
In his statement included with his revocation request, the Applicant wrote:
I fear violence and death if I were to be sent back to Afghanistan. I ask the Minister to consider Australia's non-refoulment obligations under international law of not returning refugees to the country that they escaped from. We are Hazaras and of the Shia faith. I strongly believe that I would be killed if returned to Afghanistan.
During his oral evidence, the Applicant told the Tribunal:[97]
… I do have fear. I never lived there, I can’t speak the same of them, which these days, Afghanistan under the control of Taliban and they speak Pashtu. I can’t speak Pashtu … I’m not part of their faith.
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[97]Ibid, 42.
1)Does the Applicant pass the ‘character test’?
In the representations and material that the Applicant submitted to the Department and the Tribunal, he does not dispute the information in the National Criminal History Check report dated 25 February 2022 recording his criminal convictions and sentences. It relevantly records that on 15 October 2021, the Applicant was convicted in the ACT Supreme Court of Attempt sexual intercourse without consent, Sexual intercourse without consent and two counts of Act of indecency without consent and he was sentenced to three terms of 12 months’ imprisonment respectively. The Tribunal is satisfied that the Applicant has a ‘substantial criminal record’ for the purposes of section 501(3A)(a) and section 501(6) of the Act as he has been sentenced to a term of imprisonment of 12 months or more: section 501(7)(c). The Tribunal is also satisfied, for the purposes of section 501(3A)(b) of the Act, that on 1 November 2021 the Applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the ACT.
The Tribunal is satisfied that the Applicant does not satisfy the character test because he has a ‘substantial criminal record’ as defined in section 501(7)(c) of the Act, and accordingly it finds that section 501CA(4)(b)(i) of the Act cannot be invoked to revoke the Mandatory Visa Cancellation Decision.
2)Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
In determining whether pursuant to section 501CA(4)(b)(ii) of the Act there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must, in accordance with paragraphs 8 and 9 of the Direction, take into account the relevant ‘primary considerations’ and ‘other considerations’. The existence or otherwise of ‘another reason’ is to be established on the balance of probabilities.
The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Federal Court of Australia in Viane v The Minister for Immigration and Border Protection:[98]
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
PRIMARY CONSIDERATIONS
[98] [2018] FCAFC 116; 162 ALD 13 per Colvin J, [64].
Primary Consideration 1 – Protection of the Australian community
Paragraph 8.1 of the Direction provides that, when decision-makers are considering the protection of the Australian community, they:
(1) … should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non- citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)Decision-makers should also 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.
a)Nature and seriousness of the conduct
Paragraph 8.1.1 of the Direction provides:
(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
a)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;
b)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;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
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).
h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Guided by paragraph 8.1.1(1)(a)(i) of the Direction, the Tribunal finds that the Applicant’s sexual offences are very serious. The victim of the sexual offences for which the Applicant was sentenced on 20 November 2020 was a child aged 14, and the victim of the crimes for which he was sentenced on 15 October 2021 was, at the time of the offences, a child aged 16. This paragraph of the Direction recognises sexual crimes are viewed very seriously by the Australian Government and the Australian community. The Applicant’s offending also includes contravention of a FVO. Paragraph 8.1.1(1)(a)(iii) of the Direction recognises that acts of family violence, regardless of whether there is a conviction for an offence, or a sentence imposed, are viewed very seriously.
Paragraph 8.1.1(1)(b)(ii) of the Direction relevantly recognises that crimes committed against vulnerable members of the community are considered serious by the Australian Government and the Australian community. The evidence from the 14-year-old victim of the Applicant’s May 2020 offending disclosed to police and the Court that she has a disability.[99]
[99]Exhibit R1, G10, 56 at [93] and G10, 57 at [96].
Having regard to paragraph 8.1.1(1)(c) of the Direction, the Tribunal finds that the custodial sentences imposed on the Applicant are an objective indicator of the seriousness of his criminal offending. The Applicant was sentenced by the ACT Supreme Court to three terms of 12 months’ imprisonment for the sexual offences for which he was convicted in October 2021, and one year and three months’ imprisonment for the sexual offences for which he was convicted in November 2020. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved.[100]
[100] Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50]; Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 587.
