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

[2022] AATA 4711

Barkho and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4711 (14 December 2022)

Division:GENERAL DIVISION

File Number:          2022/8111

Re:Touma Barkho

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Deputy President Boyle

Date:14 December 2022

Place:Perth

The decision of the delegate of the Minister dated 27 September 2022 not to revoke the cancellation of the applicant’s Class XB Subclass 202 Global Special Humanitarian visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.

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

Deputy President Boyle

Catchwords

MIGRATION – s 501CA(4) of the Migration Act – decision of delegate of Minister not to revoke cancellation of applicant’s visa – whether there is “another reason” to revoke cancellation of applicant’s visa – Ministerial Direction No. 90 – applicant is a 22-year-old citizen of Syria – post-traumatic stress disorder – violent offending – indefinite detention – two primary considerations weigh moderately against revocation of cancellation – three other considerations weigh in favour of revocation of cancellation – application of Direction 90 para 7(2) – primary considerations should generally be given greater weight than the other considerations – there is not another reason to revoke the cancellation of the applicant’s visa – reviewable decision affirmed

Legislation

Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 195A, 197C, 197C(3), 197C(3)(c), 499, 499(1), 499(2A), 500(1)(ba), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501(7)(d), 501CA, 501CA(4), 501CA(4)(b), 501CA(4)(b)(i), 501CA(4)(b)(ii)

Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)

Cases

BNGP v Minister for Immigration [2022] FCA 878

BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181

CZCV and Minister for Home Affairs [2019] AATA 91

FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775

FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454

Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66

HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202

Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) FCR 591

Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497

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

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55

Secondary Materials

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) art 1A

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 art 9.1

Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)

Minister for Immigration and Border Protection (Cth), Direction no. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b) (6 September 2017)

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018)

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021) paras 5.1, 5.1(3), 5.2, 5.2(2), 5.2(3), 5.2(4), 6, 7, 7(2), 8, 8.1, 8.1.1, 8.1.1(1)(a), 8.1.1(1)(a)(i), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3, 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 9, 9.1(2), 9.1(3), 9.1(7), 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.4, 9.4.1, 9.4.1(2), 9.4.1(2)(a)

REASONS FOR DECISION

Deputy President Boyle

14 December 2022

1. The applicant seeks review of the decision of a delegate of the respondent (Minister) dated 27 September 2022,[1] not to revoke the cancellation of the applicant’s Class XB Subclass 202 Global Special Humanitarian visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).

   [1] R2, 9–35.

2. The applicant’s visa was cancelled under s 501(3A) of the Act on 24 June 2020[2] on the basis that he did not pass the character test by reason of his substantial criminal record, and he was serving a full-time term of imprisonment for an offence against a law of a State.

   [2] R2, 287–92

3. The application for review was made on 4 October 2022 pursuant to s 500(1)(ba) of the Act, which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501CA(4) of the Act.

   THE ISSUE

4. The issue for determination is whether I should exercise the power in s 501CA(4)(b) of the Act to revoke the cancellation of the visa made under s 501(3A). This will require determination of:

   (a)whether the applicant passes the character test (as defined by s 501 of the Act); and

   (b)if he does not pass the character test, whether there is “another reason” why the decision to cancel the applicant’s visa should be revoked.

   THE HEARING AND THE EVIDENCE

5. The application was heard on 28 and 29 November 2022. The applicant was represented by Mr N Poynder of counsel and the Minister was represented by Ms D Jones-Bolla of Sparke Helmore Lawyers. The following witnesses gave evidence at the hearing:

   (a)The applicant;

   (b)Abrounia Barkho (the applicant’s mother);

   (c)John Fasha;

   (d)Aorahan Barkho (the applicant’s father);

   (e)Chanelle Contini; and

   (f)James Pules.

6. The following documents were admitted into evidence:

   (a)Tender bundle filed 18 November 2022 (R1); and

   (b)G-documents filed 21 October 2022 (R2).

   BACKGROUND

7. The applicant is a 22-year-old citizen of Syria. He arrived in Australia with his parents as a 16-year-old on 4 November 2016 on a Class XB Subclass 202 Global Special Humanitarian visa.

8. The applicant and his parents left Syria for Lebanon in 2011 to escape persecution by Islamic extremists.

9. On 19 January 2018 the applicant was arrested for possession of a knife in a public place and was convicted on that charge on 6 April 2018. This was the applicant’s first conviction.

10. On 10 June 2020 the applicant was convicted of reckless wounding in company for which he was sentenced to a term of imprisonment consisting of a non-parole period of 12 months and a head sentence of 18 months imprisonment.[3]

    [3] R2, 63.

11. The applicant was given notice on 24 June 2020 that his visa had been cancelled under s 501(3A) of the Act.[4]

    [4] R2, 287.

12. On 21 July 2020, the applicant sought revocation of the cancellation decision and provided further submissions and evidence in support of his request.

13. On 14 August 2020 the applicant was convicted of “aggravated robbery, use corporal violence, inflict grievous bodily harm” for which he was sentenced to a term of imprisonment consisting of a non-parole period of two years and four months and a head sentence of three years and nine months.[5]

    [5] R2, 54.

14. The applicant’s full criminal record is as follows:

Court	Result date	Offence	Result
Campbelltown District Court	14 August 2020	Reckless wounding – in company	18 months’ imprisonment commencing 7 November 2019 (concluding 6 May 2021); 12 months’ non-parole period
Parramatta District Court	14 July 2020	Robbery armed with offensive weapon; cause wounding	Three years’ and nine months’ imprisonment commencing 7 January 2020 (concluding 6 October 2023); two years and four months’ non-parole period
Campbelltown Local Court	10 June 2020	Reckless wounding – in company	18 months’ imprisonment commencing 7 November 2019 (concluding 6 May 2021); 12 months’ non-parole period (severity appeal lodged)
Fairfield Local Court	12 November 2018	Possess or use a prohibited weapon without permit	$3,500 fine
Fairfield Local Court	12 November 2018	Possess prohibited drug	$1,000 fine
Fairfield Local Court	28 May 2018	Enter vehicle or boat without consent of owner/ occupier	$100 fine
Fairfield Local Court	28 May 2018	Dishonestly obtain property by deception	$500 fine
Fairfield Local Court	6 April 2018	Custody of knife in public place – first offence	$800 fine; weapon/ implement forfeited to the Crown

1. On 27 September 2022, a delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the visa cancellation decision and on 4 October 2022 the applicant sought review of the delegate’s decision in the Tribunal.

   LEGISLATIVE FRAMEWORK

2. Section 501(3A) of the Act relevantly provides that:

   The Minister must cancel a visa that has been granted to a person if:

   (a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

   (i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

   (ii)...; and

   (b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

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

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

   (a)   the person has a substantial criminal record (as defined by subsection (7)); ...

   (Original emphasis.)

4. A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:

   For the purposes of the character test, a person has a substantial criminal record if:

   (a)  ...

   (b)  ...

   (c)   the person has been sentenced to a term of imprisonment of 12 months or more;

   (d)  the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;

   ...

   (Original emphasis.)

5. Section 501CA of the Act relevantly provides:

   (1)  This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

   ...

   (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.

   (Original emphasis.)

   Ministerial Direction 90

6. Section 499(1) of the Act provides that:

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

   (a)   the performance of those functions; or

   (b)   the exercise of those powers.

7. Section 499(2A) of the Act provides that “[a] person or body must comply with a direction under subsection (1).”

8. On 8 March 2021 the relevant minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”[6] (Direction 90). The commencement date for operation of Direction 90 was 15 April 2021. Upon its commencement, Direction 90 revoked the operation of “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA”[7] (Direction 79).

   [6] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021).

   [7] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018).

9. Paragraph 5.1 sets out the objectives of Direction 90. Paragraph 5.1(3) relevantly provides:

   Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full­time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.

10. Paragraph 5.2 of Direction 90 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act. These principles are as follows:

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

    (2)  Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to 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 engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] 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 non­citizens 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 non­citizens 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 measureable [sic] risk of causing physical harm to the Australian community.

11. Paragraph 6 of Direction 90 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 90 (where such considerations are relevant) in order to determine whether the cancellation of the visa should be revoked.

12. Guidance in relation to how the relevant considerations are to be taken into account can be found in para 7 of Direction 90 which provides:

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

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

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

13. Paragraph 8 of Direction 90 provides:

    In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:

    (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.

14. Paragraph 9 of Direction 90 provides:

    (1)  In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations 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.

