NDBR and Minister for Home Affairs (Migration) [2019] AATA 612 (8 March 2019)

1. The issues before the Tribunal are whether the Applicant meets the character test as defined in s 501(6) of the Act, and if he does not, whether the grant of the visa should be refused.
2. The Applicant concedes that he does not pass the character test (paragraph 3 of the Applicant's Statement of Issues, Facts and Contentions filed 5 February 2019 (Applicant's SIFC)).
3. The sole issue therefore is to determine whether the discretion to refuse to grant the visa under s 501(1) of the Act should be exercised.

1. The Applicant is a citizen of Pakistan who arrived in Australia on 19 June 2012

(R2, G29/169). On 12 November 2012 he made an application to the Department for a Protection (Class XA) visa (R2, G8/58). 2. The delegate of the Minister refused to grant the Applicant the visa on 27 September 2013. Upon review of the decision by the then Refugee Review Tribunal, that tribunal remitted the matter to the Department for reconsideration on 19 September 2014 with a direction that the Applicant satisfied s 36(2)(a) of the Act and was a person to whom Australia has protection obligations because he is a refugee (R2, G15). 3. On 6 May 2015 the Applicant was convicted by a jury in the District Court of Queensland of one count of indecent treatment of a child under the age of 16 (R2, G9). On

1 October 2015 the Queensland Court of Appeals set aside his conviction and ordered a retrial (R2, G10). On retrial a jury found the Applicant guilty of the charge on 25 May 2016 (the conviction) and he was sentenced to be of good behaviour for one year (R2, G12/100). 4. On 6 July 2016 the Applicant was sent a notice of intention to consider refusal of the grant of a Temporary Protection (Class XD) visa under s 501(1) of the Act (R2, G3/9). The notice stated that the Department held information about his criminal history which indicated that he may not pass the character test by virtue of s 501(6)(e) of the Act. 5. On 8 December 2016 the Minister considered the matter personally and refused to grant the visa (R2, G4). On 16 May 2017 the Federal Court quashed the Minister's decision and remitted the matter to the Department for reconsideration (R2, G32/175). 6. On 7 December 2018 a delegate of the Minister refused to grant the visa under s 501(1) of the Act (R2, G6/44). There is no direct evidence as to when the Applicant was notified of the delegate's decision to refuse to grant the visa, however, the letter by which the Applicant was notified of the delegate's decision was dated 14 December 2018

(R2, G6/32). The Tribunal is satisfied that the Applicant received notification of the delegate's decision by the letter of 14 December 2018 in accordance with s 501G(1) of the Act at some time on or after 14 December 2018. 7. On 21 December 2018 the Applicant filed in the Tribunal the application for review of the delegate's decision (R2, G2). The Tribunal is therefore satisfied that the application for review of the delegate's decision was made within nine days after the day on which the Applicant was notified of the decision in accordance with s 501G(1) of the Act and that therefore the application was made within the time prescribed by s 500(6B) of the Act.

1. Based on the date of birth given by the Applicant in the application filed in the Tribunal (R2, G2/4), the Applicant is 31 years of age. He was born in [omitted] in [omitted] in Pakistan. The Applicant is ethnically Pashto from the [omitted] tribe and is a Shia Muslim.
2. As a young boy he worked on the family farm and completed school to a level of Year 10 Education. The Applicant claims that he would be considered highly education in Pakistan with this level of education (Applicant's statement A2).
3. In Pakistan the Applicant worked as a taxi driver and briefly as an English teacher.
4. On finishing Year 10 the Applicant says that he would have liked to continue his education into university, however, the Taliban was restricting Shias from furthering their education and it also would have been too dangerous for the Applicant to further his studies.
5. In October 2008 the Applicant had what he called a 'close call' with the Taliban in the area when a fellow taxi driver was the victim of an attack against Shias.
6. The Applicant says that on 17 February 2012 there was a bomb blast in [omitted] Bazaar which killed 28 people. The Taliban claimed responsibility for the attack and confirmed that it was an attack on Shias. The Applicant says that he was approximately 500 metres from the bomb blast and assisted some injured people in his taxi.
7. Within a month of this incident the Applicant left Pakistan for Australia by boat. He arrived in Australia in June 2012 as an unauthorised maritime arrival. He was detained by authorities and then remained in various detention centres for four months until he was granted a Bridging Visa E (Class WE).
8. The Applicant has two wives and two sons in Pakistan. One son was born after the Applicant left for Australia.
9. On 9 September 2013 the Applicant was charged with one charge of indecent assault of a minor and one charge of common law assault, which was later dismissed. The Applicant says that he was in the community between 9 September 2013 and 14 October 2013.
10. On 14 October 2013 the Applicant appeared in the Ipswich Magistrates' Court for a bail application. The Magistrate granted bail to the Applicant and he was released into the community.
11. The Applicant's Bridging Visa was cancelled on 10 April 2014 and he was taken into immigration detention where he remains.

1. The application was heard on 28 February 2019. The Applicant was represented by

Mr N Van Hattem and the Minister was represented by Mr J Kyranis. 2. The Applicant gave evidence at the hearing. The director of the Islamic Shia Council of [omitted], who had provided a statement by way of statutory declaration (A3), also gave evidence and was cross-examined. 3. The following documents were admitted into evidence: * Applicant's Statement of Issues, Facts and Contentions, including Annexures A, B and C, dated 5 February 2019 (Exhibit A1); * Statutory Declaration of the Applicant signed 5 February 2019 (Exhibit A2); * Statutory Declaration of the director of the Islamic Shia Council of [omitted] signed 4 February 2019 (Exhibit A3); * Applicant's Reply Submissions dated 25 February 2019 (Exhibit A4); * Respondent's Statement of Facts, Issues And Contentions dated 19 February 2019 (Exhibit R1); * G-Documents (Exhibit R2); * Department of Home Affairs' Incident Detail Reports (Exhibit R3); and * Letter from the Commonwealth Ombudsman dated 28 January 2015 (Exhibit R4).

1. Section 501(1) of the Act is as follows:

The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

1. Section 501(6) of the Act relevantly provides that:

For the purposes of this section, a person does not pass the character test if:

(e) a court in Australia or a foreign country has:

(i) convicted the person of one or more sexually based offences involving a child; or...

1. Section 499(1) of the Act provides that the Minister may give written directions as follows:

(1) The Minister may give written directions to a person or body having functions or powers under this Act ... if the directions are about:

(a) the performance of those functions; or

(b) the exercise of those powers.

1. Further, s 499(2A) of the Act states that "A person or body must comply with a direction under subsection (1)."
2. On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Act, named "Direction no. 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under

s 501CA" (Direction 79). The commencement date for operation of Direction 79 was

28 February 2019 (Paragraph 2 of Section 1 of Direction 79). 3. Paragraph 6.1 of Direction 79 sets out the "Objectives of the Migration Act". Paragraph 6.1(2) relevantly provides:

(2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test... Where the discretion to refuse to grant ... a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse ... the visa given the specific circumstances of the case.

