LGC 24 v Minister for Immigration & Citizenship

The Applicant;

Mohammad Mohammadi;

Mehdi Mohammadi;

Habibullah Mohammadi; and

Dr Kwok, a clinical and forensic phycologist.

LGC 24 v Minister for Immigration & Citizenship | Case summary | Zoe

[12]

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law-enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) The safety of the Australian community is the highest priority of the Australian Government.

(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in, Australia.

(4) The Australian community expects that the Australian Government can and should cancel non-citizens 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.

...

(6) With respect to decisions to refuse, cancel, and revoke cancellation of a Visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not revoking a mandatory cancellation.

(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

[23]

The Applicant gave his evidence with the assistance of an interpreter at all times. It is appropriate to make some initial observations concerning the way the Applicant gave his evidence. Specific observations about several matters that were put to him both in his evidence-in-chief, and then cross-examination will be addressed in the appropriate part of these reasons. He was in the witness box for quite some time.
Several things emerged from his time in the witness box. Notwithstanding that the Applicant has had relatively limited and fragmented formal education, he presented as articulate and a quite intelligent individual. There was absolutely no doubt that at all times he completely understood the questions that were being asked of him. Unfortunately, notwithstanding that he fully comprehended the nature of the questions put to him and the answer required, he adopted several tendencies in his responses. At times he was quite loquacious, on a number of occasions rather than answer the question put to him, he would descend into making a speech or statement that he felt would advance his case. Frequently, his answers were non-responsive to a simple question put to him that could have been answered with "yes" or "no" or other very short response. From time to time, he also responded when he understood the question, but was seeking to deflect from having to accurately answer such a question by responding with a question. The Tribunal infers that this approach to his evidence, apart from his misguided view that it might advance his case, also was adopted by him in an effort to downplay the gravity of his offending.
Additionally, another unfortunate feature of his evidence was where, on occasion, he asserted that he had a lack of recollection of a particular event or matter. This was contrary to statements made on several occasions such as in his most recent statutory declaration lodged in support of this application. Insofar as there was an inconsistency between his evidence in the witness box on such topics and the contents of his declaration, it does not reflect well upon him. Once again, more will be said about these inconsistencies where appropriate later in these reasons.
The Applicant, in response to questions asked of him from time to time would assert that his recollection of critical events was hampered by reason of the mental health conditions from which he suffers. More will be said about these conditions later in his reasons. However, having had the opportunity to observe the Applicant carefully in the witness box, despite these mental health conditions, the Tribunal was not satisfied that his recollection of key events was so inhibited as he sought to portray.

[33]

By reason of the Applicant being convicted of a sexual offence, he was, pursuant to the powers contained in s 34 of the Sex Offenders Registration Act 2004 (Vic), placed on the Register of Sex Offenders for a period of eight years. As he had been placed on the Register of Sex Offenders, he was subject to reporting obligations which included, amongst other things, a requirement that he report to Victoria Police in person and make an Initial Report of personal details and thereafter provide Annual Reports for the duration of his reporting period.[6]
The precise details of the Applicant's offending are summarised in a Preliminary Brief prepared by a member of Victoria Police. The Tribunal is satisfied that this document accurately records details of the offences committed by the Applicant. Dr Kwok in her evidence stated that she read the contents of this document aloud to the Applicant and he did not dispute or challenge its contents. At no time when in the witness box did he challenge the contents of this statement. Usually, when parts of it were referred to him, his response was that he could not recall. At times, he contended that his inability to recall was due to a mental health condition he has been diagnosed with.[7] The statement that the Applicant was unable to recall the circumstances of his offending was inconsistent with the relatively detailed account that he provided in his most recent statutory declaration made 3 October 2025. Notwithstanding his evidence from time to time about alleged mental health conditions affecting his ability to recall what happened on the bus and his interactions with the young girl, on other occasions his evidence shifted where he sought to offer an explanation for his offending and doing so in some detail. As noted earlier, he appeared to the Tribunal to fully comprehend the questions that were being put to him, but at times was evasive in his responses and sought to deflect the gravity of his offending by tailoring his answers accordingly.
At approximately 3:59 PM on a Saturday in February 2018 the Applicant boarded a bus in the suburb of Hampton Park which was travelling in the direction of the Fountain Gate Shopping Centre in the adjacent suburb of Narre Warren. Upon boarding the bus, he took a seat towards its rear. The complainant or victim was sitting on the opposite side of the bus to him. It should be borne in mind that the victim was a young girl of approximately 15 years old at the time the offences were committed.
Shortly after he boarded the bus, the victim spoke to the Applicant asking him whether he knew if the Fountain Gate Shopping Centre was still open. She also asked another male passenger on the bus the same question. After asking those questions she turned around and proceeded to take in the view from the window of the bus.
Approximately 80 seconds after the victim asked the question about whether the shopping centre was still open, the Applicant moved forward one seat from the seat that he had occupied, to immediately adjacent to where the victim was sitting. She described feeling uncomfortable when the Applicant moved towards her and moved closer to the window whilst continuing to observe what was going on outside.
The Applicant then at about 4:12 PM stood up, moved across the aisle and sat in the seat next to the victim. She described feeling squashed up against the window by the Applicant but continued to look out such window. The Applicant then asked her whether she was saving a seat for him to which she replied "no".
After sitting next to the victim for approximately 2 minutes at 4:14 PM the Applicant placed his hand on the victim's upper right thigh rubbing the thigh on the outside of her leggings. Her response immediately was to tell the Applicant to get his hand off her. His response was to ask the victim if she wanted to hold his hand, to which she replied "no". Shortly after this exchange, the Applicant placed his left arm around the victim and began touching her left shoulder. He then placed his hand on the victim's bareback and then moved his hand down her back placing it on the top part of her underwear.
Following this exchange at approximately 4:15 PM, the victim attempted to get up and leave her seat. The Applicant struck her in the stomach. He then stated, words to the effect, "No, no, sit, sit" when she tried to get up and leave her seat. She described managing to struggle past the Applicant and then sat near the front of the bus.
The bus then arrived at the Fountain Gate Shopping Centre at approximately 4:18 PM. The victim and the accused both alighted from the bus at that time.
During the incident, the victim was said to be crying, nervous, shaky and uncomfortable. She expressed the sentiment or view that she felt that something bad was going to happen and was very concerned that he might have dragged her off or done something else.
After alighting from the bus on its arrival the Fountain Gate Shopping Centre, the victim was concerned that she was being followed by the Applicant. Unfortunately, whilst making away into the shopping centres she tripped and fractured her wrist. It was also reported that she has had multiple counselling sessions for the incident.
The victim relatively soon after the events reported the matter to police. They commenced investigations and, not unsurprisingly, obtained CCTV footage which when examined produced fairly clear images of the Applicant. The police issued a media release to the public including one of those images seeking information as to his identity. The media release prompted a commercial television network to broadcast some images derived from the CCTV footage.
The Applicant became aware of the media release from his father. His father became aware of the Applicant's offending from one of his sons who had been informed by a friend that he had seen the Applicant on a TV news broadcast which advised that he was wanted by the police. Not unsurprisingly, the Applicant's father was rather bewildered by this revelation and saw the footage for himself which confirmed that it was the Applicant who was wanted by the police. He had a discussion with the Applicant who gave him an explanation of what occurred. The Applicant and his father agreed that he should hand himself in to the police. He did so after retaining the services of a solicitor who contacted investigating detectives. Arrangements were made for him to present himself at a suburban police station for the purposes of conducting an interview. During that interview he identified himself in the images on the day in question including what occurred on the bus that had been obtained from various CCTV sources.
In the interview, the Applicant made full admissions to touching the victim on the right leg, shoulder and lower back. He made the observation that he thought the victim was nice. He denied striking her in the stomach when she tried to get up and move seats.
Further in the interview, the Applicant admitted that he did not believe the victim was consenting to the touching. He was specifically asked the question, "did she want you to touch her?". He replied, "no, I don't think so". He was also asked about the victim's age. His response to that question was that he did not even think about her age.
Further, the Applicant stated to the police that his actions were a mistake and that if he had known it was illegal in Australia, he wouldn't have done it. He further stated, "it was just a mistake, it happened, that's all and I'm sorry for that". When asked his opinion of his behaviour on the bus, the Applicant replied, "I know it's not good behaviour, it's bad". During his evidence, the Tribunal specifically put this part of the police summary to the Applicant, and he admitted that he had made those statements.
It is perhaps appropriate at this juncture to also observe that the Tribunal asked the Applicant if he thought that it was all right to touch a member of the opposite gender without their consent, to which he categorically said "no".[8] This response is also consistent with other evidence before the Tribunal. One of his brothers, in a statutory declaration, stated that the Applicant has a clear understanding of what is right and wrong. Further, he stated that in their community and religion this type of offence is forbidden, and they were shocked to find out about the Applicant's offending. By reason of these matters, the Tribunal concludes that the Applicant knew his actions on that day in the bus were wrong, not permitted in Australia, and probably illegal.
Reference should also be made at this stage to the Applicant's evidence concerning the frequency of his prior bus travel before the day that he offended. At one stage when in the witness box, the Applicant stated that at the time of his offending, it was the first occasion on which he had used public transport including a bus. He said he was not familiar with it having never previously travelled by bus. This evidence was false. The falsity of such statement can be established by reference to several other evidentiary sources which are inconsistent with such a statement.
At paragraph 49 of his most recent statutory declaration made 3 October 2025 he conceded he had used the bus "a few times" previously.
In cross-examination he conceded that he had taken the bus to and from work including when he was working in a bakery at Dandenong when his father, who customarily drove him there, was unable to do so. He was also taken to an extract from Ms Gilbert's report of 23 May 2019.[9] It will be recalled as Gilbert was the clinician who conducted an extensive interview of him on 5 March 2019. She recorded in that report prior to his offending the Applicant had travelled by public transport to and from the different worksites as he did not then have his car licence. Also, the police seized from the Applicant a Myki card. Subsequent investigations revealed multiple use of such card, presumably by the Applicant.
The Tribunal infers that the Applicant's evidence that the day of the offending was the first time he had used bus, was given in a misguided attempt to, in some way, downplay or deflect from the gravity of his offending. Such an attempt failed miserably. It does not reflect well upon him.

