Ahmed and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2022] AATA 5110

Ahmed and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 5110 (21 November 2022)

Division:GENERAL DIVISION

File Number:          2022/7122

Re:Anwar Yahya Ahmed

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal: Member A Julian-Armitage

Date of Decision:               21 November 2022

Date of Written Reasons:      14 March 2023

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 29 August 2022 to not revoke the cancellation of the Applicant’s visa.

...................[SGD]..................

Member A Julian-Armitage 

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of a XB Subclass 202 Global Special Humanitarian visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Cases

Khalil v Minister for Home Affairs (2019) 271 FCR 326

QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1

Plaintiff M1 v Minister for Home Affairs (2022) 400 ALR 417

PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162

Secondary Materials

Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)

REASONS FOR DECISION

Member A Julian-Armitage

14 March 2023

Introduction and background

1. Anwar Yahya Ahmed (‘the Applicant’) is a 29 year old, born in Iraq in February 1994. The Applicant first arrived in Australia in October 2008.[1] By a decision dated 29 August 2022 a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’ or ‘the Respondent’) refused to revoke the earlier mandatory cancellation of the Applicant’s XB Subclass 202 Global Special Humanitarian visa (‘the visa’). The refusal to revoke decision was made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’).

   [1] Exhibit 1 (hereafter referred to as ‘G1’), p.86.

2. The Applicant’s visa was mandatorily cancelled by the Respondent pursuant to s 501(3A) of the Act on 28 November 2018 as a result of the imposition of a custodial term of more than 12 months.[2] The Applicant criminal history in Australia can be summarised as follows:[3]

   [2] G1, p 224.

   [3] G1, pp 33-34.

Court	Date	Charge	Sentence
NSW Court of Criminal Appeal Court	05/05/2017	Appeal of charges detailed on 30/09/2016	Appeal allowed: Imprisonment: 6 years 8 months Non-parole period: 4 years 4 months
Parramatta District Court	30/09/2016	Cause grievous bodily harm to person with intent	Imprisonment: 80 months Non parole period with conditions: 3 years
Liverpool Local Court	24/1/2015	Possess prohibited drug	Fine: $500 drug to be destroyed: attend for ID & fingerprinting To present himself to the officer in charge at Liverpool forthwith and to submit to the taking of particulars of identification
Waverly Local Court	28/10/2015	Driver or rider state false name or home address	Fine: $200
		Not turn left from slip lane from multi-lane road
		Drive motor vehicle while licence suspended – 2nd+off	Bond: 12 months auto/statutory period
Liverpool Local Court	10/12/2013	Drive motor vehicle while licence suspended	Fine: $800 Disqualification: 12 months
Liverpool Local Court	28/05/2013	Affray	Bond: 2 years

1. On 21 December 2018, the Applicant, through his representative, requested a revocation of the mandatory cancellation of his visa (‘revocation request’).[4] On 28 February 2020, the Respondent made a request to the Applicant for further submissions addressing the issues contained in the relevant Ministerial Direction 79.[5] The Applicant’s provided his reply on

   
   

   27 March 2020.[6] On 23 April 2021, due to Ministerial Direction 79 being repealed and replaced by  Ministerial Direction 90,[7] the Respondent requested further submission which were provided on 14 May 2021.[8]

   [4] Ibid, pp 82-85.

   [5] Ibid, pp 230-232.

   [6] Ibid, pp 86-88.

   [7] G1, pp 233-235.

   [8] Ibid.

2. The revocation of the mandatory cancellation of a visa is governed by s 501CA(4) of the Act which provides:

   (4) The Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitation; and

   (b)the Minister is satisfied:

   (i)     that the person passes the character test (as defined by section 501); or

   (ii)    that there is another reason why the original decision should be revoked.

3. On 29 August 2022, the Respondent’s delegate made the decision to refuse the revocation request pursuant to s 501CA(4) of the Act. On 1 September 2022, the Applicant lodged an application in this Tribunal for the review of the refusal to revoke the cancellation.

