ZNKS and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2022] AATA 4223

ZNKS and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 4223 (9 December 2022)
Division:GENERAL DIVISION
File Number: 2022/7879
Re:ZNKS
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member A. Nikolic AM CSC
Date of Decision: 9 December 2022
Place:Melbourne

The Tribunal affirms the decision under review.
.....................[sgd]...................................................
Senior Member A. Nikolic AM CSC
Catchwords
MIGRATION – mandatory visa cancellation – citizen of Syria – Class XB (Subclass 200) Refugee visa – convicted of sexual offending against a child – where victim was family member – failure to pass good character test – substantial criminal record – mandatory visa cancellation – whether another reason to revoke the mandatory cancellation – Ministerial Direction no. 90 applied – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Regulations 1994 (Cth)
Sex Offender Registration Act 2004 (Vic)
Cases
Al-Kateb v Godwin (2004) 219 CLR 562
Ali v Minister for Immigration and Border Protection [2018] FCA 650
AXT19 v Minister for Home Affairs [2020] FCAFC 32
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
Clarkson v R [2011] VSCA 157
CLK21 v Minister for Home Affairs [2022] FCAFC 70
DOB18 v Minister for Home Affairs [2018] FCA 1523
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
Fardon v Attorney-General (Qld) (2004) 223 CLR 575
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 056
Healey and Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2021] AATA 4309
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
JJNY v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1239
Maxwell v R (1996) 184 CLR 501
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
Minister for Immigrationand Border Protection v Le (2016) 244 FCR 56
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198
Nathanson v Minister for Home Affairs [2022] HCA 26
O’Keefe v Calwell (1949) 77 CLR 261
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
R v G [2008] UK House of Lords 37, 2009, 1 AC 92
Shrestha v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2021] FCA 802
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
VNPC v Minister for Immigration [2022] FCA 921
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
Wyong Shire Council v Shirt (1980) 146 CLR 40
XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1138
YKSB v Minister for Home Affairs [2020] FCAFC 224
Secondary Materials
American Psychiatric Association, ‘Diagnostic and Statistical Manual of Mental Disorders’ (American Psychiatric Association, 5^th ed, 2013)
Direction No. 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021)
Judith Cashmore and Rita Shackel, The long-term effects of child sexual abuse (Policy & practice paper, Child Family Community Australia, Australian Institute of Family Studies, January 2013)
Ministry of Immigration and Integration, The Danish Immigration Service, ‘Syria, Security Situation in Damascus Province and Issues Regarding Return to Syria’ (Ministry of Immigration and Integration, 2019)
Relevant Country of Origin Information to Assist with the Application of UNHCR’s Country Guidance on Syria, United Nations High Commissioner for Refugees (UNHCR), 07 May 2020
Sentencing Advisory Council, “Imprisonment,” Kingdom Home Office, ‘Country policy and information note: returnees, Syria, June 2022 (accessible)’ Gov.UK (Web Page, June 2022) Section 6 <Country policy and information note: returnees, Syria, June 2022 (accessible) - GOV.UK ( FOR DECISION
Senior Member A. Nikolic AM CSC
9 December 2022
INTRODUCTION

The Applicant has asked the Tribunal to review the Respondent’s decision not to revoke the mandatory cancellation of his Class XB (Subclass 200) Refugee visa (“the visa”).
Because the Applicant has several convictions for sexual offending against a child, the Tribunal has decided to apply a confidentiality order to protect the interests of the child and her family.[1] The Applicant will be referred to by the anonym “ZNKS”. His name, as well as the names of his victim and other family members, and any information tending to reveal their identities, must not be published, or disclosed to any person except for:
(a)the parties, their representatives and any other person directly involved with the preparation and conduct of a party’s case;
(b)to the extent necessary, any person whom a party approaches for the purpose of providing evidence in the proceeding;
(c)members and staff of the Tribunal, and any person performing services for the Tribunal, acting in the course of their duties.
[1] Pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (Cth).
This application was heard by video on 1 and 2 December 2022. The Applicant was previously assisted with preparing documentary submissions by Refugee Legal,[2] but was self-represented at the hearing. The Respondent was represented by Mr Alex Chan, a solicitor from Sparke Helmore.
[2] Exhibit R1, 122.
For the following reasons, the Tribunal affirms the decision under review.
BACKGROUND
The Applicant is a 34-year-old Syrian citizen from an Orthodox Christian family. While living in Syria he completed an undergraduate engineering degree,[3] undertook post-graduate studies, and worked as an engineer.[4] He met his wife, a fellow student, while studying.
[3] Ibid 147-150.
[4] Ibid 87-88; 103 [7]-[9]; 106.
The Applicant claims he and his now ex-wife fled to Iraq because of military conflict in Syria. They lived in Iraq for under a year before successfully applying for humanitarian visas,[5] and arrived in Australia in November 2017.[6] The Applicant has not departed Australia since.[7]
[5] Ibid 99-101.
[6] Ibid 285.
[7] Ibid.
On 21 October 2021 the Applicant was convicted of four counts of ‘Person sex assault by touch child u/16’, for which he was sentenced to an aggregate of five months’ imprisonment.[8] These offences were committed over an approximately year-long period in 2019 and 2020 against his niece, who was then under ten years of age. He was mandatorily placed on the Sex Offender’s Register for life[9] and nine-year final intervention order was also granted.[10] The Applicant’s wife, whose sister is the mother of the victim, separated from the Applicant after his conduct was disclosed and divorced him in 2021.
[8] Ibid 38-39.
[9] Ibid, 59 [10]. Pursuant to the Sex Offender Registration Act 2004 (Vic) (“SORA”). The SORA regulates those convicted of sexual offences by imposing reporting requirements to police.
[10] Ibid 45 [14].
On 3 November 2021, the Respondent advised the Applicant that his visa was mandatorily cancelled under s 501(3A) of the Act (“cancellation decision”).[11] He was invited to make representations to have the cancellation decision revoked and did so within the permissible period. This included several statements from the Applicant and documentary submissions from Refugee Legal.[12]
[11] Ibid 286-292.
[12] Ibid 66.
On 26 September 2022, a delegate of the Minister advised the Applicant that the cancellation of his visa would not be revoked (“non-revocation decision”).[13] On 27 September 2022 the Applicant asked the Tribunal to review the non-revocation decision.[14]
[13] Ibid 9.
[14] Ibid 3.
Under s 500(6L) of the Act, the Tribunal must decide this application within 84 days of the Applicant being properly notified of the non-revocation decision. The 84^th day is 19 December 2022, which is ten working days after the hearing.
ISSUE
Because the Applicant was convicted of sexual offending against a child, he does not pass the character test.[15] Accordingly, the only basis upon which the Tribunal can revoke the cancellation decision is its satisfaction that there is ‘another reason’ for revocation.[16] The Tribunal must consider the available evidence at the time of its decision, rather than limit itself to what was before earlier decision-makers.[17] The task of determining ‘another reason’ was elaborated upon by the Full Court (“FCAFC”) in Viane[18] and Bettencourt.[19] In the latter, their Honours reflected favourably on the approach in Viane in summarising the following principles at [27]:
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
[15] Section 501(6)(e) of the Act.
[16] Section 501CA(4)(b)(ii) of the Act; Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[17] Nathanson v Minister for Home Affairs [2022] HCA 26 (“Nathanson”); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134].
[18] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
[19] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172.
More recently in Plaintiff M1,[20] the plurality of the High Court stated the following about how representations made under s 501CA(4) of the Act should be approached:
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations…the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims”…
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
[20] Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 (Plaintiff M1/2021), [22]-[27], (Kiefel CJ, Keane, Gordon and Steward JJ), [22]-[25].
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and a person does not pass it if they have been convicted of a sexual offence involving a child: s 501(6)(e) of the Act.
Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act confers a discretionary power upon the Minister to revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
Ministerial Direction 90
In making its decision, the Tribunal must comply with a ministerial direction, made by the Minister under s 499(1) of the Act, and known as ‘Ministerial Direction 90’ (the Direction).[21]
[21] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ); Nathanson, 2 [4].
The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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 measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision.
Clause 8 of the Direction identifies as primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia;
(d)Expectations of the Australian community.
Clause 9 of the Direction sets out a non-exhaustive list of other considerations:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Links to the Australian community, including: (i) Strength, nature and duration of ties to Australia; and (ii) Impact on Australian business interests.

Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations’. This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[22]
[22] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’. The weighing process, however, is left to individual decision-makers.[23]
EVIDENCE
[23] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57].
Documentary evidence
The following documents were tendered into evidence:
(a)G-documents from the Respondent numbering 316 pages;[24]
(b)Tender Bundle from the Respondent numbering 91 pages;[25]
(c)Applicant’s 18-page outline of submissions lodged on 10 November 2022;[26]
(d)Applicant’s five-page statement dated 6 November 2022, with 33 pages of attachments;[27]
(e)Applicant’s undated reply to the Respondent’s materials, which was lodged with the Tribunal on 28 November 2022;[28]
(f)Applicant’s 15-page submissions regarding the consequences of the High Court’s decision in Plaintiff M1;[29]
(g)Applicant’s medical records from the International Health and Medical Services (IHMS),[30] printed on 7 October 2022;[31]
(h)Applicant’s email enquiry to Central Melbourne Psychology dated 12 October 2022;[32]
(i)Email to the Applicant from a recruitment consultant dated 14 November 2022;[33]
(j)Stakeholder information sheet from the Australian Border Force dated 3 November 2022.[34]
[24] Exhibit R1.
[25] Exhibit R2.
[26] Exhibit A1.
[27] Exhibit A2.
[28] Exhibit A3.
[29] Exhibit A4.
[30] The IHMS provides health care services within the Australian immigration detention network.
[31] Exhibit A5.
[32] Exhibit A6.
[33] Exhibit A7.
[34] Exhibit A8.
Applicant’s evidence
The Applicant’s evidence occupied almost the entire first day of the hearing. He was an intelligent and articulate witness who made comprehensive submissions and did not call other witnesses. He speaks good English, having worked as an engineer in Australia for several years. Many of the Applicant’s answers were given in English, but he frequently used the services of an Arabic interpreter. All his closing submissions were made through an interpreter and the Respondent’s closing submissions were fully translated for him.
At the commencement of his evidence, the Applicant adopted his statement dated 6 November 2022. He initially traversed the primary and other considerations in the Direction, and contended that the specific circumstances of his case, particularly non-refoulement obligations and extent of impediments if removed, warranted revocation. The Applicant’s opening oral submissions are now summarised:
(a)The Applicant said he was remorseful for his offending and acknowledges its seriousness. He apologised for his conduct and said the Australian community would be minded to give him ‘a second chance’.
(b)In terms of recidivism risk, the Applicant said he wants to undertake a sex offender program but has been unable to do so because his ‘sentence was relatively short’ and the impact of the COVID-19 Pandemic limited available courses. He referred to the availability of a suitable program at Central Melbourne Psychology, which he had enquired about. He said this course will provide him with ‘more understanding’ about his offending and assist him in avoiding ‘future reoccurrence’.
(c)The Applicant contended that his conduct was not family violence because it ‘was not related to a family member’, and the second primary consideration in the Direction should therefore not weigh against him. The same submission was made on his behalf by Refugee Legal.[35] When invited by the Tribunal to respond to its preliminary view that the conduct against his niece clearly fell within the meaning of family violence at cl 4(1)(b) of the Direction, the Applicant declined to comment.
[35] Exhibit R1, 126.
(d)In terms of ‘Best interests of children’, the Applicant confirmed he was not invoking the interests of any minor children in support of his application.
(e)Regarding ‘Expectations of the Australian community’, the Applicant felt the community would have greater ‘tolerance’ for his conduct. He said this was because of the length of his residence in Australia and because non-revocation would result in him either returned to ‘a dangerous place’ or ‘detained for a long time’. He said the community ‘would not accept [him] being deported to a country where [he] will suffer persecution, torture, and possibly be killed’, or be detained ‘for an unknown period or to the end of [his] life’. The Applicant referred to his ‘involvement in the community’, the ‘low sentence’ awarded for his crimes, past hardships in Syria, and his compliant conduct in custodial settings.
(f)The Applicant returned on several occasions to non-refoulement obligations. He said these were owed to him because:
(i)He did not complete mandatory military service. The Applicant conceded he had not previously been called up for military service because of exemptions while studying. He also claimed to have departed Syria without permission, which would also cause him to come to the attention of authorities if returned.
(ii)The Applicant claimed that Islamist groups will persecute him because of his Christian faith and recognise him as such because of his name and ‘lack of knowledge about the Islamic religion’. It was put to the Applicant that several aspects of the evidence cut across his claims about religious persecution. This included his ability to qualify as an engineer, employment in a Syrian Government owned enterprise, his parents’ past work as teachers, and that they, his siblings, and several other relatives - who the Applicant confirmed all identify as Christian - continue to live in Syria without evidence of being harmed. The Applicant said things were different ‘before the war started’ in 2011. When asked to elaborate, he said the war involves the Syrian Government, Russia, Iran, ‘United States allies’ and Islamist groups. He agreed that notwithstanding the concerns raised, his parents, siblings, and other family members still reside in his previous home area. He claimed, however, they could not easily travel to other areas. The Applicant said he spoke to his family members in Syria regularly by telephone and occasionally by video calls. When asked why there was no evidence from them to corroborate his claims, the Applicant said he had not asked them.
(iii)The Applicant referred to his house in Syria purportedly being ‘destroyed by a bomb’ prior to his departure, which the Tribunal inferred was a claim about a continuing risk from general violence in Syria.
(g)The Applicant stated that in the event of a non-revocation decision, he was confronted by ‘death’ if returned to Syria or indefinite detention.
(h)In terms of ‘Extent of impediments if removed’, the Applicant relied on his documentary submissions, including those by Refugee Legal.[36]
(i)Regarding ‘Impact on victims’, the Applicant said he has not been in contact with the victim or her family since his arrest. His wife divorced him in October 2021, and they have also not been in contact since his arrest.
(j)In terms of ‘Strength, nature, and duration of ties’, the Applicant has lived in Australia for five years since November 2017. He referred to employment from mid-2018 until his imprisonment in November 2021 and involvement in community activities. He claimed to have a network of ‘extended family and friends’ in Australia. He has not asked them to give evidence in this proceeding.
[36] Ibid 139.
Cross-examination focussed on the Applicant’s offending, a summary of which follows:
(a)The Applicant agreed he lived in a unit adjacent to the victim and her parents and recalled the two families interacted frequently. He claimed that his ‘guilty plea at an early stage’ reflected contrition for his actions. He initially claimed to only recall ‘parts but not all’ of his crimes. When asked about the Prosecutor’s summary of the first incident in or about April 2019,[37] the Applicant responded: ‘I can’t remember in detail what happened. I’m not really sure’. During later evidence, however, the Applicant cavilled about dates and details:
[37] Ibid 43 [20]-[30].
(i)After being taken through a summary of each conviction, the Applicant initially agreed there was nothing inaccurate about the facts presented to the Court, except the dates. He opined: ‘Maybe the child is not accurate with the dates’. When again asked by Mr Chan to confirm he was agreeing that the facts presented in Court were accurate, but the dates were not, the Applicant responded: ‘Yes’. By way of example, he claimed the third incident[38] happened ‘around June 2019’ and the fourth in ‘March 2020’, rather than the dates in the Court’s transcript.
[38] Ibid 44 [10].
(ii)The Applicant initially agreed there had been occasions, consistent with the first and fourth incidents in the Court’s transcript, that he placed his hand inside the victim’s underwear and touched her vagina.
(iii)The Applicant claimed not to recall telling the victim on one occasion that her ‘hands are cold’[39] but agreed there was an occasion when he grabbed one of her hands and placed it on his penis.
[39] Ibid 44 [6].
(iv)When put to the Applicant that his offending occurred over a period of about a year, he rejected this, claiming it was only nine months.
(v)The Applicant was asked to explain the reference at paragraph [6.c] of his statement dated 21 July 2022,[40] that he had not committed all the offences he was convicted of and some ‘did not happen in the manner described in the charges to which I pleaded guilty’. He responded: ‘I’m referring to the judge saying there was touching inside the underwear – that did not happen’. This evidence directly contradicted the Applicant’s earlier evidence about accepting the facts in the Court summary but disputing the dates.
[40] Ibid 143.