1. Paragraph 6.2 of Direction 79 provides general guidance as follows:

(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen's visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

1. Paragraph 6.3 of Direction 79 sets out principles which must be taken into account by persons making decisions under s 501(1) of the Act, including the Tribunal:

(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 Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.

1. Paragraph 7(1)(a) of Direction 79 provides that, informed by the principles set out in paragraph 6.3 of Direction 79, the decision-maker (in this case the Tribunal) must take into account the primary considerations in Part A or Part B of Direction 79. In the present case Part B, which identifies the considerations relevant to determining whether to exercise the discretion to refuse to grant a visa, is the relevant Part.
2. Paragraph 11(1), which is in Part B of Direction 79, provides:

(1) In deciding whether to refuse a non-citizen's visa, the following are primary considerations:

1. Protection of the Australian community from criminal or other serious conduct;
2. The best interests of minor children in Australia;

(1) In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

1. International non-refoulement obligations;
2. Impact on family members;

1. Further guidance as to how a decision-maker is to apply the considerations in Direction 79 can be found in paragraph 8 of Direction 79 which provides:

(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non­citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4) Primary considerations should generally be given greater weight than the other considerations.

(5) One or more primary considerations may outweigh other primary considerations.

SHOULD THE DISCRETION TO REFUSE TO GRANT THE VISA BE EXERCISED?**

1. As noted above, both parties agree that the Applicant does not pass the character test. The Tribunal so finds. Therefore, the only issue for resolution is whether the discretion not to grant the visa under s 501(1) of the Act should be exercised.

First primary consideration: Protection of the Australian Community (11.1)**

1. Paragraph 11.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:

...should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision­ makers should also give consideration to:

1. The nature and seriousness of the non-citizen's conduct to date; and
2. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

Nature and seriousness of the conduct (paragraph 11.1(1)(a))

(1) In considering the nature and seriousness of the non-citizen's criminal offending or other serious conduct to date, decision-makers must have regard to:

1. The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
2. The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

1. The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

1. Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
2. The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
3. Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
4. The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
5. The cumulative effect of repeated offending;
6. Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
7. Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

1. There is only one offence to consider in this case. The conviction for indecent treatment of a child under the age of 16 falls into paragraph 11.1.1(1)(a) of Direction 79 and is to be "viewed seriously". At paragraph 46 of the Applicant's SIFC, the Applicant had conceded that "this offence is viewed very seriously". At paragraph 10 of the Applicant's reply submissions, however, having received the Minister's SFIC, the Applicant noted that the Minister did not contend that the offence of which the Applicant had been convicted was of a violent nature and that, therefore, paragraph 11.1.1(1)(b) of Direction 79 did not apply. It is paragraph 11.1.1(1)(b) of Direction 79 which categorises a crime of a violent nature against a child as being "viewed very seriously". Paragraph 11.1.1(1)(a) categorises offences of a violent and/or sexual nature as being "viewed seriously".
2. The consequence of the offence in question not coming within the operation of paragraph 11.1.1(1)(b) is that the proviso that a crime falling into that category will be viewed very seriously "regardless of the sentence" does not apply. In other words, even if the sentence imposed by the court might be considered to be at the lower end of the range indicating that the court was not of the view that the offence was very serious, any offence involving violence against women or children will, for the purposes of the exercise of the discretion as guided by Direction 79, be viewed "very seriously".
3. That does not mean, however, that an offence of a sexual nature against a child cannot be considered to be a serious offence at the upper end of seriousness, even to the point of being considered to be very serious. All that it means is that it is not automatically to be viewed very seriously irrespective of the circumstances and regardless of the sentence imposed. What it does mean, however, is that the sentence imposed by the court must be taken into account under paragraph 11.1.1(1)(f) of Direction 79 in determining how seriously the criminal offending is to be viewed.
4. The particulars of the Applicant's offending are set out in the comments made by Judge Bradley in the District Court of Queensland (R2, G9/80) after the first trial:

The particulars are that you approached the 14 year old male complainant somewhere within the bookshelves in the library. Only you and he were in the vicinity. You shook hands with him and spoke to him and you touched your own crotch area at that time. You then left him, but returned a short time later.

At that time, you came up behind him and pressed yourself against him, and you placed your hands around his waist. You leaned your head into his neck. He thought you were trying to kiss him. And when he moved forward, you moved forward with him. He was, however, able to break away and leave the area quite quickly. It was, therefore, a short incident, but it was persistent. And there's no evidence that there was any real predatory behaviour on your part. I accept it was opportunistic. It did occur in a public place, but in a relatively secluded part of that public place.

1. In relation to the sentence that was imposed on the Applicant, Her Honour noted (R2, G9/81) that:

If you had not served that time in detention, then the sentence that I would impose on you would be a sentence of imprisonment of nine months. The appropriate sentence, though, and the one that I will impose on you is that you be released upon you entering into an undertaking that you be of good behaviour for two years.

1. In sentencing the Applicant at the retrial, Judge Horneman-Wren SC observed (R2, G12/99):

On the last occasion that here Honour sentenced you, she described the offence of which you have been convicted as having been a short incident but a persistent one. Her Honour observed that there had been no evidence that there was no real predatory behaviour on your part. Her Honour accepted that it was opportunistic and although it occurred in a public place it was in a relatively secluded part of the library. That description that her Honour made, with respect, seems appropriate.

1. The Tribunal also notes the statement of the facts of the offence outlined in the Queensland Court of Appeal's judgment (R2, G10/85-86):

[4] He noticed a man of Indian appearance, the appellant, sitting in a lounge area, staring at him and being "really creepy". The complainant walked down the aisle he was in and out of the appellant's eyesight. Suddenly, he noticed the appellant in the same aisle. The appellant asked him his name and offered his right hand to him for a handshake. As the appellant was speaking to the complainant, the appellant started to feel and touch his pants in the groin area with his right hand. It seemed to the complainant that the appellant's penis was erect underneath his pants.

[5] The appellant asked the complainant for the time. The complainant checked on his mobile phone and told the appellant the time that he saw displayed. The appellant said that that was the wrong time and that the complainant should accompany him back to his car so that he could show him the right time. The complainant was uneasy because he could see that the appellant had his own iPhone with him. The complainant walked away from the appellant.

[6] The complainant resumed looking for books in the aisles. He noticed that the appellant was doing likewise. The appellant approached him a second time and again offered his hand. The complainant said, "No". The appellant mumbled. He asked the complainant his name and what he was doing that night. The complainant replied that he was going to hockey training. The appellant kept asking if he could drive the complainant home or if the complainant could go back to his (the appellant's) place. The complainant began to ignore the appellant.

[7] The appellant then said, "Excuse me" and went to walk past the complainant. But, instead, he put his hands around the complainant's waist. The appellant put his head on the complainant's shoulder and tried to kiss his neck. He moved one of his hands down the complainant's right arm towards his wrist. The complainant moved to step forward and away. The appellant stepped with him. The complainant could feel the appellant rubbing his penis against the complainant's body.

[8] The complainant began to crack his knuckles. The appellant took a small step back. The complainant turned around and said to the appellant that he was going and walked away. He found his father and made a complainant [complaint] to him. His father went searching for the person, subject of the complaint, but was unable to find him.