4. The hearing proceeded before me on 2 November 2022 with the Applicant, Noor Ahmed (Applicant’s sister), Rajha Madlool (Applicant’s mother) and Khalid Ahmed (Applicant’s brother) providing oral evidence.  Evidence in written form was also provided to this Tribunal and is consolidated in an agreed Exhibit List attached to these reasons and marked ‘Annexure A’.

5. The parties provided closing addresses after the conclusion of the hearing. The Applicant, who was self-represented, provided a statement dated 2 November 2022 that did not address the requirements of Direction 90. The statement provided an apology for his offending and reiterated his remorse for the outcome of his actions on his victim. The Respondent’s closing addresses were provided on 4 November 2022 which updated the submissions filed prior to the hearing including the evidence adduced throughout the hearing.[9]

   [9] Exhibit 11.

6. The 84^th day of this matter occurred on 21 November 2022.[10] On the 84^th day, I caused a short-form decision to be published such as to ensure the Tribunal met its obligation pursuant to s 500(6L)(c) of the Act.[11] I now publish my detailed written reasons for that short-form decision.

   [10] See s 500(6L)(c) of the Act.

   [11] Khalil v Minister for Home Affairs (2019) 271 FCR 326 underscores that there is a distinction between the decision of the Tribunal, which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons (which can be delivered later): See specifically, paras [41]–⁠[48].

   Legislative Framework

7. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act as set out above.

8. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised.

9. There are therefore two issues presently before the Tribunal:

   (a)whether the Applicant passes the character test; and

   (b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

   Does the Applicant pass the character test?

10. The character test is defined in s 501(6) of the Act. Section 501(6)(a) provides that a person will not pass the character test if they have a ‘substantial criminal record’. This phrase has been defined in s 501(7) of the Act which relevantly provides that a person will be deemed to have a substantial criminal record if “the person has been sentenced to a term of imprisonment of 12 months or more.”

11. On 30 September 2016, in the Parramatta District Court, the Applicant was sentenced to a term of 80 months imprisonment with a non-parole period of 3 years for the offence of “cause grievous bodily harm with intent”. This sentence was varied on appeal to an imprisonment term of 6 years and 8 months with a non-parole period of 3 years to expire on 29 September 2019.[12]

    [12] G1, page 62.

12. Therefore, there can be no dispute that the Applicant fails the character test. Hence the only live issue before me is whether it is appropriate to exercise of discretion pursuant to

    
    

    s 501CA(4) of the Act to revoke the decision of the delegate refusing to set aside the mandatory cancellation of the Applicant’s visa. Further, it is common ground between the parties that the Applicant fails the character test.

13. Hence, I am satisfied and find that the Applicant has a “substantial criminal record” and as a result cannot rely on s501(CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

    Is there another reason for the revocation of the cancellation of the Applicant’s visa?

14. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made pursuant to the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 90’) has application.[13] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:

    “Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[14]

    [13]    Direction No 90 commenced on 15 April 2021. It replaces Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.

    [14] Direction No 90, para [6]. See also Direction, para [4(1)] which provides that a, “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.

    The principles in paragraph 5.2

15. Paragraph 5.2 of the Direction is designed to, ‘provide a framework within which decision-makers should approach their task’ under s 501 or 501CA of the Act (as the case may be). Summarised where appropriate, the principles are:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.

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

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).

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

    (5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

    The Primary and Other Considerations

16. Paragraphs 8 and 9 of the Direction respectively stipulate four ‘Primary Considerations’, and four ‘Other Considerations’ by which I must be guided in making my decision.

17. The Primary Considerations I must take into account are:

    ‘(1) protection of the Australian community from criminal or other serious conduct;

    (2) whether the conduct engaged in constituted family violence;

    (3) the best interests of minor children in Australia;

    (4) expectations of the Australian community.’[15]

    [15] Direction No 90, para [8].