    CONSIDERATION

15. Failure of the character test arises as a matter of law: Harrison and Minister for Immigration and Citizenship.[8] The character test is defined in s 501(6) of the Act (see [17] above). Under s 501(6)(a) of the Act, a person does not pass the character test if the person has “a substantial criminal record.” Section 501(7)(c) of the Act (see [18] above) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more...” Section 501(7)(d) of the Act provides that a person will have a substantial criminal record if they have been “sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more”. The applicant has been sentenced to terms of imprisonment totalling more than 12 months and he therefore has a substantial criminal record. Accordingly, he does not pass the character test.

    [8] [2009] AATA 47; (2009) 106 ALD 66.

16. The applicant concedes that he does not pass the character test.[9] As the applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) of the Act for the decision to cancel his visa to be revoked. The issue, therefore, is whether the power under s 501CA(4)(b)(ii) of the Act should be exercised on the basis that there is another reason why the decision under s 501(3A) of the Act should be revoked (see [24] above).

    [9] Applicant’s SFIC para 2.

    IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?

    First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)

17. Paragraph 8.1 of Direction 90 provides that, when decision-makers are considering the protection of the Australian community, they:

    (1)  ... should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

    (2)  Decision-makers should also give consideration to:

    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.

    Nature and seriousness of the conduct (para 8.1.1)

1. Paragraph 8.1.1 of Direction 90 provides:

   (1)  In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, 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, , [sic] 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).

2. The applicant’s SFIC made the following submissions in relation to this consideration:

   (a)The applicant committed two offences which can be described as “very serious”; namely, reckless wounding in company on 23 October 2018 and robbery armed with an offensive weapon on 7 November 2019.

   (b)The other offences are all “relatively minor” offences.[10]

   (c)The devastating effect of the applicant’s past experiences in Syria and his mental illnesses during the period of his offending, including post-traumatic stress disorder (PTSD), insomnia, irritability, excessive anger and depressed mood[11] should be regarded as factors beyond the applicant’s control which substantially mitigate the seriousness of the offences.

   (d)The sentences of imprisonment imposed on the applicant reflect the need to punish, denounce and deter the applicant. These are the task of the criminal court, not the Tribunal.

   [10] Citing the delegate’s decision (R2, 25) and the sentencing remarks of the NSW District Court (R2, 50).

   [11] Citing Dr Abu-Arab: R2, 159–60.

3. The Minister’s SFIC made the following submissions in relation to this consideration:

   (a)Violent crimes are viewed very seriously by the Australian Government and the Australian community.[12] On 14 July 2020, the applicant was sentenced in the Paramatta District Court to three years and nine months’ imprisonment for “robbery armed with offensive weapon cause wounding”.

   (b)In sentencing the applicant, the judge found that the applicant’s offending fell in the mid-range of objective seriousness.

   (c)On 10 June 2020, the applicant was sentenced in the Campbelltown Local Court to 18 months’ imprisonment for “reckless wounding in company”. The applicant’s involvement in the offence was less than that of his co-accused. He was charged as part of a joint venture. The sentencing judge described the offending as “a cowardly act” and “disgraceful and violent and criminal behaviour”.[13]

   (d)The applicant has also been convicted in 2018 of “possess or use prohibited weapon,” “possess prohibited drug”, “enter vehicle or boat without consent”, “dishonestly obtain property by deception” and “custody of knife in public place” for which he received fines.

   (e)The applicant has been sentenced to terms of imprisonment[14] and imprisonment is the last resort in the sentencing hierarchy.[15] A custodial sentence is a reflection of the objective seriousness of the offences involved.

   (f)The applicant has committed seven offences over a two-year period, which is frequent offending and must be seen as cumulatively having had a deleterious impact on the Australian community.[16]

   [12] Citing Direction 90 para 8.1.1(1)(a)(i).

   [13] Citing R2, 62.

   [14] Citing Direction 90 para 8.1.1(1)(d).

   [15] Citing PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22].

   [16] Citing Direction 90 paras 8.1.1(1)(d), 8.1.1(1)(e).

4. The two most serious offences of which the applicant has been convicted are the reckless wounding in company (as a result of which the applicant’s visa was cancelled under s 501(3A) of the Act) and the robbery armed with an offensive weapon cause wounding.

5. The circumstances of these offences were set out in the sentencing remarks of the Courts.

   Robbery armed with offensive weapon cause wounding

6. The applicant was sentenced in the District Court of New South Wales by Judge Herbert on 14 July 2020. The offence was committed on 23 October 2018. Her Honour made the following comments and observations:

   The offender Tomy Barkho[17] appears for sentence for an offence of aggravated robbery, use corporal violence, inflict grievous bodily harm contrary to s 96 of the Crimes Act 1900. The maximum penalty applicable to this offence is 25 years imprisonment, there is no standard non-parole period applicable.

   [17] I note that this is another name used by the applicant.

   The plea of guilty was entered in the week when the matter was listed for trial…

   …

   The facts in this matter are that the offender, Tomy Barkho, was aged 18 at the time of the offence … [t]he victim … was 17 years old.  The victim did not personally know the offender but had seen him around the local area.

   At about 8pm on Tuesday 23 October 2018, the victim was walking past [a youth centre] when he was approached by the offender. The offender said “Hey” and held out his hand which the victim shook. The offender said “A few of the boys are back here, come say hello”.

   The victim assumed that the offender was talking about some people he might know so he walked with the offender around to the back of the Youth Centre where three other males were present. The victim greeted them, shook all their hands before looking down to check his mobile phone. At this point the offender struck the victim across the face once with a dark coloured metal pole. The offender said to the victim “Give me the fucking phone”. The victim said “Here, take it” and handed the offender his Apple iPhone. The offender said to him “What’s the password” and the victim told the offender the password. The offender then ran off towards the street.

   There was a group of males playing basketball at the courts near the Youth Centre and two of those males assisted the victim and walked with him to Fairfield Hospital and helped him to contact his mother. The victim remained at Fairfield Hospital overnight, he underwent a CT scan and was found to have a fractured maxilla, or upper left jawbone, and fractures to his teeth.

   On 10 October 2018 [sic], the victim attended Westmead Hospital and was treated by a dental officer. It was observed that the victim had injuries to his teeth which included fractures on eight of his teeth. He received treatment of six temporary restorations and extirpation of the nerve tissue. The victim was advised that two teeth would require future removal and the prognosis of the other damaged teeth was uncertain.

   …

   At about 8.30am on Thursday 22 November, Police attended the offender’s home where he was placed under arrest… He admitted being involved in an altercation with the victim but said he was acting in self-defence.[18]

   [18] R2, 44–5.

   …

   In this matter the offender used a weapon to strike the victim. The use of the weapon is an aggravating factor. The offender hit the victim before he made any demand for property, not giving the 17-year-old victim the opportunity to acquiesce to a demand prior to being injured. The nature of the grievous bodily harm is a facial fracture and fracturing of eight of the victim’s teeth. The victim needs ongoing treatment which cannot be completed until at least three years post offence. Within the range of grievous bodily harm this is not at the lowest level due to the ongoing harm to the victim.

   There was obviously a degree of pre-meditation for this offence as the offender was armed with a metal pole.

   I accept the assessment of the parties that the offence falls within the mid-range of objective seriousness.[19]

   [19] R2, 47.

   …

   In relation to his psychological issues tests were done and the results indicate that the offender was experiencing [PTSD]. The psychiatrist said that he qualifies for a diagnosis of [c]hronic [PTSD] according to the DSM-V. One of the major features of PTSD is irritability or outbursts of anger and he said that this is so in the case of the offender.

   …

   … It was noted that there is material and psychological literature which notes that people subject to trauma experience outbursts of anger and difficulty in controlling aggressive behaviour and this is something that needs to be addressed with treatment.

   The doctor expressed a belief that the offender’s mental illness contributed to the criminal behaviour. He said he was impressed that the patient is genuinely remorseful and that he would like to learn new behaviours and skills to help him with his anger. The doctor said he would benefit from treatment for his [PTSD] and he would recommend that he should undergo therapy and the therapy should be in the range of six to 12 months.[20]

   [20] R2, 49.

   …

   It is noted that the offender has a limited criminal history with relatively minor possession of weapons charges and rapidly escalated to reckless wounding in company and the current matter.

