1903213 (Refugee)

[2021] AATA 936

1903213 (Refugee) [2021] AATA 936 (5 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1903213

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Angela Cranston

DATE:5 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise visa) visa.

Statement made on 05 March 2021 at 4:40pm

CATCHWORDS

REFUGEE – cancellation – Subclass 790 (Safe Haven Enterprise visa) visa – Iraq – an imputed Shia Muslim religion –criminal conviction – homosexual – history of substance abuse – applicant has displayed remorse for offending – self-harm – drug addiction – non-refoulement obligations – mental health issues– decision under review set aside

LEGISLATION

Migration Act 1958, ss 46, 48, 116, 189, 195, 359,

Migration Regulations 1994, r 2.43, Schedule 2

CASES

AEM20 v Minister for Home Affairs [2020] FCA 623
AJL20 v Commonwealth of Australia [2020] FCA 1305
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 January 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant's Subclass 790 (Safe Haven Enterprise Visa) visa under s.116 of the Migration Act 1958 (the Act).

1. The claims and evidence are below. The Tribunal’s reasoning for decision is at paragraph 36 and following.  

1. The applicant arrived in Australia [in] November 2012. In his protection visa  application, the applicant stated the following:

   I was born in Baghdad Iraq on [date]

   In 1980 our family left Iraq. This is because the Iraqi government at the time led by Saddam Hussein was targeting Faili Kurds, by forcing them to go to Iran or by killing them. My ancestors on my father's side with family Kurds and my father could speak Kurdish. One of my father's friends told him that our family's name were on a government list and that we were therefore at risk of harm. This is why we fled Iraq and went to around.

   In Iran, our family were given green cards, but my parents had difficulty finding employment because they were not citizens and they were from Iraq. For this reason our family found it difficult to subsist in Iran.

   At the end of 2004 we returned to Iraq. When we left Iran, we returned our green cards to the reigning government because we were required to do so. My father had owned land and a factory in Iraq but when we returned the land and the factory were owned and  being used by other people.

   In 2005 my brother [Mr A] disappeared. One day he left home to get his birth certificate at a government office in Baghdad. He never came back home. We went to the police for help but they were unable to assist us. We tried to search for [Mr A] everywhere but we could not find him. To this day I do not know where he is or whether he is alive.

   A couple of days after [Mr A] disappeared my mother received a call. The person on the phone did not identify himself but he told my mother that [Mr A] had been taken that we were Iranians who did not belong in Iraq and that her other sons would be kidnapped as well. We did not know who was calling our mother but we believe it was the Jaysh al Mahdi militia group (or a similar militia group) which targeted Iranian people. Our family was not Iranian but we had lived in Iran, we spoke Arabic and Persian (Farsi) at home our mannerisms were different from people in Iraq and we dressed differently to people in Iraq I believe this is why we were perceived as Iranians. My mother received threatening phone calls like this over the next few days. For this reason we left Baghdad for Najaf to live at our aunt's place. However even when we were in Najaf, my mother continued receiving phone calls. The person on the phone told her we know you are in Najaf. We will take your other sons because they are Iranians.

   My mother continued receiving a number of threatening phone calls like this. For this reason we did not believe it was safe for us to continue living in Iraq and we left the country in late 2005.

Why I fear going back to Iraq

I fear returning to Iraq because I believe I will be kidnapped and killed by a militia group just like my brother.

1. The assessor accepted that the applicant was an Iraqi national, born in Baghdad into a Shia Muslim family and was a Fali Kurd. The Immigration Assessment Authority found the following:

•it did not accept that the applicant would face a real chance of harm for being a Fali Kurd. It accepted that the applicant's brother disappeared in 2005 but for speculative reasons. It did not accept that the applicant's mother or his family received any threats in Baghdad or Najaf, nor that the applicant's father's factory and land were taken or occupied by JAM or JAM affiliated tribes, nor that they were targeted or of adverse interest to JAM, militia groups or anyone in Iraq nor that they were perceived as Iranian or Persian. The Authority also found the Department's inadvertent disclosure of personal information on the internet in January 2014 would not give rise to a real chance of harm, that the applicant had not genuinely converted to Christianity and he would not be perceived as a Christian convert. The Authority found that the applicant was born into a Shia family, had practised that religion at home and on return would practice, that Baghdad remained the centre of frequent mass casualty attacks often launched against Shias and that there had been an upsurge in sectarian violence. The Authority noted that DFAT said Shias were being specifically targeted by Sunni militias and that given the applicant's Shia religious practices, his family background and that the majority of Fali Kurds in Iraq were Shia, he would be imputed as a Shia Muslim despite his personal beliefs. However, the southern areas remained under government control where Shites faced little or no official discrimination and since the applicant did not fall within the profile of those targeted by Sunni extremists groups in the southern areas, the Authority was not satisfied that the applicant faced a real chance of harm from Daesh, their associates or other Sunni extremists or militant groups in Southern Iraq.

•However, because the Authority also found that the applicant would face a real chance of being killed, injured or otherwise harmed by Sunni militant groups in Baghdad for reasons of an imputed Shia Muslim religion, then he also faced a real risk of significant harm. It also found that it would not be reasonable for the applicant to relocate because the risk of harm to the applicant from Daesh and their associated Sunni militia groups applied to the northern, western and central parts of Iraq, that although Iraqi Kurdistan was relatively stable, long term relocation to Kurdistan required a sponsor for entry followed by a residency permit for which there were no uniform procedures, access to employment could be difficult without family, tribal or political connections, single people were not allowed to rent houses and it would be dangerous for the applicant to travel from other areas of Iraq into Iraqi Kurdistan. The Authorities also found that it was not reasonable for the applicant to relocate to southern Iraq since there was a lack of assess to essential services as well as work and adequate shelter and that common ethnic or religious backgrounds and existing tribal and family ties (that the applicant did not have) in the relocated areas were crucial as these connections generally ensured access to services and a certain level of community protection. It also noted that country information also reported that single men were refused entry to Basra at checkpoints on the roads, and the applicant may be prevented from entering Basra though it was unclear whether this restriction applied to entry via Basra airport. In addition, access to Qadissiya and Dhi Qar provinces was restricted unless a non­ resident was sponsored by a relative or resident and internally displaced persons continued to face access restrictions and sponsorship requirements in Babil and Karbala governates. The Authority also found the applicant could not reasonably relocate to Najaf (where he had distant family and where he lived with his aunt for one month in 2005) since he was there for one month some ten years ago which was prior to the massive internal displacement and humanitarian crisis. It also noted that the applicant was educated to primary school level and had no other skills or qualifications, that he had worked in Iran [but] had never worked in Iraq and was unemployed between 2004 and 2007. The Authority found the applicant who only had primary school education and no other skills or qualifications and who had spent most of his life outside of Iraq in Iran would have difficulties finding employment as a Shia Faili Kurd. Nor was the Authority satisfied that he would be able to obtain adequate support and assistance from the government or his distant relatives.

1. The applicant was granted a safe haven enterprise (SHEV) visa on 5 January 2017.

1. On 2 October 2018, the applicant was issued with a Notice to consider Cancellation of the Safe Haven Enterprise visa under section 116 on the basis of reg.2.43(1)(oa) because he had been convicted of an offence against a law of the Commonwealth, State or Territory.

1. The following response was received from [Mr B] who stated he was responding on the applicant’s behalf:

His personal situation, which would make it almost certain death to him, if he were to return to his home country....

Prior to his leaving his home country [the applicant] has been threatened with his life to leave and never return by terrorists. These terrorists have decapitated and dismembered his brother and presented [the applicant] with his remains at the time of this threat being made. Understandably, this has taken a massive toll on [the applicant] emotionally and affected his mental and physical health. Whilst he acknowledges he has provided your department with reason to consider the cancellation of his visa, he has advised me he intends to address the areas of concern by living within our community without breaking the law, upon his release.

Due to the trauma and emotional damage associated with experiencing situations such as those [the applicant] has, he regrettably turned to using drugs to cope, and to fund this, has broken the law.

[The applicant] would like to ask that you show some consideration to the time [the applicant] has spent in Australia prior to breaking the law, and to his emotional state and the cause, which have lead to his indiscretions. [the applicant] is on an opiate replacement program currently and is currently doing what he can to address his issues with addiction. He also intends to continue accessing more help with this upon his release.

Further to this [the applicant]'s sexual orientation is also met with dire consequences

,     in his home country. [the applicant] identifies as homosexual and is terrified he will be murdered should he return.

As an Australian citizen, I also ask that you reconsider your position and allow [the applicant] to continue living in Australia on his current visa on compassionate grounds to his situation. I have written this for [the applicant] and provided this information to the best of my understanding. I have in the short time I have known him, found [the applicant] to be of good character and consideration to others.

1. The delegate cancelled the visa under s.116(1)(g) and Reg 2.43(1)(oa) on the basis that the applicant was convicted of criminal offences in the State of [State 1].

1. The applicant appealed the decision to the Tribunal and submitted the following report addressed to the Magistrate, [a] Local Court and dated [date] July 2017):

[The applicant] presented as an unemployed [age] year old from Iraq. He did not  have children. He spoke limited English and required a Persian interpreter for the assessment. He said that he came to Australia from Iraq five years ago. He reported being detained at a number of Australian immigration detention facilities for a period of one year and eight months. He reported receiving counselling to address the trauma that he experienced in Iraq and following the death of his brother. He denied being prescribed any medication whilst detained. [The applicant] reported that he had been residing with a friend in [Suburb 1]. He said that he had never worked in Australia although worked in [an] industry and as [an occupation] in Iraq.