Relevantly to paragraph 8.1.1(d) of the Direction, the Applicant's criminal record demonstrates that his offending has been frequent and has displayed a trend of increasing seriousness. Following the Applicant’s contravention of a FVO in 2018, and the traffic offences he committed in 2019, his offending escalated to serious sexual offences against two minor aged girls in January 2020 and May 2020 respectively. The increasing seriousness of the Applicant’s offending is further demonstrated by the significant periods of imprisonment imposed on him by the ACT Supreme Court in respect of these offences.
Paragraph 8.1.1(e) of the Direction states that a factor to be considered is the cumulative effect of repeated offending. The Applicant's criminal history records a significant number of offences, in various instances involving the same or similar conduct committed on multiple occasions. The Tribunal finds that the cumulative effect of the Applicant’s offending is serious, having regard to both the seriousness of the conduct itself, and that it occurred on multiple occasions.
On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant’s criminal offending is very serious in nature, and this weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c) where consideration is being given to whether to refuse to grant a visa to the non-citizen- whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
a)Nature of harm to individuals or the Australian community
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to re-offend in accordance with paragraph 8.1.2(2)(a) of the Direction, the Tribunal finds that should the Applicant commit sexual offences in the future, there is an obvious risk of serious physical and psychological harm to members of the community, particularly young women. In addition, any further driving offences committed by the Applicant may result in physical harm to other road users.
In assessing whether the Applicant represents an unacceptable risk of harm to the Australian community, the Tribunal has had regard to paragraph 8.1.2(1) of the Direction, which recognises that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. As the seriousness of the harm that would be caused to the victims of any future offending by the Applicant is significant, the Tribunal finds that the Australian community would have a very low tolerance for any risk that he would repeat his offending behaviour.
For these reasons, the Tribunal finds that the serious nature of the harm to individuals, particularly women, should the Applicant continue to commit criminal offences is such that any risk that it may be repeated is unacceptable.
b)Likelihood of the Applicant engaging in further criminal or other serious conduct
Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 8.1.2(2)(b) of the Direction, the Tribunal has considered the available information and evidence before it and finds, for the reasons that follow, that the risk of the Applicant re-offending is moderate to high.
The ACT Corrective Services Community Corrections Pre-sentence report dated 6 October 2021, prepared for the purpose of sentencing the Applicant for the sexual offences he committed in May 2020, assessed him as a ‘medium risk of general reoffending’ and an ‘above average risk of sexual reoffending.’ It found that his ‘criminogenic needs related to his beliefs and attitudes towards consent and sexuality, substance dependency, mental health, including trauma, and antisocial influences.’ It recommended that the Applicant participate in the Sex Offender Treatment Program, which ‘would encourage him to develop skills, abilities, knowledge and commitment to prevent further sexual reoffending.’
The evidence before the Tribunal is that the Applicant was unable to undertake the Sex Offender Treatment Program when he was in prison due to the COVID-19 restrictions. However, he did complete several courses and programs in prison, including the Healthy Relationships Program. The Applicant claims to have a better understanding of how he can determine whether an intimate partner consents to sexual activity, and he now accepts that his sexual relations with his two victims were criminal behaviour under Australian law. He continues to regularly use cannabis, and he claims not to have an addiction to any other illicit or prescribed drugs. The Applicant recognises that he suffers from anxiety, however he has not received any counselling or other psychological treatment in prison or immigration detention. His evidence is that when he returns to the community, he will seek the advice of a general practitioner in relation to his prescribed medication and obtain a referral to a mental health professional.

In assessing the Applicant’s risk of re-offending, the Tribunal has given weight to the protective factors that are present which may reduce the likelihood that the Applicant will commit further offences. These include the Applicant’s immediate family members who reside in Canberra, particularly his parents with whom he will live until he finds his own accommodation. The Applicant has a range of work skills in areas of demand, including tailoring, hairdressing, and construction, and he should be able to find employment. He is also planning to soon marry the woman his family has chosen for him in Iran, and he will thereby be in an appropriate and stable relationship. The Tribunal finds that the relatively secure living conditions and work opportunities that the Applicant will face upon his release will allow him to re-establish himself in the community, and will provide protective factors that should lower his risk of reoffending.