   …

   … It was said in relation to his attitude that he appears to accept some responsibility saying he “lost control” out of anger. The offender attempted to justify his behaviour asserting that the victim shared the blame but agreed that the severity of his actions was unwarranted. He acknowledged he had a longstanding distrust of Police and he claimed that this causes him to take matters into his own hands rather than requesting assistance. He admitted that this attitude was problematic and needs to be addressed.[21]

   [21] R2, 50.

   …

   In relation to the offender’s insight he was described as having emerging insight, he claimed he felt “bad” but he did apportion blame to the victim.

   …

   … It was noted the offender has previously engaged in counselling to address his anger and control issues. The offender was assessed as a low-medium risk of reoffending.[22]

   …

   In relation to the offender’s risk of reoffending it is positive that the offender was seeking to address his mental health issues while on bail for the present offence but of concern that he engaged in a second offence involving serious violence.

   I find that the offender has some prospect of rehabilitation, I cannot be satisfied that the offender will not commit further offences.

   …

   I accept that the offender suffers from chronic Post-Traumatic Stress Disorder. Dr Abu-Arab states that one of the major features of the illness is irritability or outbursts of anger; however, the present offence is a robbery with a degree of pre-meditation.

   I am not satisfied that the offender’s mental health contributed to the commission of the offence in a material way.[23]

   [22] R2, 51.

   [23] R2, 52.

   Reckless wounding in company

7. The applicant was sentenced in the Campbelltown Local Court by Magistrate Breton on 10 June 2020. The offence was committed on 7 November 2019. His Honour, or the applicant’s counsel, made the following comments and observations:

   Applicant’s counsel: Your Honour will see in regards to the involvement of this offender it is contained in para 6 in the last sentence, "The offender participated by kicking the victim once to the upper part of the body". Your Honour, that is also in circumstances where the two other unknown offenders had been attacking that particular victim, so obviously the victim is helpless, he is attacked by two persons and then this particular offender, in what can only be described as a cowardly act as far a kick at the victim and connects.[24]

   [24] R2, 56.

   …

   His Honour: The defendant, Touma Barkho, pleaded guilty to one offence of reckless wounding in company… The matter is a charge of one which carries a maximum penalty of ten years' gaol upon indictment but I note the jurisdictional limit of two years in this Court…[25]

   [25] R2, 59.

   …

   Offences of violence of this nature are serious. The reality is of course the Parliament has described and of course the community understands that people who do decide to injure people in this particular way; that is, meeting in the dark it would appear or at least in the darkening hours, in circumstances where they are in company with others and then assaulting those persons to the extent that they lose consciousness and are stabbed twice in the back, are matters about which the community is greatly concerned and expect to be condemned appropriately by all of those involved in the criminal justice system.

   The facts of this matter indicate that the defendant, along with others, following some sort of arrangement to purchase drugs made their way to the … car park on [street name omitted]. The three of them, after having been driven there by a fourth person, went behind a building and apparently there is an inference that they lay in wait for this victim. Perhaps it is not as strong as being able to be found beyond a reasonable doubt but there is certainly an inference available I suppose.

   The victim happened to come around the corner at which those persons were waiting, including the offender, and when he did he was set upon. The unknown males who were with the offender at the time punched and pushed the victim to the ground and kicked him a number of times to the head and body as he was lifting his hands to protect himself. He lost consciousness at that time for a short period and it appears that the offender, following that, has kicked the victim once in the upper part of the victim's body and therefore participated in the initial assault.

   There was also during that particular period of time, although I said it was unclear on the facts of when it occurred, a stabbing by one person, not the offender, of the victim twice to the back with a knife. The victim dropped his phone and it was taken by one of the unknown males…

   The victim sustained some wounds as a result; a 1.5 centimetre wide, .5 centimetre deep wound in the thoracic region and the other, a similar size, in the lumbar region, and both wounds required stitching. He also suffered bruising around the head and a laceration and graze to his ears, abrasions to his right elbow, back, both shoulders and left tricep. He was discharged from hospital having been treated for those wounds the following afternoon.[26]

   …

   … He has got a reasonably limited but very significant - taken from the records - his record of course includes the fact he was on Supreme Court bail for a robbery matter with wounding at the time of this particular offence.

   It gives rise to a suggestion, albeit that that matter is yet to be determined, that he is a man of violence and that is the method to which he resorts when the pressure is on him. I also note that he has got other charges on his record including possess prohibited weapon, he has got drug matters and a custody of knife matter all again are reflective of a man who is prepared to resort to violence or at least arm himself with that intention given the facts of this particular matter.

   Of course his role in this particular offence is perhaps, I suppose, lesser than that of the other two but nevertheless he has been charged as part of a joint enterprise to assault the victim and the result of that was of course the use of the knife to stab [the victim] to the back. It is not suggested at any stage that he thrust the knife or that he was aware of the knife prior to the commission of that particular aspect of the offence. Nevertheless, of course as I say, there is an inference of course that he was with these men for a drug deal to go down and one understands, I suppose, that drug deals do go down often with violence as a potential consequence and protective measures are often put in place by some persons and clearly perhaps by one of the unknown offenders in relation to this matter albeit unknown to the defendant.

   His record since he went into custody is not so impressive either, although I accept that there is no facts associated with those breaches of prison discipline, for which he has been ordered to suffer some punishment so it is not clear what is meant by assaults 141 or a possess offensive weapon 137. One can, I suppose again, perhaps just extrapolate that he is still struggling with the idea that violence is not a way in which to create any harmony for himself or others.[27]

   …

   The reality is he went there, waited for whatever reason with them, did not know them and when the victim came around the corner the guy was immediately set upon and he joined in when he could but as he says quite properly, in a cowardly fashion in lashing out when he was unconscious on the ground. It is disgraceful and violent and criminal behaviour. No doubt about it and he said all of that, I suppose as I have been referred to in both submissions, it is a matter which is probably below the mid range of seriousness in relation to these sorts of matters albeit that there was a serious wound requiring stitches.

   …

   … Whilst I appreciate it might be difficult for him I also note that there are ways out. He has chosen not to take those ways out at this particular point in time. I do not forget of course that he has made some effort in that regard and I am told by Mr Shridhar that he is certainly aware of his need for counselling for his [PTSD] and perhaps the insight that he has gained over the last seven months in custody will lead him on the road to that.

   [26] R2, 60.

   [27] R2, 60–1.

8. In assessing the seriousness of the applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 90 (see [32] above), I find that:

   (a)Paragraph 8.1.1(1)(a) – the applicant has been convicted of offences involving violence. While the offences of which the applicant has been convicted were, by their nature, and by requirement of para 8.1.1(1)(a) to be viewed as very serious, Judge Herbert assessed the seriousness of the robbery armed with offensive weapon cause wounding at “the mid-range of objective seriousness”. Similarly, Magistrate Breton assessed the seriousness of the reckless wounding in company, which, for the same reasons, must be viewed as very serious offence, to be at “probably below the mid-range of seriousness”. I accept both of those assessments.

   (b)Paragraph 8.1.1(1)(b) – the applicant has not been convicted of any offence coming within the categories identified.

   (c)Paragraph 8.1.1(1)(c) – the sentence of imprisonment for three years and nine months on the robbery armed with offensive weapon cause wounding charge, while obviously at the lower end of the scale of possible sentences (the maximum being 25 years’ imprisonment) is still a very substantial sentence. Similarly, again while at the lower end of the scale of possible terms of imprisonment (with a maximum penalty of 10 years), the sentence of 18 months’ imprisonment for the reckless wounding in company is still a substantial sentence.

   (d)Paragraph 8.1.1(1)(d) – the applicant has committed seven offences over the relatively short period from January 2018 (custody of a knife in public) to November 2019 (reckless wounding in company). While a couple of those offences arose out of the same incident, I find that the applicant’s offending has been frequent. I also find that there is a trend of increasing seriousness. As Herbert J put it in sentencing the applicant on the robbery armed with offensive weapon conviction, the applicant’s short but relatively minor offending “rapidly escalated to reckless wounding in company and the current matter”.[28]

   (e)Paragraph 8.1.1(1)(e) – the Minister contends that the cumulative effect of the applicant’s offending as a deleterious impact on the Australian community. While that is probably a fair comment, all offending, repeated or otherwise, has a deleterious impact on the community. This not only includes the direct physical, financial and psychological impact on victims, but also the cost to the broader community of wasted public resources in the form of public expenditure on policing, courts and prisons. In the present case another cumulative “effect” of the applicant’s offending is what it tells us about him, about the reason for his offending. As both Magistrate Breton and Judge Herbert noted, the applicant’s offending is caused by his apparent view that violence is an acceptable means of resolving issues or getting what he wants. The applicant’s violent offending has not been a one-off incident. Both the robbery in company and reckless wounding in company involved some degree of premeditation or organisation. They were not incidents of disproportionate over-reaction or outbursts of uncontrollable anger in reaction to an extrinsic stimulus.