[35]

In addressing the nature and seriousness of the Applicant's offending, of course, the Tribunal is guided by the language itself of paragraph 8.1.1 of Direction 110. Paragraph 8.1.1(1)(a)(i) and (ii) of the Direction prescribes that violent and/or sexual crimes and crimes of a violent and/or sexual nature against children regardless of the sentence imposed are viewed very seriously by the Australian Government and the Australian community.
The Applicant in his submissions, whilst acknowledging that the relevant paragraph of Direction 110 as noted (8.1.1(1)(a)(ii)) characterises his offending as very serious, contended that such offending falls at the lowest end of seriousness for this type of offending. It was described as a "continuum" in which the Tribunal could consider the sentence imposed in the context of other serious crimes. The grounds relied upon in support of this contention were that the offence was an indictable offence that carries a maximum penalty of 10 years imprisonment. However, it was dealt with summarily in the Magistrates' Court where the Applicant was sentenced to a CCO and not a term of imprisonment. Presumably, also relying upon the frequently proffered contention that to imprison someone is a relatively extreme step and of course the last option in the sentencing hierarchy.
Further, the Applicant in submissions made on his behalf concerning this primary consideration relied on several other grounds. It was submitted that he has acknowledged the seriousness of his offending and also recognised the negative impact that such offending had on his victim who was, as noted earlier, 15 years of age at the time such offences occurred. He further contended that by pleading guilty at the earliest opportunity, he prevented potential further harm to his victim, one assumes by reason of the fact she would not be required to attend court, give evidence, and be subjected to cross-examination. Also, there is, as is often recorded in criminal proceedings of this type, that there was the utility to all concerned of avoiding a lengthy and contested criminal trial in a higher Court before a Judge and jury.
In this context, reference was also made to the Applicant's rehabilitation. The concept of rehabilitation was considered, and reference made to the decision of LGC 24 v Minister for Immigration & Citizenship.[10] Counsel referred to several paragraphs of that decision from Collier J which provide an accurate statement of the concept of rehabilitation. As was noted by the Judge, rehabilitation contemplates restoration of a person to a good condition or an improved form. Evidence of unblemished conduct of a person in the community in the years following a conviction is suggestive of rehabilitation. Similarly, successful completion of rehabilitation programs undertaken by an offender with a criminal conviction would be further evidence of rehabilitation as contemplated. The Tribunal acknowledges that the Applicant has, save for one failure for which he was dealt with in the Magistrates' Court at Dandenong, adhered to his reporting obligations under the Sexual Offences Act, about which more will be said later, he has had an unblemished record since his conviction, and this is evidence of rehabilitation in the relevant sense.
Finally, the Applicant also contended that he has experienced shame and humiliation as a result of the Court processes and the obligations cast upon him, both in terms of the stigma attaching to the conviction, which will remain on his record forever, the obligations under the CCO, and his continuing reporting requirements as a registered sexual offender under the Sex Offenders Registration Act 2004 (Vic).
The Tribunal cannot accept the contentions of the Applicant which seek in some way to perhaps downplay, or otherwise diminish the seriousness of his offending on the day concerned. There are several reasons for this.
It should be repeated that the language of paragraph 8.1.1 (1)(a)(ii) of Direction 110 prescribes that crimes of a violent and straight or sexual nature against children regardless of the sentence imposed are viewed very seriously. This is understandable and the Tribunal does not consider that because the Applicant was sentenced to a non-custodial CCO that it in some way lessens the seriousness of what he did on that day.
On that note, it should not be forgotten that the victim was going about her business, as she was entitled to do, on a Saturday afternoon travelling to a major suburban shopping centre. She was entitled to believe, if not expect, that she would be able to undertake that journey in a safe and secure environment. The Applicant grossly violated that expectation. It was indefensible behaviour.
Also, it should not be overlooked that the victim was a 15-year-old girl. The Applicant was an adult. Given the admissions that the Applicant made to the police and when questioned in cross-examination and by the Tribunal, it considers that he knew what he did on that day to his victim was demonstrably wrong. It also accepts the evidence of his brother that this type of offence was forbidden which the Applicant clearly knew. The victim was clearly in a position of vulnerability vis-a-vis him. It was a gross exploitation of that position of vulnerability by the Applicant on his victim, who was clearly a stranger to him. It was opportunistic offending.
Reference should also be made to aspects of the Applicant's evidence, which was also touched on in some of the expert evidence before the Tribunal, that in some way his offending should be downplayed or diminished because of him not being aware of such things as the "culture and lifestyle" in Australia. At various times in his evidence, the Applicant went so far as to say that he had heard when he was in Pakistan that in some way one could "make friends with girls" or that there was a more relaxed attitude towards male interaction with women, as if to justify or excuse his behaviour on the bus on that day in February 2018. As is apparent from the matters canvassed above concerning the Applicant's admissions as to what was right or wrong, the Tribunal cannot accept this evidence from the Applicant.
Another factor that highlights the seriousness of the Applicant's offending which the Tribunal must have regard to is specified in paragraph 8.1.1(1)(d) of Direction 110, that is the impact of the offending on the victim. Whilst details of the impact are limited, there was some evidence contained in the Preliminary Brief that was before the Tribunal. There was the fact that after both she and the accused alighted from the bus the victim believed she was being followed by him. The Tribunal infers that she was probably attempting to run in a comparatively distressed state. This is understandable. In that state of distress, believing that she may have been followed, it is not difficult to see how she did trip over causing her to fracture her wrist. The Tribunal considers that this is a direct and significant impact on the victim caused by his offending.
The other impact on the victim that emerges from the Preliminary Brief prepared by Victoria Police is that the complainant, following the commission of the offence against her, undertook multiple counselling sessions. One can fully understand that as a vulnerable young girl subjected to such an experience that it would have had a traumatic and lasting effect on her which would have required counselling sessions as indicated. It is reasonably well known that victims of this kind of offending can frequently endure ongoing difficulties for some time after the event_._

[41]