18. The Other Considerations which, where relevant, I must take into account, ‘include but are not limited to’:

    ‘a) international non-refoulement obligations;

    b) extent of impediments if removed;

    c) impact on victims;

    d) links to the Australian community, including:

    i) strength, nature and duration of ties to Australia;

    ii) impact on Australian business interests’[16]

    [16] Ibid, para [9(1)].

19. Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:

    ‘(1) Information from independent and authoritative sources should be given appropriate weight;

    (2) Primary Considerations should “generally” be given greater weight than Other Considerations; and

    (3) One or more Primary Considerations may outweigh other Primary Considerations.’

20. I will now turn to addressing the abovementioned Primary and Other Considerations.

    Primary consideration 1: Protection of The Australian Community

21. In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to

    keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by

    
    

    non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

22. In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:

    (a)The nature and seriousness of the non-citizen’s conduct to date; and

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

23. I will consider each in turn.

    The nature and seriousness of the non-citizen’s conduct to date

24. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:

    (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    (i)violent and/or sexual crimes;

    (ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

    (iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

    (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    (i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    (ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    (iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

    (iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

    (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

    (d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

    (e)the cumulative effect of repeated offending;

    (f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

    (g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

25. In the present case and relevant to the above factors, I am required to consider any violent and/ or sexual crimes the Applicant has committed. As per the Applicant’s criminal history check dated 8 October 2018, the Applicant committed violent offences which include ‘affray and cause grievous bodily harm with intent” (para 8.1.1(1)(a)(i) of the Direction).

26. In relation to paragraph 8.1.1(1)(b) of the Direction there is no evidence in either the oral or written material to the effect that the Applicant has committed any offences that would be caught by this sub-paragraph. Therefore, this sub-paragraph is irrelevant to the assessment of the nature and seriousness of the Applicant’s unlawful conduct.

27. In relation to paragraph 8.1.1(1)(c) of the Direction and in consideration of the principle that a sentence requiring a term of imprisonment is the last resort within the sentencing hierarchy,[17] the sentence imposed on the Applicant of 80 months can only be viewed as serious in the extreme. Then to have that sentence appealed by the Crown with the Court of Criminal Appeal setting aside the original sentence and substituting it with a longer sentence and non-parole period leaves no room for any other conclusion than that the Applicant’s crime was so abhorrent so as to justify this increase in sentence and non-parole period.

    [17] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at 22

28. Sub-paragraph 8.1.1(1)(d) requires a consideration of the frequency of the Applicant’s offending and whether there is a trend of increasing seriousness.  The Applicant’s offending can only be described as frequent given that he offended in one respect or another some 7 times within a 2-year period with an ever increasing seriousness of offences culminating in the offence that saw him serve a lengthy goal term.

29. Sub-paragraph 8.1.1(1)(e) requires an examination into the cumulative effect of the Applicant’s repeat offending. The Applicant’s sequence of offences is clearly demonstrative of a number of cumulative effects. At the outset, he has a number of traffic related offences which involve driving whilst disqualified and excessive speeding. These offences are demonstrative of a failure to comply with the requirements of lawful authority. The nature of this offending is generally regarded as serious in nature and bring with them the possibility of serious adverse consequences. There is a string of authorities that have deemed driving offences to be very serious in nature.[18] In fact, the Applicant agreed during cross examination that driving some 30 kilometres over the speed limit was very dangerous.[19]

    [18][18] QJYD and Minister for Immigration , Citizenship, Migrant Services and Multicultural Affairs [2021] AATA at 51.

    [19] Transcript, page 7, lines 22-27.

1. The progressive nature of the Applicant’s offending history demonstrates a lack of deterrence any of his past court ordered penalties have had on him. . The Applicant’s continuing traffic offending history (between 2011 and 2015) evidences his lack of respect for the rights of other users of Australian carriageways to be protected. .           