Based on the evidence before it and having regard to the available information in relation to the Applicant’s rehabilitation, the Tribunal finds that the risk of the Applicant re-offending has not changed significantly from the assessment in the ACT Corrective Services Community Corrections Pre-sentence report dated 6 October 2021, which assessed him as a ‘medium risk of general reoffending’ and an ‘above average risk of sexual reoffending.’ It makes this finding for reason that the Applicant has not engaged in any rehabilitation programs designed specifically for sex offenders, he continues to use cannabis, he has not yet received medical treatment for his anxiety condition, and he has not demonstrated that he fully understands the concept of consent or appreciates that sexual relations with underage girls is unlawful. Accordingly, the Tribunal finds that the likelihood that the Applicant will engage in further criminal or other serious conduct, specifically sexual offences, is moderate to high.
(c)whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay and the type of visa being applied for
Relevantly to paragraph 8.1.2(2)(c) of the Direction, the Tribunal finds that the fact that the Applicant will resume his status as a permanent resident of Australia should the Mandatory Visa Cancellation Decision be set aside increases the duration of the period that members of the community will be at risk should the Applicant re-offend.
On the basis of the evidence before it and taking into account the available information and evidence of the risk of the Applicant re-offending and his rehabilitation, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is moderate to high. In the context of the potential harm to the Applicant’s victims should he engage in the same or similar criminal conduct in the future, and the fact he is seeking the reinstatement of a permanent visa, the Tribunal finds this risk to be unacceptable.
For the reasons above and applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, Primary Consideration 1 weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary consideration 2 – Family violence committed by the non-citizen
Paragraph 8.1.1(2) of the Direction prescribes that this consideration is relevant where the non-citizen has been convicted of an offence that involves family violence and/or there is information or evidence from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence.
Paragraph 8.2 of the Direction provides:
1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
2)This consideration is relevant in circumstances where:
a)    a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)    there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
3)In considering the seriousness of the family violence engaged in by the 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, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
Paragraph 4(1)(a), (c) and (e) of the Direction define the phrase ‘family violence’ as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family […], or causes the family member to be fearful’, and includes ‘assault’, ‘stalking’ and ‘intentionally damaging or destroying property’. On 4 September 2018, the Applicant was convicted in the ACT Magistrates Court of Contravene Family Violence Order and given a 12 month good behaviour bond.[101]
[101]Exhibit R1, G6, 37.
The Tribunal notes that the Applicant has not committed any further family violence offences since August 2018, being a period of more than five years. In relation to paragraph 8.2(3)(c) of the Direction, there are no reports or allegations in relation to the Applicant having acted violently towards a family member or partner. Having regard to paragraphs 8.2(3)(a), (b) and (d) of the Direction, as the Applicant has not re-offended, there has been no trend of increasing seriousness and no cumulative effect of repeated acts of family violence offending.
For the reasons stated above and having applied the guidance in paragraph 8.2 of the Direction, the Tribunal finds that Primary Consideration 2 weighs marginally against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 3 – The strength, nature and duration of ties to Australia
Paragraph 8.3 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)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 the 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 non-citizen has been ordinarily resident in Australian 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 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 non-citizen began offending soon after arriving in Australia.
Having regard to paragraph 8.3(3) of the Direction, the Tribunal notes that the Applicant has close ties with members of his immediate family who reside in Australia, being his parents, two sisters, and three brothers. The Applicant’s evidence is that he is in frequent contact with his mother, and he speaks to his father every two or three weeks.
Guided by paragraph 8.3(1) of the Direction, the Tribunal has considered the impact of a decision not to revoke the Mandatory Visa Cancellation Decision on members of the Applicant’s immediate family who are Australian citizens or permanent residents. Three of the Applicant’s siblings provided statements in support of the Applicant and indicated that the family will be negatively impacted if he is unable to return to the community. Whereas the Applicant’s mother did not provide a statement of support, FAB1 and FAB2 both state that she has been upset by the Applicant’s circumstances and absence from the family. The Applicant himself claims that his family will be ‘deeply upset’ if he is removed from Australia. Based on the evidence before it, the Tribunal finds that the Applicant’s separation from his family will cause them emotional distress.
Relevantly to paragraph 8.3(4)(a)(iii) of the Direction, the evidence before the Tribunal is that the Applicant has resided in Australia since May 2017, being a period of approximately six and a half years. He arrived here as an adult aged 23 years and was convicted of his first offence in Australia in September 2018. Consistently with the guidance in the Direction, the Tribunal has given limited weight to the period of time the Applicant has lived in Australia, for reason that he did not reside here during his formative years, and he began offending soon after his arrival.