The nature of the harm to individuals and all the Australian community should the Applicant engage in further criminal or other serious conduct is fairly well identified in several of the learned articles before the Tribunal. One article gave a fairly accurate summary of the nature of the harm likely to be caused by such offending. It recorded that victim survivors can experience immediate or long-term physical and mental health problems, which can negatively impact employment, economic well-being, ability to return to school, coping, personal relationships, and a sense of normalcy.
In another passage, specifically referring to experiences of childhood sexual abuse, it observed that there can be immediate, short and long-term harm to a child's health and well-being. Such harm can lead to developmental, mental, physical, and social problems with casual impacts on other aspects of life such as education and employment. These manifestations are relatively well-known these days.
The Applicant contends that he does not pose a real risk of harm to the Australian community and is highly unlikely to reoffend. He goes so far as to contend that he is a low risk of reoffending for a variety of reasons. These will be addressed below.
On the other hand, the Respondent identifies a number of factors which it is contended establish that the Applicant remains a risk of reoffending or engaging in other serious conduct. The argument goes so far as to say that his contentions about being a low risk of reoffending should be rejected.
It is worthwhile when addressing this aspect of this primary consideration to briefly consider the planks or limbs of the Respondent's contention.
As part of the CCO posed on the Applicant, he was required to undertake a "SOATS Assessment and Treatment as Directed". He did not undertake this program. The reason was that he was found to be ineligible due to the language barrier.[11] However, a Supervision Plan from Corrections Victoria of 19 November 2018 revealed that the Applicant had on numerous occasions requested that he be exempt from participating in the SOATS program due to the location and the potential for it to impact on his employment.[12] This is surprising indeed. He was instead referred to a psychologist fluent in the Hazari language. This was a recommendation made by Ms Gilbert, a Clinician with Corrections Victoria, who conducted an assessment of the Applicant and completed a report on him dated 23 May 2019.[13] Eventually he was referred to a psychologist, Mr Monterio. Apparently both the psychologist and the Applicant confirmed his attendance. However, there was no evidence from Mr Monterio either orally or in writing confirming this. The Applicant, when in the witness box, confirmed that he had several sessions with him. He was unable to recall precisely how many.
Considerable emphasis was placed by the Respondent on a recommendation made by a psychologist, Ms Ferrari, who conducted an assessment of the Applicant during a clinical interview on 7 May 2018. She prepared subsequently a report on 10 May 2018.[14] This report was prepared in anticipation of the Applicant's appearance in the Magistrates' Court for sentencing. Ms Ferrari in that report, amongst other things, expressed the opinion that the Applicant should be encouraged to engage in psychological intervention to assist him in building his social skills, understanding how to form appropriate friendships and relationships, and how this differs from culturally bound practices, as well as to learn acceptable boundaries. She further opined that if he did so, it would assist in reducing his risk of recidivism while the same time improving his ability to evaluate and make appropriate choices in the future.
The Respondent then, understandably, focused on the observations made by Dr Kwok in her report on this topic. She reported that the Applicant informed her that he had seen a psychologist up to 3 times in the years 2018, 2019 or 2020. Further told her that this consultation was for legal matters. He stated to her that he had never seen a psychologist for treatment purposes.[15] Also, she recorded that the Applicant had completed the SOATS program as part of his CCO. This statement was of course demonstrably wrong.
By reason of these matters, the Respondent contended that most of the steps required by him in terms of treatment had not been undertaken, and therefore, identified risks had not been addressed. It was also contended that the report of Dr Kwok should not be preferred because by reason of her concluding, amongst other things, that the Applicant had completed the SOATS program her report was founded on incorrect assumption, or as was described in the Respondent's submission, a flawed understanding of the Applicant's rehabilitation in a critical respect.
This being so, the Respondent placed significant emphasis on the conclusions expressed by Ms Gilbert in her report of 23 May 2019. That report was titled "Intervention Pathways and Planning Assessment and Recommendations Report".[16] Ms Gilbert compiled her report after considering a significant amount of documentary information, including the report of Ms Ferrari dated 10 May 2018 and conducting a clinical interview with the Applicant together with the assistance of an interpreter for three and a half hours on 5 March 2019. Whilst that report is extensive and reference is made to it in its entirety, it concluded that applying the Actuarial Risk Assessment-Static 99 that the Applicant was in the High-Risk category relative to other male sexual offenders. She stated that individuals with these characteristics, on average, sexually reoffending 26% over five years, and 31% over 10 years and 36% over 15 years.
The Applicant's expert evidence concerning the likelihood or risk of him reoffending is to be found in two reports prepared by Ms Ferrari of 10 May 2018 and 17 August 2020 together with the report of Dr Kwok of 6 October 2025 supplemented by her oral evidence of the hearing of the application. Those reports are also referred to in their entirety and considered by the Tribunal.
Some aspects of Ms Ferrari's first report of 10 May 2018 have already been mentioned. Some other aspects of it are worthwhile referring to. She administered what is described as the "Sex Offending Needs Assessment Rating" ("SONAR"). She explained that it is a nine-item tool designed to assess change in risk for sexual recidivism among charged and convicted sex offenders. She concluded after administering this test that the Applicant's results did not demonstrate any stable or dynamic risk factors which would elevate his risk of future sex offending. Further, she reported that the Applicant scored within the low-risk category in relation to each area of focus. Further, Ms Ferrari emphasised that the Applicant did not endorse statements supportive of violence, molestation or sexual offences against women or children.
Additionally, with respect to the results of the SONAR tests that she administered to the Applicant, they did not reveal any indication of poorly controlled expression of sexual impulses, nor did he exhibit any tendency to use sexuality as a method of coping with negative emotions. She also found that there were no other indications of preoccupation with sex, and certainly no indication of deviant sexual fantasies or preoccupation with sex crimes or excessive use of pornography.
It was also recorded by Ms Ferrari as a result of administering the SONAR test that there were no concerns evident with regard to the Applicant's ability to self-monitor and conform to the demands of community supervision. Therefore, as already noted overall, he was considered a low risk of reoffending in relation to sexually based offences.
Ms Ferrari's second report of 17 August 2025 arose from an opinion being sought by the Applicant's lawyers concerning his then current mental health and any applicable diagnosis.[17] She administered several tests to him following an interview or consultation she conducted with him to give the assistance of an interpreter. Once again, the contents of that report are referred to in their entirety. In assessing this primary consideration, that portion of the second report from Ms Ferrari in which she undertook a Risk Assessment warrants mention. In undertaking a risk assessment, she administered a Sexual Violence Risk-20 ("SVR-20). She described this testing tool as a twenty-item checklist of clinician-rated risk factors for sexual violence She explained that the twenty factors essential in a comprehensive sexual violence risk assessment fall into three main categories: Psychosocial Adjustment, History of Sexual Offences, and Future Plans.
Having administered the SVR-20 test, Ms Ferrari included and expressed the opinion that the Applicant was rated a low-risk across each of the applicable risk factors, and therefore is considered to be a low-risk of future sexual recidivism. This, she observed, was consistent with her initial assessment in a previous report of 10 May 2018.
The Respondent contended less weight should be placed on the opinions of Ms Ferrari and the opinions of Ms Gilbert preferred. The dominant factor relied upon by the Respondent in making this submission arises from Ms Ferrari recording in several places in her initial report of May 2018 that the Applicant stated he was not aware that his actions would cause distress was acceptable at time the incident occurred. Further, she recorded that had he known such behaviour was against the law and been aware of the issues around his consent, he would never have acted in such a way as it is stark opposition to his beliefs, values and attitudes. It was, in essence, Ms Ferrari's adoption of the assumption that the Applicant was in denial or had denied his offending which is the fundamentally flawed assumption relied upon by her.
Whilst there is some attraction in this contention, the Tribunal was not persuaded that this sufficiently justifies either placing less weight on her conclusions or not accepting her professional opinion as expressed in both reports. There are several reasons for this. These reasons will be briefly outlined in no particular order of priority.
In both her reports where Ms Ferrari applied these specific tests to the Applicant, she referred to and it seems apparent that she did so with full and accurate knowledge of the particulars of his offending. She was retained with the contents of the hand up brief prepared by Victoria Police including the preliminary brief containing the statement made by the informant, which of course was referred to frequently in the hearing of this application. Several comments about the accuracy of the preliminary brief have already been addressed earlier in these reasons. There is nothing in either of Ms Ferrari's reports to indicate that she did not accept the facts recorded in those documents. There is nothing to indicate anywhere in her report that, although she noted his statements, that he was not aware that his actions were are acceptable or against the law, that she accepted such statements and included them as an evidentiary platform, foundation or valid assumption when administering the tests that she did.
Further, in each of her reports, Ms Ferrari explained the tests that she was administering and how she did so. Her methodology was logically laid out. This Tribunal considers that Ms Ferrari has expressed genuine expert professional opinions based upon the material available to her, the consultations she had with the Applicant and as a result of the several recognised tests used to assess the risk of recidivism, particularly with respect to sexual offending that she administered to him.
This does take the Tribunal to Dr Kwok's report and her evidence that she gave to the Tribunal and the hearing of the application.[18] The contents of her report are also referred to in their entirety. She also administered several tests to the Applicant. They included the Static-90 9R. Having applied those test results she concluded that the Applicant was a low-moderate risk of further sexual offending (i.e. the lower end of moderate risk). She identified the factors that contributed to his risk were his age, that the victim was unrelated, and a stranger to him. The factors that reduced his risk were, no nonsexual violence, no prior sex offences, no prior nonsexual violence, no prior sentencing dates or convictions.
In her observations concerning the application and administration of the Static-90 9R test to the Applicant, Dr Kwok also stated that with regards to offenders with a history of sexual crime, the highest rates of reoffending are found during the first few years after release from prison and the likelihood of new sexual offences declines the longer individuals with a history of sexual offending remain sexual offence free in the community.