   Conclusion about the nature and seriousness of the Applicant’s conduct

2. I have applied each of the relevant sub-paragraphs contained in 8.1.1(1) of the Direction. In relation to the sub-paragraphs which I have addressed, I am of the opinion that the Applicant’s unlawful conduct in Australia can readily be characterised as “very serious”.

   The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

3. In considering the risk to the Australian community, sub-paragraph 8.1.2(1) of the Direction requires a decision-maker to have regards to the Government’s stance that the Australian community’s tolerance of any future risk of harm decreases as the seriousness of the potential harm increases. There are, however, some conduct and the ensuing harm that would be caused, if it were to be repeated, is so serious that any risk of repetition is unacceptable.

4. Paragraph 8.1.2(2) of the Direction provides that, in considering the risk to the Australian community, a decision-maker must have regards to the following 3 factors on a cumulative basis:

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

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

   (i)     

   information and evidence on the risk of the non-citizen

   
   

   re-offending; and

   (ii)    evidence of rehabilitations achieved by the time of the decision giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

   (c)where consideration is being given to whether to refuse to grant a visa to the non-citizen, whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for and whether there are strong or compassionate grounds for granting the short stay visa.

   The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

5. Sub-paragraph 8.1.2(2)(a) of the Direction requires   an assessment of the nature of harm to an individual or the Australian community were the Applicant to engage in further criminal or other serious conduct. Given the Applicant’s criminal history thus far, I am satisfied that were he to re-offend in any of the categories, individual victims and/or the Australian community could conceivably suffer catastrophic physical, psychological and other material harm.

6. If the Applicant was to seek revenge on an individual for some subjectively perceived wrongdoing against him, given the circumstances of his most recent violent offence, a further violent outburst could cause serious injury or a more tragic outcome for his victim/s.

7. If he were to take control of a motor vehicle on an Australian road while not licenced to do so; suspended from doing so, driving in excess of 30 kilometres above the speed level or while under the influence of a dangerous drug users of Australian roads would be exposed to foreseeable risks.

8. In the case of the Applicant’s “Cause Grievous Bodily Harm to a Person with Intent”,  victim was so severely injured that he could no longer maintain his job which he had had for 7 years, was no longer able to care for his son as he could not meet the physical demands and was forced to withdraw funds from his superannuation fund in order to maintain himself.[20] On the medical evidence, the victim was unlikely to return to full-time skilled work and will have unresolvable physical and cognitive impairments[21]

   [20] Exhibit 3, R3.

   [21] Report from Dr Ramnath R3/14.

9. In the circumstances, I find that if the Applicant were to re-offend, the nature of the harm to individuals or the Australian community would be very serious involving physical, psychological and material including such harm as to cause tragedies to his victim/s.

   The likelihood of the non-citizen engaging in further criminal or other serious conduct (paragraph 8.1.2(2)(b))

   (i) Information and evidence on the risk of the Applicant re-offending

10. The Applicant’s evidence includes a psychological report by Ms Bogicevic dated

    
    

    1 April 2021[22] after having assessed the Applicant at the Villawood Detention Centre on

    
    

    10 March 2021. Whilst the report delves into the various symptoms the Applicant presented with, it falls short in relation to the issue of recidivism. The report, based on the one-off assessment, makes it clear that there is a requirement that the Applicant engage in therapy focussed on adaptive stress reduction strategies and long-term trauma counselling. Unfortunately, this report does not deal with a sound clinically based risk of re-offending assessment.

    [22] Exhibit 7.

11. The Applicant provided a further psychological report by Mr Awit dated 2 October 2022.[23] The report also states that the Applicant requires on-going treatment, which he appeared to have agreed to, with Mr Awit. Such treatment to be undertaken over a 12-month period with the possibility extending the time should that be required. The treatment plan that was recommended, required the Applicant to adhere to all treatment and includes-Cognitive behaviour treatment focused on reducing anxiety and emotional regulation. It is designed to focus on identifying high risk situations that can cause relapse, learning to recognise negative emotions building up, reduction of high-risk situations, acquiring stress reducing mechanisms and problem-solving skills.