[The applicant] said that he had sought the services of [ORGANISATION 1] where he received counselling. He said he had felt low in mood at times due to the death of his brother and continued to feel sad and depressed at times. He said he found  the counselling to be beneficial. He said he had not returned to the service after 2 visits.  [The applicant] denied being under the care of a community mental health team, Psychiatrist or general practitioner. He denied being admitted to any mental health facilities in Australia. He denied being prescribed any medication apart from methadone.

[The applicant] reported that whilst an Iraqi used a number of illicit substances including opium and heroin. He said he also took [medications]. I was unable to ascertain if these medications were prescribed by a doctor. He said he attended Narcotics Anonymous. Following relocation to Australia he said he was purchasing [Drug 1]  and smoking them and also using [Drug 2] . He reported using these medications to help relax him. He felt the [Drug 2] had made him feel confused and experience difficulties remembering events. [The applicant] denied engaging in alcohol use. He said he was prescribed methadone [initially].

On interview, [the applicant] presented as dishevelled and unkempt. He was anxious at times throughout the interview although this was appropriate to his current situation. He relied on the Persian interpreter to communicate. His speech was normal in volume, rate  and rhythm. He described his mood as worried. His affect was a congruent with stated mood. There was no evidence of formal thought disorder. His thought content consisted of his concern about his recent charges and lack of memory of recent events. There was no expression of overt delusional or overvalued thinking. He reported a history of self­harm by cutting his arms. He denied suicidal intention when carrying out acts of self- harm. He said he cut his arms following the death of his brother however, denied any cutting in many years. At the time of assessment he denied any suicidal ideation or self­harm thoughts. He denied experiencing perceptual disturbances (voices or visions) in the past or currently. There was no evidence to indicate that [the applicant] was responding to any internal stimuli (voices). He was orientated to place and time. He reported difficulties with his memory which he said began following the death of his brother. His memory was not formally tested at assessment. His insight into his mental health issues appeared limited although he expressed a need to commence counselling again. His judgement into his current situation was impaired.
Clinical Impression

[The applicant] does not have a formal psychiatric diagnosis. He is not exhibiting any acute or overt psychotic symptoms or mood disturbance. He reports periods of low mood and feeling depressed although he denied these symptoms currently.

[The applicant] reported a history of substance abuse, namely opium and heroin. He reports continued abuse of [Drug 1] and [Drug 2].  He is currently prescribed methadone  [which] has been confirmed by staff at [a] Centre . He has not received his dose today. [The applicant] is likely to benefit from psychological counselling and intervention. He has expressed a wish to return to [ORGANISATION 1] team.

Conclusion and recommendations

[The applicant] does not present with symptoms of mental illness as defined in the mental health act 2007.

Community management

In consultation with [a named doctor], it is our view there are reasonable grounds to believe that at this stage, [the applicant] would not meet the criteria since as described under section 32(1)(a) or section 33 of the Mental Health (Forensic Provisions) Act 1990.

[The applicant] should attend a general practitioner for assessment review.

[The applicant] has been encouraged to return to the [ORGANISATION 1] service.

[The applicant] would benefit from achieving abstinence from all illicit substances and alcohol. He may benefit from further assessment from drug and alcohol services given his ongoing abuse of substances.

10.The Tribunal sent the following letter to the applicant pursuant to section 359A:

A [State 1] Police Force Criminal History Bail Report dated [date] June 2018 states that you have been convicted of the following offences in [State 1]:

[Details deleted]

This is relevant because it appears there is a ground for cancellation of your Safe Haven Enterprise (subclass 790) visa under section 116(1)(g) and regulation 2.43(1)(oa) of the Migration Act which states that if the Tribunal is satisfied you have been convicted of a Commonwealth, State or Territory offence, whether or not the visa was held at the time of the offence and regardless of the penalty imposed (if any) then, subject to your comments, the Tribunal can consider whether the power to cancel your visa should be exercised.

1. The Tribunal also asked for reasons why the visa should not be cancelled and noted relevant considerations included the following:

• Your purpose in travelling to and stay in Australia

• the degree of hardship that may be caused to you and any family members

• the circumstances in which the ground for cancellation arose (for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa)

• your past and present behaviour towards the Department of Home Affairs

• whether there are people in Australia whose visas would, or may, be cancelled under

• s.140 {this section relates to any person who holds a visa only because you held a visa)

• whether indefinite detention is a possible consequence of the cancellation decision;

• whether upon cancellation the person would become an unlawful noncitizen liable to be detained under s.189;

• whether there are provisions in the Act which prevent the person from making a valid

• application for a visa without the Minister's intervention (eg ss.46A, 46B, 48, 48A, 91E, 91K, 91P);

• whether Australia has obligations under relevant international agreements that would or

• may be breached as a result of the visa cancellation, such as:  ·

• if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration

• whether the cancellation would lead to removal in breach of Australia's non­refoulement obligations - that is, removing a person to a country where the person faces persecution, death, torture, cruel, inhuman or degrading treatment or punishment

• any other matter you raise

1. The applicant responded seeking an additional 21 days and the request was granted. The Tribunal received no further response.

1. The applicant appeared before the Tribunal by video conference on 28 July 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

1. The Tribunal explained to the applicant that his safe haven visa had been cancelled and he had applied for review. The Tribunal then spoke about its letter and he said his friend had responded by email but he did not know what was in that response.

1. The Tribunal then talked about either proceeding or giving the applicant a chance to obtain legal representation. The applicant chose to obtain legal representation and the Tribunal agreed to adjourn the matter until a further date.

16.Prior to its second hearing the Tribunal received the following from the applicant’s adviser:

We refer to the above matter and your letter dated 28 May 2020. We act for [the applicant] in  this matter.

Please find enclosed:

1.  Statement of [the applicant] dated 28 October 2020;

2.  Referral, responses and information from:

•[Various organisations]

3.  Safe Haven Enterprise Visa application of [the applicant] dated 10 June 2016; and

4.  Documents from International Health and Medical Services including:

a. Mental Health Risk Assessment dated 21 March 2013;
b. Final Report from [a specified] Hospital dated [date] January 2020; and

c. Clinical Records dated [date] January 2020.

We understand that the Tribunal has requested information set out in its letter dated 28 May 2020 and we respond to those matters using the corresponding headings as follows.

Cancellation under s 116(1)(g) of the Migration Act 1958 (Cth) (Act)

[The applicant] has instructed us that he accepts that he was convicted of the offences set out in the Tribunal's letter dated 28 May 2020. Based on this information, we do not dispute that [the applicant]'s Safe Haven Enterprise visa (subclass 790) (SHEV) was liable to be cancelled by operation of s 116(1)(g) of the Act and corresponding clause 2.43(1)(oa) of the Regulations. However, we note that the power for the Minister to cancel [the applicant]'s SHEV under s 116 of the Act is discretionary. Given this, we submit that the below factors weigh against [the applicant]'s SHEV being cancelled (most of which can be found in Departmental policy and in the Tribunal's letter dated 28 May 2020).

Purpose in travelling to and staying in Australia

[The applicant] travelled to Australia in 2012 to seek asylum.

[The applicant] was found to engage Australia's protection obligations, meaning that he has a well-founded fear of persecution and/or significant harm if he is returned to Iraq. This then led to the grant of a SHEV on 5 January 2017.

Although a SHEV is a temporary visa, it does provide for possible permanent residency pathways. For example, where the SHEV holder fulfils the requirement to work and/or study in a regional area for 42 months they may be able to apply for permanent visas such as certain skilled or partner visas.

If [the applicant] would not be eligible for a permanent residency pathway, it would still be open to [the applicant] to apply for another SHEV, provided he still fears persecution and/or significant harm in his home country. We are instructed that as at the date of this letter, [the applicant] still fears persecution and/or significant harm if he is returned to his home country, Iraq.

We submit that the above consideration that [the applicant] came to Australia to seek asylum and was found to be owed protection together with the possibility of a lengthened stay in Australia should weigh heavily in favour of [the applicant]'s SHEV not being cancelled.

The degree of hardship that may be caused to you and any family members

We submit that [the applicant] faces a significant degree of hardship if his SHEV remains cancelled. If [the applicant]'s SHEV remains cancelled, [the applicant] will be refouled to Iraq where he faces a real risk of persecution and/or significant harm (see below discussion about Australia's non-refoulment obligations).

[The applicant] will also face ongoing detainment in immigration detention until that removal can be facilitated. In addition to the deprivation of liberty this ongoing detainment causes, [the applicant] will also be unable to access proper supports that may be able to assist him with his mental health issues and drug rehabilitation. We are instructed that the only drug rehabilitation program available to [the applicant] in immigration detention is for [the applicant] to attend a clinic to obtain methadone and that mental health supports such as [ORGANISATION 1] are unable to attend immigration detention in person due to the COVID-19 pandemic.
[The applicant] instructed us to contact services that may be able to assist him with mental health and drug dependence issues both inside detention and, if he is released from immigration detention, in the community. Many of these services are only available to him in the community (see enclosed referral responses) and his ongoing detention means that he is unable to access these services while he remains in immigration detention.
We submit that the above significant hardships [the applicant] will face if his SHEV remains cancelled should weigh heavily in favour of [the applicant]'s SHEV not being cancelled.

The circumstances in which the grounds of cancellation arose (for example, whether there were extenuating or compassionate circumstances outweigh the grounds of cancelling the visa}

Please see enclosed statement from [the applicant] dated 28 October 2020.