Relevantly to paragraph 8.3(4)(a)(ii) of the Direction, the evidence is that the Applicant has a good history of employment in Australia and has made a positive contribution to the economy through his work as a tailor, hairdresser, and labourer.
For the stated reasons and having applied the guidance in paragraph 8.3 of the Direction, the Tribunal finds that Primary Consideration 3 weighs in favour of revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 4 – Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of the Direction provides:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) 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.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
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.
Paragraph 8.4(1) of the Direction requires decision-makers to determine whether revocation is in the best interests of the child. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made: paragraph 8.4(2). The Applicant has two minor aged siblings in Australia, being his brothers, FAB1, aged 16 years and FAB2, aged 12 years.
Having regard to the factors in paragraph 8.4(4)(a), the evidence before the Tribunal is that the Applicant and his two younger brothers have a good relationship, and they like and respect each other. There is limited evidence in relation to the contact they have had during the Applicant’s incarceration in gaol and immigration detention other than the brothers’ visit to see the Applicant in prison on one occasion. Whereas the Applicant has a positive relationship with his younger brothers, as required by this sub-paragraph of the Direction, the Tribunal has given less weight to their interests for reason that the relationship is non-parental.
Relevant to the factors in paragraph 8.4(4)(b), the evidence is that the Applicant will reside in his parents’ home if he is released into the community, and therefore he will be living with his two minor aged brothers and seeing them on a daily basis. The children are aged 12 years and 16 years respectively, and accordingly there are some years before they reach adulthood during which time the Applicant can contribute to their upbringing and development.
In relation to the factors in paragraph 8.4(4)(c), although the Applicant’s offending has resulted in his physical absence from the lives of his two brothers since he has been in gaol and immigration detention, there is no evidence before the Tribunal to demonstrate that the Applicant’s offending has directly affected them. However, having found that the risk of the Applicant engaging in similar criminal or other serious conduct in the future is moderate to high, the Tribunal finds that there is some potential for the children to be negatively impacted if the Applicant engages in inappropriate or illegal behaviour in the future.
In relation to the factors in paragraph 8.3(4)(e) of the Direction, the evidence is that the two children live with their parents, who fulfill the primary parental role in their lives.
Having regard to the evidence before it, the Tribunal finds that if the Mandatory Visa Cancellation decision is not revoked and the Applicant is removed to Afghanistan, this will likely cause emotional distress to the two children and limit their ability to develop and strengthen their relationship with their older brother, which may adversely impact their development in the years until they reach adulthood.
For the stated reasons and having applied the guidance in paragraph 8.4 of the Direction, the Tribunal finds that Primary Consideration 4 weighs in favour of the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 5 – Expectations of the Australian Community
Paragraph 8.5 of the Direction relevantly 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) …
(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 …;
(d)…
(e)…
(f) ...
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable (sic) 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 effect of paragraph 8.5 is that it imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. This consideration does not involve an inquiry into what the Australian community does or does not expect, because this is normatively expressed in the terms of the consideration: paragraph 8.5(4). Rather, the relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed community expectation’ of refusal of a visa ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[102] As a normative expression, this consideration indicates the likelihood that community expectations will in most cases lead to refusal of a visa, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.[103]
[102]FYBR and Minister for Home Affairs (2019) 272 FCR 454 per Charlesworth J [77].
[103]Minister for Immigration v HSRN [2023] FCAFC 68.
Relevantly to the expectations of the Australian community as stated in paragraph 8.4, particularly paragraph 8.4(2)(c), and in accordance with principles 5.2(2)-(5) of the Direction, the Applicant’s offending has included sexual offences against minor aged and vulnerable victims. Given the seriousness and nature of this offending, the Australian community would expect that the Applicant should no longer have the privilege of holding a visa to remain permanently in Australia.

The Applicant has resided in Australia as a permanent resident for a period of six and a half years. Accordingly, the factors in principle 5.2(4) of the Direction, particularly the length of time the Applicant has been in Australia, support a finding that there would be a higher level of tolerance by the Australian community for his criminal conduct than there would be for a non-citizen who has not lived in the community for an extended period of time.
Having had regard to the factors in paragraph 8.4 of the Direction in relation to the expectations of the Australian community and, giving them appropriate weight, and taking into account the nature, seriousness and impact of the Applicant's criminal offending, and the duration of his residency in Australia, the Tribunal finds that Primary Consideration 5 weighs against revocation of the Mandatory Visa Cancellation Decision.