    [23] Exhibit 5.

12. The reports only mention on the issue of risk of recidivism was that the risk would “reduce with ongoing intervention”.  

13. Disappointingly, the Applicant’s evidence at the hearing of his matter was that he has not engaged in the recommended treatment for his various conditions which contributed to his offending. The reason given for not doing so was that the Detention Centre do not offer these services, yet he was able to have access to Mr Awit for the purposes of obtaining the report.[24] I am not convinced that the Applicant could not have engaged in the treatment recommended to him.

    [24] Transcript page 17, lines 7-30.

14. Furthermore, the Applicant’s evidence was that he had been irregularly taking the daily medication that has been prescribed to the point of ceasing to take it all together. The reason given for this at the hearing was his daily use of cannabis which affected his mindset.[25]

    [25] Ibid, page 13 lines 10-46; page 14 lines 1-22.

    Summary of findings around recidivist risk

15. I find that there is a real risk that this Applicant will re-offend. This finding is based on the lack of sound clinical evidence to the contrary coupled with the Applicant’s lack of engagement with any or all of the psychological treatments recommended to him. There does not appear to be a strong proactive move on the part of the Applicant to engage in treatment of any kind except for short course such as those undertaken when he was incarcerated.

    Paragraph 8.1.2(2)(c)

16. The Direction also contains a reference to paragraph 8.1.2(2)(c). With reference to this specific paragraph, this matter does not involve a ‘refusal to grant a visa to a non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatorily cancellation of the Applicant’s visa. This specific paragraph is not relevant to the determination of this application.

    Conclusion: Primary Consideration 1

17. With reference to the weight attributable to this Primary Consideration 1:

    (a)I find that the nature and seriousness of the Applicant’s conduct to date has been “very serious”;

    (b)I find that should the Applicant re-offend, the nature of the harm to individuals and/or the Australian community would be very serious involving physical, psychological and financial harm which could reach catastrophic levels;

    (c)I find that the Applicant’s recidivist risk of committing further crimes or other serious conduct as high due, in the main, to the psychological reports’ recommendations for treatment and the Applicant’s lack of engagement in such treatment.

18. Based on the material before me, I find that Primary Consideration 1 carries a heavy weight against revocation of the mandatory cancellation of the Applicant’s visa.

    Primary Consideration 2: Family Violence

19. Paragraph 8.2 of the Direction provides: 

    (1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

    (2)This consideration is relevant in circumstances where:

    (a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

    (b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

    (3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:

    (a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;

    (b)the cumulative effect of repeated acts of family violence;

    (c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

    (i)     the extent to which the person accepts responsibility for their family violence related conduct;

    (ii)    the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

    (iii)   efforts to address factors which contributed to their conduct; and

    (d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.

20. There is nothing in the evidence to indicate any relevance in relation to this paragraph.

    Primary Consideration 3: The Best Interests of Minor Children in Australia

21. There are no minor children that require me to take into account pursuant to this Primary Consideration 3.

    Primary Consideration 4: The Expectations of The Australian Community

22. The Direction articulates this Consideration as:

    “This Consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated in [paragraph 8.4(1)-(3) of the Direction], without independently assessing the community’s expectations in the particular case.”[26]

    [26] Direction, paragraph 8.4(4).

23. In regard to the propositions in paragraph 8.4(1) of the Direction, the expansion of the basic proposition in paragraph [53] above can be expressed thus:

    (a)The Direction make it clear that the expectations of the Australian community are that non-citizens in Australia will obey the laws of Australia.[27]

    (b)As a norm, where a non-citizen has either:

    (i)breached the expectation in the immediately preceding sub-paragraph; or

    (ii)there is an unacceptable risk that the non-citizen will breach the expectations   in the immediately preceding sub-paragraph;

    then the Australian community expects that the Australian government will not allow such a non-citizen to enter or remain in Australia.