1. The Tribunal notes the comments by the original trial judge and the judge at retrial that the offence involved a short incident but was persistent and that there was no evidence of predatory behaviour by the Applicant. While any sexual offence involving a child is serious, not only by community standards, but also by the standard prescribed by paragraph 11.1.1(1)(a) of Direction 79, the Applicant's offending was at the lower end of the scale of seriousness for a sexual offence involving a child.
2. As noted above, the Minister conceded, correctly in the Tribunal's view, that the offending did not come within the operation of paragraph 11.1.1(1)(b) of Direction 79 because it was not violent. Accordingly, one of the factors that the Tribunal must have regard to in determining the seriousness of the offending is the sentence imposed by the court (paragraph 11.1.1(1)(f) of Direction 79). In that regard the Applicant submits at paragraphs 46 and 47 of his SIFC:
   1. It is accepted that the Applicant has been convicted of one offence against a minor and that this offence is viewed very seriously. The Applicant was ultimately convicted and sentenced to a good behaviour undertaking for a period of one year with a recognisance of $200.
   2. We submit that the maximum penalty for the charge the Applicant was convicted of was 14 years imprisonment. The Applicant receiving a good behaviour undertaking, is a sentence at the very lowest end of the sentencing spectrum. We further submit that the court took the view that although the offence was serious, the Applicant's behaviour was not predatory and he is otherwise of good character.
3. As the Minister points out (paragraph 29 of the Minister's SFIC), while no actual term of imprisonment was imposed, Judge Bradley sentencing after the first trial, stated that the law in Queensland requires adults who sexually abuse children to be sentenced to a term of imprisonment and that she would have sentenced the Applicant to nine months imprisonment if it were not for the fact that he had already spent thirteen and a half months in detention at the time of sentencing (R2, G9/81 at lines 3-9).

Judge Horneman-Wren SC took the same approach in sentencing following the retrial (R2, G12/99 at lines 6-10). 4. The purpose of paragraph 11.1.1(1)(f) of Direction 79, the requirement to have regard to the sentence imposed, is to determine the seriousness of the offending. The fact that in the particular circumstances of the Applicant, namely that he had already been in detention for thirteen and a half months as a result of his offending caused Her Honour not to impose a further term of incarceration of nine months which she would otherwise have imposed, does not alter the fact that Her Honour considered a nine month term of imprisonment as appropriate for the offence. The Tribunal therefore does not accept the Applicant's argument that in having regard to the sentence imposed for the purposes of paragraph 11.1.1(1)(f) of Direction 79, the Tribunal should look only at the actual sentence imposed (good behaviour for two years at the first sentencing and good behaviour for

12 months at the second sentencing which took into account the additional year that the Applicant had been in detention between the first and second trials (R2, G12/100 at lines 10-14)). Rather the sentence imposed for the purposes of paragraph 11.1.1(1)(f) of Direction 79 should be treated as being nine months imprisonment. 5. The Tribunal does also note Her Honour's statement that "[t]he law in Queensland is that adults who sexually abuse children must go to jail, unless there are exceptional circumstances" (R2, G9/81 at lines 1-2). That being the case, a sentence of imprisonment for a sexual offence, of itself, does not necessarily indicate the judge's view as to the seriousness of the offence, however, the length of the sentence of imprisonment thought to be appropriate by the sentencing judge would still be a matter for which regard is to be had under paragraph 11.1.1(1)(f) of Direction 79. 6. Taking into account all of the above, the offence for which the Applicant was convicted must be viewed as serious. All crimes of a sexual nature against children are serious. The Tribunal notes Judge Bradley's comment that the offence was "persistent" but did not involve predatory behaviour (R2, G12/99). The Tribunal also notes the more fulsome statement of the facts in the Court of Appeal's judgment (see [49] above) which indicates that the Applicant made two approaches to the victim and attempted to have the victim accompany him back to his car. That behaviour is of concern to the Tribunal and, with respect, the Tribunal cannot agree with Judge Bradley's characterisation of the Applicant's behaviour as not predatory. In the Tribunal's view the Applicant's behaviour as described in the Court of Appeal's judgment can be properly described as predatory. 7. Paragraph 11.1.1(1)(g) directs the decision-maker to have regard to the frequency of the non-citizen's offending and whether there is a trend of increasing seriousness. As far as the evidence before the Tribunal indicates, the Applicant has no other convictions, either in Australia or in Pakistan. The offence of which he was convicted in 2016 is his only recorded offence. There is, accordingly, no "frequency of offending" or "trend of increasing seriousness". That, obviously, weighs in the Applicant's favour. 8. The Tribunal notes that the offence occurred only a relatively short time after the Applicant's arrival in Australia and release into the community in October 2012. In those circumstances the Tribunal must assume that Australia has a low tolerance of the Applicant's criminal behaviour (paragraph 6.3(5) of Direction 79). 9. The seriousness and nature of the offence committed by the Applicant and the fact that it was a crime of a sexual nature committed against a child, and the fact that it was committed in a relatively short time after the Applicant entered the community, overall weigh heavily in favour of refusing the visa.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 11.1(1)(b))

1. A decision-maker should have regard to the following principle, described in paragraph 11.1.2 of Direction 79 as follows:

(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.

(2) In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(3) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

(a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

(b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

1. information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
2. evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and

iii. the duration of the intended stay in Australia.

(4) Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.

1. The Tribunal does not consider that the conduct for which the Applicant was convicted falls into the category of "conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable" as identified in paragraph 11.1.2(1) of Direction 79. It is, however, to be viewed seriously with the potential to cause significant harm if it were to be repeated. While the harm that would be caused if the conduct were to be repeated is not so serious that any likelihood that it may be repeated would be unacceptable, the Tribunal must be satisfied, in accordance with Direction 79 that, given the harm that would be caused, the risk of the Applicant reoffending is not unacceptable.

The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct (paragraph 11.1.2(3)(a))

1. As noted above, the offence committed by the Applicant was sexual in nature and against a child (a boy of 14). It did not involve any violence, was short in duration, although as noted by the sentencing judge, was persistent. The only evidence of the effect that the Applicant's behaviour had on the boy was the comment in Judge Bradley's comment in sentencing after the first hearing (R2, G9/80 at lines 19-23):

I don't have any statement from the complainant boy or his parents about the effect of what you did to him, but it was clear from the evidence given by the boy and his parents in court that there has been a significant effect of the offending and particularly of having to come to Court on that family.

1. The effect of this type of sexual offending if it were to be repeated could be significant. The Report of the Royal Commission into Institutional Responses to Child Sexual Abuse makes clear the dire and long-lasting consequences that sexual abuse on a child can have. Insofar as the Tribunal is to have regard to the nature of the harm that might be caused if the criminal conduct were to be repeated, then the conduct must be viewed very seriously.