OTHER CONSIDERATIONS
Paragraph 9 of the Direction sets out the ‘Other considerations to be taken into account in making a decision under section 501(1) as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
While the Primary considerations carry particular weight, the Direction provides at paragraph 9 that ‘Other considerations’ must be taken into account by the decision-maker where relevant. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection (‘Suleiman’):[104]
Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[104](2018) 74 AAR 545 [23].
In FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[105] Wigney J held that this analysis ‘tends to overcomplicate or over intellectualise the issue’. His Honour held that the use of the word ‘generally’ in clause 8(4) of Direction 79 (the same wording is used in section 7(2) of the Direction) ‘recognises that there may well be cases where the circumstances are such that one or more “other considerations” may be deserving of more weight than one or more primary considerations’.[106] His Honour also held that the formulation identified in Suleiman ‘is at least potentially problematic because it tends to suggest that a decision-maker cannot give greater weight to one or more of the “other considerations” in any given case unless they consider that the case is somewhat unusual or out of the ordinary’.[107]
[105][2021] FCA 775 [22].
[106] Ibid, [23].
[107] Ibid.
The ‘other’ considerations relevant to the Applicant’s circumstances are considered in the following paragraphs.
a)Legal consequence of the decision
Paragraph 9.1 of the Direction provides:
1)Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
2)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
3)International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
The Direction contains specific provisions relevant to non-citizens in relation to whom a ‘protection finding’ has been made (paragraph 9.1.1) and to non-citizens in relation to whom no ‘protection finding’ has been made (paragraph 9.1.2).
Paragraph 9.1.2 of the Direction provides as follows:
9.1.2 Non-citizens not covered by a protection finding
(1)Claims which may give rise to international non-refoulement obligations can
also be raised by a non-citizen who is not the subject of a protection finding,
in responding to a notice of intention to consider cancellation or refusal of a
visa under section 501 of the Act, or in seeking revocation of the mandatory
cancellation of their visa under section 501CA. Where such claims are raised,
they must be considered.
(2)However, where it is open to the non-citizen to apply for a protection visa, it is
not necessary at the section 501/section 501CA stage to consider
non-refoulement issues in the same level of detail as those types of issues are
considered in a protection visa application. The process for determining
protection visa applications is specifically designed for consideration of
non-refoulement obligations as given effect by the Act and where it is open to
the person to make such an application a decision-maker, in making a decision
under section 501/section 501CA, is not required to determine whether
non-refoulement obligations are engaged in respect of the person. Having
considered the person’s representations, the decision-maker may choose to
proceed on the basis that if and when the person applies for a protection visa,
any protection claims they have will be assessed, as required by section 36A
of the Act, before consideration is given to any character or security concerns
associated with them.
(3)Non-refoulement obligations that have been identified for a non-citizen with
respect to a country, via an International Treaties Obligations Assessment or
some other process outside the protection visa process, would not engage
section 197C(3) to preclude removal of the non-citizen to that country. In
these circumstances, in making a decision under section 501 or 501CA,
decision-makers should carefully weigh any non-refoulement obligation
against the seriousness of the non-citizen’s criminal offending or other serious
conduct. However, that does not mean an adverse decision under section 501
or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to
the country in respect of which the non-refoulement obligation exists. For
example, consideration may be given to removal to another country, or the
Minister may consider exercising his/her personal discretion under section
195A to grant another visa to the non-citizen, or alternatively, consider
exercising his/her personal discretion under section 197AB to make a
residence determination to enable the non-citizen to reside at a specified place
in the community, subject to appropriate conditions. Further, following the
visa refusal or cancellation decision or non-revocation decision, if the non-citizen makes a valid application for a protection visa, the non-citizen would
not be liable to be removed while their application is being determined.
Section 197C provides:
197C Relevance of Australia’s non‑refoulement obligations to removal of unlawful non‑citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
(3) Despite subsections (1) and (2), 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.
(4) For the purposes of subsection (3), a protection finding is made for a non‑citizen with respect to a country if a record was made in relation to the non‑citizen under section 36A that the Minister is satisfied as mentioned in paragraph 36A(1)(a), (b) or (c) with respect to the country.