    [27] Direction, paragraph.  8.4(1).

24. The Applicant’s criminal history shows that he has clearly breached the Australian community’s expectations. Furthermore, and due to the lack of engagement with treatment expectation.  Therefore, and “as a norm”, the Australian community would expect that the Australian Government would not allow the Applicant to remain in Australia.

25. Paragraph 8.4(2) of the Direction provides that the decision to not revoke a mandatory cancellation is appropriate where the nature of the character concerns are such that the Australian community would expect that the visa would remain cancelled.

26. Paragraph 8.4(4) of the Direction provides that the expectations of the Australian community is to be viewed by decision-makers adopting the Government’s views in respect to the community’s expectations as set out above without assessing such expectations independently on a case by case basis.

27. The final question her is whether there are factors which modify the Australian community’s expectations. Guidance in relation to this question is provided in paragraphs 5.2(4) and (5) of the Direction. The considerations relevant to the present case can be summarised as:

    (a)The Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have participated in and contributing to the Australian community for only a short period of time;[28]

    (b)Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their lives;[29]

    (c)The nature of the non-citizen’s conduct or the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen.[30]

    [28] Direction, paragraph 5.2(4).

    [29] Ibid.

    [30] Direction, paragraph 5.2(5).

28. In relation to (a) the Applicant’s employment history is that he commenced employment at the age of 18 in a car wash business where he worked for 1 year. He then worked in a restaurant for 2 years after which he started a job as a labourer in construction. He held that position for 7 months until he lost his driver’s licence preventing him from travelling to this employment. He then returned to the restaurant and worked there for 5 months until he was incarcerated.

29. In relation to (b) it is without question that the Applicant has spent a large part of his life in Australia. He was born in 1994 and arrived here in 2008 when he was around 15 years old and has not left since (now 29 years of age).

30. In relation to (c) the Applicant’s conduct which lead to the mandatory cancellation was so serious that should it be repeated could cause such a level of harm such that a refusal of a revocation of the mandatory cancellation would be justified. This is particularly so given the long term issues afflicting his victim.

31. I am, therefore, of the view that the Australian community’s expectations may be slightly modified given the 4 or so years that the Applicant was working and contributing to the community and that he has been in Australia since he was 15 years old.

    Conclusion: Primary Consideration 4

32. Primary Consideration 4 carries a slight weight in favour of revocation of the mandatory cancellation of the Applicant’s visa.

    Other Considerations

33. The Other Considerations contained in paragraph 9 of the Direction need to be looked at as non-exhaustive. Those relevant to this matter are as follows:

    Other Consideration (a): International non-refoulement obligations

34. It is the Applicant’s position that, due to his conversion to Christianity with an apostate status, he faces persecution should he return to Iraq and, therefore, that he is a person to whom Australia owes a non-refoulment obligations.[31]

    [31] G10 page 83

35. The Respondent contends that the Direction accommodates that it may not be possible at this stage to consider non-refoulment issues as would be considered in relation to Protection visa applications which are provided for by paragraph 9.1(6) of the Direction. In fact, the Applicant has confirmed that he had a Protection visa application ready to lodge in the week of the hearing. This was also confirmed by members of his family who were also aware that the Protection visa application was ready to be lodged.

36. The Respondent has submitted that the Direction recognises that it may not be possible to consider non-refoulement issues at the s 501CA stage and certainly not at the level and with the details that these issues would be considered throughout the process of a Protection visa application which is specifically designed to assess such obligations.

37. This issue was recently visited by the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) ALR 417 where the majority held that, where an Applicant can lodge an application for a Protection visa, Australia’s international non-refoulement obligations, unenacted in Australia were not a mandatory relevant consideration and to the extent that these considerations are given effect in the Act, one available outcome is to defer the assessment in respect to the obligation, to the Protection visa process.