(vi)The Applicant was asked to respond to certain claims recorded by psychiatrist Dr Nina Zimmerman in her July 2022 report, which was commissioned by the Applicant’s then lawyer.[41] This included the Applicant’s denial that he touched the victim under her underpants, or pulled her hand onto his penis, and that he only ‘touched her over her underpants on about two occasions’.[42] The Applicant again insisted, contrary to his earlier evidence, that he never touched the victim’s vagina under her underpants. He agreed, however that he pulled her hand onto his penis and there had been four occasions of sexual touching and not two as recorded by Dr Zimmerman. When asked to confirm he stood by his claim to Dr Zimmerman that he only touched the child over her underpants, the Applicant said: ‘Yes’.
[41] Ibid 168-188.
[42] Ibid 178.
(vii)The Applicant was asked about his claim to Dr Zimmerman that the victim’s young age meant ‘she couldn’t distinguish between sexual and innocent touching’. When asked what kind of conduct she was unable to distinguish, the Applicant said her claims about him touching under her underwear were incorrect and may have been misinterpreted. He agreed with Mr Chan, however, that regardless of whether he touched the child on her vagina directly or on the outside of her underwear it was nevertheless sexual touching. When asked if he agreed that he lied to Dr Zimmerman about aspects of his offending, the Applicant responded: ‘Yes’. When asked why he lied, the Applicant cavilled with the earlier concession: ‘It’s not that I lied, it’s just that two of the charges didn’t happen in the manner described’.
(viii)When asked about the inconsistency between his earlier evidence that he could only recall ‘parts but not all’ of his offending, compared to his purportedly clear recollections later in evidence, the Applicant responded: ‘I was talking about the chronological order of the charges. I remember very clearly the touching didn’t occur underneath the underwear but over’. When asked why he pleaded guilty to the prosecution summary if he disagreed with aspects of it, the Applicant responded: ‘Because there was no option. I asked about the sentences and there were no negotiations, so I accepted the charges’. When challenged by Mr Chan that he was yet to fully accept responsibility for his conduct, the Applicant responded:
‘I take full responsibility for what I have done. I don’t deny it and I’m very remorseful. I promise it will never be repeated. Here today we are not on trial to decide if I have done this or not. It’s not about that.’
(b)When asked if he stood by the claim recorded by Dr Zimmerman that he ‘simply cannot comprehend why he behaved in the manner that he did’,[43] the Applicant said his conduct resulted from ‘stupidity’ and not being in a ‘clear state of mind’. Mr Chan put to the Applicant that he remained unable to explain why he committed these offences. The Applicant said his conduct was:
‘a mistake – any person in this life can make a mistake…you don’t learn unless you make mistakes…I have learned a big lesson and now understand the impact on the victim, society, and myself’.
(c)The Applicant said he stood by his most recent statement that the COVID-19 lockdown, ‘social isolation’, and having ‘no understanding of law regarding indecent touching of minor’ (sic), contributed to his offending.[44] When challenged by Mr Chan that an understanding of the law was unnecessary to know that touching his niece’s vagina was unacceptable, the Applicant said:
‘At the time of the offending, I did not have knowledge that Australian law says it’s wrong to commit indecent touching. I had no information about that. But out of my common sense I knew it was wrong.’
(d)When asked about the claimed relevance of ‘cultural issues’ he had invoked as relevant to his offending,[45] the Applicant said he was referring to it being ‘normal’ in Arabic culture for ‘a child to sit in the lap of a stranger’. He believes this is wrong and hopes it will be changed. It remained unclear to the Tribunal, despite the Applicant’s explanation, how this is relevant to his circumstances.
(e)The Applicant denied he was sexually aroused when touching his niece’s genitals. Mr Chan challenged the Applicant that contrary to his various other explanations, the real reason for his offending was sexual arousal by children, which the Applicant again denied. When asked by Mr Chan whether an inference about his arousal could be made from the child’s Visual and Audio Recording Evidence (“VARE”) that she touched ‘something very hard’ when he put her hand on his penis,[46] the Applicant responded: ‘I don’t think so’. When asked about Dr Zimmerman’s assessment that the Applicant met the diagnostic criteria for Paedophilic Disorder,[47] the Applicant disagreed with her diagnosis. When put to the Applicant that the multiple incidents of sexual touching over approximately a year meant his conduct was neither impulsive nor an isolated ‘mistake’, he insisted there was ‘no previous intentions’ and again reverted to explanations about ‘stupidity’ and not ‘thinking clearly’.
(f)The Applicant disagreed with Dr Zimmerman’s assessment that he engaged in extreme minimisation of sexual violence, by suggesting the ‘victim may have been confused as to the difference between “innocent” and sexual play’.[48] He also did not ‘totally agree’ with Dr Zimmerman’s assessment that there was evidence he engaged in psychological coercion of his niece during the offending. The Applicant responded: ‘I did not coerce or try to lure her’. When challenged that an eight-year-old child could not give consent and therefore his conduct reflected psychological coercion, the Applicant responded: ‘No I did not force myself on her or do any pressure on her’. He disagreed with Dr Zimmerman’s assessment that he lacks self-awareness about the motivation for his conduct.
(g)The Applicant disagreed with Dr Zimmerman’s assessment that he constitutes a ‘moderate’ risk of recidivism.[49] He said regard should also be had for a one-page report of psychologist Ms Pamela Matthews dated 27 September 2021, in which Ms Matthews stated the Applicant’s recidivism risk, based ‘solely on the provided documents’ is ‘3.8% over five years’, which is approximately double the ‘naturally occurring rate of sexual offending in the community [of] approximately 2%’.[50] The Applicant said regard should also be had for a one-page screening assessment completed by Corrections Victoria in December 2021, which assessed him as a low risk of recidivism. The Tribunal noted this record was also ‘completed using file information to provide [the Applicant’s] case manager with an offence-specific risk of reoffending’. It stated the Applicant was ‘identified as falling into the low risk category for sexual reoffending’ and therefore he did not ‘meet the eligibility criteria for inclusion in a program with Forensic Intervention Services’.[51]
[43] Ibid 178 [70].
[44] Exhibit A1, 3 [6].
[45] Exhibit R1, 126.
[46] Exhibit R2, 20 [Q101], [Q107].
[47] Exhibit R1, 184 [121]. This refers to a diagnosis assigned to adults who have sexual desire for prepubescent children in accordance with the criteria in the Diagnostic and Statistical Manual of Mental Disorders, 5^th Edition.
[48] Ibid 184 [116].
[49] Ibid 188 [144].
[50] Ibid 92.
[51] Ibid 111.
The Tribunal confirmed the Applicant understood the difference between the comparative qualifications of a psychologist and a psychiatrist, and how the one-page reports he relied upon were compiled using file information alone. The Applicant claimed he was interviewed by Ms Matthews, although there is no corroboration of this in her letter. When asked how the Australian community could be confident of his intention not to reoffend, given Dr Zimmerman’s references to his lack of self-awareness, Paedophilic Disorder, absence of offence-specific rehabilitation, and moderate recidivism risk, the Applicant responded:
‘The Australian community should put their trust in me. I’m self-aware of what I’ve done and its very serious consequences. I won’t do it again…I’ve done my research about these programs…I will attend an in-person program if released.’
The Applicant said he has made several attempts to contact a provider of sex offender courses. He claimed the organisation he contacted failed to respond initially but he recently spoke with a representative by telephone, who told him he needed a referral, which he is attempting to access. The Applicant confirmed, however, he is yet to enrol in an offence-specific rehabilitative course. Apart from a single email enquiry lodged by the Applicant prior to the hearing,[52] there is no response from this service provider in evidence.
[52] Exhibit A6.
In terms of an email received from a recruitment consultant[53] the Applicant initially agreed the author was ‘just reaching out’ to him and he does not know them personally. He claimed to be unable to ‘accept the offer’ because of his circumstances. When challenged by Mr Chan that this was no more than an initial enquiry, the Applicant insisted: ‘it’s a job offer’.
[53] Exhibit A7.
In terms of other protective factors upon release, the Applicant said he would reside with a cousin living in Melbourne. He claimed to have last spoken with this cousin a week ago, who knows about his offending, works for a food delivery service, is unmarried, and has no children. When asked why there is no statement from this cousin, the Applicant said he did not have ‘enough time to organise’ it. When asked about other family members in Australia, the Applicant referred to a grandfather, aunt, three cousins, several friends, and a work colleague. He agreed that a list of 14 people he personally compiled accurately summarises everyone he knows in Australia.[54] He claimed to speak to his aunt, a cousin, and the friend he intends to live with regularly, but ‘not too much’ with the others. The only evidence before the Tribunal from people on his list was a one-page letter from his priest, who was not called to give oral evidence.
[54] Exhibit R1, 91.