The likelihood of the non-citizen engaging in further criminal or other serious conduct (paragraph 11.1.2(3)(b))

1. Paragraph 11.1.2(3)(b) of Direction 79 identifies matters that decision-makers are to have regard to in assessing this risk (see [59] above). There was no information or evidence from any independent and authoritative source so subparagraph (3)(b)(1) of paragraph 11.1.2 of Direction 79 has no application.
2. In relation to rehabilitation, the evidence that emerged at the hearing from questioning by the Tribunal is that the Applicant has not undertaken any sex offenders' treatment programs. How readily such programs were available in detention was not clear, however, the Tribunal concludes from the evidence of the Applicant at the hearing that if he had sought access to a relevant program it is likely that it would have been provided.
3. One of the potential impediments in the Applicant engaging in a successful rehabilitation program is that he denies that he committed the offence. At the hearing the Applicant indicated that an issue with him undertaking any rehabilitation program for sex offenders was that it would identify him to his fellow detainees as a sex offender. This, in his view, would make him the target for other detainees. He advised at the hearing that even some members of his own family are not aware that his original visa was cancelled and his application for a protection visa was refused because of his conviction for indecent treatment of a child under the age of 16. The end result, however, is that the Applicant has not undertaken any relevant rehabilitation program.
4. The Minister makes the following submission:
   1. The evidence before the Tribunal suggests that the applicant has demonstrated very little insight into his offending. The applicant pleaded not guilty to the charge and appears to continue to maintain his innocence. In a handwritten statement to the Department dated 19 July 2016, the applicant contends that he was set up by the police and did not commit any crime (G21/149). He appears to blame the jury finding him not guilty due to the fact that he could not retain a private lawyer and depended on a Legal Aid lawyer. He has also demonstrated no remorse for his offending.
5. The Applicant was cross-examined on this point and, in effect, reiterated his view that the reason that he was convicted was that he could not afford a competent lawyer and was given a legal aid lawyer (Transcript at 41). There is obviously no evidence to support the proposition that he was "set up" by the police or that he was convicted because he was incompetently represented at the trial. The Applicant was found guilty by a jury following due process. In any event, insofar as the Applicant raises these claims to assert that he did not commit the offence of which he was convicted, this Tribunal cannot go behind the conviction. The Tribunal must, and does, accept that the Applicant was duly convicted and that he committed the offence (see Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313; (2000) 62 ALD 673; Saffron v Commissioner of Taxation [1991] FCA 363; (1991) 30 FCR 578; 102 ALR 19).
6. In relation to the third factor to be considered under paragraph 11.1.2(3)(b), the duration of the Applicant's intended stay, the visa sought is a protection visa so the duration is indefinite.
7. There was considerable evidence at the hearing and contained in the Applicant's statement (A2, paragraphs 13-26) about his time in detention and the effect that it has had on him. He says that he has witnessed many distressing things including witnessing several detainees' deaths (A2, paragraph 16) and has been the subject of assaults, had hot water poured on him and been threatened. He also sets out the anxiety that he has suffered as a result of one of his wives being in hospital in Pakistan as a result of snake bites on two occasions, the worry that his family had suffered when they learnt that he was in detention and the medical issues that his father and his mother had had while he has been in detention (A2, paragraph 20-23). He says at paragraph 19 of his statement (A2) that:

The stress of this violent environment [i.e. detention] is made worse by my constant worry and guilt I feel about my family.

1. The Tribunal assumes that by "my family" the Applicant is referring to his family in Pakistan. While not questioning the seriousness of these matters and the effect that detention of the type endured by the Applicant must have and the concern that he must have for his parents and wives and children in Pakistan, it is not clear how this evidence is relevant to the issues to be determined by the Tribunal. While the Tribunal allowed the Applicant to give this evidence at the hearing, as the Tribunal pointed out to the Applicant's counsel, this material is not, in the Tribunal's view, relevant to the matters that must be determined.
2. While the Applicant has no record of offending other than the one conviction for indecent treatment of a child under 16, the Minister submits:
   1. The applicant contends that he does not have a bad record whilst being held in immigration detention (G21/149). However, his immigration detention records demonstrate that his behaviour whilst in detention has been very unsatisfactory. The records refer to numerous instances of aggressive behaviour and threats made towards officers, altercations involving physical violence, inappropriately blowing on an officer's neck and being suspected of being in possession of pornography (G13 and Annexure B). The Minister contends that the applicant's behaviour whilst in immigration detention demonstrates that he has the propensity to commit violent offences.
3. The Applicant was extensively cross-examined on these claimed incidents while in detention. The Applicant was taken to seven Home Affairs' Incident Detail Reports (R3). They were for incidents dated:
   • 22 June 2014 (R3/15);
   • 27 July 2014 (R3/2);
   • 22 October 2014 (R3/6);
   • 30 December 2014 (R3/24);
   • 7 January 2015 (R3/31);
   • 4 February 2016 (R3/18); and
   • 14 February 2016 (R3/20).
4. The Incident Detail Reports variously described the Applicant becoming aggressive and abusive towards detention officers. The Applicant denied the substance of all of the reports.
5. The Tribunal did not find the Applicant to be a particularly credible witness. The Tribunal appreciates that the Applicant gave evidence through an interpreter, however, on a number of occasions the Applicant seemed to be unwilling to answer straight-forward questions. Further, the Tribunal does not accept the Applicant's claim that the descriptions of his behaviour in the incidents reports to which he was taken were all wrong and that he is, in effect, the victim of fabrication by the detention staff. Having made that observation, the Tribunal acknowledges that only limited weight can be put on the incident reports because the authors of those reports were not called to give evidence.
6. The Applicant's denial of the conduct reported in the incident reports and his assertion that they were effectively fabricated by the detention officers falls into the same category as his denial of the offence for which he was convicted and the assertion that the only reason that he was convicted was because he had inadequate legal representation at the trial. It is, in the Tribunal's view, indicative of an unwillingness to accept responsibility for his actions and to blame others. That is not an encouraging trait when considering the likelihood of the Applicant reoffending.
7. The Tribunal is mindful, however, that the Applicant has not been charged with any offence in the nearly five years that he has been in detention. Detention, particularly the length of detention that the Applicant has endured, is undoubtedly a very stressful environment and one in which people may become more aggressive or abusive than they would in the community. Looked at it with that perspective, the Tribunal notes that there have not been any reports of violent behaviour by the Applicant. There are, however, reports of aggressive behaviour and threats of violence.
8. The statutory declaration of the Applicant's witness (A3) stated that he is the director of the Islamic Shia Council of [omitted] (the Council) which is a community oriented religious and social organisation.
9. He says that he has known the Applicant for six or seven years and that before he was detained he was a regular attendee at the Council's centre. He was an active volunteer preparing and serving meals, cleaning, vacuuming and helping wherever needed. The witness says that he found the Applicant to be a person of good character, very helpful, cooperative and friendly.
10. The witness says that he has kept in regular contact with the Applicant while he has been in detention and that if he were to be allowed to remain in Australia the Council would be able to find him employment and that he would be "connected with other individuals in the Shia Muslim community and given proper support" (A3 at paragraph 8).
11. In assessing the likelihood of the Applicant engaging in criminal or other serious behaviour in the future and the risk to the Australian community, the Tribunal takes into account the following factors:
    • the Applicant's criminal record. He has one offence only;
    • the apparent appreciation that the Applicant has of the dire consequences that would follow if he were to reoffend, in particular, the high likelihood of his being returned to Pakistan; and
    • the support that has been offered by the Council to his re-introduction into the community if he were to stay in Australia.
12. On the negative side of the ledger is the Applicant's continued denial of the offence and the fact that he has not undertaken any sex offending rehabilitation program while in detention. The Tribunal also notes the reports of aggressive or abusive behaviour by the Applicant while he has been in detention. As the Tribunal observed above, the Applicant denies the accuracy of the reports that were put to him and the authors of those reports were not called to give evidence.
13. The Tribunal is, however, satisfied that while the detail of the reports is disputed, the thrust of the reports indicates that the Applicant is prone to some aggressive or abusive behaviour. The Tribunal does take account of the environment that the Applicant has been in since he was taken into detention nearly five years ago and how that may contribute to his aggressive and/or abusive behaviour.
14. Taking into account the above factors, the Tribunal finds that there is a risk of the Applicant reoffending and that because of the nature of the crime committed by the Applicant and the potentially devastating affect such a crime could have on a victim if he were to reoffend, the risk of the Applicant reoffending is unacceptable.