38. In this case, I am of the view that this is the appropriate course. Particularly in light of the fact that the Applicant has most likely lodged a Protection visa application since the hearing before me.

    Other Consideration (b): Extent of impediments if removed

39. Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may encounter if removed from Australia to their country of origin in relation to establishing themselves and maintaining basic living standard similar to those available to other citizens or residents of that country, taking into account:

    (a)The age of the non-citizen and health;

    (b)Whether there are any language or cultural barriers; and

    (c)Any social, medical and/or economic support available to the non-citizen in the country.

40. As mentioned above, the Applicant is 29 years of age and in good health physically with issues relating to mental health and drug use which he requires treatment for. There was no evidence to show that the treatment he requires is not available to him in Iraq. Furthermore, Arabic is his mother tongue which it is assumed he continues to use with his family here in Australia. In terms of the cultural aspect of the Iraqi community, it is safe to assume that the Applicant is very familiar with all aspects of the cultural in Iraq from having lived within it in Iraq and then in Australia within his family and Iraqi community.

41. The Applicant’s mother gave evidence at the hearing of the matter that she would return to Iraq with him should he be required to leave Australia.[32] In addition, his sister also gave evidence that she would provide him with the financial support and resources he would require in Iraq.[33] It is also conceivable that other members of his family would do the same until such time as he is able to establish himself.

    [32] Transcript, page 27, lines 39-44.

    [33] Ibid, page 35, lines 42-44.

42. I acknowledge that in the short-term the Applicant may encounter some impediment until such time as he is able to establish himself in the community. Given this, I accord  this consideration with a slight level of weight in favour of revocation.

    Other Consideration (c): Impact on victims

43. Paragraph 9.3 of the Direction requires me to have regard the impact of the section 501 or 501CA decision will have on the victims of the non-citizens criminal behaviour, and the family members of the victim or the victims.

1. The information provided to the Tribunal in this matter does not contain anything that is indicative of what this 501CA decision will have on the Applicant’s victim. Accordingly, I find that this Other Consideration is not relevant for the purposes of this matter.

   Other Consideration (d): Links to the Australian Community

2. Paragraph 9.4 of the Direction requires me to have regard to the Applicant’s links to the Australian community. In doing so, there are 2 factors which will determine the weight to be given to this Other Consideration. They are the strength, nature and duration of the ties to Australia and the impact on Australian business interest should the Applicant not be able to remain her. Dealing with each in turn:

   (1).Strength, nature, and duration of ties

3. The first part of this Other Consideration requires me to take into account the impact of a refusal to revoke the mandatory cancellation would have on the Applicant’s immediate family who have the right to remain in Australia indefinitely. It is also necessary to take into account the impact of a refusal to revoke against a backdrop of the strength, nature and duration of any other ties the Applicant has to the Australian community. Finally, it is necessary to assess the strength, nature and duration of any other family or social links the Applicant may have with persons who have an indefinite right to remain indefinitely in Australia.

   i. Impact of non-revocation on the Applicant’s immediate family

4. The Applicant’s immediate family consists of his mother, sister and brothers all resident in Australia.

5. The evidence from the Applicant’s immediate family is that his circumstances have caused a great deal of suffering amongst his family. However, the evidence from his sister is that they would be able to maintain contact by email and telephone should he be required to return to Iraq. Furthermore, the Applicant’s mother has various medical and mental health issues  as a result of his position. His mother has stated that she would return to Iraq with him should he be required to leave Australia.

   ii. Strength, nature, and duration of “other ties” – length of residence

6. The Applicant has been in Australia since October 2008 and has not left since then. He has undertaken some work in a carwash business for 2 years, worked in a restaurant for 12 months and in the construction industry for 7 months. The Applicant’s work history ceased upon going to prison and then immigration detention in September 2016.

   iii. Strength, nature, and duration of “other ties” – family and other social links

7. The Applicant has furnished this Tribunal with a number of Statutory Declarations from people who state that they are friends of his and that they are in contact with him by phone since he has been in detention. He also has an extended family here in Australia which includes 4 aunts/uncles, and 4 cousins. It is without doubt that these people would be disappointed to see the Applicant’s mandatory cancellation of his visa not revoked.