The Applicant said he has no savings but believes he has about $10,000 in accrued superannuation from work in Australia. He said a cousin now living in Kuwait, previously provided financial support to him in Iraq. When asked about a record in evidence stating he wanted to either remain in Australia or go ‘to some third country,’[55] the Applicant said apart from family members in Syria, he had other family members in Kuwait, Canada, and Germany, but had not discussed the possibility of third-country relocation with them. He had enquired with the ‘removal officer’ in immigration detention about this but was told he would have to make that decision himself.
[55] Ibid 203.
When asked about medical conditions, the Applicant agreed he stated in November 2021 that he has no medical or psychological conditions and takes no medication.[56] Since then he had seen doctors and mental health practitioners who diagnosed him with depression, a mood disorder, and a persistent rash on his ‘private parts’. He is scheduled to see a dermatologist about the latter after this hearing ends. The Applicant said he requested and was allocated his own room in detention to privately apply cream to his rash. He claimed this caused several other detainees, including a previous occupant of the room, to threaten him. The Applicant agreed he had not yet suffered harm but fears this. When asked why detention centre officers could not protect him, the Applicant said he was not sure they could and claimed a person was ‘beaten up in hospital’ and he therefore felt officers could not guarantee his safety. He said the detention centre is not a safe environment and prolonged detention can adversely affect his mental and physical health.
[56] Ibid 82.
The Applicant said he was prescribed medication for his psychological condition, took it for one day, but because of ‘side effects,’ ceased taking it.[57] He claimed to stand ready to ‘take any medication’ that does not have ‘serious side effects’.
[57] Ibid 199; 203.
The Applicant was asked if he intended to apply for a protection visa. He agreed that he was eligible to apply but decided not to because of a lack of legal assistance, a ‘language barrier’, financial issues, depression, and a lack of confidence that any application would succeed. He said it would be a ‘waste of time’ because other people he knows had their applications refused. When asked how he assessed his own prospects, the Applicant replied: ‘the reality and facts before me’. When it was put to the Applicant that he successfully made representations during the cancellation process and this proceeding, including comprehensive submissions with the assistance of Refugee Legal, he insisted that the factors previously raised prevented him from lodging a protection visa application.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers 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.
The nature and seriousness of the conduct
Under cl 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(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 reoffended 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).
The Tribunal has considered the Applicant’s sentencing remarks.[58] These disclose that he denied the allegations made by his victim for some time, which appeared headed for a contested hearing,[59] but he subsequently pleaded guilty to all four charges[60] after receiving a sentencing indication of five months’ imprisonment.[61]
[58] Exhibit R1, 40-60.
[59] Ibid 58 [16].
[60] Ibid 61-64.
[61] Ibid 42 [7]-[10]; 45 [17].
There is no evidence the Applicant has any criminal history in Syria, Iraq, or other countries. The Tribunal infers from the sentencing remarks that the Court proceeded on the premise he was of good character prior to his conviction with no other recorded offences.
The Court found that the Applicant’s sexual offending was against his then-niece, a minor child, who was a vulnerable member of the Australian community. This conduct falls into all three categories of offending stipulated as ‘very serious’ at cl 8.1.1(1)(a) of the Direction. His offending continued for approximately a year and was considered by the Court to be ‘abhorrent’ with ‘aggravating features’.[62] The Applicant exploited the child in a predatory and opportunistic way. His offending was neither impulsive nor short-lived, but prolonged and involved predation, given the references to the child being distracted with games. This conduct egregiously breached his niece’s trust and that of other family members who entrusted the child to his care. The cumulative effects of his conduct resulted in adverse psychological and physical health impacts on the victim and her family.
[62] Exhibit R1, 57 [6].
Imprisonment is a sentence of last resort and the most severe sanction available to our courts.[63] Although the five-month sentence of imprisonment received by the Applicant is well below the statutory maximum for this type of offending, any sentence of imprisonment, particularly for a first-time offender, reflects the objective seriousness of their crimes. It is of concern to the Tribunal that the Applicant continues to cavil about aspects of offending that he pleaded guilty to. A plea of guilty under Australian law constitutes admission to and acceptance of all elements of an offence.[64]
[63] See for example: Sentencing Advisory Council, “Imprisonment,” <
[64] Maxwell v R (1996) 184 CLR 501, [19].
The Applicant’s offending is very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction provides:
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.
Clause 8.1.2(2) of the Direction states that in assessing the risk the non-citizen poses to the Australian community, decision-makers must take into account, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The physical or psychological harm arising from sexual offending against a child can be serious and long term.[65] This is because of a child’s inherent vulnerability and undeveloped emotional maturity, which makes them susceptible to abuse and exploitation by adults. The nature of harm caused to a child, or their family members, is potentially devastating. This is poignantly reflected in Her Honour’s sentencing remarks,[66] as well as the child’s VARE, and the Victim Impact Statements of family members.[67]
[65] Judith Cashmore and Rita Shackel, The long-term effects of child sexual abuse’ (Policy & practice paper, Child Family Community Australia, Australian Institute of Family Studies, January 2013)
[66] Exhibit R1, 58 [1]-[6].
[67] Exhibit R2, 10-79.
The Applicant has previously stated he can’t explain his offending, but insists that ‘whatever the reason’, it will not reoccur.[68] It is noteworthy, however, that he continues to make inconsistent claims about and disputes the circumstances of his crimes, despite guilty pleas:
I swear that I haven’t done all these charges and you can observe that clearly from the victim’s speech, she talked about the same incident three times, but I have plead guilty to these charges because when I have seeked (sic) a sentencing indication the Magistrate told me the sentence of these charges is 5 months impressment (sic), I have accepted that because the sentence is less than 12 months and my visa will not mandatory cancel, but I have chocked (sic) when my visa was cancelled and now I am suffering stress, depression, anxiety, such as insomnia, lack of appetite, fear of future, how my life will be if my visa will not come back.[69]
(Errors in original)
[68] Exhibit R1, 144 [12].
[69] Ibid 90.
In a subsequent statement dated 21 July 2022, prepared with the assistance of Refugee Legal, he somewhat resiled from past denials:[70]
‘I said that “I haven’t done all these charges”, and pleaded guilty because I thought my visa would not be cancelled. What I meant to say was that, although I admit guilt on some charges, some others did not happen in the manner described in the charges to which I pleaded guilty. I do not deny my guilt. I did touch [child’s name redacted] in an inappropriate sexual manner...[71]