Second primary consideration: The best interests of minor children in Australia (11.2)

1. The Applicant has not identified any children in Australia. This primary consideration identified in paragraph 11(1)(b) relates only to minor children in Australia. The Applicant states that he has two children in Pakistan. The Applicant makes no submission on this primary consideration and there was no evidence put before the Tribunal indicating that there are any minor children in Australia to whom this consideration could apply.

Third primary consideration: Expectations of the Australian Community (11.3)

1. Paragraph 11.3(1) of Direction 79 is as follows:

(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government's views in this respect.

(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

1. The proper construction of the above provisions (which are in the same terms as the corresponding paragraphs in Direction 65[1] which was replaced by Direction 79) was considered by the Federal Court in the YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY), in which Mortimer J made the following comments:

[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the 'expectations' about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to 'tolerance') the Australian community's 'expectations' are defined only in one particular way: namely, that the Australian community 'expects' non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [v Minister for Immigration and Border Protection] [2016] FCA 348; 248 FCR 296 at [64]-[66]).

1. In YNQY the Court was, in part, considering whether the Tribunal erred in failing to make findings and/or take into account as a primary consideration the expectations of the Australian community.
2. The passage referred to by Mortimer J above in Uelese v Minister for Immigration and Border Protection [2016] FCA 348 states as follows:

[64] In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. The language in paragraph 6.3(2) of the Direction, that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia, is found in a list of seven 'Principles'. There is a further reference to the expectations of the Australian community in paragraph 9.3 of the Direction where the statement is made that the Australian community expects non-citizens to obey Australian laws while in Australia. It states that where a non-citizen has breached, or where there is an unacceptable risk that they will breach, this trust or where the non-citizen has been convicted of offences in Australia, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate, the paragraph states, 'simply because the nature of the character concerns or offences were such that the Australian community would expect that the person should not continue to hold a visa'. The paragraph ends by stating that decision-makers should have due regard to the Government's views in this respect.

[65] ... In my opinion it is open to the Minister to make a statement of the Government's views as to the expectation of the Australian community and for the Tribunal to act on that statement.

1. Deputy President Constance in Zyaran and Minister for Home Affairs [2018] AATA 3785 at [71] and [72] and in Nguyen and Minister for Home Affairs [2018] AATA 3726 at [84] and [85] applied the reasoning of the Federal Court in YNQY as did Member Burford in Le and Minister for Home Affairs [2018] AATA 4126 (Le) at [135] and [136]. Deputy President Rayment, QC in the case of Kumeroa and Minister for Home Affairs [2018] AATA 3744 also applied YNQY at [17].
2. Both Direction 79 and the relevant authorities considering the identical provisions in Direction 65 (see Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 per Colvin J (Suleiman); HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013 per Bank-Smith J (HSKJ)) make it clear that the Tribunal must take into account the primary and other considerations relevant to the individual case. Direction 79 specifically notes that both primary and other considerations may weigh in favour of either granting or refusing a visa (Direction 79, paragraph 8(3)). The Direction states a primary consideration should generally be given more weight than the other considerations (Direction 79, paragraph 8(4)), however, the authorities referred to above make it clear that this will depend on the individual circumstances and will still require the Tribunal to take into account both the primary and other considerations and to give each appropriate weight in reaching a decision.
3. How then is that weighing process to be undertaken? A helpful summary of that process is set out by Member Burford in Le at [140]-[141] as follows:

[140] The Federal Court's decisions in YNQY and Uelese do not raise the expectations of the Australian community to the status of a determinative consideration. The approach outlined by the Federal Court highlights that it is open to the Minister to make a statement of the Government's views as to the expectations of the Australian community and that Direction no. 65 makes such a statement. Applying YNQY and Uelese, the Minister makes this statement both in the principle expressed in 6.3(2) and in 13.3(1). Applying Uelese, 13.3(1) directs that the Tribunal should have due regard to the Government's views in this respect.

[141] It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government's view as to the expectations of the Australian community as expressed in 6.3(2) and in 13.3(1) of Direction no. 65. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed by the Minister, they weigh against revocation. However, it remains for the Tribunal to determine, in all the circumstances, what constitutes appropriate weight. This will depend on the Tribunal's assessment of the totality of the relevant considerations including the primary and other considerations.

1. The Tribunal also notes the comments of Bromwich J in Afu v Minister for Home Affairs [2018] FCA 1311 (Afu) at [85]:

... The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 reproduced above. The Tribunal was required to give effect to those norms, which is precisely what it did...

1. Applying the comments of Mortimer J in YNQY and Bromwich J in Afu, the Tribunal finds that the expectation of the Australian community is that the Applicant would not be granted the visa. Direction 79 makes it clear that sexual offences against children are to be viewed seriously (see, for example, paragraph 6.3(3)).
2. Further, paragraph 6.3(5) of Direction 79 provides that "Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time". This applies to the Applicant's situation. The Applicant arrived in Australia in June 2012, was released into the community in October 2012 and committed the offence in September 2013.
3. The Applicant submits in his reply submissions that:
   1. The expectations of the Australian community in this instance are that a person in the Applicant's position, who has been convicted of a single criminal offence for which he received a good behaviour bond, who is not a danger to the community, served well beyond his sentence and has been held in immigration detention even [ever] since, should be granted a visa.
   2. Further to this, given the fact that the consequence of not granting this visa is that the Applicant is to be returned to a country to which it has been found he is owed protection obligations, is contrary to the expectations of the Australian community, which are to uphold Australia's international obligations to those owed protection. As was stated by Deputy President Rayment in Ahmed v MIBP, This humanitarian concern would significantly affect the expectations of the Australian community.
4. The Tribunal does not agree. As the Tribunal observed above, while the sentence that was in the end imposed on the Applicant was a good behaviour bond, the sentencing judge following the first trial, with whom the judge following the retrial agreed, the appropriate sentence for the offence would have been nine months imprisonment. The only reason that the Applicant's only penalty was a good behaviour bond was because he had already spent between a year and eighteen months in immigration detention.
5. Secondly, based on the views expressed by Mortimer J and Bromwich J as to the correct interpretation of paragraphs 11.3 and 6.3(2) and (3) of Direction 79, the Tribunal must find that the Australian community's expectation is that the Applicant should not be granted a visa. As found by Mortimer J at [76] of YNQY "the Australian community's 'expectations' are defined only in one particular way: namely, that the Australian community 'expects' non-revocation where a person has been convicted of serious crimes of a certain nature." The weight to be given to that expectation is, however, affected by the circumstances of the offence, the non-citizen's antecedents and the factors identified by the Applicant in his submissions in reply quoted above.