   (2) Impact on Australian business interests

8. There is no material before me indicating that any Australian business interest would be impacted by the Applicant’s visa status.

   Weight allocable to Other Consideration (d): links to the Australian community

9. In reference to the initial part of this Other Consideration, I am of the opinion, based on my analysis of the elements, that the evidence leads me to an allocation of a moderate level of weight in favour of revocation of the mandatory cancellation of the Applicant’s visa. As for the overall links to the Australian community, I find that this carries a moderate level of weight in favour of restoring his visa status.

   Findings: Other Considerations

10. In summary, the respective weights allocated to each of the Other Considerations contained in the Direction which are relevant to the matter are:

    (a)International non-refoulement obligations: neutral weight due to Protection visa determination

    (b)Extent of impediments if removed; carries a slight level of weight in favour of revocation;

    (c)Impact on victim; neutral weight due to no information advances in this regard;

    (d)Links to the Australian community; carries a moderate level of weight in favour of revocation.

    CONCLUSION

11. Pursuant to s501CA(4)(b) of the Act, there are 2 alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa. The Applicant either pass the character test or I am persuaded that there is another reason pursuant to the Direction, that warrants the revocation of the cancellation. As previously articulated, the Applicant does not pass the character test.

12. In order to enable the exercise of the discretion afforded by s501CA(4) of the Act to revoke the mandatory cancellation decision, I have had regard to Primary Considerations in the Direction and find as follows:

    (a)Primary Consideration 1; carries a heavy level of weight against revocation;

    (b)Primary Consideration 2; is not relevant and carries a neutral level of weight

    (c)Primary Consideration 3; is not relevant and carries a neutral level of weight

    (d)Primary Consideration 4: carries a slight weight in favour of revocation

13. I have outlined the weights attributable to the Other Considerations. I am of the view and find that the combined weights I have allocated to the relevant Primary Considerations and Other Considerations are sufficient to outweigh any weight in favour of revocation such that the Applicant’s visa status to remain in Australia should not be restored.

14. Consequently, I find that there is not “another reason” as to why the mandatory cancellation decision should be revoked for the purposes of s501CA(4)(b)(ii) of the Act.

    Decision

15. The decision under review is affirmed.

I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Member A Julian-Armitage

................[SGD]...........

Associate

Dated: 14 March 2023

Date of hearing:

Date of final submissions:

2 November 2022

4 November 2022

Representative for the Applicant:

Mr Basim Hamdan (International Migration Support)

Solicitor for the Respondent

Ms Cody Allen (Sparke Helmore Lawyers)

Annexure A – Exhibit Register

EXHIBIT	PARTY	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
1	R	G-Documents (G1-G82, pages 1-258)	Various	12 September 2022
2	R	Respondent Statement of Facts, Issues, and Contentions (pages 1-20, paragraphs 1-56)	25 October 2022	25 October 2022
3	R	Respondent Tender Bundle (R1-R4, pages 1-64)	Various	25 October 2022
4	A	Applicant Statement of Facts, Issues, and Contentions (3 pages, paragraphs 1-14)	3 October 2022	4 October 2022
5	A	Report of Mr Awit (pages 1-10)	2 October 2022	4 October 2022
6	A	Witness Statements (56 pages)	Various	4 October 2022
7	A	Report of Ms Bogiecevic (pages 1-11)	1 April 2021	4 October 2022
8	A	Witness Statement of Anwar Ahmed	28 October 2022	28 October 2022
9	A	Statement of Anwar Ahmed	Undated	3 November 2022
10	A	Statement of Applicant	Undated	3 November 2022
11	R	Respondent’s Amended Statement	Undated	4 November 2022