[70] Ibid 142-146.
[71] Ibid 143.
At the present hearing, the Applicant continued to cavil with details of his offending, by first agreeing then denying he touched the child’s vagina under her underwear. He stood by his documentary claim that the child may not have been able to ‘distinguish between sexual and innocent touching’, and insisted his conduct was impulsive despite four incidents over a year-long period. He provided an implausible explanation for why some information provided to Dr Zimmerman was incorrect. The Tribunal was left with the strong impression the Applicant continues to minimise his culpability.
In terms of recidivism risk, the Tribunal has considered:
(a)A one-page letter from forensic psychologist Ms Pamela Matthews dated 27 September 2021.[72] This was prepared to help the Applicant ‘understand what the risk estimate might be if he were to plead guilty’ and was prepared ‘solely on the provided documents’ rather than an assessment of the Applicant. The Tribunal does not accept the Applicant’s claim that Ms Matthews interviewed him in preparing her report given the express reference in her letter to solely having regard to documents. The Tribunal places less weight on Ms Matthew’s assessment because there was no direct consultation with the Applicant in arriving at a judgement that is purportedly ‘68-86% correct’. There is also a dearth of evidence about the ratings applied by Ms Matthews under the Static 99R 2016 risk indication methodology.[73] It remains unclear to the Tribunal, despite the Applicant’s explanation, what benefit he seeks to draw from Ms Matthews report. She assessed the Applicant’s risk of sexual offending as almost twice the mean natural occurring rate of sexual offending in the general community.
(b)A one-page letter from Corrections Victoria dated 13 December 2021, prepared by a ‘Clinician’ of uncertain qualifications, who stated that a screening assessment was undertaken based on file information alone. This identified the Applicant as ‘falling into the low risk category for sexual reoffending’.[74] Again, less weight is placed on this assessment given the brevity of the information provided, uncertainty about the author’s qualifications, and a lack of detail about the screening tool applied.
(c)The report prepared by forensic psychiatrist Dr Nina Zimmerman dated 4 July 2022, commissioned by the Applicant’s then legal representative, is the most persuasive of the available expert information.[75] Dr Zimmerman refers to the Applicant’s 'lack of self awareness and…paedophilic disorder’ as areas of concern, and noted that he requires counselling and other strategies to reduce his recidivism risk. Dr Zimmerman’s opinion is that should the Applicant reoffend, it would likely be against a minor female in a domestic setting whilst unsupervised. Dr Zimmerman assessed, however, that the Applicant was ‘highly motivated to reduce the risk of recidivism’ and it ‘is likely that he would be able to comply with such measures’.
[72] Ibid 92.
[73] Ibid 93.
[74] Exhibit R1, 111-112.
[75] Ibid 168-188.
The Court noted during sentencing that the Applicant had ‘reasonable prospects of rehabilitation’.[76] On the evidence currently before the Tribunal, however, including the Applicant’s revisionist claims about his criminal conduct, the Tribunal is less sanguine about his rehabilitative prospects. These were not before the Court at the time of sentencing. The Tribunal has considered the Applicant’s evidence about his rehabilitative progress. This includes an email dated 12 October 2022 that he sent to a general enquiry address at Central Melbourne Psychology, asking about the availability of ‘sex offender treatment program’. There is no response to this email in the evidence, which diminishes its probative value. There is also no evidence to corroborate the Applicant’s oral claims about more recent contact with this service provider. The Applicant makes the general claim in his documentary evidence that he has ‘engaged well with rehabilitative programs’,[77] but agreed in oral evidence he has yet to undertake any offence-specific rehabilitation. It is accepted, however, that his efforts to engage with rehabilitative opportunities in custodial settings were impacted by the length of his imprisonment, a prison assessment that he constituted a ‘low risk’, and restrictions arising from the COVID-19 Pandemic.
[76] Ibid 59 [7].
[77] Exhibit A1, 6.
The Tribunal has no reason to doubt the reliability of Dr Zimmerman’s findings and accepts her assessment that the Applicant has unmet rehabilitative and treatment needs. Decisions should not be delayed, however, for rehabilitation to be undertaken: cl 8.1.2(2)(b) of the Direction. The Tribunal prefers Dr Zimmerman’s expert evidence, over the Applicant’s uncorroborated rejection of some of her opinions. The Tribunal accepts he has Paedophilic Disorder, engaged in extreme minimisation of sexual violence, forced himself onto his eight-year-old niece during the sexual touching incidents, and lacks convincing insight and self-awareness about this conduct.
In terms of protective factors:
(a)The Tribunal does not accept that an unsolicited email to the Applicant, from a person he does not know, constitutes an offer of employment. His claims about easily finding work if released are somewhat speculative given that his sexual crimes and placement on the Sex Offender’s Register may impact his employability. There is no evidence any approaches to discuss employment opportunities are from people who are aware of his crimes.
(b)In the absence of any evidence from the Applicant’s cousin, the Tribunal does not accept there is a persuasive offer of stable accommodation upon release.
(c)The Tribunal does not accept that the Applicant’s ‘shame’ about his offending will ‘act as a serious disincentive to further offending’, because this would likely end his aspirations for a life in Australia. The force of this assertion is diminished by the fact that any guilt he previously felt did not divert him from further incidents of sexual touching. Moreover, his disagreement with several of Dr Zimmerman’s key assessments causes the Tribunal to be cautious about the extent to which any of the protective factors he invokes ameliorates his risk to the community.
It is noteworthy the Applicant previously had stable accommodation, fulltime employment, and was married to a supportive partner, which were insufficient to prevent his crimes. This diminishes the force of his current claims that a new job, or somewhere reliable to stay, or future risk to his visa status persuasively ameliorates his recidivism risk.
The Applicant’s various submissions (effects of the COVID-19 lockdown, isolation, cultural issues, stupidity, not thinking clearly etc) are inadequate explanation for his repeated sexual offending against a child and evince a tendency to deflect blame. The Tribunal does not accept that any ‘research’ he has undertaken since his offending meaningfully advances his insight.[78] In the absence of a convincing explanation, tendency to deflect his culpability, unmet rehabilitation needs, and unwillingness to accept Dr Zimmerman’s opinions about insight and Paedophilic Disorder, the Tribunal’s concerns are heightened. The Tribunal accepts Dr Zimmerman’s assessment that the Applicant constitutes a ‘moderate’ risk of recidivism.[79] This opinion is preferred to the two other brief reports the Applicant prefers.[80] Dr Zimmerman’s report is more comprehensive, results from an interview with the Applicant, and, as a psychiatrist, she is the most qualified of the authors to make this assessment.
[78] Exhibit A1, 4.
[79] Exhibit R1, 188 [144].
[80] Ibid 92, 111.