(1) In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

1. International non-refoulement obligations;
2. Impact on family members;

1. As was noted by the Tribunal in JNMK and Minister for Immigration and Border Protection [2018] AATA 971 at [75], while the first line of this paragraph refers to cancellation of visas rather than refusal to grant visas as the heading of this Part of Direction 79 suggests, it is generally taken to also apply to the exercise of the discretion to grant or not to grant a visa. Paragraph 6.2(3) of Direction 79 provides that the relevant factors to be considered in making a decision under s 501 of the Act are identified in Parts A and B and as a result the considerations in paragraph 12(1) of Direction 79, coming within Part B, are relevant to the exercise of the discretion to refuse to grant a visa.
2. Paragraph 12.1 of Direction 79 is as follows:

(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

(2) The existence of a non-refoulement obligation does not preclude refusal of a non-citizen's visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non­refoulement obligation exists.

(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s50I of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).

(4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.

(5) If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).

(6) In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa application were refused, they would face the prospect of indefinite immigration detention.

Australia's non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198

(1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2) An officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen.

1. Section 198 of the Act provides various circumstances in which an officer, for the purposes of the Act, "must remove" a non-citizen "as soon as reasonably practicable". It is accepted by the parties, and found by the Tribunal, that this obligation to remove under

s 198 of the Act applies to the Applicant. 2. The Minister's submits in his SFIC as follows: 1. As noted above, the applicant has been assessed to be a person in respect of whom Australia has protection obligations with reference to Pakistan. However, the existence of non-refoulement obligations does not preclude refusal of a non-citizen's visa application in Australia. Paragraph 12.1(2) of Direction 79 provides that this is because Australia will not remove a noncitizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists. 2. Accepting the authority of DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; (2017) 253 FCR 576, the duty of the Minister to remove a person from Australia arises only if it is reasonably practical to do so. 3. There is no evidence before the Tribunal about whether or not return of the applicant to Pakistan is reasonably practical. Therefore, the most that can be said at this stage is that return to Pakistan is one possibility facing the applicant if he is not granted the visa. There are other possibilities: (i) the applicant may enjoy the benefit of an exercise of discretion by the Minister under ss.48B or 195A; or (ii) he may be the subject of a residence determination under Subdiv B of Div 7 of Pt 2; or (iii) he may be resettled in a third country. Further still, history teaches that the risk of persecution fluctuates over time, and it may be that any return to Pakistan in the future is free from such risks. 4. It is accepted that it is probable that the applicant would remain in immigration detention until one of the aforementioned possibilities eventuates. The Tribunal must take into account these possibilities as the range of potential legal consequences of its decision. However, the possibilities that face the applicant if his visa is refused do not justify granting him the visa. The applicant has shown himself to be a person who is willing to engage in conduct that is fundamentally inconsistent with Australian community standards. 5. In the circumstances of this case, the consideration of Australia's nonrefoulement obligations weighs in favour of the applicant, but it does not outweigh the primary consideration of the protection and expectations of the Australian community. 3. The Applicant in his SIFC argues that: 1. The Applicant is owed non-refoulement obligations, as established by the RRT decision on 19 September 2014. The RRT found that the Applicant, if returned to Pakistan, would face a real chance he will suffer serious harm in one of many attacked aimed at the Shia community, or by other serious assault or killing, and that this would be for reason of his Shia religion. The RRT concluded that the Applicant has a well-founded fear of persecution in relation to his country of nationality as a whole. 4. The Applicant contends that the Refugee Review Tribunal findings remain accurate and applicable and cites various recent Department of Foreign Affairs and Trade Country Information Reports which indicate that, while there has been a slight decrease in violence in the area from which the Applicant comes, the overall risk of sectarian violence by militants against Shia groups is still prevalent. Similarly the European Asylum Support Office, Country of Origin Information Report: Pakistan Security Situation (October 2018) (at 78), stated that:

In 2017, a 'significant' increase in violent incidents was observed in this agency compared to 2016 by FRC [FATA Research Centre]. In total, FRC counted 52 violent incidents in 2017 compared to 19 in 2016. A very high increase was observed in the number of casualties. The majority of these casualties were civilians (138 death and 437 injured). According to PIPS, militants of the TTP, Jamaat-ul Ahrar, LeJ, LeJ-Alami, and some unknown militants carried out 11 terrorism related attacks, causing the most casualties in the FATA. FRC states that ISKP was also responsible for several attacks in this agency. In the first three months of 2018, FRC counted 7 casualties (6 deaths, 1 injured).

1. The Applicant asserts that he is easily identifiable as a Shia through both his physical appearance and religious practice. The Tribunal notes the evidence of the Applicant's witness that the region from which the Applicant comes is "90% Shia" (Transcript at 20).
2. The Minister does not dispute that the Applicant is owed non-refoulement obligations and, although he does not specifically concede the point, does not contest the Applicant's assertion that if he were returned to Pakistan there is a real chance that he will suffer harm as found by the Refugee Review Tribunal.
3. It is appropriate, in fact necessary, for the Tribunal to assess the type of harm that the Applicant might face if he were to be sent back to Pakistan. As Banks-Smith J observed in HSKJ at [20]:

The Tribunal then properly noted that since BCR16 v Minister for Immigration & Border Protection [2017] FCAFC 96; (2017) 248 FCR 450 it is clear that the Tribunal is required to assess to the extent it can on the evidence, any type of harm that might arise to the applicant should he be deported to Iraq, and regardless of whether the risk of harm is framed as a non-refoulement issue.