Dr Kwok also administered a test known as the "Level of Service/Case Management Inventory" ("LS/CMI"). She described this as a Risk and Need Assessment tool. The results of that test can be used in formulating a case management plan for the person concerned. She explained that the General Risk/Need score reflects what is described in the literature as the "big eight" risk/need factors. These factors are Criminal History, Education/Employment, Family/Marital, Leisure/Recreation, Companions, Alcohol/drug Problem, Pro-criminal Attitude/Orientation, and Antisocial Pattern. She concluded that the LS/CMI results suggests that the Applicant's general risk/need is in the low range.
There is another aspect of Dr Kwok's report that warrants mention. She expressed the opinion based upon her assessment of the Applicant and his symptoms criteria for Major Depressive Disorder as defined by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition ("DSM-5"). She recorded the Applicant symptoms including low moods on most days, markedly diminished interest in social activities and social interactions, loss of interest in previously enjoyed activities, somatic symptoms (e.g. headaches), forgetfulness and diminished memory and sleep disturbance.
Dr Kwok, in conclusion, apart from repeating that the Applicant suffers from Major Depressive Disorder, stated that the Applicant as a low risk of further sexual offending and is a low risk for general offending. Finally, she noted that if the Applicant's visa was restored, it would affect his mental psychosocial well-being.
In the witness box, Dr Kwok presented as an arms-length professional who understood her obligations to genuinely assist the Tribunal. She reiterated the contents of her report and expressed a clinical opinion that the Applicant is of a low-risk of further sexual offending. She candidly acknowledged that the Applicant reported to her that he had never seen a psychologist for treatment purposes. His account of seeing a psychologist to her she described as vague but that it seemed to her it was more through assessment rather than treatment. Presumably, for the purposes of his pending hearing in Court to be sentenced for his offending.
To her credit, Dr Kwok readily conceded that she was wrong when she concluded that the Applicant had completed the SOATS program. She stated that she got that from the material. She readily conceded that the Applicant would benefit from further intervention. She stated that she fully agreed the Applicant needs treatment for his mental health conditions and also for his socialisation. She also stated quite candidly and in reaching the conclusion that the Applicant was low risk it was certainly not "no risk."
In cross-examination Dr Kwok also expressed the opinion that the Applicant understands now that there are legal consequences of such behaviour and that the impact of all this on him over the last seven years has been significant. She also emphasised in cross-examination what she considered to be important factors contributing to his low-risk of reoffending, including that there had been no prior sexual offences, there have been none since, he is free of drug and alcohol abuse, has a stable family support network and, until recently, stable employment. She also emphasised that he had access to some social support through his ethnic community.
The differences between the conclusions adopted by Ms Gilbert were explored in some detail in cross-examination. Dr Kwok believed she had read it and did not recall. She did say that the Static 99 test factors had changed since Ms Gilbert's report. She also stated there had been updates in terms of taking a standardised sample which could explain differences. She also explained that their levels had changed with the Static 99 test which changed the risk evaluation.
Dr Kwok steadfastly maintained her opinion that the risk of recidivism declines over time. She emphasised that the longer the time a person has not reoffended, the lower the risk. To her credit, she conceded she had not cited case studies in the report or refer to some in her evidence. She also acknowledged in response to questioning cross-examination that recidivism rates with respect to sexual offending are frequently underestimated due to the fact that there is an underreporting of sexual related crimes.
Having considered all the material, the Tribunal accepts Dr Kwok's opinion that the Applicant has a low-risk of reoffending, whilst acknowledging her evidence that low-risk is not "no risk".
It accepts Dr Kwok's evidence for several reasons. They will be briefly explained in no particular order of priority.
Firstly, she is a highly qualified, experienced and expert Clinical Psychologist.
Secondly, she has conducted the most recent assessment of the Applicant which she did on 26 August 2025 and then produced her report.
Thirdly, she was the only expert witness to give oral evidence of the hearing of the application and be cross-examined.
Fourthly, in both her report and evidence from the witness box, she explained what her assessment of the Applicant involved. She also described the psychometric tests that she administered to him together with the results of those tests. As has already been observed, she understood her role as an expert was to assist the Tribunal, which she did. She readily made concessions when they were called for and certainly was not an advocate for the party who called her to give evidence.
Fifthly, to a significant degree, her conclusions derived from the psychometric tests that she administered to the Applicant accorded with the conclusions reached by Ms Ferrari in her two reports. Whilst this is not a determinative factor, it is nonetheless, a relevant consideration.
Finally, the opinions expressed by Dr Kwok were to a considerable degree fortified by the fact that the Applicant has not reoffended. Over seven years have elapsed since then. On this note, of course, it will be recalled that Ms Gilbert's report of 23 May 2019 followed her interview with the Applicant in March of that year. This is a significant time-lapse. Whilst not criticising Ms Gilbert, one as a matter of course is more likely to refer the most recent, or up-to-date report, which in this case is that of Dr Kwok whom the Tribunal had the benefit of hearing from in her oral evidence.
There are other reasons that the Tribunal considers that the Applicant is a comparatively low-risk of reoffending, apart from the opinions of the experts that have been touched on above.
The fact that he has not reoffended, as noted above, is evidence pointing to rehabilitation. He has been blameless since his conviction, completed his CCO and until the reviewable decision was made, was gainfully employed. It is a pointer to his likely future conduct.
Apart from one lapse, he has complied with his reporting obligations under the Sexual Offenders Registration Act 2004 (Vic). Reference should be made to the lapse. On 25 August 2022 in the Dandenong Magistrates' Court, the Applicant was found to have failed to comply with his reporting obligations. Without conviction, he was assigned an aggregate of $500.00.[19] In cross-examination, he admitted this breach. The Respondent properly conceded that this matter cannot be counted against him in terms of a criminal record.
However, in paragraph 51 of his statutory declaration made on 3 October 2025, he stated that he had never breached such conditions.[20] By reason of the breach, which was proven to the Magistrates' Court in August 2022, this paragraph of his statement was false. When confronted with this in cross-examination, his response was not very satisfactory, and he offered no explanation for making the false statement as he did. He sought to deflect from this line of questioning by saying that he had paid the fine and since that occasion had not subsequently breached the condition. Whilst this well may be so, the fact that he made a false statement in such a way does not reflect well on him. However, given the obvious language difficulties that the Applicant faces and probably difficulty navigating his way through the legal system because of that fact, the Tribunal, whilst strongly condemning what he said on the topic in his most recent statutory declaration, does not believe that the breach of the reporting conditions concerned are indicative of him being a higher risk of reoffending.
To some extent, the fact that the sentencing Court considered the risk of the Applicant reoffending to be low is reflected in the fact that a CCO was imposed and not a custodial sentence. The sentencing Court presumably had the benefit of careful submissions made by Counsel on his behalf relying on, amongst other things, the report of Ms Ferrari and any other witnesses, including character witnesses who may have given references for him.
The Tribunal also, notwithstanding its views of the Applicant's evidence before it in the witness box, does accept that the consequences of his offending have had a profound effect on him. Having the visa cancelled drove home to him, if it otherwise needed to be, the significant difficulties on a multitude of fronts that he has faced, and no doubt would face again were he to reoffend. This is a powerful factor and motive for him to avoid future offending.
In submissions made on behalf of the Respondent it was contended that the Applicant has demonstrated remorse, but that his insight into his offending is limited, which is indicative of a potential risk factor of him reoffending in the future. Emphasis was placed on the fact that a sexual assault is an abuse of power, which it clearly is. It was further contended that the Applicant does not have insight into his offending, nor the tools to prevent such offending in the longer term. It was highlighted that he had requested an exemption from participation in the SOATS program and that he had not sought any real treatment as suggested. The evidence concerning his attendances on the psychologist Mr Monterio was limited. Therefore, it is contended that his lack of engagement in the past is a pointer towards potential future offending.
Insight is always a difficult concept to accurately assess. Frequently, offenders in the position of the Applicant profoundly express their recently acquired insight to the Tribunal. This is understandable. Often the insight that they do gain into their offending is based upon an appreciation of the predicament that they find themselves in.
The Tribunal has no doubt that the Applicant has reflected deeply on his offending and knows full well that it was wrong. He has certainly engaged with Ms Ferrari, and latterly Dr Kwok, which such sessions appear to have given him greater insight into his offending than he probably had before. Those sessions were obviously beneficial to him in terms of gaining insight into his offending. Having observed him in the witness box it considers that he has gained some reasonable appreciation of the impact on his victim. It is understandable given his, and his broader family's history, that his insight, is more likely than not, to be viewed initially from his perspective rather than his victim's. That he has not had much in the way of treatment is unfortunate, but the Tribunal does not consider it determinative. It concludes, therefore, that notwithstanding the submissions of the Respondent he has gained significant insight into his offending.
In terms of risks some reference should be made to the impact that the Applicant's offending has had on his family and what this may mean in terms of influencing the Applicant with respect to the potential for future offending. Tribunal accepts that the Applicant comes from a very tight knit, loving, multigenerational family, who, uniquely for this country, live under the one roof, and have done for years. His family have faced significant adversity and tribulations over many years. His father embarked upon a very risky endeavour travelling more than halfway around the world, which ultimately enabled him to permanently settle in Australia and bring his broader family to this country. They live under the one roof, clearly love one another and have a very tight bond. To use a layman's terms, the Applicant's offending and his behaviour has really "let the side down". His stupidity placed in jeopardy for him so much of what his father had sought to achieve with his family and, in particular, to give the Applicant the opportunity of a better, peaceful and prosperous life. Whatever views the Tribunal has on some aspects of the Applicant's evidence, it does emerge that what he has been through for many years now has been a profound wake-up call for him. He well knows that if he were to commit serious offending again, such as he did in 2018, he will wear out his welcome in this country. He does not want to let his family down. This is a powerful motivating factor for him to remain obedient to the laws of this country.