[The applicant] takes full responsibility for his actions and has displayed remorse in relation to his offending. He accepts that what he did was serious and wrong. We note that at the time of the offending, [the applicant] was homeless and affected by mental health issues and drug dependence. [The applicant] does not provide this as an excuse for his offending but rather to add further context to his offending behaviour.  He has made progress in dealing with his drug addiction issues by attending the limited drug rehabilitation facilities that are available to him while in immigration detention. He has also instructed us and signed suitable consents to contact services that can assist him in his rehabilitation. Most of these services are ready, willing, and able to provide appropriate supports to [the applicant], in the event his SHEV is reinstated and he is released from immigration detention.

If [the applicant] is released from immigration detention there are services available to him, which he is keen to attend, that will assist him in his rehabilitation (see enclosed referral responses), including:

•  his history of drug dependence;

•  his mental health;

•  employment prospects;

•  social support;

•  housing; and

•  financial support.

We further submit that, for the most part, [the applicant]'s offending was non-violent, except for one conviction for common assault. The sentences imposed on [the applicant] were also found to be at the lower end of the spectrum of possible sentences that could be imposed (see below table for each offence, each sentence imposed and the possible maximum sentence that could be imposed for each offence):

[Details deleted]

[The applicant] was ultimately incarcerated for his offending. However, we are instructed that the trigger for the incarceration was [the applicant]'s failure to report on one occasion due to confusion on behalf of [the applicant] (see enclosed statement from [the applicant] dated 28 October 2020 at paragraph 9).

We submit that the above factors should weigh in favour of [the applicant]'s SHEV not being cancelled.

Past and present behaviour towards the Department of Home Affairs

We are not aware of any instances where [the applicant] has attempted to deceive or mislead the Department of Home Affairs. We note that on [the applicant]'s SHEV application that he disclosed that he was subject to criminal charges at the time of application (see enclosed SHEV application). We are also not aware of any instances where [the applicant] has breached his SHEV conditions (see page 5 of the Department's decision dated 15 September 2019).

We submit that the above factors should weigh in favour of [the applicant]'s SHEV not being cancelled.

Whether there are people in Australia whose visas would be cancelled under s 140
We submit that this is not a relevant consideration in this case and should be given no weight.

Whether indefinite detention is a possible consequence of the cancellation decision We submit that refoulment of [the applicant] is the legal consequence of his SHEV cancellation (see below discussion at 'Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation'). We note that [the applicant] will remain in immigration detention until it is reasonably practicable  to refoul him (see ss 189, 197C and 198 of the Act). We are concerned about [the applicant]'s welfare while he remains in detention given that he has attempted to self-harm while in detention (see enclosed IHMS Records) and also has been sexually assaulted while in detention (see [the applicant]'s statement dated 28 October 2020 and [Hospital] Final Report).

We submit that this factor should weigh heavily in favour of [the applicant]'s SHEV not being  cancelled.

Whether upon cancellation the person would become an unlawful non-citizen liable to be detained under s 189

We submit that [the applicant] has already been detained for over one and a half years as at the date of this letter, under s 189 of the Act due to the cancellation of his SHEV.

We submit that this factor should weigh heavily in favour of [the applicant]'s SHEV not remaining cancelled.

Whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister's intervention (ss 46A, 48B, 48, 48A, 91E, 91K, 91P)

[The applicant] will be barred from applying for any other visa under ss 46A and 48A of the Act. There is no evidence before the Tribunal that the Minister would consider exercising his power to lift the bars in ss 46A and 48A of the Act, nor is there any evidence that the Minister will exercise his discretionary power under s 195A of the Act.

We submit that there is substantial judicial authority about the absurdity in the Department/Minister considering that the Minister may intervene to grant another visa where a visa has already been cancelled, especially on character grounds. For example, we refer the Tribunal to the judgment of Katzmann J in AEM20 v Minister for Home Affairs [2020] FCA 623, where her Honour followed Rares J reasoning that:

"Once the Minister personally refused to grant the applicant a temporary protection visa on the basis that he acted here, knowing that Australia actually owed non­ refoulement obligations in respect of the applicant (as a refugee), no reasonable occasion could arise for the Minister to exercise his non-compellable powers to allow the applicant to apply for another substantive visa, absent a substantial and indefinite period of further immigration detention in which a change could occur and, in fact, had occurred to the risk on which the Minister had acted. That consequence must follow because of the Minister's finding that the risk that the applicant currently posed, on which the Minister acted under s 501(1), necessarily entailed that no reasonable or rational person in the Minister's position could grant the applicant any visa in the foreseeable future. That is because the grant of any visa would court the very risk that the Minister found decisive in refusing the protection visa. And, indefinite detention to see if, at an indeterminate future time, the applicant's circumstances had changed materially, is unlawful and precluded by ss 197C and 198."

Although the above cases concerned refusal of a protection visa under s 501 of the Act, we submit that a similar argument can be mounted in the present case. This is due to the fact that the Minister, through his delegate, already exercised his discretion to cancel [the applicant]'s SHEV for his offending behaviour under s 116 of the Act and we submit that no reasonable occasion could arise for the Minister to exercise his non-compellable power under s 195A to allow [the applicant] apply for another visa.

We submit that this consideration should weigh heavily in favour of [the applicant]'s SHEV not being cancelled.

Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation (e.g. non-refoulement obligations)

We submit that if [the applicant]'s SHEV remains cancelled, the legal consequence is that [the applicant] will be deported to Iraq in breach of Australia's non-refoulement obligations. We submit that there is no evidence to suggest that [the applicant] will not be deported when it is reasonably practicable to do so under ss 197C and 198 of the Act. This finding is supported by North's ACJ judgment in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 where it was established that the legal consequence of refusing a protection visa on character grounds was that the applicant would be refouled as soon as practicable. This construction of ss 197C and 198 of the Act is also supported by AJL20 v Commonwealth of Australia [2020] FCA 1305 at [10].

We submit that these considerations should weigh heavily in favour of [the applicant]'s SHEV not being cancelled.

Any other matter

We note that on the last occasion, the Tribunal stated that it would also take into account [the applicant]'s risk of re-offending. We note that in his statement [the applicant] has accepted that he has committed the offences set out in the Tribunal's letter dated 28 May 2020 and has demonstrated remorse for his offending and commitment to not re-offend.

We also note that [the applicant]'s offending can be closely related to his history of drug dependence which possibly relates to his mental health issues linked to past trauma. [The applicant] has attempted to address his drug dependence issues by attending the limited drug rehabilitation services available to him in [Detention centre 1] (see enclosed IHMS document). [The applicant] has also instructed me to assist and refer him to other services that may be able to assist him both in Immigration Detention and in the community (see enclosed referrals and responses). He has requested services that can assist him in dealing with:

•  his mental health issues;

•  his history of drug dependence;

•  his social networks;

•  housing;

•  finances; and

•  employment.

Unfortunately, many of the services we have contacted only provide suitable services in the community, but are willing to assist [the applicant] in the event that his SHEV is reinstated.

These services include:

•  Drug And Alcohol Multicultural Education Centre (DAMEC) - to provide in-person counselling services and support in relation to [the applicant]'s history of drug dependence and mental health issues

•  Australian Red Cross - to provide a wrap-around service through casework, housing, and financial support. They can also provide him with immediate support on release from immigration detention;

•  House of Welcome - They can provide some financial support and access to a food bank; and

•  Mental Health- Community Living Supports for Refugees an provide support for:

daily living skills like shopping, looking after finances, cooking, or catching public transport;

someone to talk to about mental health and providing support and assistance as needed;

remembering mental and physical health appointments , medications, and other treatments;

meeting people in the local community and participating in social, leisure or sporting activities;

learning new skills;

accessing education, housing or help to get a job;

help with parenting and children's education and schooling; and
accessing other supports like drug or alcohol services.

We submit that [the applicant]'s remorse and commitment to attend rehabilitation both in detention and in the community reduce the likelihood of [the applicant] re-offending and should  weigh in favour of [the applicant]'s SHEV not being cancelled.

Conclusion

We submit that the following significant factors should weigh in favour of [the applicant]'s  SHEV not being cancelled:

•  [The applicant] has been found to be owed protection obligations by Australia. The legal consequences of [the applicant]'s SHEV remaining cancelled is that he will be refouled to Iraq where he faces a real chance of persecution and/or significant harm in breach of Australia's non-refoulement obligations.

•  [The applicant] has shown remorse for his offending and accepts that what he did is serious and wrong. He has been rehabilitating himself while in immigration detention and has requested the assistance of services that will continue to aid him in this rehabilitation process should he be released from detention. The offences committed by [the applicant] were, for the most part, non-violent and were committed when [the applicant] had severe mental health issues and drug dependence issues. Further, the sentences imposed on [the applicant] are at the lower end of the severity scale and indicate that the offending; although serious, was not on the more serious end of the scale. 

17.Also provided was the applicant’s statement: Background

In 2012 I arrived Australia's asylum seeker. I was seeking protection from my home country, Iraq. I had witnessed and experienced some terrible things there things that will stay with me for a long time.

In around 2012 and 2013 after I arrived in Australia I was sent to Manus Island. It was such a terrible place to be that I self harmed while I was there.

In 2017 I was found to be owed protection .by the strain government granted my protection visa. I was then released from immigration detention.

Offending

While in the Australian community I have been convicted of a number of offences, I understand that these are listed in the letter from the Tribunal dated 28 May 2020. My lawyer [has] gone through these offences with me and although I have trouble remembering  each particular occasion/offence due to my history of drug dependence and the time that has passed I accept that I have committed those offences as set out in the Tribunal's letter. I have no reason not to accept that I have committed these offences. They also do recall pleading guilty to offences on every occasion I recall been in court. I am deeply sorry for what I have done. I know that what I did was serious and wrong.