1. The Applicant argues (A1, paragraphs 83-92) that:
   • (a) Since the enactment of s 197C of the Act, it is clear that paragraphs 12.1(2) and 12.1(6) of Direction 79 contain incorrect statements of law in asserting that Australia will not return a person to their country of origin where non-refoulement obligations are owed.
   • (b) The legal consequences of the Tribunal's decision in this matter must be understood in light of ss 198 and 197C of the Act. The Applicant is not a citizen of, nor has he the right to enter, any country other than Pakistan. Having previously held an onshore protection visa, the Applicant is barred by s 48A and 501E of the Act from making another application for a protection visa, or for any visa other than a final departure bridging visa. Should the Applicant's visa be refused, it would become incumbent upon officers of the Minister, in whose custody the Applicant remains, to remove him from Australia to Pakistan as soon as reasonably practicable, despite the existence of non-refoulement obligations.
   • (c) The Tribunal is bound to apply Direction 79 only so far as it is consistent with the Act. Differently constituted Tribunals have sought to address the inconsistency by reading Direction 65, the provisions of which are relevantly identical to Direction 79, as though the final sentences of both paragraphs 12.1(2) and 12.1(6) (or their equivalents) were removed (PRHR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2782 (22 December 2017), MLQP and Minister for Home Affairs (Migration) [2018] AATA 4123 (31 October 2018), BHKM and Minister for Immigration and Border Protection (Migration) [2018] AATA 3

(8 January 2018)). * (d) That reading of paragraph of 12.1(2) and 12.1(6) of Direction 79 to, in effect, deleting the second sentence, is not appropriate because the second sentence provides the justification for the first sentence. * (e) Regardless of how specifically the Tribunal chooses to resolve this inconsistency, it is clearly open to the Tribunal to place great weight on this factor and to treat a likely breach of non-refoulement obligations as a powerful discretionary reason not to affirm the reviewable decision. * (f) The alternative options to breach of the non-refoulement obligations canvassed by the delegate in the reviewable decision, such as the grant by the Minister of a visa under s 195A of the Act, are non-compellable and there is no indication of whether the Minister intends to exercise the discretion to grant a visa under that section. The Applicant notes that the Minister's original decision to refuse the visa was made on 8 December 2016 and the Minister in the time since then has not exercised the discretion to grant the visa. * (g) The possibility of the Minister exercising his personal, non-compellable powers in this matter is remote and remains a "matter of speculation" (BHKM and Minister for Immigration and Border Protection (Migration) [2018] AATA 3). The existence of these optional powers does not reduce the weight of the serious legal consequences of a decision to refuse to grant the Applicant's visa:

For a decision-maker to rely on the mere possibility that a Minister might in the future take action which there is no obligation on him to take, when exercising a discretion to grant or refuse a protection visa may well amount to a legally unreasonable failure to exercise discretion if, on that account, the decision-maker put the non-refoulement obligations aside.

(h) In reaching its decision, the Tribunal must assume that if the reviewable decision is affirmed, the Applicant will be returned to a country where he faces a real risk of persecution. It is submitted that this factor should weigh strongly in favour of granting the visa.

1. It is the case that the provisions of paragraphs 12.1(2) and 12.1(6) are contradicted by

ss 197C and 198 of the Act. As the Applicant set out in his SIFC, the Tribunal in other cases has addressed the contradiction by, in effect, ignoring the final sentences in each of paragraphs 12.1(2) and 12.1(6) of Direction 79. A useful summary of that approach is set out in Senior Member Evans' decision in CZCV and Minister for Home Affairs [2019] AATA 91 (CZCV) at [149]:

[149] In light of the decision in DMH16, there is a contradiction between the operation of s 197C of the Migration Act and the wording of paragraphs 12.1(2) and 12.1(6) of Direction no. 65. Paragraph 12.1(2) and 12.1(6) refer to the fact that Australia "will not remove" a non-citizen to a country in respect of which the non-refoulement obligation exists, and yet s 197C effectively provides that a non-citizen will be removed regardless of any non-refoulement obligations. This was discussed by Deputy President Forgie in PRHR and Minister for Immigration and Border Protection [2017] AATA 2782 at paragraphs [142]-[144]. Deputy President Forgie analysed how Direction no. 65 should be read by the Tribunal so as to be consistent with s 197C of the Migration Act as follows:

1. Since the enactment of s 197C, it is clear that the whole of the final sentences in each of paragraphs 12.1(2) and (6) are an incorrect statement of the law. To say, as paragraph 12.1(2) currently does, that Australia "will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists", is not a correct statement of the law. If the circumstances set out in s 198 apply, s 197C imposes an obligation upon an officer to remove a non-citizen regardless of whether Australia has non-refoulement obligations in respect of him or her. For the reasons I give below, I think that omission of the two sentences is the preferable course to substituting words for those that appear because I have doubts whether Direction No. 65 can be read as if other words were inserted. In case my doubts are unfounded, I will now set out my reasons for concluding that reading cl 12.1(2) as if the word "might" or "may" appeared rather than the word "will" would not plainly solve the inaccuracy of the sentence.

143. To say that Australia "might not remove a non-citizen" in the circumstances described is, I suggest, capable of misleading the reader. The word "might" is the past tense of the word "may". Whichever is chosen, both are capable of being understood in the sense of expressing permission. If that is the meaning in which they are understood, the amendment suggested to paragraph 12.1(2) would continue to be an incorrect statement of the law. The final sentence would indicate that Australia is not permitted - "may not" or "might not" - remove a non-citizen as a consequence of its non-refoulement obligations. If the word is used to express a possibility, the final sentence suggests that there is a possibility that Australia will not remove a non-citizen as a consequence of its non-refoulement obligations. To say that there is a possibility is true if the Minister is considering whether to exercise power under s 195A and if there were no country that would receive the non-citizen if removed from Australia. The qualifications are not apparent if that is how the word "may" is to be understood. Therefore, I suggest that it should be omitted.

144. The last sentence of paragraph 12.1(6) is incorrect when it begins with the statement that "Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations". In view of s 197C, it is also incorrect to say that "... the operations of sections 189 and 196 of the Act means that, if the person's Protection visa application were refused, they would face the prospect of indefinite immigration detention." Therefore, I agree with the parties that the whole of the final sentence of paragraph 12.1(6) should not be included.

1. Senior Member Evans in CZCV agreed with the approach of Deputy President Forgie in PRHR and Minister for Immigration and Border Protection [2017] AATA 2782 (PRHR) that the final sentences of paragraphs 12.1(2) and 12.1(6) should be omitted and Deputy President Forgie's explanation of the legal basis for reading Direction no. 65 in that way - that is, so that it does not exceed the statutory powers in the Act (see PRHR at paragraphs [153]-[155]).
2. This Tribunal agrees with the approach taken by Deputy President Forgie and Senior Member Evans in the above matters. On that basis the Tribunal agrees with the contention by the Applicant that when looking at this consideration, the Tribunal is to assume that a refusal to grant the visa would place the Applicant at immediate risk of refoulement to Pakistan, notwithstanding any non-refoulement obligations that Australia may have (see [152] of decision in CZCV).
3. This consideration weighs in favour of the grant of the visa to the Applicant, although this does need to be weighed in accordance with the direction contained in the second sentence of paragraph 12.1(6) that "[a]ny non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa."
4. In the present case as noted above, any sexually based crime involving a minor is serious. The impact on victims of such crimes can be very significant. Taking these factors into account, on balance, the Tribunal finds that the non-refoulement obligations consideration weighs in favour of the Applicant.

1. There was no evidence put before the Tribunal and neither party made any submission in relation to this consideration.

1. There was no evidence put before the Tribunal and neither party made any submission in relation to this consideration.

1. There was no evidence put before the Tribunal and neither party made any submission in relation to this consideration.

1. Guidance is given by Direction 79 of how the decision maker should apply the primary and other considerations. Paragraphs 8(3), (4) and (5) of Direction 79 are relevant. They provide:

(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4) Primary considerations should generally be given greater weight than the other considerations.