As held by the High Court in Wyong Shire Council v Shirt (1980) 146 CLR 40 at [47-48] (Wyong), it is not inconsistent to find that a risk is real, albeit the degree of probability it will occur may be quantitatively low or moderate. Referring to Wyong with approval, the Full Federal Court held in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 at [501] that:
…neither the meaning of the word “real” when used to describe a chance or risk nor any requirement of the law, requires that a “real risk” or a “real chance” be assessed solely on a quantitative basis.
The word “real” may be used to describe the qualitative nature of a risk or chance. In this sense it is used to describe something which is not far-fetched or fanciful.
…
As appears from the observations of Mason J in [Wyong], there is no inconsistency in finding that a risk is real, in the sense that it is not far-fetched or fanciful, yet the degree of probability of its occurrence is quantitatively low…
Even if the Tribunal were to accept the Applicant constitutes a low risk of reoffending as he contends, which it does not, the very serious nature of his past conduct, the significant risk of harm from any repeat, and the fact he has unmet rehabilitative needs for sexual deviance, renders any risk of reoccurrence unacceptable: cl 8.1.2(1) of the Direction. Even a low risk of recidivism can weigh significantly against an applicant when sexual offending against a child is involved, and the risk of harm is sufficiently serious.[81] This primary consideration weighs very substantially against revocation.
[81] R v G [2008] UK House of Lords 37, 2009, 1 AC 92, [49]; Clarkson v R [2011] VSCA 157; CLK21 v Minister for Home Affairs [2022] FCAFC 70, [66].
Family violence committed by the non-citizen
Clause 8.2(1) of the Direction reflects the Australian government’s concerns about conferring on non-citizens who commit acts of family violence the privilege of coming into or staying in Australia. Clause 8.2(2) provides that this consideration is relevant 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.
In considering the seriousness of family violence engaged in by a non-citizen, the Direction requires the following factors at cl 8.2(3) to be taken into account 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.
The Applicant contends his offending does not constitute family violence and is therefore not relevant to this primary consideration.[82] Concerningly, a similar submission is advanced by Refugee Legal on his behalf,[83] which fails to acknowledge the clear meaning of family violence at cl 4 of the Direction and the Court’s finding that the offending was against a family member.
[82] Exhibit A1, 5 [8.2].
[83] Exhibit R1, 126.
The Respondent submitted that the Applicant’s conduct clearly falls within the definition of this primary consideration and should be given heavy weight in favour of non-revocation.
When sentencing the Applicant, the Court made clear that his crimes involved four instances of sexual assault of a minor child who was his family member.[84] For the reasons previously discussed in the Tribunal’s decision in Healey,[85] the Applicant’s niece was a member of his family and his sexual conduct against her is family violence. This includes because it was sexually abusive behaviour and the relationship between the Applicant and his niece reflects a considerable power imbalance based on age.[86]
[84] Ibid 57 [1].
[85] Healey and Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2021] AATA 4309, [106]-[126].
[86] Ibid [120](e).
The devastating consequence of sexual offending against a minor child, who is a member of the Applicant’s family, is evident from the available evidence. Four incidents of contact offending are disclosed and even one act of this type can have enduring consequences. The Applicant has not meaningfully advanced his rehabilitation since the last known act of family violence, although the Tribunal accepts, he was partly unable to do so because of the limited availability of such opportunities in custodial settings and the other factors earlier discussed. The evidence provided by the Applicant about what he has done to explore the availability of rehabilitative opportunities is limited. The Applicant’s tendency to deflect responsibility for his conduct and dispute some events he pleaded guilty to, diminishes the Tribunal’s confidence about the extent to which he accepts responsibility and understands the impact of his behaviour on the abused: cl 8.2(3)(c)(i) of the Direction.
This primary consideration weighs at least moderately against revocation.
Best interests of minor children in Australia affected by the decision
In his Personal Circumstances Form dated November 2021, the Applicant invoked the interests of his ‘cousin’s son’ who is currently nine years old.[87] He claimed to be close to his cousin’s family and to have ‘encouraged’ the child to play ‘basketball and football’.[88] He claimed that the child was upset and crying when he went to prison and would be in ‘shock and...need a psychologist’ in the event of an adverse decision.[89] There is no evidence to corroborate these claims from the Applicant’s cousin or any of the child’s other caregivers. Moreover, in his most recent written submissions,[90] and in oral evidence, the Applicant expressly confirmed he did not invoke the interests of any minor children in his application.
[87] Ibid 77-78.
[88] Ibid 78.
[89] Ibid 78.
[90] Exhibit A1, 5 [8.3].
The Applicant’s representations do not convey, nor do the available facts suggest, that this primary consideration is enlivened. It therefore carries neutral weight.
Expectations of the Australian community
Clause 8.4(1) of the Direction 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.
Clause 8.4(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect the person should not be granted or continue to hold a visa. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
(a) acts of family violence;
(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) …;
...
Clause 8.4(3) provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. As per cl 8.4(4), this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in a particular case.
Clause 8.4(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court (FCAFC) in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR). Notwithstanding the different pathways in judicial reasoning, the plurality in FYBR held that Expectations of the Australian community is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[91]
[91] FYBR (2019) 272 FCR 454, at 471–2 [66] (FYBR) (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[92]
[92] Ibid at 473 [75]–[76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[93]
[93]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 056.
The Tribunal has considered the Applicant’s representations about this primary consideration, and those on his behalf, which impermissibly invite the Tribunal to assess community expectations based on the specific circumstances of his case.[94]
[94] Exhibit R1, 128-129; Exhibit A1, 5-8.
Mr Chan submitted that the evidence relevant to this primary consideration was such that heavy weight should be assigned against revocation, particularly given the Applicant’s conduct raises serious character concerns.
The Tribunal accepts that the Applicant’s sexual offending against a child raises serious character concerns within the meaning of cls 8.4(2)(a) and (c) of the Direction. The Tribunal does not accept the Applicant’s submission that the Australian community would have a higher tolerance for his offending because of the ‘long time’ he has spent in the Australian community. He is not someone who has lived in the Australian community for most of their life or from a young age, such as to invoke the principle at cl 5.2(4) of the Direction.[95]
[95] Shrestha v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2021] FCA 802, [31]-[33] (Markovic J).
The Applicant has egregiously breached the community’s expectation that non-citizens obey Australian laws. His conduct raises serious character concerns and there is an unacceptable risk of him reoffending. Having regard for the norm stipulated at cl 8.4(1) of the Direction and the guidance provided by the principles at cls 5.2(2)-(5) of the Direction, the Australian community would strongly expect the Applicant should not hold a visa. This primary consideration weighs substantially against revocation.
OTHER CONSIDERATIONS
In determining the existence of ‘another reason’ under s 501CA(4) of the Act, the Tribunal must consider the list of other considerations at cl 9 of the Direction, which is non-exhaustive. This includes regard for the consequences resulting from a non-revocation decision.[96]
[96] Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, [61].
International non-refoulement obligations
Clause 9.1 of the Direction provides:
(1) 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. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
(2) 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. In doing so, 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, and in the meantime, detention under section 189, noting also that section 197C 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.
(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a 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 applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
(4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6) It may not be possible at the section 501/section 501CA stage to consider nonrefoulement 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 nonrefoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
(7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the noncitizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
(8) If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international nonrefoulement obligations.
Section 5 of the Act defines ‘non-refoulement obligations’ non-exhaustively as including Australia’s obligations as a party to the Conventions, Protocols and Covenants listed at cl 9.1(1) of the Direction and ‘any obligations accorded by customary international law that are of a similar kind to those mentioned’ in those treaties. As held in Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 at 35 [103]: ‘the term “non-refoulement obligations” is not confined to the protection obligations to which s 36(2) refers’.
The Tribunal must give active intellectual consideration to the Applicant’s clearly articulated representations about risk of harm, regardless of characterisation.[97] Engagement with such claims under s 501CA(4) of the Act, however, ‘does not require the same analysis’ applied under a protection visa process where s 36 of the Act is invoked.[98] The Tribunal’s ability to assess the Applicant’s claims turns on factors such as the probative value of the evidence he presents and the time available before the statutory timeframe under s 500(6L) of the Act expires. That said, the Applicant is not required to meet any predetermined benchmarks under the current process, and consideration of his non-refoulement claims can be less categorical than under a s 36(2) process. If the Tribunal finds that non-refoulement obligations are engaged, this favours revocation. The Tribunal must also ‘carefully weigh any non-refoulement obligation against the seriousness of the [Applicant’s] criminal offending or other serious conduct’.[99]
[97] YKSB v Minister for Home Affairs [2020] FCAFC 224, 5; Minister for Home Affairs v Omar (2019) 272 FCR 589, [34]–[44] (‘Omar’).
[98] Plaintiff M1/2021, [34]; JJNY v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1239, [57] citing Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, [28]; Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28].
[99] Direction, cl 9.1(2).
In Plaintiff M1[100] the High Court said decision-makers are required to ‘read, identify, understand and evaluate” any non-refoulement representations and:
‘…bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate.’
[100] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (“Plaintiff M1”), [9]; [24].