[52]

As already noted, the Applicant arrived in Australia in August 2017 at the age of 20. His offending occurred relatively soon after his arrival in February 2018.
Apart from his sister, who lives in Pakistan, all the Applicant's other immediate family members reside in Australia.
The Tribunal accepts that he has no family members left residing in Afghanistan.
By reason of the comparatively short time that passed between his arrival and his offending, as will be observed from the language used in paragraph 8.3 (2)(a)(i) of Direction 110, less weight should be given to this primary consideration.
Whilst the Tribunal did not understand that submissions made on the Applicant's behalf went so far as to say that the provisions of subparagraph 8.3 (2)(a)(i) of Direction 110 should in some way be diminished, or not so rigorously applied, it was contended that the close connection he has with his broader family who all live under the one roof, the distress his removal from Australia would cause them, the time that he has lived in Australia making a positive contribution whilst working and engaging in volunteer work, do to some extent ameliorate the impact of this provision.
The impact of a potential removal of the Applicant to Afghanistan on his family members was canvassed in the evidence before the Tribunal. The Applicant stated both in his statutory declaration, and from the witness box, that the prospect of his removal from Australia, not to mention the legal processes, both criminal and the visa process, that have now gone on for many years, have caused pain, distress and discomfort to both his mother and father. In particular, the Applicant's mother has been significantly impacted. Whilst it is not precisely clear what condition she now suffers from, apparently, she has experienced significant mental health issues since the Applicant's offending was exposed and the process concerning the visa has taken its course. She was described as being quite depressed. To address these issues, she attends a psychologist regularly to assist with a mental health management plan. Ms Ferrari, in her first report, stated that his mother has attended a psychiatrist and a psychologist recently as well as being prescribed antidepressant medication due to her stress related to this ordeal.[21] She did not explain where this information came from. However, the Tribunal sees no reason not to accept it. It seems unlikely she would include such references unless she had been appropriately briefed and instructed about such questions.
Similarly, the Applicant's father explained in his evidence that his psychological and mental health deteriorated. He explained that both he and his wife have difficulty sleeping, for which they require medication, experience forgetfulness, anxiety and emotional distress.
The impact on the Applicant's parents was also corroborated by evidence from his two brothers who gave evidence.
The Tribunal sees no reason not to accept the evidence, as outlined above, concerning the impact on his parents, which is clearly significant.
The Applicant's elder brother also explained that it would have a devastating impact on him if the Applicant were removed from Australia. In short, he stated, understandably, that he did not want to lose his brother, as his brother is his "right hand". He stated that the Applicant should be permitted to remain in Australia. Further, he gave evidence that , if he is to stay here, it is their intention to start a roof tiling business which they believe would be very successful due to the buoyant demand for roof tilers in the construction sector. This is quite understandable. All the brothers have worked as roof tilers. The Tribunal accepts that they have all worked hard and have a long-term objective to start their own business with a view to significant growth. The Tribunal accepts that if the Applicant were to be removed from Australia it would have a significant impact on his brothers also.
In terms of social links to the Australian community, Australian citizens and permanent residents, there was evidence of his active involvement in the Hazara community and his local mosque. There was a letter of support from Dr Latify, a resident of the Alim of Taha Association of Victoria and Clevic of Jummah Prayer in South-east of Victoria.[22] He recorded the Applicant's contribution to those associations in several ways. These included volunteering on significant religious occasions such as Ramadan and Muharram. He has also been a financial contributor to that organisation. The contents of that letter of support from Dr Latify were also corroborated by the Applicant's father when he was in the witness box at the hearing of this application.
Another matter that the Tribunal considers is appropriate to take into account in assessing this primary consideration is the Applicant's work history. To his credit, he obtained gainful employment reasonably soon after his arrival and until the reviewable decision was made cancelling the visa worked hard and contributed to his broader family unit. In more recent years, he has had regular employment as a roof tiler, an occupation that he seems to enjoy, and one in which he works with people of Afghan origin, particularly Hazaras. He has worked hard in this occupation. To this extent, during the working day there is clearly social interaction between him and his fellow workers, which he enjoys.
The Respondent drew the Tribunal's attention to certain aspects of Dr Kwok's report which led to a conclusion that the Applicant is socially isolated and has been so since the time of his offending in 2018. Further, in support of this contention, it was noted that the Applicant has not availed himself of means available to him, such as counselling, sexual education and prosocial activities more generally, to address his feelings of shame, or normalising relations with women and girls. Therefore, it is contended these matters significantly limit the extent of the Applicant's ties to Australia and the Australian community.
Certainly, Dr Kwok in passages of her report recounted that the Applicant did not make friends before his offending, and he became more socially withdrawn following his conviction. She expressed the opinion that although the Applicant has family support and sometimes engages with the Muslim community, he would benefit from having opportunities to increase in prosocial leisure activities and social interactions.
In addressing these submissions from the Respondent, the Tribunal considers that in this instance it must be viewed with a degree of realism. The comparatively unusual family arrangement where three generations live under the one roof, will almost of necessity mean that the Applicant is less likely to have social interaction with the broader community than might otherwise be the case were he to live on his own, or even with a life partner. Given the family history, which has been recounted in detail earlier, it is quite understandable that this close-knit multigenerational family unit will draw primary social support from each other.
Also, some latitude should be given to the Applicant when assessing this primary consideration from the fact that the process both with respect to his reporting obligations under the Sex Offenders Registration Act 2004 (Vic), and of course the process leading to the cancellation of the visa, more probably than not, would have had a chilling effect on his capacity and inclination to more actively engage with the broader Australian community.
For these reasons, the Tribunal does not accept the contention of the Respondent that his comparative social isolation, particularly as described in Dr Kwok's report, significantly limited the extent of his ties to Australia and its people.
On the evidence before it the Tribunal considers that the strength, nature and duration of the Applicant's ties to Australia are substantial. Accordingly, very significant weight must attach to this primary consideration in favour of setting aside the reviewable decision.

[54]