During all of those offences I was under the influence of drugs mostly [Drug 1] . This is not an excuse my behaviour but I want to provide context from offending as requested by the Tribunal in its letter. I was taking drugs as I was in pain. I was in psychological pain because of my past. I was trying to forget and feel numb about all the terrible things I had experience both in my home country and in Manus Island. I was also homeless at the time and struggling to survive as my Centrelink payments had been cut off.

A lot of my offending relates to shoplifting/stealing. I shoplifted/stole to pay for my [Drug 1] and food. I know that on one occasion police caught me with a [knife] and I was charged and convicted for this which I plead guilty to. I use this knife in my [work]. I had purchased this knife earlier that day [with] other items for my job that I still had in my possession.

On another occasion I was convicted of common assault. This occurred while I was on [Drug 1] and attempting to shoplift an item from [shop] to then sell to pay for more [Drug 1] and food. When I was in the shop security figured out what I was doing. They tried to grab me while I was attempting to run away and I pushed him off me to escape. I did not mean to cause him any harm I just wanted to get away. I was then stopped by two other security guards who held me until the police arrived.

In relation to driving unregistered motor vehicle, my friend lent me a car that I didn't know was unregistered at the time. I knew I should not be driving the car in any event because I did not have a license. I was going through withdrawals at the time. I was stopped by police when I attempted to evade them on the road. I was then charged with operating an unregistered vehicle while unlicensed along with possession of stolen items in the car and plead guilty to those charges.

On the last occasion I was given a suspended sentence by the court. I knew that I had to sign something at a place in [Suburb 1]. When I attended this place to sign the document I asked them if I also had to keep going to [Suburb 2] to also sign documents as I think this was the terms of a previous sentence I had received. They told me I didn't need to keep going to [Suburb 2] just [Suburb 1]. On one of my next visit to [Suburb 1], they arrested me for not attending [Suburb 2]. This led to me having to serve a term of about nine months in prison.

Rehabilitation

Since this offending I have realised that my offending is born out of my drug dependence issues. I have taken drugs to try to cope with the pain inside my head but I now know this  is not the answer to my problems.

Two months before I sent to prison I stopped using [Drug 1] and was taking methadone prescribed by a doctor to try to deal with my drug dependence issues.

While in prison I also took methadone to deal with my drug dependence and withdrawals.

In immigration detention have also been taking methadone and have been trying to reduce the amount of methadone I have been taking. I was on [amount] of methadone a day when I got to detention and now I'm taking [a reduced amount] a day. My aim is to no longer need methadone to cope with my drug addiction issues. I am not aware of any other drug rehabilitation services that are available to me detention.

I also want to take this opportunity to tell the Tribunal that I took drugs other than methadone at the beginning of this year while in detention. On that occasion a fellow detainee had put what I think was a mixture of ice and cocaine in my food and drink. It made me feel very disorientated. While I was under the influence of these drugs the detainee sexually assaulted me. I first immigration detention staff did not believe me. It was only after I is admitted to hospital in the hospital ran tests that they confirmed I had been sexually assaulted. I also had spent 15 days in a mental health hospital after this incident. I tried to tell the police but they never came to investigate. The offending detainee was moved to another detention centre after this incident.

I know that I have to deal with my psychological problems. I attempted to try [ORGANISATION 1] counselling at the start of this year but found it difficult to do the session of the phone and told them I would prefer to do it face-to-face. Due to coronavirus this has become impossible one's attention but I am hopeful it can resume soon. I also asked my solicitor [to] put me in touch services that can help me. I know that [he] is now referred me to a number of services that can help me with my drug and mental health issues. [A] counsellor called me a few weeks ago to have a counselling session. As for the session to be in person as I struggle to talk over the phone especially about such personal things. I so they cannot come to detention to do it in person but that I could do face-to-face sessions if I am released. I also understand that I can get financial, housing, employment and food supported by release from detention.

I am committed to accessing and attending their services. I want to get better and I want to deal with my mental health and drug dependence issues as I know these are the cause of my offending.

I know that I do not want to offend again and be that person anymore. I am still very sorry for what I have done I know that I need to deal with my mental health issues are related drug dependence issues and I am committed to dealing with those issues.

1. Also provided was a bundle of International Health and Medical Services (IHMS) documents and a report from [local] Health Service dated January 2020 stating that the applicant presented complaining of sexual assault.

19.A further hearing was held on 3 November 2020. The applicant accepted that he had been convicted of offences in [State 1] and the Tribunal put to him that it could consider any reason why his visa should not be cancelled.

1. The applicant stated that his mother travelled between Iran and Iraq (Najaf and Baghdad) his sister was in Iran and his brother [was] in Melbourne. The last time he talked to [his brother] was around two months ago, [he] knew the applicant had committed a crime but did not know the details. The applicant also stated his brother would not help him, he was not close to anyone else in Australia.

1. The applicant stated he had not worked in Australia, but in Iraq he had worked as a  labourer [and] in Iran he had [also worked].

1. The applicant stated that in Australia he had been homeless since he started using drugs three or four years ago. Before that he had lived by himself in a charity property in [Suburb 1] for 1 or 2 years. Before that he was in [Suburb 3] with an Iraqi, [before] that in [another suburb] and before that in [another suburb]. He had not kept in touch with any of these people and no one visited him in detention.

1. The Tribunal then talked about some of the convictions and in particular, the case where he was convicted of carrying a cutting weapon. He stated the cutting weapon was [an item] which he said he carried because he found a [job] and had some tools. When asked if he had a job in Australia he said he wanted to go to work but then work was cancelled. When asked what he was referring to he stated he thought it was [a specified industry]. The Tribunal put to him that it understood that people had to have a certain certificate to work [in that area] and he agreed but said he did not have that certificate. When asked what he was doing with the [item] he stated it was left in his pocket and the police found it.

24.The Tribunal also talked about the applicant’s assault conviction and he stated he went to the shops, security had seen him and he had tried to escape. When asked about the prohibited drugs he possessed he stated he was carrying [Drug 1].

1. The applicant stated his drug problems started before he came to Australia and after the death of his brother 15-20 years ago. He stated he became addicted to [Drug 1] in Australia . In Iran he used heroin and in Australia he used [Drug 1] and [Drug 2].

26.When the Tribunal asked if the applicant had been in criminal detention, he stated yes. The Tribunal put to him it understood he was in detention in 2016 before his safe haven visa was granted. He agreed and stated he was in jail because he shop-lifted. He also stated he had been in criminal detention 3 times, [and] he would go for a week or two.

1. The Tribunal asked what would happen to him if his visa was cancelled. He stated he would stay in detention. If his visa was not cancelled, he stated he wanted to live like a normal person. The Tribunal put to him he had a drug problem that he funded through stealing and asked about the practicalities if he were to be released. He stated he would go to charity organisations to see what help he could get. When asked if he had done that in the past, he stated he had not previously tried to resolve his problems. The Tribunal put to him that he was asked to attend counselling, drug and rehabilitation programs in 2017 and asked if he did, he stated he went once. He stated at that time he was heavily addicted but now he realised his mistake. He said it was different now because he had quit drugs two years ago. When asked about his current drug use, he stated he took methadone. The Tribunal put to him the most recent medical report was (from [local] Health Service) and dated January 2020.

1. The Tribunal put to the applicant it needed to think about if he would reoffend. The Tribunal said his adviser had worked hard to put him in contact with resources but it needed to think about whether he would connect with any of those resources because there did not seem to be anyone who would assist him to do so. The Tribunal put to him he had not worked in Australia, did not have family he was in contact with except for his brother in Melbourne and there was no one the Tribunal could see who would take an interest in his future. The Tribunal said it also needed to think about whether he would be strong enough to face his problems. The applicant stated he had committed crimes and would need to be punished. The Tribunal indicated it needed to think about what would happen and asked him to comment. He stated he would go to the organisations to get accommodation and help. He stated he had not been talking to anyone about his addiction but he would do so. When asked why the Tribunal should believe him, he said he said he wanted to change his life and be a good person. He also said he was remorseful, and wanted to get on with his life.

1. The applicant’s adviser sought clarification about the applicant's time in prison. The Tribunal referred to the applicant's evidence. The adviser said the applicant was confused about criminal detention and immigration detention. The adviser also stated he thought the applicant was always detained in immigration detention.

1. The adviser stated the applicant was committed to rehabilitating himself. He stated it was apparent his offending related to his drug issues and possible mental health history. He stated the applicant was keen to access services and signed things quickly. The adviser also stated he had arranged culturally appropriate services, that the Australian Red Cross provided a wrap around service which included a caseworker who would be there from the day of his release and who could put the applicant in contact with services and arrange for accommodation.

27.           The applicant stated that if he were to be released, there would be a person who would meet him and direct him to housing and health services and that he would meet with that person. The Tribunal put to him that his past did not indicate he had reached out for support. He stated he had decided to do it. The Tribunal put to him that in August 2020 when he was to have a counselling service over the phone he opted out. He stated he was not comfortable over the phone and it was not cancelled, he was supposed to see the person after he was released. The Tribunal put to him that the session was offered during COVID and may not be perfect but opting out because sessions were not in person may not be realistic. He stated he could not talk over the phone and he would see the person after he was released. The adviser stated that face to face counselling would be open to him if he were released.

1. The Tribunal then raised [Mr B]'s submission and put to him that it was inconsistent with his protection visa application that said his brother had gone missing and he did not know where he was. The applicant said he never said his brother was lost, he said he was killed and he saw his body and he did not remember what was in the application. He also stated that when he talked about his brother he became upset.