(5) One or more primary considerations may outweigh other primary considerations

1. In relation to the weighing of the considerations, the Applicant submitted that (A1, paragraphs 93-96):
   • (a) Although the Applicant has been convicted of a serious offence, the future risk of the harm to Australia is low as this is the Applicant's only offence and he has demonstrated and confirmed his commitment to respecting the law;
   • (b) The low risk of future harm to the Australian community is outweighed by the consideration that the Australian community would expect that the Applicant be given a chance to demonstrate rehabilitation, resume his previous positive conduct in the community and not be returned to Pakistan in breach of Australia's international legal obligations;

In relation to this submission, for the reasons set out above, the Tribunal does not agree with the Applicant's submission on the expectations of the Australian community given the effect of the Federal Court's decision in YNQY which requires the decision-maker to take the community's expectation to be that the visa should not be granted. The Tribunal is also of the view that, independently of the effect of the "deeming provision" in paragraph 6 of Direction 79 described by Mortimer J in YNQY (see [87] above), the nature of the offence, a sexual crime against a minor, and the consequences of such an offence if it were to be repeated are such that the Australian community would expect the Applicant not to be granted a visa. The factors identified by the Applicant do, however, go to the weight that is to be given to this consideration. The Tribunal agrees that these factors reduce the weight to be given to the community expectation that the visa should be refused.

(c) Noted the approach taken by Banks Smith J in HSKJ, where there was a question of the relative weighting to be given to consideration of non-refoulment obligations in applying Direction 65. Her Honour concluded at [38]:

... It was a consideration that was to be weighed not from the starting point of being of secondary importance but from a position that allowed for the potential for such consideration to be afforded equal or greater weight than a primary consideration.

(d) The other considerations also weighing in the Applicant's favour, in particular Australia's non-refoulement obligations, together with his ties and supports in the Australian community, positive contributions to the community, further demonstrate that the Tribunal ought to be cumulatively satisfied that there is another reason why the discretion should not be exercised to refuse to grant the visa.

1. The Minister submits (paragraph 48 of his SIFC) that:

For the reasons outlined above, the factors identified by the applicant do not singularly or cumulatively support the favourable exercise of the discretion under

s 501(1) of the Act to grant the applicant the visa. The respondent contends that the primary considerations, namely the protection of the Australian community and the expectation of the Australian community, strongly weigh in favour of refusal and that these considerations are not outweighed by any factors in the applicant's favour.

1. The decision of Colvin J in Suleiman, was followed by Banks-Smith J in HSKJ, wherein at [23] Her Honour held:

The use by the Tribunal of the term 'secondary' indicates that the 'other considerations' are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including nonrefoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.

1. The decision in Suleiman was discussed by the Full Court of the Federal Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217. At [30] to [35] the Full Court observed:

[30] In our view the Tribunal's reasons, read as a whole, do not reflect an understanding that "other" considerations must always be given lesser weight than primary considerations, or that this view prevailed when considering the international non-refoulement obligations owed to the respondent. This may be seen from the following matters.

[31] First, at [96] the Tribunal considers its findings (at [95]) that the respondent assisted US military forces in Iraq in some capacity and faces some risk of harm if returned to Iran because of this association weighs to some degree in favour of revocation. It poses the question as:

[W]hether this finding in relation to what is an "other" or "secondary" consideration outweighs the Tribunal's findings in relation to the primary considerations detailed above.

[32] The reference to "secondary" in this context is ambiguous, because it may be synonymous with "other" or refer to an inferior consideration, but at [97], the Tribunal proceeds to observe that it "needs to weigh" these safety concerns with the "very strong" earlier identified (primary) concerns in relation to the seriousness of the respondent's crimes, the risk of further offending and what this would mean for the Australian community. At [98] it goes on to note that the primary considerations in Direction 65 are normally given greater weight than "other" considerations and that the Tribunal finds "that the primary considerations here clearly outweigh this secondary consideration" (emphasis added). The reference to "normally" indicates that the standard that the Tribunal is applying is not one that inevitably gives lesser weight to the "other" or "secondary" consideration, but that normally one does so. That is not an inaccurate characterisation of Direction 65, which in section 8(4) provides that "primary considerations should generally be given more weight than other considerations". The word "normally" indicates that the other consideration may sometimes not warrant lesser weight. Further, the finding that the primary considerations here outweigh the secondary consideration indicates a balancing exercise on the part of the Tribunal that would be redundant if it had considered that a primary consideration would always prevail over a secondary consideration.

[33] This understanding of the Tribunal's reasons is in our view supported by the language used at [104], where the Tribunal concludes in its consideration of the "strength, nature and duration of ties" that it is not convinced that "on balance" they outweigh the primary considerations identified earlier.

_[34] Further, in its conclusions at [119] - [124] (set out in full above) the Tribunal engages in a process that proceeds to weigh the "other" considerations, which it finds are in favour of revocation, against the countervailing considerations and concludes that on balance they do not "outweigh the other primary considerations" which are "_generally afforded greater weight" (emphasis added). This language indicates that the Tribunal did not take the view that "other" considerations were always subservient to primary considerations.

[35] Taken together, we consider that the ambiguity apparent from the twice used word "secondary" does not reflect the error that the learned primary judge considered had arisen. At this point we should note that we have not here been asked to consider in this context the correctness of Suleiman. Certainly if the Tribunal did regard a secondary consideration as incapable of outweighing a primary consideration then it would not, in that respect, be correct and her Honour's agreement with that decision would equally have been correct. However, the contextual matters to which we have referred indicate that the Tribunal did not do so in the present case, as a result of which the appeal based on grounds 1 and 2 succeeds.

1. Senior Member Evans in CZCV at [164] summarised the legal position following the various cases referred to above as follows:

164. Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word "secondary" tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving another consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so...

1. With respect the Tribunal agrees with Senior Member Evans' statement of the exercise to be undertaken.

1. The Applicant does not pass the character test. That is not disputed. The sole issue is whether, guided by Direction 79, the discretion not to grant the visa under s 501(1) should be exercised.
2. The two applicable primary considerations, the protection of the Australian community and the expectations of the Australian community, weigh against the visa being granted. The Tribunal finds that, while the risk of the Applicant reoffending is not high, the consequences of sexual offences against children are so significant that the risk is unacceptable. Significant weight is, in the Tribunal's view, to be given to this consideration.
3. The Tribunal also places significant weight on the expectation of the Australian community which the Tribunal finds to be that the Applicant is not to be granted a visa.
4. The non-refoulement obligations owed to the Applicant weigh in favour of the grant of the visa. This consideration is, however, outweighed by the considerations of the protection of the Australian community and the expectations of the Australian community. In these circumstances the Tribunal is of the view that the discretion to refuse to grant the visa under s 501(1) of the Act should be exercised.

1. The Tribunal affirms the decision of the delegate of the Respondent made on

7 December 2018 refusing to grant the Applicant a Protection (Class XA) visa under

s 501(1) of the Migration Act 1958 (Cth).

I certify that the preceding 130 (one hundred and thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

......[sgd]..................................................................

[1] Minister for Immigration and Border Protection, Direction No. 65 - Migration Act 1958 - Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Immigration and Border Protection, 22 December 2014)