The Applicant has no minor children. He does however have two nieces, one born in December 2021, and another one born in May 2025. They are both Australian citizens and are daughters of his older brother, Mehdi. They are affected by any decision to cancel the visa as contemplated by paragraph 8.4 of Direction 110.
The Applicant his parents, his brother and his brother's wife all live under one roof at a residence in Cranbourne East.
There was limited evidence concerning the Applicant's nieces. The Applicant stated that they all happily live in the same home, in what he described as a joined family setting. He explained that his nieces have become an important part of his life because of the fact that they live under the one roof. He explained how he has developed close connections with both of them, but in particular the eldest niece, who he said has a strong emotional connection to him. So much so, that when it is suggested, the Applicant might live apart from her, it causes her to become upset. Some of that has already been touched on when the strength, nature and duration of ties to Australia were considered previously. To that extent, those matters are referred to and repeated for the purposes of the analysis of this primary consideration.
The Applicant's brother gave evidence that he is a very good uncle to his nieces. He corroborated the Applicant's evidence about the special relationship that has developed with his eldest daughter. Apparently, the Applicant regularly gives her toys and treats. Additionally, he takes her to the playground and quite regularly looks after her. In his evidence from the witness box, he explained that his eldest daughter, in more recent times, has questioned him about "what is wrong with my uncle". Apparently, she is able to deduce that there is some difficulty that the Applicant is facing without fully comprehending what that might be.
Paragraph 8.4 of Direction 110 requires the decision-maker to make a determination about whether refusal of a visa under s 501 is, or is not, in the best interests of minor children affected by the decision.
Several factors are articulated in paragraph 8.4(4) of Direction 110 which must be considered by the Tribunal as decision-maker when applying this primary consideration. Although the evidence concerning the Applicant's nieces is comparatively spartan, the Tribunal will do its best to address each of these factors.
Paragraph 8.4.4(4) requires the Tribunal to consider the nature and duration of the relationship between each of his nieces and the Applicant. Less weight should generally be given where the relationship is nonparental, and/or there is no existing relationship and/or there have been long periods of absence, or meaningful contact.
It is apparent that these somewhat unconventional living arrangements of the Applicant and his family, as previously recorded, where they all live under the one roof in Cranbourne East, means that as a matter of course the relationship between the Applicant and each of his nieces, who it will be recalled are both under the age of 5 years, is more likely than not to be a stronger one than if they were not living under the one roof. Additionally, the Tribunal is mindful of the fact that the Applicant, his parents and brothers have all come to Australia in difficult circumstances having left Afghanistan due to the difficulties there and then lived for some years in Pakistan. The vicissitudes of life that the family have experienced, as recounted in their evidence, would in all likelihood mean that the family unit, or perhaps more accurately, the extended family unit would be closer than those of conventional "nuclear families". Even though the Applicant is not the parent of his nieces, the Tribunal is prepared to accept that he probably has a stronger relationship with them than would otherwise be the case.
As to the extent which the Applicant is likely to play a positive parental role in the future with his nieces as contemplated by paragraph 8.4(4)(b) of Direction 110, it seems that he has played a positive role in their lives in the past and will continue to do so, although it is nonparental.
There is no evidence to suggest that the impact of the Applicant's offending has had a negative impact on his nieces given their relatively young ages and also probably because he did not receive a custodial sentence.[23] As for any future conduct on his part, the impact, if any, would depend on the nature of any future offending together with whether or not he continues to reside with them under the same roof. Obviously, if he does not continue residing under the same roof and he were to offend in the future, the impact on his nieces is likely to be less significant.
The likely effect of any separation from the Applicant on his nieces once again is somewhat difficult to assess. Given their comparatively tender years, the impact may be a little less than if they were substantially older. However, the Tribunal has accepted the evidence before it that the Applicant has developed some level of special relationship with his eldest niece. Therefore, it is more probable than not that she would be more affected by his absence both from the household in which they all live, and her life when compared to the younger niece. Presumably, if the Applicant is removed from Australia there would be options for him to maintain contact in other ways, most likely via the Internet. Depending on where he was to go to, it seems given the close family bonds that exist, his brother would probably bring the nieces to see him on occasion for visits at a suitable time when they are old enough.
It has already been observed that there are the nieces' parents who fulfil a parental role. There are no known views of the children other than as noted above that with respect to the eldest niece she does appear to have a special relationship with the Applicant and is concerned about what is happening to him, although she does not precisely know what. To the extent that this reflects a view on her part, it is taken into account by the Tribunal.
Save as aforesaid, there are no other factors in paragraph 8.4(4) of Direction 110 concerning the best interests of minor children in Australia affected by the decision that should be considered by the Tribunal with respect to this question.
The Applicant contends that significant weight should be attached by the Tribunal to this primary consideration in favour of setting aside the reviewable decision. Emphasis was placed on the matters been articulated above and what was described as the significant impact on the intergenerational family dynamic within which the Applicant lives.
The Respondent, on the other hand, not unsurprisingly, emphasises that he does not play a parental role in either of his nieces' lives. This is readily apparent. Therefore, it is submitted this consideration should only carry very limited weight in favour of setting aside the reviewable decision.
The Tribunal is persuaded that given the unique living circumstances of the Applicant, and that he does live under the one roof with his nieces, and by reason of this fact has developed a closer relationship with his eldest niece than might otherwise be the case, that more weight than one might otherwise attached to this primary consideration applies.
In all circumstances, significant weight should be attached to this primary consideration in favour of setting aside the reviewable decision.

[58]

Paragraph 8.5(3) of Direction 110 provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
It is also provided in paragraph 8.5(4) of Direction 110 that this consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
In applying this primary consideration, it is instructive to refer to several passages from the decision in FYBR v Minister for Home Affairs which is frequently referred to in cases before this Tribunal and the Courts.[24] Several passages from that decision explain that, as is apparent from an examination of a paragraph of the earlier Ministerial Direction, Direction 99, which expressed similar language, to the extent it contains a statement of the expectations of the Australian community, the clause is 'deeming'.[25] As Charlesworth J also explained, the clause imputes or ascribes to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[26] These expectations are established and are to be applied as norms.
As Mortimer J (as she then was) in YNQY v Minister for Immigration and Border Protection[27] observed, in substance, this consideration is adverse to any Applicant where they have failed the character test and have been convicted of serious crimes.
The expectations of the Australian community should be determined by reference to the provisions of Direction 110 itself, not by an independent assessment conducted by the Tribunal. The weight to be applied in undertaking the balancing exercise prescribed by Direction 110 is ultimately a matter for determination by the decision-maker, in this case the Tribunal, taking into account all relevant individual factors including countervailing factors from the person's specific circumstances.[28]
The Applicant contends that limited weight should attached to this primary consideration in favour of the exercises the discretion to cancel the visa.
On the other hand, the Respondent contends that this consideration should be assigned very significant weight in favour of affirming the reviewable incision.
The Tribunal considers that when one construes the language contained in paragraph 8.5 of Direction 110, which articulates the expectations of the Australian community as a norm and applies it to the facts before it in this application, that expectation would be that the discretion in s 501(2) of the Act to cancel the visa should be exercised. There are several factors which give rise to this conclusion.
There is the fact that when one applies the language of Direction 110, and in particular paragraph 8.1.1(1)(a), the Applicant's offending is viewed very seriously by the Australian Government and the Australian community because it was of a sexual nature against a child.
Safety of the Australian Community is the highest priority of Australian Government as articulated in paragraph 5.2(2) Principles of Direction 110.
Similarly, under paragraph 5.2(3) Principles of Direction 110 it is prescribed that non-citizens who engage in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia.
The comparatively short time the Applicant was in Australia before he offended is a situation that invokes the language used in paragraph 5.2(5) Principles of Direction 110 which prescribes that Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to, the Australian community for a short period of time.
The Tribunal has earlier in these reasons stated why it has concluded that the Applicant knew when he offended that what he was doing was wrong and illegal.
His offending was opportunistic and committed against a vulnerable young girl entitled to go about her business while travelling on public transport in a safe environment. It was plainly unacceptable, and he knew better. It has already been mentioned that the Applicant's father and his brother explained that the Applicant had a clear understanding of what was right and wrong. Further in their community, religion, and their household this type of offending is forbidden.
The question then becomes the Tribunal what weight to attach to this primary consideration. Undertaking that assessment is not an easy task.
The Tribunal is not persuaded that very significant weight should be attached to this primary consideration in favour of affirming the reviewable decision, as contended for by the Respondent. However, it is not persuaded that such little, if any, weight be attached to it as contended by the Applicant.
Whilst the Applicant's offending was clearly very serious and plainly unacceptable, the Tribunal considers that more latitude than usual in favour of an Applicant should be granted in this instance. There is the evidence of his rehabilitation and that he has not offended since the one day in question in February 2018. The unique position of his intergenerational family living arrangements do place him in a slightly different category. Additionally, his removal to Afghanistan, about which more will be said later, when the other consideration Extent of impediments if removed is considered, would be particularly difficult for him as he has not lived there for many years and would clearly be an outsider. The Tribunal is also mindful of the impacts on his family, particularly his mother, and to a lesser degree his father, which will be devastating for them. The profound effect on his mother should not be underestimated. The Applicant's relatively commendable work history, also in this instance, does warrant some acknowledgement in his favour.
For the reasons explained Tribunal has concluded that he is a low-risk of reoffending.
The Tribunal is also mindful of the risks that the Applicant will face if he is removed from Australia and returned to Afghanistan. He left when he was a comparatively young boy, he is a Hazari, clearly identifiable as such and has no family or other connections with that country. More about the risks that the Applicant might face if he were to return to Afghanistan will be addressed later in these reasons in the section addressing the other consideration namely, Legal consequences of decision under section 501.
The expectations of the Australian community, as contemplated by this primary consideration, it seems for the reasons explained, is likely to extend some latitude in the Applicant's favour by reason of these matters.
Given all these considerations the Tribunal considers that, even though the weight attached to this primary consideration is in favour of affirming the reviewable decision and cancelling the visa, for the reasons explained only limited such weight will be attached to it.