30.Following the hearing, the Tribunal invited the applicant to provide the following:

Current medical opinion that addresses the following:

[The applicant]’s medical history regarding drug taking, rehabilitation
and/or counselling
[The applicant]’s current management including any current treatment.
Degree of success/acceptance of treatment including [the applicant]’s
history of attendance, willingness to engage in drug rehabilitation and/or
counselling. The effectiveness of that treatment. Has [the applicant]
obtained any reduction in his dependency or any periods of
abstinence?
Future drug dependence issues and support needed.
Future mental health issues and support needed.
Opinion as to [the applicant]’s future engagement/acceptance with any
outside rehabilitation programs. An opinion based on itemised services
and support and how it is envisaged [the applicant] would engage with
those programs would be more helpful than any generalised comments.
Opinion as to the success of any outside programs. An opinion based
on itemised services and support would clearly be more helpful than
any generalised comments.

1. The Tribunal received the following [ORGANISATION 1] report dated 11 December 2020:

[The applicant] stated that he endured several stressful life events during his life in Iran, Iraq and Australia, which have had a long lasting psychological impact on him. [The applicant] identified the following incidents as most distressful and traumatic, which have triggered and are still maintaining his psychological difficulties.
Stressful life events in Iran and Iraq
[The applicant] explained that although he was born in Iraq, he and his family fled to Iran, when he was [age] years old, as they experienced harassment, persecution and lack of legal rights due to their Kurdish background. [The applicant] reported that despite the relocation, life in Iran was also difficult, as there too, he and his family did not have any legal rights. [The applicant] described that he lived in constant fear, as there was always a concern that the police would stop him and arrest him. He added that this was a common occurrence in Iran, as Kurdish people are not considered citizens of the country and therefore, are often subjected to imprisonment on the basis of false charges, discrimination and persecution.
During the assessment session, [the applicant] also disclosed that when he was a young boy (he was unsure of the specific age), he was sexually assaulted on four different occasions. He did not wish to disclose further details regarding the matter, due to the emotional distress the disclosure instigated, however, he did clarify that the assaults were by four different people; three of them were [the applicant]’s relatives.
[The applicant] reported that in 2004, he and his family decided to move back to Iraq, due to hardship they were experiencing in Iran. With great difficulty and distress, [the applicant] proceeded to explain that in 2005, he applied for birth certificates, and his brother went to collect them. During this trip, [the applicant]’s brother was captured and killed; his body was mutilated and dismembered. [The applicant] explained that there was a political party in the area where they lived, that was threatening the family for months before his brother was killed; it is believed that they are responsible for the death of his brother.
[The applicant] explained that following the death of his brother, he and his family returned to Iran, in 2006. Struggling to cope with his brother’s death and facing constant fear for his own safety, [the applicant] left Iran and travelled to Australia in 2012.
Settlement in Australia
[The applicant] disclosed that upon his arrival in Australia, in 2012, he spent approximately two years in detention including spending 9 months at Manus Regional Processing Centre. He was released on a bridging visa, in 2014, and was issued with a Temporary Protection Visa (SHEV) in 2016. [The applicant] reported that he struggled during his initial detention, especially at Manus adding: “Manus was torture. We had to live in a tent, in constant fear. People were suicidal and self-harming and we had to witness it all.” Upon his release into the community, [the applicant] reported that he was optimistic about his future, however, because of his psychological difficulties and inability to cope with his traumatic reaction, he succumbed to his old habits.
Namely, [the applicant] disclosed that following the death of his brother, he began using heroin, in Iran. Although he ceased the use of illicit substances, once he arrived in Australia, he began abusing cannabis and [Drug 1] after his GP prescribed it to him, for back pain that he was suffering from, at the time. [The applicant] reported that initially he was obtaining [Drug 1] legally, based on prescription by his GP, however, after some time, when he was no longer able to obtain prescriptions, he began obtaining them illegally.
[The applicant] clarified that he began using illicit substances as a way of coping with the emotional distress that he was experiencing following the death of his brother adding: “It felt good, it made me relax. It would shut my brain up so I would not think about the past”. Because of his addiction to illicit substances, [the applicant] engaged in shoplifting as he was struggling financially and was consequently charged several times with shoplifting offences. In 2015, [the applicant] was arrested and sent to [DETENTION CENTRE 1], where he spent 15 months, before he was released back into the community, as charges against him were dismissed. In 2018, [the applicant] was jailed for 9 months following one of the shoplifting charges and after completing his sentence, he was transferred to [DETENTION CENTRE 1] where he currently awaits the resolution of his residency status, as his SHEV was cancelled.
Detention experience
[The applicant] reported that being in detention has further exacerbated his psychological state as he is worried that he will be deported and face further persecution and harassment. Additionally, [the applicant] disclosed that approximately 12 months ago, he was drugged and sexually assaulted by another detainee. He explained that following this ordeal, his sense of safety has further been shattered, as he continues to live in fear. [The applicant] explained that he made the report about the sexual assault, however, no further action was taken.
6. Previous Assessments and Treatments
[The applicant] reported that he has received psychological therapy at [ORGANISATION 1] in the past for his symptoms related to traumatic experiences. He explained that although he found the sessions to be useful, he ceased his attendance due to his drug use and financial difficulties. Furthermore, [the applicant] disclosed that he was hospitalised several times for his suicidal attempts, in Iran, and later in Australia.
His last hospitalisation was approximately 12 months ago, following self-harm and suicidal ideation and a psychotic episode, as at the time, [the applicant] explained that he was suffering from auditory and visual hallucinations. He was also prescribed [medications] (he was unsure of the dosage), which he has been taking daily, until two months ago. [The applicant] reported that he stopped taking the medication due to the pain that he was experiencing in his leg, in the mornings. [The applicant] also reported that two years and seven months ago he began a methadone maintenance treatment for his illicit substance abuse. He added that initially he was on a [amount] dose and currently he is on [amount] dose of methadone maintenance treatment.
7. Current Issues and Relevant History of Presenting Problem
7.1 Drug and alcohol history
[The applicant] reported a long-standing history of drug use, namely heroin in Iran, and cannabis and opiates in Australia (as stated above). [The applicant] also disclosed that during his initial stay at [DETENTION CENTRE 1], in 2015, he was using methamphetamines, as opioids were not easily accessible. Following his release into the community, in 2016, he resumed using opioids.
[The applicant] reported that two years and seven months ago he voluntarily commenced methadone maintenance treatment, as he wanted to address his addiction. He explained that he is currently on a methadone maintenance program and will continue with the treatment, as he finds it helpful and would like to achieve full recovery from his addiction. [The applicant] reported that he has not used illicit substances since he commenced the methadone maintenance program.
7.2 Mental State Examination
During the assessment session, [the applicant] was well groomed; he presented as pleasant, engaged and cooperative with the assessment process. His responses and statements were coherent and relevant to the conversation, although there were observable difficulties with focus and memory. Namely, [the applicant] struggled to recall some details of his traumatic experiences particularly chronological order of the events and their duration. During the assessment session, his affect was reactive and appropriate to the content of the conversation.

When he spoke about distressing memories, his tone of voice and volume of speech were high, compared to his normal tone of voice and normal speech rate, when he spoke about non-distressing matters. [The applicant] presented with anxious mood as evident from his affect during the session, negative cognitions and his own reports of experiencing anxiety frequently. He was well oriented to time, place and situation and he demonstrated good insight and judgement during the assessment session. [The applicant] maintained appropriate eye contact with the assessor throughout the session.
During the assessment, there were no indications of delusions or paranoid ideation. At the time of the assessment session, [the applicant] reported that he did not experience suicidal ideation or thoughts of self-harm. [The applicant] reported a history of suicidal ideation and attempts, explaining that he attempted to take his life on several occasions in Iran, by taking an overdose of medication and poisoning himself. He also disclosed that he attempted to take his own life twice while in Australia, [with] his last attempt being approximately 12 months ago. [The applicant] explained that he experienced suicidal ideation during times of heightened emotional distress, adding that his last attempt was following the sexual assault he experienced in detention. [The applicant] identified his hope for the future and his family as a protective factor.
Behavioural observations during the assessment indicated the presence of heightened emotional distress, particularly emotional reactivity during disclosure of stressful life events. Specifically, [the applicant] was very restless during the session, his breathing rate observably increased and he became teary when he spoke about the events in Iraq and Iran, particularly his brother’s death and his current situation, needing time to compose himself, before he was able to proceed with the conversation.
7.3 Summary of Symptoms
As a consequence of the above mentioned traumatic events and the uncertainty about his future, [the applicant] reported experiencing the following symptoms:
 Intrusion symptoms: more specifically intrusive memories and flashbacks of the events that occurred in Iraq, namely, the death of his brother. [The applicant] indicated that he sees “his chopped up body” daily, which further triggers intrusive memories of the sexual assaults that he endured, in Iran and Australia. [The applicant] reported that various psychological factors trigger the intrusive symptoms including ruminating about the uncertainty regarding his future and speaking about those events. He also reported that the detention environment triggers him, as it serves as a constant reminder that he might be deported and experience further persecution and death.

 Intense psychological distress: including persistent nervousness, fear, guilt and shame as well as self-directed anger, when the above-described intrusive symptoms are triggered; at the highest levels of distress experiencing negative thinking patterns; sense of helplessness and worthlessness.

 Marked physiological reactions and symptoms associated with hyperarousal when the above-mentioned intrusive symptoms are triggered including persistent nervousness, restlessness, heart palpitations, body tension, headaches and panic, at highest level of distress.