(5) For the purposes of subsection (3), a protection findingis also made for a non‑citizen with respect to a country if the Minister was satisfied of any of the following (however expressed and including impliedly):
(a) the non‑citizen satisfied the criterion in paragraph 36(2)(a) with respect to the country and also satisfied the criterion in subsection 36(1C);
(b) the non‑citizen satisfied the criterion in paragraph 36(2)(aa) with respect to the country;
(c) the non‑citizen:
(i) would have satisfied the criterion in paragraph 36(2)(a) with respect to the country except that subsection 36(3) applied in respect of the non‑citizen; and
(ii) satisfied the criterion in subsection 36(1C);
(d) the non‑citizen:
(i) satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and
(ii) would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non‑citizen was a non‑citizen mentioned in paragraph 36(2)(a);
(e) the non‑citizen:
(i) satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and
(ii) would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non‑citizen was a non‑citizen mentioned in paragraph 36(2)(a) and subsection 36(2C) or (3) applied in respect of the non‑citizen;
(f) the non‑citizen would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that subsection 36(2C) or (3) applied in respect of the non‑citizen.
(6) For the purposes of subsection (3), a protection findingis also made for a non‑citizen with respect to a country if:
(a) the Minister was satisfied (however expressed and including impliedly) that, because subsection 36(4), (5) or (5A) applied to the non‑citizen in relation to the country, subsection 36(3) did not apply in relation to the country; and
(b) a protection finding within the meaning of subsection (4) or (5) was made for the non‑citizen with respect to another country.
(7) For the purposes of subsection (3), a protection finding is also made for a non‑citizen with respect to a country in circumstances prescribed by the regulations.
…
Prior to its mandatory cancellation, the Applicant held a Global Special Humanitarian (Class XB) (Subclass 202) visa. There has not been a ‘protection finding’ made in relation to the Applicant as contemplated by subsection 197C(4)-(7) of the Act. Accordingly, paragraph 9.1.2 of the Direction is relevant to the Applicant’s circumstances.
The Applicant has claimed that he engages Australia’s non-refoulement obligations for reason that he fears harm should he be removed to Afghanistan for reason of his Shia religion and Hazara ethnicity.[108]
[108]Exhibit R1, G16, 96.
If the Tribunal decides not to revoke the cancellation of the Applicant’s visa under section 501CA, he will be prevented by section 501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa (as prescribed by regulation 2.12A of the Migration Regulations 1994 (Cth)). Section 35A of the Act defines ‘protection visa’ as a visa of a class provided in that section, which includes Class XA, Class XD and safe haven enterprise (Class XE) visas. Prior to its cancellation, the Applicant held a Global Special Humanitarian (Class XB) (Subclass 202) visa, which is not a ‘protection visa’. Accordingly, if the Tribunal decides not to revoke the Mandatory Visa Cancellation Decision it will be open for the Applicant to make an application for a Protection visa. As this option will be open to the Applicant, the Tribunal has considered whether it is obliged to evaluate the Applicant’s non-refoulement claims.
As recognised in paragraph 9.1.2(1) of the Direction, as the Applicant has raised non-refoulement claims, the Tribunal must ‘read, identify, understand and evaluate’ those claims.
In Plaintiff M1/2021 v Minister for Home Affairs (‘Plaintiff M1/2021’),[109] the High Court of Australia clarified the approach to consideration of representations involving non-refoulement claims. Relevantly, the majority explained:[110]
Where the representations do not include, or the circumstances do not suggest, a non‑refoulement claim, there is nothing in the text of s 501CA, or its subject matter, scope and purpose, that requires the Minister to take account of any non‑refoulement obligations when deciding whether to revoke the cancellation of any visa that is not a protection visa.
Where the representations do include, or the circumstances do suggest, a non‑refoulement claim by reference to unenacted international non‑refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error – they are not part of Australia's domestic law.
Where the representations do include, or the circumstances do suggest, a claim of non‑refoulement under domestic law, again the claim may be considered by the decision‑maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non‑refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.
[109] (2002) 400 ALR 417; [2022] HCA 17.
[110]Ibid, [28]–[30] per Kiefel CJ, Keane, Gordon and Stewart JJ.
