An Afghan refugee who sexually assaulted a 13-year-old boy on a Sydney bus has been spared deportation because he will face “difficulties” if he loses his visa and he has shown “deep remorse”.
The 32-year-old had his visa automatically cancelled after being sentenced to 20 months’ jail over the sex attack, but won his visa back at the Administrative Review Tribunal (ART) in Sydney on Thursday, while representing himself with the help of a Dari interpreter and a psychologist.
ART Senior Member Theresa Simon used immigration minister Tony Burke’s controversial Ministerial Direction 110 to rule in the sex offender’s favour, and while handing down her decision anonymised him as HWPR and banned the media from publishing his name.
Direction 110 has been kept in place by Mr Burke since 2024, despite it enabling at almost 500 immigrant criminals, including paedophiles, rapists and killers, to have their visa cancellations revoked.
The Direction requires the ART to take into account community protection and expectations, family violence, ties to Australia, the best interests of minor children, legal consequences and impediments if removed, and impact on Australian business interests.
The tribunal heard that HWPR sat next to his victim on the bus in May 2024, asked his age, grabbed his genitals six times despite the victim repeatedly telling him that he was 13, forced the boy to touch his genitals, exposed himself, and asked the terrified child to come to his home.
HWPR claimed he did not remember the attack as he was drunk for the first time, an account backed up by psychologist Tim Watson-Munro, who said in a report that the offending was caused by alcohol consumption combined with untreated PTSD from HWPR’s father being killed by the Taliban when he was a child.
The psychologist also stated in his report that HWPR was remorseful, and that the risk of him reoffending was “trending from moderate to low”.
The tribunal heard that HWPR came to Australia in 2013, and has a wife and two children who live in Afghanistan, but Ms Simon noted that while he claimed he would not be safe in his home country and wanted his family to join him in Australia, he had taken “no meaningful steps” to bring them over.
Ms Simon said in her decision that while community protection and expectation weighed strongly in favour of visa cancellation, the “risk to the community overall is very substantially reduced despite his offending being very serious”.
She said they were outweighed by legal consquences, including the possibilities that HWPR makes a protection claim, and that he could be deported to Nauru. She also took into account safety concerns for him and his family if sent back to Afghanistan, and said she accepted he would have difficulties providing for his family there.
“HWPR has breached the expectation that he be a law-abiding citizen who respects Australian institutions. He has committed an offence of a sexual nature against a child on public transport,” she said in her decision.
“As a general principle, Direction 110 establishes that on this basis the applicant’s visa should be cancelled. However, overall, while considering that the protection of the Australian community is ‘generally’ to be given greater weight than other primary considerations, in this case, the other relevant considerations outweigh the protection and expectations of the Australian community.
“HWPR has shown deep remorse for his actions against the child. The offence is an isolated one, without any preplanning and he does not have a problem with alcohol. There is a low risk he will reoffend. The legal consequences, impediments and difficulties he would face also serve to outweigh the other factors so that the cancellation of the visa should be revoked.”
Last month the ART made a similar decision in regards to a Nigerian scammer, in July restored the visa of a Malaysian doctor who was convicted of sexually assaulting a teenage girl, and allowed a Zambian who sexually abused a three-year-old boy to stay.
In June the tribunal gave a Nepalese child sex offender his visa back, and in May did the same for an African refugee who sexually abused his nine-year-old niece, because he would lose access to NDIS support for his intellectual disability if deported.
Other immigrant criminals who have been allowed to stay in Australia this year due to similar ART rulings under Direction 110 include a Chinese wife-killer, an Ethiopian rapist, an obese homosexual Indian paedophile, an Iranian drug smuggler, a killer Sri Lankan driver, and a Sudanese refugee who was jailed over the fatal stabbing of an Australian teenager.
Mr Burke has the ministerial power to personally cancel visas, a decision which cannot be challenged at the ART, and has done so multiple times since November for political reasons, resulting in the deportation of South African civil engineer Matthew Gruter for attending a peaceful police-approved protest, Ukrainian refugee Yan Zakharin for his alleged role in an incident at Camp Sovereignty in Melbourne, and British army veteran Ryan Turner, who had his visa cancelled for giving boxing training to nationalist activists in Western Australia.
This week Mr Burke promised to update Direction 110 to “better protect children who are victims of crime”, “better protect victims of domestic and family violence”, and “reflect modern Australia’s commitment to stamping out hatred”, but is yet to do so.
Header image: A Sydney bus (Bidgee, CC BY-SA 3.0 au, Link).