 Efforts to avoid distressing memories, thoughts and conversations as a consequence of his emotional distress when the above-mentioned intrusive thoughts are triggered. Consistent with this, during the session, [the applicant] became emotionally dysregulated when he spoke about his trauma and requested not to discuss it in details. Furthermore, [the applicant] indicated that his past drug use was another avoidance strategy that he engaged in, as it served a purpose of allowing [the applicant] to disconnect from his intrusive thoughts and negative emotional states.

 Negative alterations in cognition and mood: persistently held negative beliefs about self and worries about his future and about the world around him, with indications of helplessness, worthlessness, lack of safety and self-blame. [The applicant] indicated that he holds himself responsible for his brother’s death as he allowed him to go out that day which led to his death. These alterations were evident during the assessment session as [the applicant] reported the following:

“I am stuck here and I don’t know for how long”. “I am constantly in fear that they will just come one night and tell me that I am being deported”; “In here [detention] you always have to be on alert, you never know what someone might do”; “I can’t talk about my brother, it’s too painful…I am to blame”; “I don’t’ think I am worth much”.
[The applicant]’s reported negative beliefs are associated with persistent negative emotional states whereby he reported a tendency to respond with anxiety, anger, guilt and shame, as well as lack of trust in others, to everyday situations. [The applicant] explained he does not trust people; therefore, he prefers not to interact with others. Furthermore, he indicated that he often responds with irritability and anger to everyday situations, which he directs towards himself by engaging in negative self-talk, isolation and experiencing crying outburst. [The applicant] disclosed that he experiences sadness and loneliness daily, as he feels like he is “all alone”.
 Sleep disturbances: namely, difficulties with initiating and maintaining sleep due to the persistent nature of his worries and recollections of traumatic material, which according to his report, increases at night.

 Poor appetite: [The applicant] disclosed that because of his emotional distress, his appetite has been affected, adding that sometimes he only eats a toast and nothing else. [The applicant] reported that he experiences low energy due to his low appetite and persisting sleeping problems.

 Lethargy and poor motivation: [The applicant] disclosed that he has diminished interest in daily activities and recreational activities in detention adding that he does not engage in any activities and generally likes to stay on his own, as he does not enjoy socialising with others.

7.4 Somatic complaints
[The applicant] reported experiencing back pain (due to disc issues) and associated numbness in his right leg, due to nerve pressing.
8. Assessment Measures Used
During the assessment, and in addition to a comprehensive psychological evaluation interview, two psychometric measures were used to further assess [the applicant]’s psychological wellbeing.
The Hopkins Symptom Checklist (HSCL-25 items, Mollica et al. 1987) was used to assess symptoms associated with depression and anxiety. The Hopkins Symptom Checklist-25 has been widely used in post-conflict and refugee populations to assess symptoms of depression and anxiety. It comprises a 10-item subscale for anxiety and a 15-item subscale for depression, with each item scored on a Likert scale from 1(not at all) to 4(extremely). This measure has yielded high test-retest reliability (r=0.89 for the total scale, r=0.82 for each scale) and sound validity in relation to identifying cases of depression confirmed by clinical interview (Mollica et al. 1987).

The Harvard Trauma Questionnaire (HTQ-16 Trauma items, Mollica et al. 19922) was used to assess symptoms reflective of Posttraumatic Stress Disorder (PTSD). The Harvard Trauma Questionnaire is the most widely used international instrument measuring trauma exposure and symptoms of PTSD across refugee population. It comprises a 16-item scale with each item scored on a Likert scale from 1 (not at all) to 4 (extremely). The traumatic stress symptoms are derived from the DSM-IIIR/DSM-IV criteria for PTSD. The scale has demonstrated high interrater (r=0.98), test-retest (r=0.92) and internal reliability (r=0.96) (Mollica et al. 1996).

9. Assessment Findings
[The applicant]’s psychological assessment, the results of psychometric tests, as well as his presentation during the assessment indicate that he experiences clinically significant symptoms associated with anxiety as well as symptoms associated with depression. [The applicant] scored 2.5 on the Hopkins Symptom Checklist (HSCL-25) anxiety subscale and 3.2 on the depression subscale of the HSCL-25.
Individuals that score 1.75 or more on each subscale are considered to be clinically symptomatic indicating that [the applicant]’s reported symptoms for anxiety and depression are clinically relevant and are causing him significant difficulties in overall functioning. Furthermore, [the applicant]’s score on the Harvard Trauma Questionnaire was 2.9, which indicates that his symptoms reflective of Posttraumatic Stress Disorder are clinically relevant and are causing him significant difficulties in overall functioning.
[The applicant]’s difficulties with emotional regulation and negative views of oneself, as well as difficulties with impulse control (as evident by his history of drug use) are identifying hallmarks of developmental trauma3. The prospect of developing long lasting psychological difficulties, in the context of developmental trauma is great for [the applicant] given that he has grown up in an environment of prolonged stress, without an adequate, safe, support network, specifically with reference to his childhood experience of sexual assaults and ongoing displacement. Such a combination of developmental experience is known to hinder normal brain development and lead to more prominent psychological difficulties in adulthood, namely, pervasive, severe symptoms of emotional distress and negative changes in cognitive and social processing3. In addition, [the applicant]’s experience of traumatic death of his brother, for which he feels responsible, further places him at risk of developing significant, long-lasting psychological difficulties.
Consistent with this, distressing, persistent intrusive thoughts, negative alterations in cognition and mood, as well as marked alterations in arousal, and avoidance strategies, including his past drug use, as reported by [the applicant], are all suggestive symptoms of Posttraumatic Stress Disorder (as assessed according to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, DSM 54).
Additionally, the reported experiences of persistent low mood, ongoing worry, sleep disturbances, lack of motivation and negative thinking patterns are features associated with Persistent Depressive Disorder (as assessed according to DSM 5 criteria).
Considering [the applicant]’s reported psychological difficulties as well as taking into consideration his presentation during the assessment interview, it can be concluded that his symptoms are currently causing him severe distress and difficulty in his overall functioning.
10. Summary and Recommendations
[The applicant] is a [age]-year-old Kurdish Feili man who was born in Iraq, where he lived for some time, before he relocated to Iran, together with his family. [The applicant] explained that due to his ethnic background, he and his family faced persecution, as well as systemic and systematic discrimination in Iraq and Iran. He disclosed that in 2005, his younger brother was brutally killed in Iraq, because of his ethnicity. [The applicant] also disclosed repeated sexual assaults, in Iran, when he was younger.
[The applicant] came to Australia in 2012, after fleeing Iran, fearing for his safety. [The applicant] reported that upon arrival in Australia, after spending approximately two years in detention, he was released on a bridging visa in 2014, and was issued with SHEV in 2016. Once in the community, [the applicant] continued to use illicit substances – a habit he developed while residing in Iran – resulting in several charges of shoplifting. In 2018, [the applicant] was sentenced to 9 months in prison. Following completion of his prison sentence, [the applicant] was re-detained as his SHEV was cancelled. He is currently in [DETENTION CENTRE 1], where he awaits the resolution of his residency status. [The applicant] disclosed that approximately 12 months ago, he was sexually assaulted by another detainee and although he reported the incident, no further action was taken.
Due to traumatic experiences and highly stressful life events, some of which occurred at a very young age (developmental trauma), [the applicant] reported suffering from ongoing symptoms that are consistent with Posttraumatic Stress Disorder, as well as comorbid Persistent Depressive Disorder. [The applicant] also presents with persistent negative thinking styles that have led to occurrences of suicidal ideation and attempts in the past. The experiencing of such symptoms is congruent with [the applicant]’s reported traumatic experiences and inadequate management of the emotional distress associated with these experiences.
Specifically, the persistent fear for his safety, lack of proper psychological treatment in the past, reliance on maladaptive coping strategies to manage his symptoms, namely his drug use, and the ongoing stressors he currently experiences (detention and uncertainty regarding his future) are all contributing/maintaining factors to his psychological presentation.
Taking into consideration the assessment findings and observations during the assessment as well as the notion that he experienced trauma at a crucial developmental stage of his life, it is recommended that [the applicant] be provided with ongoing psychological treatment and specialised support, as outlined below:

 Ongoing Psychological therapy with focus on adaptive stress reduction strategies and coping mechanisms (including emotional regulation), cognitive challenging and behavioural activation, management of his pervasive negative thinking styles and low mood;

 Long-term trauma counselling (by a specialised trauma service) to address his reported PTSD symptoms;

 Specialised Alcohol and Other Drugs service counselling to assist [the applicant] with his reported addiction to illegal substances;

 Continuation of Methadone Maintenance Treatment to assist with his addiction;

 Comprehensive Psychiatric assessment and ongoing monitoring to review his past treatment and determine the most appropriate psychopharmacological intervention for further management of his psychological difficulties.

It is important to note that [the applicant] was able to identify his difficulties and the support that he needs to address them. He has commenced Methadone Maintenance treatment on his own initiative and has shown excellent compliance with it. Furthermore, [the applicant] identified that psychopharmacological treatment, which he was prescribed 12 months ago, has helped him, and has indicated that even though he ceased the medication due to their side effects, he is keen on discussing the matter with the psychiatrist to identify an alternative. [The applicant] was also able to identify that his initial drug use stemmed from untreated psychological difficulties, and has therefore requested ongoing psychological support (in the form of trauma counselling) to help address his traumatic reactions and a drug and alcohol counselling, to prevent any further relapse of his drug use.