The Respondent contends that Plaintiff M1 is applicable in this matter, and while it is open to the Tribunal to consider the Applicant's non-refoulement claims, an available option is for it to defer assessment of whether the Applicant is owed non-refoulement obligations as it is open to him to apply for a Protection visa.[111]
[111] RSFIC, [67]-[68]; Transcript of proceedings, 25 September 2023, 55.
The DFAT country information relevant to Afghanistan before the Tribunal reports that Hazaras (who are predominantly Shias) face a high risk of harassment and violence both from the Taliban and Islamic State – Khorasan Province, on the basis of their ethnicity and sectarian affiliation.[112] However, the level of mistreatment of Hazaras is said to be less widespread than predicted by some sources on the fall of Kabul.[113] The Respondent contends that it is not possible to conclusively determine whether Australia’s non-refoulement obligations are engaged without a full and comprehensive assessment of the Applicant's claims and the circumstances in Afghanistan akin to the assessment undertaken to assess a Protection visa application.[114]
[112] Exhibit R2, S24: Department of Foreign Affairs and Trade Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022) 14 January 2022.
[113]Ibid, S24, 331-332.
[114]RSFIC, [69].
The Tribunal has had regard to paragraph 9.1.2(2) of the Direction which recognises that it is not necessary at the section 501 stage for a decision-maker to consider non-refoulement issues in the same level of detail as they are considered in a Protection visa application. Accordingly, the Tribunal is satisfied that it need not undertake a full and comprehensive assessment of whether the Applicant engages Australia’s non-refoulement obligations. The Applicant has made claims that will require a full assessment if he makes an application for a Protection visa, which he will be permitted to make: section 501E(2)(a).
The Respondent accepts that, because the Applicant has not yet applied for a Protection visa, subsection 197C(3) of the Act is not presently engaged, and the immediate effect of the Tribunal’s decision not to revoke the Mandatory Visa Cancellation Decision would be that he is liable for removal to Afghanistan pursuant to section 198 of the Act.[115]
[115] RSFIC, [71]-[72].
Guided by paragraph 9.1(1) of the Direction, the Tribunal has had regard to sections 189 and 198 of the Act and finds that a legal consequence of a decision not to revoke the Mandatory Visa Cancellation Decision is that the Applicant will be an unlawful non-citizen and subject to immigration detention pending his removal to Afghanistan. Section 197C provides that the obligation to remove the Applicant from Australia under section 198 is unaffected by any non-refoulement obligations he may be owed. If the Applicant were to make a Protection visa application before he is removed to Afghanistan, the Protection claims made in this application would need to be assessed. However, the assessment of these claims will be a consequence of the Applicant’s application for a Protection visa. It will not be a legal consequence of the decision of the Tribunal to refuse to revoke the Mandatory Visa Cancellation Decision. Accordingly, the Tribunal finds that a legal consequence of its decision to refuse to revoke the Mandatory Visa Cancellation Decision is that the Applicant will be liable for removal to Afghanistan where he may face persecution or other serious harm.
For the reasons stated above, the Tribunal finds that a legal consequence of its decision not to revoke the Mandatory Visa Cancellation Decision is that the Applicant will be an unlawful non-citizen subject to detention and liable to removal from Australia, and this legal consequence is not affected by any application the Applicant may make for a Protection visa. The Tribunal finds that Other consideration a) weighs very heavily in favour of the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
b)Extent of impediments if removed

Paragraph 9.2 of the Direction provides:
1)    Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)    the non-citizen's age and health;[116]
b)    whether there are substantial language or cultural barriers; and
c)    any social, medical and/or economic support available to them in that country
[116] The word “health” in paragraph 9.2(1) of the Direction is understood to mean any aspect of a person’s physical wellbeing and includes “the overall state of a person’s fitness and condition, including underlying health issues and ongoing effects of any past injury: Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126 at [12].
Having regard to the factors in paragraph 9.2(1)(a) and (c) of the Direction, the evidence before the Tribunal is that the Applicant is aged 29 years and suffers from an anxiety condition. As a citizen of Afghanistan, the Applicant would have the same access to social, medical and economic support as other citizens, although such services may not be of the same standard as those available in Australia. The Direction provides that the extent of any impediments to an Applicant in establishing themselves and maintaining basic living standards is to be considered in the context of what is generally available to other citizens of that country. However, the DFAT country information referred to in [143] above is silent as to accessibility to mental health care.