In DOB18[134] at [35], Griffiths J reflected favourably on the reasoning in Ali and similarly cautioned against speculating about the course of future decision-making:
… In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making...
[134] [2018] FCA 1523.
The Tribunal accepts there is a likelihood that in the event of an adverse decision, the Applicant is likely to be detained for a prolonged or indeterminate period with no currently known endpoint. None of the possible processes highlighted by Mr Chan are under contemplation and any future consideration of these is speculative and likely to take considerable time. Notwithstanding the Applicant’s reliance in part on unenacted international obligations, which are not mandatory relevant considerations,[135] the Tribunal accepts that prolonged or indeterminate detention may have potentially negative consequences for his mental health. This would be an adverse human consequence likely to cause him significant hardship, and is a factor weighing substantially in favour of revoking the visa cancellation decision.
[135] Plaintiff M1, [20].
Extent of impediments if removed
Clause 9.2(1) 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;

b)        Whether there are substantial language or cultural barriers; and

c)        Any social, medical and/or economic support available to them in that country.
The Applicant is 34 years of age, came to Australia when he was 29, and has lived here for only five years. In his Personal Circumstances Form dated 12 November 2021, he ticked the ‘No’ box regarding a question about whether he has any diagnosed medical or psychological conditions or takes any medication.[136] There is reference to a previous mental health plan and an intention to re-visit this.[137]
[136] Exhibit R1, 82.
[137] Ibid.
The Tribunal has considered medical records produced by the IHMS during the Applicant’s detention.[138] Key aspects of these records are now summarised:
(a)There is some reference to the Applicant suffering high cholesterol, Vitamin D deficiency, back pain, insomnia, lack of appetite, and stress-related concerns because of the end of his marriage and visa problems.
(b)The Applicant has been prescribed medications for dermatitis,[139] a small chalazion on his eye, and other aches and pains.[140] His presenting issues have given rise to multiple diagnostic tests[141] and he has expressed a preference for a single room to enable private treatment of his persistent skin condition.[142] His evidence at the current hearing is that he has been provided with a private room.
(c)The Applicant has attended several mental health consultations in 2022 with a counsellor and psychiatrist, centred on feelings of hopelessness regarding his current situation, the breakdown of his marriage, and feelings of abandonment. This includes reference to him being diagnosed with Adjustment Disorder With Anxious Mood, being prescribed anti-depressants, but as of 15 August 2022, not yet deciding to take them.[143] The Applicant confirmed this during the hearing.
[138] Ibid 190-284; Exhibit A5.
[139] Exhibit R1 269.
[140] Ibid 250.
[141] Ibid 272-273.
[142] Ibid 208; 244.
[143] Ibid 199; 203.
The Applicant lived in Syria until the age of 28. No substantial language or cultural barriers are disclosed. The Applicant claims he will not be able to find ‘any job’ or receive ‘any medical and economic support’ if returned to Syria.[144] The Tribunal notes he has previously held a professional position with a Syrian Government enterprise and reports continuing contact and a positive relationship with his family in Syria. That said, the Tribunal accepts the strategic situation in Syria is substantially different in many areas since the Applicant’s departure. Notwithstanding what appear to be very difficult circumstances in Syria, the only evidence that the Applicant would be treated differently to other Syrian citizens, is from the Applicant himself and a general letter from his priest, who was not called as a witness. It is accepted the level of support the Applicant may be able to access would be far below that available in Australia, although the Direction refers to ‘what is generally available to other citizens of that country’, not a comparison with support services here. Given the IHMS diagnosis of adjustment disorder with anxious mood, there is the potential at least that this may deteriorate if returned and he may find it difficult to access treatment.
[144] Ibid 91.
The Applicant’s parents, two siblings, and other family members continue to live in Syria.[145] Several IHMS records refer to him maintaining ‘regular contact with his family’ and receiving advice and emotional support from them.[146] Given the continuing close association with his family, it is considered the Applicant may be able to source a measure of practical and emotional support from them.
[145] Exhibit R1, 79.
[146] Ibid 198; 211; 237; 242.
Notwithstanding the difficult strategic and humanitarian situation in Syria, there is no evidence the Applicant would be unable to access treatment for his skin condition or other required medication, although it is noteworthy he declined to take medication prescribed for depression in Australia. His reference during the hearing to medicines being ‘extremely expensive’ in Syria is uncorroborated, although the Tribunal accepts this may be the case. In terms of financial resources, the Applicant has approximately $10,000 in accrued superannuation from his work in Australia, which may assist his resettlement if returned. He also referred during the hearing to a friend, now living in Kuwait, who provided him with financial support while he was living in Iraq. It may be possible for the Applicant to seek support from this person and other relatives in western countries, despite not yet discussing his current circumstances with them.
The Applicant’s submissions regarding non-refoulement obligations are relied upon as being equally applicable to this consideration. For the reasons previously adduced, the Tribunal has decided to defer conclusive assessment of his non-refoulement claims to a protection visa process. It is also noteworthy the mandatory relevant factors under this consideration relate to issues like age and health, any substantial language or cultural barriers, or any social, medical, and/or economic support available to the Applicant in Syria. There is no obligation on the Tribunal to repetitively apply non-refoulement submissions to incongruent, practical considerations under Extent of impediments if removed.[147]
[147] XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1138, [123] (Halley J).
Notwithstanding the limited evidence about the situation in Syria, the Tribunal is satisfied the circumstances confronting the Applicant if returned to Syria, including because he has spent a considerable time in custodial settings, would pose significant impediments and hardship. This consideration weighs substantially in favour of revocation.
Impact on victims
Clause 9.3 (1) of the Direction states:
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 direct evidence from the victim or her family about the impact of a non-revocation decision. This consideration is not enlivened and carries neutral weight.
Links to the Australian community
Clause 9.4 provides that a decision-maker must have regard to cls 9.4.1 to 9.4.2 of the Direction, which includes consideration of the strength, nature, and duration of any ties the non-citizen has to the Australian community and the impact on Australian business interests if the non-citizen is not allowed to remain in Australia. In terms of the latter, there is no evidence Australian business interests are enlivened within the meaning of the Direction. Neither the Applicant nor Refugee Legal made submissions in this regard. This consideration therefore carries neutral weight.
The strength, nature, and duration of ties to Australia
Clause 9.4.1 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)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant arrived in Australia at the age of 29 and has lived here for five years. His offending commenced in April 2019, approximately 16 months after arrival. Less weight accrues to this consideration in circumstances where his offending commenced relatively soon after arrival. A significant proportion of the Applicant’s time in Australia has been spent on some form of conditional liberty or in custodial settings.
The Applicant’s wife separated from him after the sexual assaults against their niece. She tendered a victim impact statement at the Applicant’s sentencing,[148] which makes clear their relationship ended with no prospect of reconciliation. The Applicant concedes he destroyed his ex-wife’s life[149] and that she divorced him in 2021. A victim impact statement from the Applicant’s former sister-in-law, the mother of the victim, similarly makes clear that the Applicant’s ties to these family members have ended.[150]
[148] Exhibit R1, 46-52.
[149] Ibid 86.
[150] Ibid 52-56.