It is anticipated that implementation of the above stated recommendations is going to have a positive impact on [the applicant]’s recovery as he expressed the need for ongoing assistance, as outlined above

32.  The Tribunal also received a bundle of IHMS clinical records dated [January] 2013 to [January] 2017 and from [June] 2019 (when he re-entered detention) until [June] 2020 that showed the following:

The applicant was discharged from [local] Health service on 31 January 2020 when he was on [methadone]. The notes indicated he had previously started on Tramadol, that

·     on 7 April 2016 he had seen a general practitioner and said he had been using [Drug 1] and he last used methadone two months previously,

·     on 24 June 2019 he signed a treatment agreement to receive [Methadone], and that he had abused [Drug 1]  and [Drug 2]) in the community.

·     On 28 June 2019 it was noted that methadone dose was [decreased].

·     On 19 July 2019 it was noted that methadone was decreased [approximately] 2 weeks ago

·     On 29 July 2019 he requested to decrease his [methadone]

·     On 6 September 2019 he wished to decrease [methadone]

·     On 20 September 2019 he was on [dosage] of methadone.

·     On 27 October 2019 he requested to reduce his biodone [dose]

·     On 1 November 2019 requested to decrease biodone to [dose]

·     on 18 and 22 November 2019 he was noted to be on [dosage] of methadone per day but wishing to reduce his dosage further. Also noted was that he currently was on [dosage] Biodone but wished to decrease.

·     on 25 November 2019 he requested to decrease biodone to [dosage].

·     on 2 December 2019 he requested to decrease methadone by [1ml]

·     on 13 December 2019 he was on  [biodone]. Also noted was that he suggested to reduce methadone dosage [to] lower dose

·     on 26 December 2019 he had expressed disappointment about using illicit drugs as he had been abstinent for a long period.

·     On 30 December 2019 he had requested to decrease the dose [ of] methadone

·     On 3 January 2020 the mental health nurse caught up with him before taking his methadone 

·     On 30 January 2020 he was given [dosage] biodone yesterday

·     On 2 February 2020 he said he preferred methadone to biodone

·     On 12 February he requested to decrease to biodone [dosage] from 13/2/2020

·     On 4 May 2020 [a named doctor] agreed to reduce the dose to [dosage] Methadone from 5/5/20

·     On 8 June 2020 he was on [dosage] of methadone daily and showed good attendance.

33.  The Tribunal received a further [ORGANISATION 1] report dated 2 February 2021 for the applicant  for the period 11 January 2021 – 25 January 2021 stating that there had been 5 sessions, that he had attended on 11 January 2021, 18 January 2021, 21 January 2021 and 25 January 2021 but not on 14 January 2021 as he did not hear his phone.

34.The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

1. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant's visa should be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

Does the ground for cancellation exist? s.116(1)(g) - prescribed ground

1. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed

   ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant:

(oa) in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa , a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)).

38.Based on the [State 1] Criminal History Report dated 6 June 2018 which the applicant has not disputed, the Tribunal is satisfied that the visa holder has been convicted of an offence against a law of the Commonwealth, a State or Territory. The Tribunal is also satisfied that the NOICC was sent according to the requirements of section 119. The Tribunal is therefore satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

Consideration of discretion

1. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department's Procedures Advice Manual (PAM3) 'General visa cancellation powers'.

The purpose of the visa holder's travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

1. The adviser has argued that the applicant travelled to Australia in 2012 to seek asylum, that he was found to engage Australia's protection obligations and has a well-founded fear of persecution and/or significant harm if he is returned to Iraq, that this then led to the grant of a SHEV on 5 January 2017 and that although a SHEV is a temporary visa, it does provide for possible permanent residency pathways. He has also said that if the applicant would not be eligible for a permanent residency pathway, it would still be open to the applicant to apply for another SHEV, provided he still fears persecution and/or significant harm in his home country and that the applicant still fears persecution and/or significant harm if he is returned to his home country, Iraq. He has submitted that the fact that the applicant came to Australia to seek asylum and was found to be owed protection should weigh heavily in favour of his SHEV not being cancelled.

2. The Tribunal accepts that the applicant arrived in Australia [in] November 2012 as an IMA and that on 5 January 2017, the applicant was granted a SHEV on the basis of his religion as a Shia Fali Kurd who could not reasonably relocate.  The Tribunal accepts that the applicant's travel and stay in Australia are consistent with the purpose of his SHEV visa and that his need to remain in Australia is compelling. The Tribunal gives this factor significant weight in favour of not cancelling the visa.

The extent of compliance with visa conditions

1. There is no evidence before the Tribunal that the applicant has failed to comply with any visa conditions. The Tribunal gives this some weight in favour of not cancelling the visa.

Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

43.The adviser has argued that the applicant faces a significant degree of hardship if his SHEV remains cancelled. The adviser submits that if the applicant’s SHEV remains cancelled, he will be refouled to Iraq where he faces a real risk of persecution and/or significant harm.  He has also stated the applicant will also face ongoing detainment in immigration detention until that removal can be facilitated. In addition to the deprivation of liberty this ongoing detainment causes, that he will also be unable to access proper supports that may be able to assist him with his mental health issues and drug rehabilitation, that the only drug rehabilitation program available to the applicant in immigration detention is for him to    attend a clinic to obtain methadone and that mental health supports such as [ORGANISATION 1] are unable to attend immigration detention in person due to the COVID-19 pandemic.

44.The adviser has also stated that the applicant has instructed them to contact services that may be able to assist him with mental health and drug dependence issues however many of these services are only available to him in the community and his ongoing detention means that he is unable to access them. He also submits that the above should weigh heavily in favour of the applicant’s SHEV not being cancelled.

45.The Tribunal accepts that the likely consequences of the applicant’s visa remaining cancelled is that the applicant’s detention will continue. The Tribunal also accepts that the applicant's detention has already caused him considerable hardship including to his mental health. He has also reported an alleged sexual assault while in detention.  The Tribunal accepts that if the applicant is not granted another visa or removed from Australia, he may remain in detention for a lengthy period, which may cause considerable hardship to him.

46.The applicant also has a brother in Australia who, the Tribunal accepts, may be disappointed if he were to learn that the applicant's visa is cancelled. However given that the last time they talked was around two months ago and that he does not know the applicant's circumstances and the applicant does not think his brother will help him, the Tribunal is not satisfied that if the applicant's visa is cancelled, there will be any further direct impact for his brother.

1. The Tribunal gives the degree of hardship that may be caused to the applicant significant weight in favour of not cancelling the applicant's visa.

Circumstances in which the grounds of cancellation arose

48.The adviser has argued that the applicant takes full responsibility for his actions, accepts what he did was serious and wrong and has displayed remorse in relation to his offending. The adviser has also said that at the time of the offending, the applicant was homeless and affected by mental health issues and drug dependence and that this adds context to his offending behavior. The adviser has also stated that the applicant has made progress in dealing with his drug addiction issues by attending the limited drug rehabilitation facilities that are available in immigration detention and has also instructed them to contact outside services that can assist in his rehabilitation. The adviser has stated that these services are ready, willing, and able to provide appropriate support in the event that the applicant’s SHEV is reinstated and he is released from immigration detention.  

49.The adviser has also stated that for the most part, the applicant’s offending was non-violent, except for one conviction for common assault and that the sentences imposed were also at the lower end of the spectrum of possible sentences that could be imposed.

50.The adviser has also said that the applicant was ultimately incarcerated for his offending however  the trigger for the incarceration was the applicant’s failure to report on one occasion due to confusion on the applicant’s behalf.  

51.The Tribunal finds the applicant's criminal offending in 2017 and 2018 is repetitive and extensive. While the adviser has suggested that the trigger for the applicant’s incarceration in 2018 was the applicant's failure to report on one occasion due to his own confusion,  the [State 1] Criminal History Report which was provided to the applicant for comment suggests rather than being incarcerated, he was given a concurrent sentence [in] May 2018 for larceny (4 months), common assault (3 months) larceny (8 months) all suspended on entering into a s12 bond and up to 8 months of supervised probation service. It may well be that, as submitted by the adviser at hearing, the applicant has trouble distinguishing between criminal and immigration detention.  The Tribunal also finds that the applicant was shown some leniency in sentencing but continued to reoffend. However, the applicant’s lack of incarceration is also an indication that he was not previously seen as a risk to the safety of the community.

52.While the adviser has submitted that the above factors should weigh in favour of the applicant’s SHEV not being cancelled, the above narrative indicates that the applicant has had ongoing drug use problems even before he came to Australia. Once in Australia and according to the [ORGANISATION 1] report, during his initial stay at [DETENTION CENTRE 1] in 2015 he was using methamphetamines and following his release into the community in 2016, he resumed using opioids. His use of illicit substances resulted in charges of shoplifting and common assault. The evidence suggests, and the Tribunal finds, that the immediate trigger for his offences were indeed his drug addiction and need for money to fund it. Closely associated with this, however, was that the applicant has not had stable accommodation, employment or other social support.

1. While the Tribunal recognises that the applicant has struggled to find his place in the Australian community, the Tribunal is of the view that the applicant’s repetitive offending in order to support his drug habit weighs in favour of exercising the discretion to cancel of the visa and the Tribunal gives this significant weight in favour of cancelling the visa.

Past and present behaviour of the visa holder towards the Department.

54.The adviser has stated that they not aware of any instances where the applicant has attempted to deceive or mislead the Department of Home Affairs and submits that this should weigh in favour of his SHEV not being  cancelled.

55.The Tribunal is of the view that this should weigh in favour of not exercising the discretion to cancel of the visa and the Tribunal gives it some weight in favour of not cancelling the visa.