   (f)Paragraphs 8.1.1(1)(f) and 8.1.1(1)(g) – not relevant in this case.

   [28] R2, 50.

1. The applicant’s record of offending, while short in duration, is obviously serious given the nature of the offences, two of which, the robbery in company and the reckless wounding in company, are, by operation of para 8.1.1(1)(a)(i), to be viewed very seriously. I do not accept the applicant’s submission[29] that the “devastating effect of the applicant’s past experiences in Syria and his mental illnesses” should “substantially mitigate the seriousness of the offences”. The factors identified in para 8.1.1 for assessment of the nature and seriousness of an applicant’s offending are objective. The personal circumstances, including the antecedents, of an applicant may be relevant to other considerations, most obviously in the assessment of the risk of the applicant reoffending for the purposes of para 8.1.2 and the expectations of the Australian community under para 8.4 of Direction 90, however, they are not relevant to the objective assessment of the nature and seriousness of the offending. The applicant’s personal circumstances and antecedents are relevant in assessing the applicant’s moral culpability, something specifically addressed under that heading by Judge Herbert in her sentencing remarks.[30] Moral culpability for offending is relevant in sentencing, however, as the applicant himself submitted, such assessment is a task for the criminal court, not the Tribunal (see [33(d)] above).

   [29] Applicant’s SFIC para 8.

   [30] R2, 52.

2. A second reason why I do not accept the applicant’s above assertion is that it assumes that the applicant’s offending is the result of his past experiences in Syria and his mental illness. Judge Herbert did not accept that the applicant’s mental health contributed to the commission of the offence in a material way (see [37] above). It was upon that basis that her Honour sentenced the applicant, and I am prevented from contradicting or going behind the facts upon which the conviction or her Honour’s sentence was based.[31]

   The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)

   [31] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [66]–[70], [195]–[197]

3. Paragraph 8.1.2 of Direction 90 relevantly provides:

   (1)  In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

   (2)  In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

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

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

   i)information and evidence on the risk of the non-citizen re-offending; and

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

   …

4. The Tribunal in CZCV and Minister for Home Affairs[32] at [56] summarised the task for the decision-maker as follows:

   In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):

   An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.

   [32] [2019] AATA 91.

5. In BSJ16 v Minister for Immigration and Border Protection[33] Moshinsky J stated, at [68]:

   ... there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.

   [33] [2016] FCA 1181.

6. While the Tribunal and the Court in the above cases (and in the cases referred to therein) were considering visa cancellation in the context of predecessors to Direction 90, given the similarity in the wording of the several Ministerial Directions, the same considerations and principles apply to the present case. I adopt the approach indicated in the above cases.

   Nature of harm to individuals or the Australian community (para 8.1.2(2)(a))

7. The applicant made no submission specifically on the issue of the nature of the harm to the community should the applicant engage in further criminal or other serous conduct. The only contention made in the Minister’s SFIC relevant to the nature of the harm that would be caused was a claim that “the nature of the potential harm is so serious that any risk of reoffending is unacceptable.[34] In oral closing submissions, Ms Jones-Bolla repeated that submission: “the nature of the harm, we say it is so serious that any risk of reoffending is unacceptable … That harm includes physical and psychological harm to members of the Australian community”.[35]  

   [34] Minister’s SFIC para 30; citing Direction 90 para 8.1.2(1).

   [35] Transcript at 158–9.

8. I do not accept the Minister’s contention that the applicant’s conduct and the harm that would be caused if it were to be repeated is so serious that any risk that it would be repeated is unacceptable. That is, I do not accept that this is a case which comes within the scope of the final sentence of para 8.1.2(1) of Direction 90. The assessment that any risk of a repeat of the conduct is unacceptable should only be made in extreme cases. The present case is not such a case. While the applicant’s two most serious offences, the robbery in company and the reckless wounding in company, were both offences that must be viewed very seriously, in both cases the sentencing court considered the offending to be at or below the mid-range of seriousness (see [39(a)] above). The harm that was caused by the applicant’s offending in the past and which would be likely to be caused if he were to repeat that offending, while serious to the victims and to the broader community, is not so serious that “any risk” of the applicant reoffending would be unacceptable.

9. I find that the harm that would be caused to the community, or to individual members of the community if the applicant were, in the future, to engage in the offending that he has in the past, is serious. As noted at [39(e)] above, the harm likely to be caused if the applicant were to reoffend is the direct physical, financial and psychological harm caused to victims and also the cost to the broader community of wasted public resources in the form of public expenditure on policing, courts and prisons.

   The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (para 8.1.2(2)(b))

10. The applicant made the following submissions in his SFIC:

    (a)The task of this Tribunal is, overwhelmingly, to protect the Australian community.

    (b)The applicant committed all his offences while suffering from PTSD.[36]

    (c)The applicant’s mental illness was not diagnosed until July 2019 which was after his first serious offence in October 2018 and only a few months before his second serious offence in November 2019.

    (d)At the time of his diagnosis his progress was described by Dr Yaser Mohammad as “slow but … steady”.[37]

    (e)After his most recent incarceration on 7 November 2019, the applicant initially received several sessions of counselling from Dr Mohammad,[38] then, from May 2020 until present, he has received more than twenty counselling sessions from Dr Abu-Arab.

    (f)Dr Abu-Arab has stated that the applicant has “good insight to his traumas and to the impact of his traumas on his behaviours”[39] and that he has been “satisfied with the progress that [the applicant] achieved in terms of his psychological and emotional problems as well as his insight to his offences and to the suffering that he caused to his victims”.[40]

    (g)In his report dated 17 July 2019 Dr Mohammad opined that “While counselling can be useful for the level of problems he is experiencing, it would be best engaged when he experiences sufficient safety and normality in his daily life”.[41] The applicant contends that it can be inferred from this statement that the applicant’s mental health condition, and his risk to the community, will improve further if he is released into the community.

    (h)Over the past period of more than three years in prison and detention, the applicant has made substantial progress in understanding his mental illness.

    (i)On 6 July 2020 the applicant was assessed by NSW Corrective Services as being at low/medium risk of reoffending, according to the LSI–R.

    [36] Citing the report of Dr Abu-Arab: R2, 154.

    [37] Citing R2, 162.

    [38] Citing R2, 163.

    [39] Citing R2, 159–60.

    [40] Citing R2, 160; R2, 304.

    [41] Citing R2, 162.

11. The Minister contended[42] that the applicant remains an ongoing and unacceptable risk for the following reasons:

    (a)The NSW Corrective Services sentencing assessment report dated 6 July 2020 assessed the applicant as a low-medium risk of reoffending.[43]

    (b)The applicant’s offending was not isolated. Over a period of two years, the applicant committed eight offences.

    (c)There is a consistent theme in the applicant’s submissions, remarks of sentencing courts and opinions by psychologists stating that the applicant’s youth and immaturity was a factor that contributed to his offending. The applicant was 18 years of age when he committed the aggravated robbery offence. He is only 22 years of age now such that the applicant is still young. Whether the applicant has matured in the intervening four years remains to be tested in an uncontrolled environment.

    (d)The applicant has also claimed that his untreated PTSD contributed to his offending. The counselling that the applicant has undertaken in relation to his PTSD symptoms has not been tested in the community.

    (e)The applicant’s behaviour whilst in custody does not bode well in terms of his rehabilitation prospects.[44] The fact that the applicant has continued to be violent whilst in a custodial environment suggests that he is not rehabilitated.

    (f)Sufficient time has not elapsed where the applicant has been in an unsupervised environment, given that he has been in criminal custody or immigration detention since January 2020.

    [42] Minister’s SFIC para 31.

    [43] Citing R1, 10.

    [44] Citing the report from the NSW Department of Corrective Services (R2, 76–7; R1, 29–55).