The Applicant’s evidence about family and friends in Australia is somewhat inconsistent. In his counsel’s written submissions prior to sentence, it was claimed the Applicant’s ‘family are in Syria [and] he has limited supports within Australia’,[151] which would make imprisonment more onerous for him. In his documentary claims after visa cancellation, however, the Applicant claimed multiple relationships in Australia, including a grandparent, six uncles, and six cousins.[152] The Applicant claims all his relatives and friends in Australia ‘love’ him because he is a ‘very polite and respectful and helpful person’.[153] In more recent submissions, he claims variously that he has ‘become estranged from numerous members of my friends (sic)’ because of his offending,[154] but asserts that the impact of a non-revocation decision on family members and friends would be ‘significant’.[155] In oral evidence the Applicant said he mainly contacts an aunt, cousin, and a friend. No statements were provided from these people. There is a single-page letter from a priest, who claims to be an Australian citizen that has known the Applicant for four years.[156] The priest was not called as a witness and his perspectives could not be tested under cross-examination. Less weight is placed on this relatively general information.
[151] Ibid 104 [15].
[152] Ibid 79; 91.
[153] Ibid 79.
[154] Exhibit A1, 4.
[155] Ibid 17 [9.4.1].
[156] Exhibit R1, 165.
The Applicant has worked as an engineer in Australia for approximately three years.[157] He provided several unsolicited messages enquiring about his services.[158] He claimed to have organised two workshops to help other refugee engineers find work in Australia,[159] and other volunteer work,[160] including to ‘give food to homeless’.[161] There is limited corroboration of at best for these claims.
[157] Ibid 81.
[158] Ibid 158-161.
[159] Ibid 82.
[160] Exhibit A1, 17 [9.4.1].
[161] Exhibit R1, 91.
On the evidence currently before the Tribunal, it is not possible to make a reliable finding about whether the relatives and friends the Applicant refers to in Australia fall within the meaning of the Direction or the extent of their current relationship with the Applicant. Given the circumstances of the Applicant’s offending, and the evidence of his estrangement from close family members, no weight is placed on uncorroborated relationships.
The evidence discloses that after five years living here, the strength, nature, and duration of the Applicant’s ties in Australia is relatively weak. There is little evidence from the relatives and friends he refers to about the consequences of non-revocation. Even if the Applicant’s evidence were accepted, there is no evidence the effect on these people would be other than emotional. This consideration weighs slightly at best in favour of revocation.
Additional considerations
Several matters were either advanced by the Applicant or emerge from the evidence, which the Tribunal now considers under the non-exhaustive list at cl 9(1) of the Direction.
Applicant’s safety in detention
The Applicant claims his ‘safety is at risk’ in immigration detention and that this should weigh in favour of revocation. He relies on a brief record raised by IHMS clinic staff based on his self-reported claim.[162] The Applicant contends he has received threats from the previous occupant of a single room now allocated to him. He confirmed during the hearing, however, that he is yet to come to any harm.
[162] Exhibit A8.
The Tribunal does not accept on the Applicant’s uncorroborated assertion alone, that he is at risk of harm from other detainees because he has been allocated a single room, or that detention centre staff are unable to protect him if others tried to harm him. No weight is placed on this consideration in the context of ‘another reason’ for revocation.
Continuing punishment
It was submitted by Refugee Legal that a non-revocation decision would be ‘an excessively harsh punishment that does not match the crime[163]…[and]…would only serve to provide an additional and unwarranted punishment’.[164] These submissions improperly conflate criminal punishment with immigration detention.
[163] Exhibit R1, 127.
[164] Ibid 140.
The Applicant’s contention that detention continues his criminal punishment is rejected. The Act provides for legal, administrative detention of unlawful non-citizens, through powers that are executive in nature and non-punitive.[165] In O’Keefe v Calwell,[166] Chief Justice Latham referred to action taken against a convicted immigrant as a measure of protection of the community and not further punishment. In Falzon[167] at [96], Justice Nettle cited previous High Court reasoning in holding that immigration detention is legal, non-punitive, and involves no exercise of judicial power or intention to impose additional punishment.[168] The statutory purpose of executive detention is ‘not to punish for past offending for which appropriate sentences are determined by the exercise of judicial power’.[169] No weight is therefore placed on the contention that the Applicant’s continues his criminal punishment.
[165] Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333, [29]; [88]; [93]–[94] (Falzon) (Nettle J); Al-Kateb v Godwin (2004) 219 CLR 562, [1] (Gleeson CJ).
[166] O’Keefe v Calwell (1949) 77 CLR 261, 278.
[167] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, [33]
[168] See also Falzon at [48], which referred with approval to Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 610 [74].
[169] VNPC v Minister for Immigration [2022] FCA 921, [19].
CONCLUSION
Because of s 501(6)(e) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ why the visa cancellation should be revoked, the Tribunal has applied the Direction to the specific circumstances of his case. The Tribunal does not accept the Applicant’s submission that his case warrants a departure from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations than other considerations.
The Applicant’s sexual offending against a child is very serious and the community’s tolerance for such offending is very low. A child’s inherent vulnerability and undeveloped emotional maturity makes them susceptible to abuse and exploitation by adults, which can cause devastating consequences. Contrary to the Applicant’s claims, his circumstances are not such that he would be afforded a higher level of tolerance by virtue of having lived in Australia for the last five years.
The Applicant’s attempts to explain his conduct are unpersuasive and his expressions of remorse diminished by revisionist claims. Given Dr Zimmerman’s concerns about the Applicant’s lack of self-awareness, minimisation of sexual violence, and satisfaction of the diagnostic criterion for Paedophilic Disorder, it is clear the Applicant has unmet rehabilitation needs. This was particularly apparent in his misguided claims that he did not engage in psychological coercion of his eight-year-old niece, or try to ‘lure her’, or ‘force [him]self on her’ during the sexual touching incidents. It also arises from the Applicant’s implausible contention that his conduct did not constitute family violence.
The Applicant has egregiously breached the community’s expectation that non-citizens obey Australian laws by committing crimes that raise serious character concerns. There is an unacceptable risk of him reoffending the Australian community would strongly expect him not to hold a visa.
The Tribunal does not accept the Applicant’s submission that the refugee visa previously granted to him, or the evidence he provided for this hearing, conclusively determine his non-refoulement claims. A refugee visa is not a protection visa and the Applicant is eligible to apply for the latter. His reasons for not doing so are unpersuasive at best. Although it is open to the Tribunal to positively assess his non-refoulement claims at the revocation stage, currently available information is insufficient for reliable judgements to be made. The Tribunal accepts he may be owed non-refoulement obligations but defers conclusive consideration of this to the protection visa process.
Notwithstanding the limited evidence about the current situation in Syria, and no evidence from the Applicant’s family in Syria, the Tribunal is satisfied the circumstances confronting the Applicant if returned would pose considerable impediments and hardship.
The Applicant has made some positive contributions in Australia, through work and perhaps some volunteering. His offending commenced relatively soon after arriving in Australia and there is a paucity of evidence to corroborate the network of family and friends he claims to have. It is also noteworthy a significant proportion of the Applicant’s time in Australia has been spent on some form of conditional liberty or in custodial settings.

The Applicant invokes several claims that have been assessed under the non-exhaustive list of ‘other’ considerations. His claims about safety in immigration detention and that his detention constitutes a continuation of his criminal punishment are not accepted. In contrast, the Tribunal accepts there is a persuasive likelihood that a non-revocation decision is likely to result in the Applicant being detained for a prolonged or indeterminate period.
Having weighed the relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the three relevant primary considerations considerably outweigh the combined weight to be given to the countervailing considerations.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the written reasons for the decision of Senior Member A. Nikolic AM CSC

................[sgd]........................................................
Associate
Dated: 9 December 2022

Date of hearing: 1 and 2 December 2022

Advocate for the Applicant:
Self-represented

Advocate for the Respondent:

Solicitors for the Respondent:

Mr Alex Chan

Sparke Helmore