Whether there would be consequential cancellations under s.140

56.There are no persons who would be affected by mandatory cancellation under s.140 and the Tribunal gives it no weight.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister's intervention AND

Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation AND

Non-refoulement obligations

1. The adviser has stated that the applicant was found to be a person in respect of whom Australia has non- refoulement obligations and was granted a SHEV on 20 November 2017. If the applicant's visa were to be cancelled, he would become an unlawful non-citizen. Under s.46A(I) of the Act, he would be barred from making a valid application for a further visa, including bridging visas and would be liable to be detained under s.189 of the Act. He would also be affected by the operation of s.48A(1B) of the Act, barring him from making a further application for a Protection visa while in the migration zone.

2. The adviser has also stated that if the applicant’s SHEV remains cancelled, the legal consequence is that he will be deported to Iraq in breach of Australia's non­ refoulement obligations, that there is no evidence to suggest that the applicant will not be deported when it is reasonably practicable to do so under ss 197C and 198 of the Act and submits that this finding is supported by North's ACJ judgment in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 where it was established that the legal consequence of refusing a protection visa on character grounds was that the applicant would be refouled as soon as practicable and that this construction of ss 197C and 198 of the Act is also supported by AJL20 v Commonwealth of Australia [2020] FCA 1305 at [10]. They have submitted that these considerations should weigh heavily in favour of [the applicant]'s SHEV not being cancelled.

1. As already noted, the applicant was granted a SHEV and remains a person in respect of whom Australia has non-refoulement obligations. The cancellation of the applicant's visa and his possible removal from Australia would potentially be in breach of Australia's non-refoulement obligations. The Tribunal finds that the effect of these provisions is that the applicant will not be able to make any valid visa application while in Australia, unless the Minister intervenes and lifts the decision bars, that there is the possibility of indefinite detention, particularly following the cancellation of a SHEV visa, given the potential existence of non­refoulement obligations, together with the requirements to detain or remove unlawful non-citizens. The Tribunal understands that the Minister has personal powers to move people to community detention and to grant visas to enable non-citizens to be released from immigration detention. The Bridging R visa allows the release from detention of persons who have been 'cooperating fully with efforts to remove them', but for whom removal is not reasonably practicable. However, there is no certainty that the applicant would be granted these visas. Subject to a few exceptions, an applicant whose visa is cancelled and becomes an unlawful non-citizen is liable to be removed from Australia as soon as practicable, including to Iraq, as required by s.198 of the Act.

1. The Tribunal has given these three factors significant weight in favour of not cancelling the visa.

Other matters

1. The applicant’s past behavior necessitates a finding as to the applicant’s future conduct including whether the applicant will engage with services available to him if released and the applicant’s risk of reoffending.

2. In the Tribunal’s opinion, the best way to ascertain this is to look at his past behavior.  The applicant is aged [age], nearly [age], has worked as a labourer [and] in Iran [worked too] and despite his confusing narrative at hearing as to why the police found him in possession of a [knife], he has not worked since he came to Australia in 2012.

3. The applicant's narrative at hearing revealed that since his arrival in Australia, he has lived in [State 1], has mostly lived by himself or with persons that are not well known to him. No one visits him in detention. At hearing, he relied on an interpreter to communicate in English. The Tribunal’s observations of him at hearing were that he appeared simple and sad. 

4. Overall, the applicant does not appear to have found a stable social circle or living environment. The applicant's description of his own activities further suggests that he had difficulty adjusting to life in the community, whether due to his drug addiction or for other reasons.

5. At hearing, the Tribunal explored the extent to which the applicant had previously engaged with support services in the community and he stated he had not really previously tried to resolve his problems and had only gone once, even though, and has put to him at hearing, he had been asked by the Court in 2017 to attend counselling, educational development, drug or alcohol rehabilitation services.       

6. Against this background, the Tribunal finds the applicant has provided only limited evidence about his efforts to engage with counselling and drug and rehabilitation programs while he was in the community, that is according to his own evidence he only once went to a program in 2017. The report addressed to the Magistrate from [a] Local Court dated 24 July 2017 also indicates that he was prescribed methadone initially [and] he also went to Narcotic Anonymous. He also sought the services of [ORGANISATION 1] where he received counselling and went 2 times. In its report dated 11 December 2020 [ORGANISATION 1] advised that while the applicant stated he found the sessions useful, he ceased his attendance due to his drug use and financial difficulties. 

7. While in detention, the applicant has attempted to address his issues including his drug dependence issues by attending counselling, drug and rehabilitation programs. In reaching this conclusion, the Tribunal has considered the bundle of reports from the International Health and Medical Services IHMS clinical notes dated [January] 2013 to [June] 2020 that details the applicant’s interaction with various doctors and other medical staff. They suggest that the applicant voluntarily commenced a methadone maintenance treatment program in June 2019 and has, over a long period of time achieved a decrease in methadone dependence. The applicant therefore appears committed to addressing his drug addiction. The [ORGANISATION 1] December 2020 report has also said as much. That report stated that the applicant disclosed that two years and seven months ago he wanted to address his addiction and was initially on a [specified] dose but was now on [reduced] dose of methadone maintenance treatment.  [ORGANISATION 1] has also stated that he commenced methadone maintenance treatment on his own initiate and had shown excellent compliance with it. The report also indicated that during that assessment, the applicant had no indications of delusions or paranoid ideation, had not expressed suicidal ideation or thoughts of self harm although he had reported previous attempts to take his own life. It also indicated that the applicant’s difficulties with emotional regulation, negative views of oneself as well as difficulties with impulse control were identifying hallmarks of developmental trauma and that distressing, persistent intrusive thoughts, negative alterations in cognition and mood as well as marked alterations in arousal and avoidance strategies including his past drug use were suggestive symptoms of post-traumatic stress disorder. They also said his low mood, ongoing worry, sleep disturbances, lack of motivation and negative thinking patterns were features associated with persistent depressive disorder. The report also noted that previously, the applicant had had a lack of proper psychological treatment.        

8. At hearing, the applicants only other claim to have started a counselling program was in August 2020 when he opted out.  Since then the Tribunal has received evidence that he has attended sessions with [ORGANISATION 1] from December 2020 onwards and in February 2021, attended regular sessions.

9. The Tribunal accepts that the applicant has demonstrated remorse for his offending and has expressed a commitment to not re-offend and that since June 2019 he has worked hard to reduce his methadone usage. The applicant’s adviser has also worked hard to connect him with services that can assist him in dealing with his mental health issues; his history of drug dependence; his social networks; housing; finances; and employment. These services include the Drug And Alcohol Multicultural Education Centre (DAMEC) to provide in-person counselling services and support in relation to the applicant’s history of drug dependence and  mental health issues; the Australian Red Cross - to provide a wrap-around service through casework, housing, and  financial support and who will also provide him with immediate support on release from immigration detention; the House of Welcome who can provide some financial support and access to a food bank;  and Mental Health-Community Living Supports for Refugees who can provide support for daily living skills, can talk to the applicant about mental health and provide support and assistance as needed such as meeting people and participating in social, leisure or sporting activities; learning new skills, education, housing or help to get a job and accessing other supports like drug or alcohol services.

10. The applicant’s adviser has also submitted that the applicant’s remorse and commitment to attend rehabilitation both in detention and in the community reduce the likelihood of him re-offending and should weigh in favour of his SHEV not being cancelled.

11. While the Tribunal has considered this, given the applicant’s history of drug dependence which, according to the adviser’s submission possibly relates to his mental health issues linked to past trauma as well as his lack of work and social connections, the Tribunal finds the applicant has had real difficulty adjusting to life in the community. It also finds that even if the applicant were to engage with all of the services available to him, there remains a risk he will reoffend should he be released. Accordingly, despite the applicant’s achievements in reducing his drug dependency, and the adviser’s attempts to find the applicant services that will help him to find accommodation, employment and other social support, the Tribunal is of the view that the applicant’s drug addiction may result in future risk to either himself or to the Australian community. Estimating what that risk is, however, must be approached with caution.

1. In this case there is uncontested evidence that the applicant has been convicted of criminal offences, most of which relate to property offences and all of which have resulted in a suspended sentence, bond or fine. As to whether the applicant is a risk to the safety of the Australian community, the Tribunal considers that property offences are less likely to pose a risk to the health or safety or good order of the Australian community. Indeed, the Department’s policy position as articulated in PAM3 Visa cancellation instructions >General visa cancellation powers (s109, s116, s128, 134B and s140) > s116(1)(e) - Risk to community public health, safety or good order under the sub-headings ‘Risk to safety’, ‘Criminal charges’ which relates to establishing whether the ground for cancellation under s116(1)(e) exists, says as much.

2. Given it is not suggested all but one of the convictions in 2017 and 2018 involved violence, the Tribunal considers those offences indicate the applicant poses a lesser risk to the Australian community. Again, if the common assault charge in 2018 had been most serious, it would not have resulted in imprisonment of 3 months suspended on entering a s12 bond.  In the Tribunal’s view, consideration also needs to be given to the criminal law that is always there and can be used to reduce any risk to the Australian community if in fact the applicant does reoffend.

3. The applicant's past criminal offending also needs to be weighed against the other factors, including why the applicant travelled and stayed in Australia, Australia’s obligations under international agreements and the possible consequence that the applicant will remain in detention indefinitely given Australia’s non-refoulement obligations. If the applicant is met by the Red Cross and guided through the services that have been said are available to him, then the Tribunal concludes the applicant will engage with those services and the risk to the Australian community will be minimized. When this is weighed against all the above factors including the degree of hardship that would be caused to the applicant if he remains in detention, the Tribunal concludes that the visa should not be cancelled.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant's Subclass 790 (Safe Haven Enterprise Visa) visa.

Angela Cranston

Member