[60]

Paragraph 9.1.2 Direction 110 Non-citizens not covered by a protection finding, identifies several elements. All the subparagraphs comprising this paragraph of Direction 110 are referred to for their full force and effect. However, briefly the substance of some of them will be outlined below.
Under paragraph 9.1.2(1) claims which may give rise to international non-refoulment obligations can also be raised by a non-citizen who is not the subject of a protection finding in responding to a notice of intention to consider cancellation of a visa under s 501 of the Act. Where such claims are raised, they must be considered.
Sub paragraph 9.1.2 notes, however, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the s 501 stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application.
The Respondent contends, or perhaps more accurately, notes that the Tribunal can elect to proceed on the basis that even when the Applicant applies for a protection visa any protection claims he has will be assessed through the appropriate statutory process. Quite understandably, reliance is placed on the decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs.[29] The Tribunal will not go into an excursion surrounding the analysis of the High Court in that matter, other than to observe that although it involved a consideration of a different section of the Act (s 501CA(4)), nonetheless one available outcome for the Tribunal as decision-maker is to defer assessment of whether the Applicant is owed non-refoulement obligations on the basis that it is open to him to apply for a protection visa.
The Tribunal will not defer such an assessment. There is a significant amount of material before it concerning the Applicant's non-refoulement claims_._ Given this material including the evidence not only of the Applicant, but that of his father, which does assume considerable importance for the purposes of assessing this other consideration, it sees no reason not to address the material before it. In doing so, it should read, identify, understand and evaluate the Applicant's representations.
In this context, it is important to note that the Applicant's father came to Australia as an unauthorised maritime arrival at Christmas Island in March 2010. He made a claim for protection which was assessed and determined. A protection visa was granted to him, and he was released into the community in June 2011. The Tribunal considers this to be an important factor, amongst others, swinging the pendulum against deferring an assessment of whether the Applicant is owed non-refoulement obligations. Presumably, were the Applicant to make an application for a protection visa, the same or similar grounds to those made by his father in relation to his application would similarly be relied on by him also.
In the Applicant's Statement of Facts, Issues and Contentions the essence of his claims for protection within the meaning of s 36(5) of the Act are identified as follows:

[62]

A useful starting point in assessing the Applicant's claims for protection it seems to the Tribunal is to briefly record some of the observations on these topics contained in the DFAT Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022) ("the DFAT report"). That document contains a very useful overview of relevant conditions concerning these matters in Afghanistan.
According to the DFAT report, Afghanistan is an ethnically, linguistically and religiously diverse country. Insofar as the Hazara are concerned, they are described as an ethnic group of distinctive East Asian appearance, native to the Hazarajat region of Afghanistan. Their language, Hazaragi, is a writing of version that is mutually intelligible with Dari. The majority of Hazara are Shia.
The DFAT report stated that the takeover of Kabul and most of Afghanistan by the predominantly Sunni and Pashtu Taliban in 1996 marked a period of considerable repression and hardship for the Hazara nationwide: the worst single recorded massacre in the country's recent history took place in Mazar-e-Sharif in August 1998, when the Taliban massacred at least 2,000 Hazara. Many Hazara fled Afghanistan during this period to escape Taliban oppression. Of course, the Taliban in August 2021 reclaimed control of Afghanistan.
The return of the Taliban in 2021 was met with great fear by the Hazara community. Further, 2 of ISKP's mass-casualty terror attacks, along with smaller attacks since mid-August 2021, have directly targeted Shi'te mosques chiefly used by the Hazara's.[31]
The DFAT report further noted that since its takeover in August 2021, the Taliban has summarily executed Hazaras who were former members of the security forces. Furthermore, hundreds of Hazara families have been forcibly evicted from their homes in central Afghanistan. The Taliban claim such evictions are property disputes. However, the DFAT report states that NGO's have described such conduct as a form of ethnic cleansing. Therefore, DFAT assesses that Hazaras in Afghanistan face a high risk of harassment and violence from both the Taliban and ISKP on the basis of their ethnicity and sectarian affiliation.
Apart from what has already stated, there is the question of religion. The DFAT report noted that the overwhelming majority of Afghan Shi'a are Hazara. It assesses that the Shi'a face a high risk of being targeted by the ISKP and other militant groups on the basis of their religious filiation when assembling in large and identifiable groups, such as during demonstrations or attending mosques during major religious festivals. Such risk is said to increase those living in Shi'a majority or ethnic Hazara neighbourhoods in major cities such as Kabul and Herat. The Tribunal should pause to observe that were the Applicant to be returned to Afghanistan the likelihood of him living in such a neighbourhood would be very high indeed.
The UNHCR Guidance Note on Afghanistan (Update11), September 2025 makes similar observations to that of the DFAT report. The contents of that note are referred to again in its entirety. It reports that Shi'as frequently live in hiding or fear, have been beaten and harassed and faced restrictions, physical violence, arbitrary arrest and detention. In particular, Hazaras face discrimination mistreatment from other ethnic groups, and often from local de facto officials. Similarly, it noted that Shi'a who are Hazara have been targeted in widespread and systematic attacks by ISKP, with repeated attacks on mosques and the Hazara neighbourhood of Dasht-e-Barchi in Kabul causing hundreds of casualties.
Another matter of concern arises from the UNHCR Guidance Note is that in the light of available information about widespread human rights violations committed by the de facto authorities, and in the absence of an independent judiciary or court system, the UNHCR does not consider that the de facto authorities are willing or able to provide protection to Afghans at risk of persecution, such as the Applicant might be facing were he returned to Afghanistan.
The United Kingdom, Home Office "Country Policy and Information Note Afghanistan: Fear of the Taliban" Version 5.0, August 2025, has also been considered. Once again, that Information Note has been read by the Tribunal. Several things emerge which support the Applicant's claims. It includes that ethnic Hazaras continue to face abuse by the Taliban and are, in general, likely to face a real risk of persecution. Similar to the other reports considered and referred to above, it observes that Hazaras are also a major target for ISKP. Also, where a person has a well-founded fear of persecution from the Taliban, which it seems the Applicant almost certainly would have were he to return to Afghanistan, they will not, in general, be able to obtain protection. This is of much concern.
The Home Office Information Note reviewed several other sources in a section entitled "Shia and Hazara's". It states that Hazara communities are facing increased threats of arbitrary arrest, disappearance, loss of employment and education, denial of humanitarian aid, forced displacement. Further, it stated that Hazaras are specifically targeted not only for tribal and ethnic reasons, but because of anti-Shia sectarianism as well. It observes that they have continuously, since the Taliban's inception, been victims of unbelievable human rights violations. Another source recorded in that note stated that it is difficult to believe that today's Taliban with such intense genocidal hatred in its past could be capable of reform. This is a significant and compelling warning.
The prospect of the Applicant also being targeted because he is perceived to be "Westernised" or "Pro-Western" is also a risk to someone such as the Applicant. Taliban reactions can vary from place to place. There have been examples of the Taliban arbitrarily detaining individuals whose clothing and appearance have a Western style to them. Specific examples or reasons why this occurred, included such things as not having a compliant beard length, hair style or wearing Western clothes. Certainly, it appears that this would more likely than not occur if the Applicant returned to Afghanistan dressed as he no doubt regularly does in Australia, or similar to it, he is highly likely to be targeted.
The UNHCR Guidance Note records that given the volatility of the situation throughout Afghanistan, coupled with the grave economic and humanitarian situation in Afghanistan internal relocation is not a viable alternative or option.
There is another matter that is relevant to an assessment of this other consideration. It will be recalled that the Applicant was assessed by Dr Kwok as suffering from Major Depressive Disorder. The symptoms of that condition have been previously explained. The Applicant has not undertaken any treatment for this mental health condition. He has not taken any medication for it. It appears that he has suffered from such conditions for quite some years, and probably to a greater or lesser degree, since he offended.
Ms Ferrari in her second report of 17 August 2020, which it will be recalled was sought specifically for an opinion regarding his then current mental health and applicable diagnosis, diagnosed him as suffering from 2 mental health conditions.[32] Those conditions were Post-Traumatic Stress Disorder as it was ultimately the result of experiences he was exposed to after fleeing the war in Afghanistan, living in uncertain circumstances in Pakistan, and on making his way to Australia. She also stated he developed Major Depressive Disorder with anxious distress in the context of his criminal offending and stress of this on him, his family, particularly due to guilt, shame, and remorse that his actions which were largely a result of the circumstances of his upbringing, misunderstanding due to cross-cultural differences and poor knowledge of societal norms and laws. She also observed he had experienced a further episode of depression since being informed that the visa may be cancelled.
Although access to mental health treatment overlaps with another consideration of Direction 110, namely paragraph 9.2 Extent of impediments if removed, nonetheless the Tribunal considers that the submissions made on his behalf that the question is relevant in assessing this other consideration is well-made.
The evidence before the Tribunal indicates that in Afghanistan, for the vast majority of the population, there are significant barriers to accessing treatment for mental health issues. Coupled with this difficulty, there is also a considerable cultural stigma surrounding mental illness and a corresponding lack of outpatient medical services.[33] The reality is, it seems to the Tribunal, that if the Applicant were to be returned to Afghanistan, he simply will not be able to access any treatment at all for his Major Depressive Disorder. This on top of his removal to Afghanistan, in any event, would seem highly likely to only lead to an exacerbation of his already existing mental health conditions. He would be subjected to the stigma attaching to people with mental health conditions. It is another factor that weighs in his favour.
The Applicant contends that in assessing the weight to be applied to this other consideration, Tribunal should include that it weighs strongly in favour of setting aside the reviewable decision and not cancelling the visa.
On the other hand, the Respondent submits limited weight should be placed on this other consideration in the Applicant's favour.
The Tribunal accepts the contentions of the Applicant that the weight to be applied to this other consideration should be strongly in favour of setting aside the reviewable decision. It does so after having considered the substantial material before it concerning the Applicant's non-refoulement claims. The substance of the independent material placed before the Tribunal and considered by it have been articulated above. Given the analysis contained in that material, which are from reputable sources, the Tribunal concludes that there is a distinct and real risk that the Applicant will face harm, as contemplated by this paragraph of Direction 110. On their face, they trigger non-refoulement obligations. These claims need to be viewed with a degree of understanding and realism. The Applicant has not lived in Afghanistan for many years, more probably than not, were he to return there he would be readily identifiable as Hazara and at great risk, as already noted. He has no family or social network there, who may in some way be able to offer him limited protection, if possible.
Finally, it has already been noted that the Applicant's father made a claim for protection which was assessed and granted. He was issued with a protection visa. No doubt, if the Applicant were to apply for a protection visa, the same grounds would be relied upon by him. Whilst one cannot speculate, then would have to be a significant probability that such claims on the part of the Applicant would be upheld.