12. In oral closing submissions, Mr Poynder expanded on the points raised in the applicant’s SFIC and made further submissions relating to the applicant’s offending and the likelihood of the applicant re-offending. Mr Poynder observed that the applicant may have seemed “cocky” or as “having an attitude” when he gave evidence[45] and that that may be a defensive rather than a defiant presentation. To explain this, Mr Poynder referred to the New South Wales Police record[46] which indicated that the applicant had been issued with multiple move-on notices by police, all of which had been complied with, and that he had been searched by police on 29 occasions[47] with no result. Mr Poynder described this as police harassment and said that this helped explain the applicant’s distrust of police and his statement to Judge Herbert in sentencing that this distrust had caused the applicant to “take matters into his own hands rather than requesting assistance” (see [37] above).

    [45] Transcript at 147.

    [46] R1, 138–99.

    [47] R1, 138–99.

13. Mr Poynder himself observed that the Minister’s counsel had not referred to those police records.[48] The applicant was not cross-examined on his attitude towards the police or his interactions with police other than in relation to the offences of which he has been convicted. The only conduct of the applicant to which I was taken, and which I take into account in this matter, is the applicant’s offending as described in the sentencing remarks and his conduct while imprisoned and in detention. None of the offences of which the applicant has been convicted was against police. Likewise, while the applicant sought to explain his behaviour by his statement to Judge Herbert (see [51] above), it is difficult to see how the offence with which her Honour was dealing could be characterised as the applicant “taking matters into his own hands rather than requesting assistance”. It was, as her Honour elsewhere described it, a premeditated, violent offence, committed with others apparently for material gain. The same description applies equally to the circumstances that gave rise to the reckless wounding in company conviction in relation to which Magistrate Breton made the observation that “drug deals do go down often with violence as a potential consequence” (see [38] above).

    [48] Transcript at 147.

14. In relation to the applicant’s behaviour while in prison and immigration detention, in a lot of cases the applicant contested the details as set out in the reports to which he was taken in cross-examination. In closing, Mr Poynder submitted that where there was a contest as to what happened and that the applicant’s evidence should be preferred over the written report as the authors of the reports were not called to give evidence. I agree that that is the preferred approach. Even accepting the applicant’s version of events where there was such a contest, it is the case that the applicant’s conduct while he has been in prison and immigration detention has been poor. The applicant himself conceded that that was the case.[49] Magistrate Breton commented that “[h]is record since he went into custody is not so impressive” (see [38] above).

    [49] Transcript at 79–80.

15. The New South Wales Corrective Services record of punishment[50] shows 20 transgressions between December 2019 and November 2021 for which the applicant received punishment. In cross-examination, the applicant accepted that on 5 December 2019 he had “a bit of a misunderstanding”,[51] with another prisoner and that the other prisoner had attacked him and that he had “attacked him back”.

    [50] R2, 68–9.

    [51] Transcript at 51.

16. The applicant admitted that he had assaulted another prisoner on 14 March 2020.[52] He also conceded that he had been in possession of a prison-made knife in May 2020[53] and had a screwdriver in his pants in March 2021.[54] The applicant had also been charged with possession of an offensive weapon in November 2021. The incident detail report[55] described the weapon as “a 20 cm piece of metal sharpened to a point with lined wrapped around one end to make a handle”. The applicant agreed that that was an accurate description of the “knife” that he agreed he was making. Asked why he needed a knife, the applicant’s evidence was:

    - it was just gaol, miss. I guess - I am surrounded in the jungle, basically. I am surrounded with good people and some bad people as well, you know? That’s all I can say to you, miss; I can’t say anything more than this, to be honest.[56]

    [52] Transcript at 52.

    [53] Transcript at 53.

    [54] Transcript at 56.

    [55] R1, 52.

    [56] Transcript at 63.

17. The applicant was taken in cross-examination to an incident in the Clarence Correctional Centre in October 2021. The report of that incident[57] set out what it was claimed the applicant had said to prison officers. The applicant disputed having said all of what was set out in the report. The applicant’s evidence was:

    COUNSEL:     I will repeat it, Mr Barkho, so everyone is clear as to what you said to                     the officer. What you are telling the [T]ribunal is that you told the   officer, “Just fucking take it up there, now. It’s your job, cunt.” You   recall   saying that?

    APPLICANT:   That’s it. That’s all I recall me saying. After that, I never said nothing    to him; he was the only one that was swearing at me when he   jammed the door in front of my face. He locked me in my cell and   started swearing at me behind the door. Somehow, that has never   been reported; obviously because he is an officer and I am an   inmate.[58]

    [57] R1, 71.

    [58] Transcript at 57.

18. The New South Wales Department of Corrective Services Conviction, Sentences and Appeals record showed four convictions for possession of drugs while in prison.[59] The applicant agreed that he had used buprenorphine, referred to as “bupe”.[60] Buprenorphine is a prescription drug taken as a replacement in the treatment of morphine and heroin addiction. The applicant’s evidence was that buprenorphine is also known as Suboxone. The applicant’s evidence in re-examination was:

    Yes, I did use it in prison because I was stressing out and going through some hard times there as well, too. A lot of shit has happened in my life - what has happened with me and how I have gone back to gaol, again, and my missus that I broke up with. Just to take the stress out of my head, you know?[61]

    [59] R2, 68–9.

    [60] Transcript at 68.

    [61] Transcript at 105.

19. In closing submissions, the applicant’s counsel pointed to the NSW Corrective Services assessment dated 6 July 2020,[62] which assessed the applicant as a low to medium risk of reoffending. Counsel submitted that it was significant that the applicant was not diagnosed with any particular mental illness until Dr Abu-Arab’s report of 26 May 2020.[63] While that is probably technically correct,[64] Dr Mohammad in his report dated 17 July 2019 said that the applicant had been referred to him by the applicant’s GP as he presented with “anger control issues and anxiety”.[65]

    [62] R2, 148.

    [63] R2, 151–4.

    [64] Dr Abu-Arab’s report dated 26 May 2020 was the first to specifically refer to PTSD and opined that the applicant “qualifies for the diagnosis of Chronic [PTSD] according to the Diagnostic and Statistical Manual of Mental Disorder[s], DSM-V”.

    [65] R2, 162; see [49] above.

20. The applicant’s counsel also referred to the applicant’s willingness to receive treatment, citing the pre-release report dated 6 May 2022.[66] Relevantly that report stated:

    While in custody Mr Barkho has continued with his external psychologist appointments and as previously mentioned, verbalised his intentions of continuing. Given his medium-low risk rating, some custodial interventions were not available to Mr Barkho, however it was recommended by Case Manager he be placed into EQUIPS programs. Mr Barkho has completed EQUIPS Foundations.

    [66] R1, 6.

21. The pre-release report also reported:

    Mr Barkho completed EQUIPS Foundations on 5 January 2022. Service records indicated his level of engagement was intermittent to consistent, and his level of understanding was satisfactory to high.

    …

    In May and June 2020, service records indicate that Mr Barkho participated in three sessions of the Positive Lifestyle Program while housed at Parklea Correctional Centre. In April 2021 while housed at Macquarie Correctional Centre, Mr Barkho participated in three addiction support sessions.

22. Counsel for the applicant also referred to Dr Abu-Arab’s most recent report dated 26 September 2022[67] in which Dr Abu- Arab stated:

    Overall, I am satisfied with the progress that Mr Barkho achieved in terms of his psychological and emotional problems as well as his insight to his offences and the suffering that he has caused to his victims. He has reasonable and attainable plans for the future.

    I will be pleased to continue treating Mr Barkho in the future, if necessary, as part of his rehabilitation.[68]

    [67] R2, 303–5.

    [68] R2, 305.

1. As noted in the pre-release report (see [59] above), because of the applicant’s medium-low risk rating, the courses and programs available to the applicant were limited. The applicant’s evidence in relation to the EQUIPS programs was:

   … I did complete that one, but not three of them. Because there is three type of EQUIPS; there’s EQUIPS Foundation, and EQUIPS Aggression, and EQUIPS Addiction. So the only one that I didn’t do, it was EQUIPS Aggression. So I’ve done the addiction and I’ve done … [t]he foundation.[69]

   [69] Transcript at 80.

2. The applicant also undertook an addiction program in Macquarie Correctional Centre in April 2021. I also note that amongst the document produced by the applicant there is a Salvation Army Positive Lifestyle Program completion certificate dated 18 June 2020,[70] which the applicant refers to in his statutory declaration dated 2 September 2022. In that statutory declaration, the applicant also refers to having undertaken an information technology program.[71]

   [70] R2, 245.

   [71] R2, 280.