Guided by paragraph 9.2(1)(b) of the Direction, the Tribunal finds that the Applicant will face significant practical obstacles if he is removed to Afghanistan. He has never lived in or visited Afghanistan, he was born and raised in Iran and only speaks Farsi and Dari, neither of which are official languages in Afghanistan, he has no knowledge of Afghani society, and he would be readily identified as a foreigner. Accordingly, the Tribunal finds that the Applicant will very likely face language and cultural barriers in Afghanistan. The Applicant would struggle to find work due to the language barrier despite him having work skills and experience. Relevantly to paragraph 9.2(1)(c) of the Direction, the Applicant has no family in Afghanistan with whom he is in contact, and therefore he will not have financial, practical support or assistance from family members upon his return.
The Applicant's claims to fear harm in Afghanistan, which have been addressed in [138] above in the context of non-refoulement obligations, are also as relevant in the context of the extent of impediments if he is removed from Australia.[117] Based on the country information before it, the Tribunal finds that if the Applicant is removed to Afghanistan, there is risk that he would face discrimination on account of his Shia religion and Hazara ethnicity.
[117]Plaintiff M1 at [39].
Based on the evidence before it, the Tribunal cannot be satisfied that the Applicant will be able to access mental health services and treatment if he is removed to Afghanistan. As a consequence, his mental health will likely deteriorate, putting him at risk of experiencing discrimination, stigmatisation and limitations on accessing employment, education and health care. If the Applicant is unable to find employment due to the deterioration of his mental health condition, he will face severe financial hardship and will likely become homeless and destitute.
Accordingly, guided by the factors in paragraph 9.2 of the Direction, the Tribunal finds that other consideration b) weighs very heavily in favour of revocation of the Mandatory Visa Cancellation Decision.
c) Impact on victims
The Direction states in paragraph 9.3(1):
(1) 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.
There is no evidence before the Tribunal of the impact on any victims of the Applicant’s offending for a decision to revoke the Mandatory Visa Cancellation Decision. The Tribunal has therefore given this other consideration neutral weight.
d) Impact on Australian business interests
Paragraph 9.4(1) of the Direction provides:
(1) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant does not claim that any Australian business interests would be affected by his removal to Afghanistan. Accordingly, the Tribunal has given this other consideration neutral weight.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration 1 weighs against revocation of the Mandatory Visa Cancellation Decision. The Applicant’s criminal offending is very serious, particularly as it includes sexual offending against minor aged victims. The moderate to high risk of him committing future criminal offences coupled with the nature and seriousness of the harm this would cause to his future victims is such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 weighs marginally against revocation of the Mandatory Visa Cancellation Decision because while the Applicant has been convicted of a family violence offence, he has not repeated this behaviour indicating he has rehabilitated.
Primary Consideration 3 weighs in favour of revocation of the Mandatory Visa Cancellation Decision as the Applicant has lived in Australia for six and a half years and members of his immediate family members reside in Australia and will suffer emotional distress if he is removed to Afghanistan.
Primary Consideration 4 weighs in favour of revocation of the Mandatory Visa Cancellation Decision as it is in the best interests of the Applicant’s minor aged brothers for him to be permitted to remain in Australia.
Primary Consideration 5 weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that the Applicant’s very serious offending should cause him to forfeit the privilege of remaining permanently in Australia, and this is not outweighed by the duration of his residency in this country.
In regard to the relevant Other Considerations, the legal consequence of a decision not to revoke the cancellation is that the Applicant will be liable to removal to Afghanistan, and the significant extent of impediments he will face on return, weigh very heavily in favour of revocation.
The Tribunal is satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked and decides that the Reviewable Decision should be set aside.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the Reviewable Decision dated 12 July 2023 to refuse to revoke the Mandatory Visa Cancellation Decision and, in substitution, decides that the cancellation of the Applicant’s a Global Special Humanitarian (Class XB) (Subclass 202) visa is revoked.

I certify that the preceding 165 (one hundred and sixty five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk

.....................................[SGD]...................................
Associate
Dated: 15 November 2023

Date(s) of hearing:

25 September 2023

Applicant:

In person

Solicitors for the Respondent:

J. Strugnell, Minter EllisonLawyers

[2023] AATA 4492

5 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice

Date(s) of hearing:	25 September 2023
Applicant:	In person
Solicitors for the Respondent:	J. Strugnell, Minter EllisonLawyers