[66]

As previously noted, the Applicant is presently 28 years of age.
He is fluent in Hazaragi, a language spoken in certain parts of Afghanistan, including a select neighbourhood of Kabul where people of Hazara ethnicity congregate or reside. There are significant Hazara populations in several provinces of Afghanistan including Bamiyan, Daykundi and Ghazni. In other provinces the Hazara population is much smaller.
As for his physical health he appears to be in relatively good condition. He was for many years able to work in a bakery and as a roof tiler. Roof tiling is demanding physical work that requires the employee to carry out a variety of tasks in a range of weather conditions. It includes lifting significant weights and course repetitive actions throughout the working day. From the evidence before the Tribunal, it was apparent that the Applicant did his job diligently and without succumbing to the physical demands of such work. Also, his skills as a roof tiler may, although the Tribunal is not certain, assist him in obtaining some kind of meaningful employment were he to return to Afghanistan.
The Applicant's mental health has been addressed in several parts of these reasons previously. It should be repeated that Dr Kwok diagnosed him as suffering from a Major Depressive Disorder which remains untreated. Similarly, Ms Ferrari in August 2020 diagnosed him with Post-Traumatic Stress Disorder and Major Depressive Disorder with anxious distress as outlined in the analysis of the other consideration in paragraph 9.1 of Direction 110, Legal consequences of decision under s 501. That analysis is referred to and repeated for the purposes of this other consideration. Whilst when it comes to seeking treatment for his mental health issues were he to be removed, he will be in the same position as other citizens of Afghanistan, in the context of what is generally available to them in that country, the realities are that his conditions would more probably than not remain untreated.
Ms Ferrari in her second report of 17 August 2020 also emphasised the likelihood that removal to Afghanistan would cause a severe decline in his mental health and functioning, (which is already not particularly good) particularly as he is an individual already susceptible to a depressive illness.[34] This conclusion on the part of Ms Ferrari seems highly likely and is accepted by the Tribunal.
In terms of any social support available to the Applicant were he to be removed to Afghanistan, the Tribunal considers that there is unlikely to be any. As best the Tribunal can assess the evidence on this topic, the remainder of the Applicant's extended family left Afghanistan quite some years ago. In evidence before the Tribunal was an "Attachment to Part 9 of Personal Circumstances Form".[35] That document in tabular form identifies many aunts, uncles and cousins. Apart from one who was since passed on, the remainder are in Pakistan. The Applicant and his father were probed on this question when they were in the witness box. It was suggested that they might in some way be able to assist the Applicant were he returned to Afghanistan. Both the Applicant and his father said there had been no contact with these relatives for many years and they would be unlikely to be able to render any assistance to him. The Tribunal accepts this evidence. It should not be lost sight of that the Applicant has no legal right to reside in Pakistan in any event. It seems that the Pakistani authorities are taking a harder approach to Afghan citizens seeking refuge in their country. In these circumstances, there can be no guarantee that if the Applicant were to travel to that country that he would be able to stay there, obtain support from his relatives and re-establish himself to a reasonable level. It seems an unrealistic expectation.
His sister is in Pakistan but seeking to move to Australia, which most likely will occur sooner rather than later. The evidence was that she has been supported by the Applicant's broader multigenerational family in Melbourne for some years. One cannot see that she would be able to assist the Applicant whether he relocated to either Afghanistan or Pakistan.
The Respondent placed some emphasis both in cross-examination of the Applicant and his father, plus in submissions, on the expectation that if the Applicant were removed to Afghanistan his broader family would provide some level of financial assistance to him. They stated that they would be unlikely to as they have enough commitments to meet here. Whilst this response was understandable in the circumstances, given the family's consistent pattern of supporting each other in adversity and those present in Australia sending money to Pakistan as the Applicant's father firstly did, then the Applicant and his brothers have continued to do, it seems unlikely were he removed to Afghanistan that they would leave him destitute in Afghanistan. Most likely they would assist him in some way even if it caused them some level of financial difficulty.
There is the matter for the Tribunal to determine what weight to attach to this other consideration. Not unsurprisingly, the Applicant contends that significant weight attaches to this consideration in favour of setting aside the reviewable decision.
The Respondent candidly acknowledges that this factor weighs very significantly in favour of not cancelling the visa, or perhaps put the other way, setting aside the reviewable decision.
The Tribunal considers that very significant weight should attach to this other consideration in favour of setting aside the reviewable decision. It has outlined the difficulties of the Applicant will face if he returns to Afghanistan. They are significant impediments. One should not lose sight of the fact that he has not been to Afghanistan for a very long time. He has no family or social network there. Additionally, his significant mental health conditions are highly likely to be exacerbated by a return there and in any event, he will have no access to any problem mental health treatment.

[69]

In reaching a final decision on this application when assessing collectively the weight in favour of cancellation of the visa against the cumulative weight of those considerations in favour of setting aside the reviewable decision, the Tribunal considers that it is a matter that is very finely balanced.
There are two primary considerations that are in favour of the exercise of the discretion contained in s 501 of the Act to cancel the visa.
For the reasons explained, the nature and seriousness of the Applicant's offending, which is simply deplorable, weighs very heavily against the Applicant. This is understandably so and arises not only from the facts of the offending engaged in by the Applicant but of course applying the relevant paragraphs of Direction 110 to the circumstances surrounding that offending. Ample details have been provided earlier explaining why the Tribunal reached the conclusions that it did with respect to the Applicant's offending. It was very serious offending against a vulnerable young girl. The Applicant knew better.
As to the expectations of the Australian community, the Tribunal has found that although weight in favour of cancellation of the visa should be applied, it has concluded that only limited weight should be attached to it. Some latitude has been given, more than usual has been extended in his favour.
It then remains for the Tribunal to consider the primary and other considerations that are in the Applicant's favour.
Significant weight has been attached by the Tribunal in favour of the Applicant with respect to the primary consideration concerning the strength, nature and duration of ties to Australia on this part. This is understandable given that, save for his sister residing in Pakistan, his entire intergenerational family has moved to Australia. They have successfully made their way and established themselves. The Applicant has to a significant degree, contributed to his family's positive progress. It is likely that if he is permitted to stay in Australia he will continue to contribute towards his family and its progress here.
Similarly, and perhaps somewhat unusually, with respect to the primary consideration of the best interests of minor children affected by the decision, for the reasons explained by the Tribunal it has attached significant weight in favour of setting aside the reviewable decision. He has a somewhat unique and different bond with his oldest niece, which the Tribunal recognises.
Both the other considerations assessed by the Tribunal have weighed in the Applicant's favour. It has found with respect to the legal consequences of the decision that significant weight should be applied to that other consideration in favour of setting aside the reviewable decision. It has found that there is a distinct and real risk of the Applicant facing harm were he to return to Afghanistan, a country that he has not lived in for many years, having left is a comparatively young boy.
On the question of the extent of impediments if the Applicant was removed to Afghanistan significant weight has been attached to this other consideration. Clearly, the Applicant would face major obstacles to re-establishing himself were he to return to Afghanistan. Apart from the fact that he has no remaining family in Afghanistan and no social network, his significant mental health problems would not be treated, and more probably than not, would be exacerbated by such a return.
The Tribunal includes that the weight cumulatively attaching to those primary considerations and other considerations in favour of setting aside the reviewable decision exceeds that applied to the two primary considerations that weigh in favour of exercising the discretion in s 501(2) of the Act to cancel the visa. Accordingly, the reviewable decision will be set aside. It is setting aside the reviewable decision the necessary consequence of it is that the visa is restored. However, insofar as it is necessary to make such a finding, the visa is restored.

At a glance

Court

Decision date

Source

Judgment (91 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (7)

Mohammadi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2025] ARTA 2413 (13 November 2025)