3. Both parties referred to the applicant as being a low-medium risk of reoffending, the same assessment made by the NSW Corrections sentencing assessment report dated 6 July 2020. The applicant places considerable weight on the reports of Dr Abu-Arab and his treatment of the applicant and the prospect of that treatment continuing in assessing the applicant’s risk of reoffending. That reliance does, however, assume that the applicant’s mental condition, in particular PTSD, was the cause or a significant contributing factor in the applicant’s offending. While Dr Abu-Arab in his report dated 26 May 2020[72] expressed the view that the applicant’s “mental illness contributed to his criminal behaviour”, like Judge Herbert, I have difficulty accepting that view. As her Honour pointed out, the behaviours associated with PTSD, as described by Dr Abu-Arab in that report, relevantly include “outbursts of anger and difficulty controlling their aggressive behaviour”. However, the two most serious offences of which the applicant has been convicted, while violent, could not properly be characterised as outbursts of anger or an inability to control aggressive behaviour. Both offences were premeditated and committed against victims who had done nothing to threaten the applicant. In that regard, Mr Poynder in closing suggested that the applicant’s paranoia, a product of his PTSD, helped explain his violent offending and the unprovoked attacks on the victims of his two most serious offences.  He made the following submissions:

   And he said that he swung the metal bar to protect himself. And that is classically a manifestation of paranoia arising from PTSD. Dr Abu-Arab said - and this is at page 304 of the G documents, in his report of the - the most recent report, 26 September 2022. Dr Abu-Arab said, about half - or about a third of the way down the page:

   In treatment, we addressed his post-traumatic symptoms, including his insomnia, irritability, excessive anger and depressed mood. He has a good insight into his traumas and to the impact of his traumas on his behaviour, and he sleeps better as a result of that.

   Excuse me. It’s the irritability, excessive anger and depressed mood which, in my submission, is something which the applicant was carrying at that time.[73]

   [72] R2, 154.

   [73] Transcript at 150.

4. Dr Abu-Arab’s report of 26 September 2022 did not identify paranoia as a symptom of PTSD. Further, as noted earlier, Judge Herbert in sentencing the applicant did not accept that the applicant’s PTSD materially contributed to his offending (see [37] above).

5. While obviously it is positive that the applicant appears to be taking steps to address his mental health (the current state of which Dr Abu-Arab indicates can result in outbursts of anger and an inability to control violent behaviour) this would not appear to address, directly at least, the underlying cause or causes of the behaviour which resulted in the robbery in company and the reckless wounding in company both of which were premeditated.

6. It does appear that the applicant has gained some limited insight into his behaviour since he has been in prison and detention. The reservation that I have about the degree of the applicant’s insight is that his behaviour while he has been incarcerated has not been that of someone who appreciates the need to address his tendency to violence. I am also concerned that while the applicant referred to having undertaken an addiction program in Macquarie Correctional Centre in April 2021, there was no detail of how extensive that program was or what it involved. This is of some concern as we know from the applicant’s own description of the robbery in company that drugs played a not insignificant role in his offending. In re-examination, asked by his counsel to explain how he could have considered the victim of the robbery, whom he hit in the face with a metal pole, to have been partly to blame for the assault, his evidence was:

   I was just paranoid from everybody, you know, like, everybody that I didn’t know, like, at that time, because I was on the drugs too, you know? That was the time when I was using cannabis, I was using cocaine, as well, too, you know? I was mixing it together, and sometimes too, I was doing a bit of MDMA, that was playing with my mind too. A young man, he’s 17, 18 years old, he’s getting on all these drugs, you know what I mean?[74]

   [74] Transcript at 95–6.

7. I assess the risk of the applicant engaging in further offending or serious conduct to be at the lower end of medium.

8. As noted above, the harm that would be caused should the applicant engage in the offending behaviour that he has in the past, is serious (see [48] above). This, coupled with my assessment of the risk of the applicant re-offending as being at the lower end of medium, leads me to consider that this first primary consideration weighs against revocation of the cancellation of the applicant’s visa and that moderate weight should be given to it.

   Second primary consideration: Family violence committed by the non-citizen (para 8.2)

9. Both parties considered that this consideration was not relevant.[75] There is no evidence that the applicant has engaged in family violence, and I agree that this consideration is not relevant.

   [75] Applicant’s SFIC para 18; Minister’s SFIC para 33.

   Third primary consideration: The best interests of minor children in Australia (para 8.3)

10. Again, both parties’ position was that this consideration was not relevant.[76] While there was reference in some of the material filed by the applicant to his having nephews and nieces in Australia, no information about the ages of these nephews and nieces was provided and the applicant made no submission, nor did he put on any evidence which would give rise to this being a relevant consideration.

    [76] Applicant’s SFIC para 19; Minister’s SFIC para 34.

    Fourth primary consideration: Expectations of the Australian community (para 8.4)

11. Paragraph 8.4 of Direction 90 relevantly provides:

    (1)  The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

    (2)  In addition ... non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

    (a)  acts of family violence; or

    (b)  causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

    (c)   commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/ material exploitation or neglect;

    (d)  commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

    (e)  involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

    (f)    worker exploitation.

    (3)  The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

12. This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case. The principles set out in para 5.2 of Direction 90 as set out in [24] above are also relevant to this consideration.

13. In FYBR v Minister for Home Affairs,[77] the Full Court considered the operation of the corresponding provisions in Ministerial Direction No 65 (Direction 65)[78] (a predecessor to Directions 79 and 90: see [22] above). The relevant provisions of Direction 90 contain generally similar wording to the corresponding provisions in Direction 65.

    [77] [2019] FCAFC 185; (2019) 272 FCR 454.

    [78] Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014).

14. In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[79] at [156], I summarised the effect of the Full Court’s judgment in FYBR, and the current state of the law as follows:

    The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]-[78].

    [79] [2020] AATA 3953.

15. Justice Stewart in FYBR found:

    89.It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.

    90.However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.

    91.The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.

    (Emphasis omitted.)

16. In that case Justice Charlesworth observed:

    75.Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.

    ...

    79....The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.

    (Emphasis omitted.)

17. Due to the application of the “norm”, as it is now referred to in para 8.4(1) of Direction 90, and the deeming operation of the corresponding Direction as found by the Full Court in FYBR, this primary consideration weighs against the revocation of the cancellation of the applicant’s visa.

18. I must, however, determine the weight that should be given to this consideration. Some guidance in this regard is provided by para 8.4(2) Direction 90 (see [72] above), which provides that the Australian community expects that the Australian Government can, and should, refuse entry to non-citizens if they raise serious character concerns through conduct, in Australia or elsewhere, of the kind listed is sub-paras 8.4(2)(a)–(f) of Direction 90.

19. The applicant’s submission in relation to this consideration was:

    This factor is generally taken to count against the applicant, and it is likely to do so in the present case.[80]

    (Footnote omitted.)

    [80] Applicant’s SFIC para 20.

20. The Minister’s SFIC contended as follows:

    (a)Paragraph 8.4(1) of Direction 90 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct and breached this expectation, or where there is an unacceptable risk that they will breach it, the Australian community expects as a norm that the Government will not allow such non-citizens to remain in Australia.

    (b)Paragraph 8.4(2) further provides that it may be appropriate not to revoke the mandatory visa cancellation of such a person simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not continue to hold a visa.

    (c)Observing the norm stipulated in para 8.4(1), and in accordance with the guidance provided by the principles set out in sub-paras 5.2(2), (3) and (4) of Direction 90, the Australian community would expect that the applicant should not continue to hold a visa on account of his offending. The Minster contends that this primary consideration weighs heavily against revocation, even if the Tribunal concludes that the applicant does not pose a “measurable risk of causing physical harm to the Australian community”.

21. None of the offences of which the applicant has been convicted falls into the offences listed in para 8.4(2) of Direction 90. As noted at [73] above and as referred to by the Minister, some guidance on the weight to be given to this consideration is provided in the general principles identified in para 5.2 of Direction 90. In the present case, however, none of the factors identified in para 5.2, in particular that the community might show more tolerance in the circumstances identified in para 5.2(4), applies in the present case. The applicant has not contributed to any significant degree to the community, he has not lived most of his life in Australia and, while he was a minor when he arrived, he has not lived in Australia from a very young age.

22. The one factor which may affect the expectations of the community is the applicant’s youth when he committed the offences. The applicant was barely 18 years old when he committed his first offence and is still young.

23. The application of the “norm” under Direction 90, as guided by the Full Court in FYBR, means that this consideration weighs against revocation of the cancellation of the applicant’s visa. In the circumstances, bearing in mind that the offences of which the applicant has been convicted do not come within the ambit of para 8.4(2) of Direction 90, and taking into account the applicant’s youth, only moderate weight should be given to this consideration.

    OTHER CONSIDERATIONS

24. Paragraph 9 of Direction 90 sets out the “Other considerations” to be taken into account as follows:

    (1)  In making a decision under section ... 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations 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

    International non-refoulement obligations (para 9.1)

25. Paragraph 9.1 of Direction 90 relevantly provides:

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

    (2) In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

    (3)  However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.

    ...

    (5)  International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.

    (6) It may not be possible at the section 501/section 501CA stage to consider non­ refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non­refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

    (7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non­ citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.

    …

1. In relation to the reference to s 197C of the Act in para 9.1(2) as quoted above, I note that that the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) commenced on 25 May 2021. That Act made amendments to the Act including the introduction of s 197C(3) and a new s 36A relating to “protection findings” in the context of removal. Under the newly enacted s 197C(3) of the Act, an unlawful non-citizen will not be removed to a country if they have made a valid application for a protection visa that has been finally determined, and in the course of considering that application a “protection finding” was made. A “protection finding” includes, but is not limited to, a finding that a person a refugee[81] or is owed complementary protection.[82]

   [81] The Act s 36(2)(a).

   [82] The Act s 36(2)(aa).

2. As quoted above, para 9.1(7) of Direction 90 states that where a person makes a claim which may give rise to international non-refoulement obligations and the person is able to make an application for a protection visa, those claims will be “conclusively assessed” before consideration is given to any character or security concerns associated with the non-citizen. That obligation which applies to delegates of the Minister is also stipulated in Direction No 75,[83] made under section 499 of the Act.

   [83] Minister for Immigration and Border Protection (Cth), Direction no. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b) (6 September 2017).

3. In Plaintiff M1/2021 v Minister for Home Affairs[84] the High Court considered the question:

   In deciding whether there was another reason to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), was the Delegate required to consider the plaintiff’s representations made in response to the invitation issued to him pursuant to s 501CA(3)(b) of the Migration Act, which raised a potential breach of Australia’s international non-refoulement obligations, where the plaintiff remained free to apply for a protection visa under the Migration Act?

   [84] [2022] HCA 17; (2022) 96 ALJR 497 (Keifel CJ, Keane, Gordon and Steward JJ (with whom Gageler J agreed)).

4. The High Court found that in deciding whether there was “another reason” to revoke the cancellation decision pursuant to s 501CA(4)(b)(ii) of the Act, where the plaintiff remained free to apply for a protection visa under the Act:

   (1)  the Delegate was required to read, identify, understand and evaluate the plaintiff's representations made in response to the invitation issued to him under s 501CA(3)(b) that raised a potential breach of Australia's international non‑refoulement obligations;

   (2)  Australia's international non‑refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and

   (3) to the extent Australia's international non‑refoulement obligations are given effect in the Migration Act, one available outcome for the Delegate was to defer assessment of whether the plaintiff was owed those non-refoulement obligations on the basis that it was open to the plaintiff to apply for a protection visa under the Migration Act.

5. The applicant arrived in Australia on a Class XB Subclass 202 Global Special Humanitarian visa. As the applicant has never held a protection visa, he would not be the subject of the bar on making further applications should it be decided not to revoke the cancellation of his visa. This means that he would be able to make an application for a protection visa, where any claims for protection would be “conclusively assessed”. The Minister accepted that the applicant’s claims indicate a potential for Australia’s non-refoulement obligations to be engaged for the purpose of this decision and that there is a real likelihood that the applicant could face a real risk of suffering harm in Syria (consistent with the delegate’s finding).[85]

   [85] Minister’s SFIC para 46.

6. The Minister contended, as the delegate had found, that a finding as to whether non-refoulement obligations are in fact owed in respect of the applicant is not possible without a full and comprehensive assessment through a process similar to what is required to assess a protection visa application. The Minister accepted that if I were to affirm the delegate’s decision, the applicant may be subject to “indefinite detention” in the sense of there being “no chronologically fixed endpoint”.[86]

   [86] Minister’s SFIC para 51.

7. The Minister further conceded that an immediate legal consequence of a decision to affirm the delegate’s decision would be that the applicant will be liable to removal “as soon as reasonably practicable”. However, because the applicant is able to apply for a protection visa, a decision to affirm will not necessarily result in the applicant’s removal to Syria. The applicant would not be liable for removal whilst a valid protection visa application was being determined, although he would be detained for a period while that application is considered and decided.[87]

   [87] Citing Direction 90 para 9.1(3).

8. The Minster further contended that if an application for a protection visa were to result in a “protection finding”, the applicant would not be liable for removal until one of the circumstances set out in s 197C(3)(c) of the Act applies. According to the Minister, other mechanisms are available to bring about the end of the applicant’s detention without the applicant being removed to Syria. Consideration may be given to removal to another country, the Minister may consider exercising personal discretions under s 195A of the Act to grant another visa to the applicant, or to make a residence determination under s 197AB of the Act, which would enable the applicant to reside at a specified place in the community, subject to appropriate conditions.[88]

   [88] Citing Direction 90 para 9.1(3).

9. The applicant’s SFIC made submissions to the following effect:

   (a)The applicant has raised “a substantial and clearly articulated argument” that he is owed non-refoulement obligations as against Syria by reason of his Assyrian Christian religion.

   (b)The Minister has accepted that the applicant is a person in respect of whom there is a real likelihood that he could face a real risk of suffering harm if returned to Syria, including discrimination or death. This, according to the applicant, amounts to a finding that the applicant would satisfy Article 1A of the Refugees Convention,[89] which is given effect under the Act and it is, therefore, a mandatory relevant consideration under s 501CA(4) of the Act.

   (c)It is likely (although not inevitable) that the applicant will be granted a protection visa if the present decision is affirmed. The applicant submitted that “if he is granted a protection visa it is most unlikely he will be removed to Syria because of the risk of serious harm that he faces in that country.”[90] I assume that the applicant meant to say “if he is not granted a protection visa”. The applicant says that in those circumstances, he would face indefinite detention.

   (d)Indefinite detention would likely be in breach of Australia’s international obligations, including the prohibition of arbitrary arrest or detention in art 9.1 of the International Covenant on Civil and Political Rights;[91] this may also be contrary to Australia’s national interests.[92]

   (e)Prolonged detention would be bad for the applicant. Dr Mohammad[93] commented on the need for “sufficient safety and normality” to be restored to the applicant’s daily life before he can best engage in counselling for his condition, and prolonged detention would certainly inhibit his recovery and likely to cause further adverse impact on his mental health. Moreover, the applicant would be unable to assist his parents, who are in poor health and in desperate need of his support.

   [89] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954).

   [90] Applicant’s SFIC para 24.

   [91] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171.

   [92] Citing BNGP v Minister for Immigration [2022] FCA 878 at [51].

   [93] R2, 162.

10. While I appreciate that it is arguable that I would not commit a jurisdictional error if I were to defer consideration of whether the applicant is owed non-refoulement obligations, I consider that it is appropriate to have regard to this consideration in the present case, particularly in circumstances where the Minister has conceded that there is a real likelihood that the applicant could face a real risk of suffering harm if returned to Syria (see [91] above).

11. In light of the above statements of executive policy and the amendment to s 197C of the Act, I am satisfied that it is highly unlikely that Australia will remove the applicant to Syria as a consequence of a decision to affirm the delegate’s decision. The Minister accepts that if I were to affirm the delegate’s decision, the applicant may be subject to “indefinite detention” in the sense of there being “no chronologically fixed endpoint” (see [92] above). I agree with that assessment.

12. The practical consequence of affirming the decision not to revoke the cancellation of the applicant’s visa will be that the applicant will be detained in immigration for a period with no “fixed chronological endpoint”.[94] There is also the theoretical possibility, albeit very remote, that a consequence of affirming the decision may be that the applicant is returned to Syria. I accept that if that were to happen, the applicant would face a real risk of suffering harm. The reality is, however, that the highly likely consequence of the visa remaining cancelled is that the applicant will remain in immigration detention for an indefinite period. I accept that, given the applicant’s diagnosed mental health conditions, continued detention for an indefinite period will have an adverse impact on his mental health, as indicate by Dr Mohammad (see [95] above).

    [94] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463 at [136].

13. This consideration weighs in favour of exercising the discretion to revoke the cancellation of the applicant’s visa and I find that moderate weight should be given to it.

    Extent of impediments if removed (para 9.2)

14. Paragraph 9.2 of Direction 90 provides:

    (1)  Decision-makers must consider the extent of any impediments that the non­citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    a)the non-citizen’s age and health;

    b)whether there are substantial language or cultural barriers; and

    c)any social, medical and/or economic support available to them in that country.

15. The relevant consideration is whether, taking into account the considerations identified in sub-paras 9.2(1)(a), (b) and (c), the applicant would face an impediment or impediments in establishing and maintaining basic living standards in the context of the basic living standards that other citizens of Syria enjoy.

16. The applicant’s submission in relation to this consideration at para 28 of his SFIC was that “[g]iven the unlikelihood that the applicant will be removed to Syria, this consideration ought to be treated as neutral”. The applicant’s counsel made no submission on this consideration in his closing submissions.

17. The Minster’s position in relation to this consideration as set out in his SFIC was:

    (a)The applicant is in his early twenties and has been diagnosed with PTSD.

    (b)The applicant was born in Syria, grew up there, and would be familiar with the language and culture.

    (c)The applicant would have access to the same social, medical and economic support available to other citizens of Syria, acknowledging that they would not be to the same standard as that available in Australia.

18. The applicant is young and there is no evidence to suggest that he is not physically fit. Potential impediments would include his mental health conditions, in particular his diagnosed PTSD, and the real possibility of him being targeted and suffering harm because he is Christian. Even if those factors do not come strictly within the circumstances described in para 9.2, they are still matters to be taken into account in determining whether there is “another reason” why the decision not to revoke the cancellation of the visa should be revoked.

19. I am mindful of the applicant’s submission, in effect, that this is not a relevant consideration because he is not going to be returned to Syria. However, his being returned to Syria is still a legal possibility, albeit extremely remote. I consider that this is a relevant consideration that weighs in favour of the revocation of the cancellation of the visa, however, because of the relatively minor nature of the potential impediments and the extremely low likelihood of the applicant being returned to Syria, only minor weight should be given to this consideration.

    Impact on victims (para 9.3)

20. Both parties treated this consideration as not being relevant in the present case. I agree.

    Links to the Australian Community (para 9.4)

21. Paragraph 9.4 of Direction 90 provides:

    Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.

    Strength, nature and duration of ties to Australia (para 9.4.1)

22. Paragraph 9.4.1 of Direction 90 is as follows:

    (1)  Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

    (2)  Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non­citizen has to the Australian community. In doing so, decision-makers must have regard to:

    a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

    i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

23. The applicant made the following contentions in his SFIC:

    (a)The applicant has lived in Australia for seven years and has substantial, close ties to the Australian community.

    (b)Both of the applicant’s parents live in Australia; his father became a citizen in April 2022[95] and his mother holds permanent residence through her Class XB Subclass 202 Global Special Humanitarian visa.

    [95] Citing R2, 266.

    (c)The applicant’s father was sponsored to migrate to Australia by his cousin, and he has no less than 20 cousins in Australia.[96]

    (d)The applicant has worked in Australia as a steel-fixer, and this position of employment remains open to him, should he be allowed to remain in Australia.[97]

    (e)The applicant’s parents are both in very poor health, mentally and physically. According to Dr Mohammad,[98] the applicant’s mother has been diagnosed with mixed chronic anxiety and depression, and her mood has worsened since the applicant’s incarceration. Dr Mohammad has reported that the applicant’s mother also suffers from multiple physical problems, including hearing impairment, neck and back pain, and physical symptoms arising from her emotionally distressed condition.

    (f)The applicant’s mother’s statement[99] stated that the applicant is the only child from six children who is still with her; the others are either in Sweden, the USA or deceased.[100] She stated that “he is all that my husband and I have left with us in Australia”.[101]

    (g)According to Dr Abdel-Megeed,[102] the applicant’s father has been diagnosed as suffering from various conditions, including Bell’s Palsy, hyperlipidaemia, and major depression as a result of the death of another son from leukaemia. He is suffering from “insomnia, lack of appetite, mood swings, and a sense of hopelessness”.

    (h)In his statement, the applicant’s father stated “If [the applicant] was to be deported back to Syria I will be heartbroken and I will have a nervous breakdown. [The applicant] is the only person closest to my wife and I in Australia … I cannot imagine life without [the applicant] in Australia, Both my wife and I have sacrificed everything in our life to save [the applicant] from harm”.[103]

    (i)While the likelihood of the applicant being deported to Syria is low, the prospect with having their only close child incarcerated indefinitely in immigration detention and out of physical reach is unlikely to assuage the terrible and ongoing effect on the applicant’s parents.

    (j)The applicant’s parents have become highly physically dependent upon the applicant. Dr Abu-Arab has said that they “desperately need their son to provide the care and support that is otherwise not available to them”.[104]

    (k)The applicant’s father said in his statement that “Both my wife and I need [the applicant] in Australia to care for us as he used to before he was in prison”.[105]

    (l)According to the applicant’s mother’s statement,[106]  “we have struggled emotionally, physically, socially and financially. Tomy was our everything, he would help me with communicating in English and translating, he would assist me at home with cleaning, shopping, attending doctor’s appointments and assist me with taking public transport”.

    [96] Citing R2, 211.

    [97] Citing R2, 246–7.

    [98] Citing R2, 234–5.

    [99] R2, 214–6.

    [100] Citing R2, 214 para 7.

    [101] Citing R2, 215 para 22.

    [102] Citing R2, 233.

    [103] Citing R2, 218 para 19.

    [104] Citing R2, 233.

    [105] Citing R2, 218 para 19.

    [106] Citing R2, 215 para 20.

24. The Minister, through his SFIC, made the following submissions:

    (a)The applicant has lived in Australia for five years.

    (b)This is not a case where the applicant arrived as a young child; he was 16 years of age when he arrived.

    (c)There is some evidence of the applicant making a positive contribution to the community limited to being employed in steel fixing for a six-month period.

    (d)In relation to family members in Australia, the applicant has his parents, girlfriend and other extended family members, including two uncles and 28 cousins.

    (e)The impact on Australian business interests is not relevant in the present case because it will normally only be considered relevant when non-revocation would significantly compromise the delivery of a major project.

25. The applicant’s parents provided written statements and gave evidence at the hearing. Neither of the applicant’s parents spoke English and their evidence was given through an interpreter. In cross-examination the applicant’s mother was taken to her written statement dated 1 October 2021.[107] Her initial evidence was that she had not made any written statement.[108] Mr Poynder advised that, as far as he was aware, the statement had been prepared by his instructors. After submissions by both counsel as to whether the instructing solicitor, Mr Fasha, could or should be called to give evidence as to the circumstances of the preparation of the applicant’s mother’s statement, I allowed him to be interposed to give evidence. His evidence was that the statement had been prepared by a solicitor employed by Mr Fasha who spoke the same language as the applicant’s mother, that the content of the statement had been explained to the applicant’s mother and that she had signed it.[109]

    [107] R2, 214–6.

    [108] Transcript at 115.

    [109] Transcript at 120.

1. The applicant’s mother was then re-called. As she was under cross-examination, I asked her whether she now had a recollection of giving the statement. She said that she did. I also asked her whether she had told the lawyer preparing the statement what to put in it. Her answer, through the interpreter was:

   Yes, as we said, like - you know, we said to Mary, whatever you think, it’s right on our side or it’s in our advantage, you write it down. And we appointed her for that.[110]

   [110] Transcript at 122.

2. I sought clarification of the above answer as it suggested that the applicant’s mother had had little or no input into the contents of the statement. The applicant’s mother advised that she had told the lawyer assisting with the preparation of the statement about her illnesses and other matters. I am satisfied that the substance of the statement was provided by the applicant’s mother. Further, there is nothing particularly controversial in her statement and a lot of the information set out is verified by, or consistent with, other evidence (e.g. her medical conditions are the subject of medical evidence provided by Dr Mohammad (see [109(e)] above).

3. The applicant’s mother was cross-examined on her knowledge of the applicant’s offending. In her evidence at the hearing, the extent of her understanding was that the applicant had made mistakes. Her witness statement[111] referred to the “Aggravated Robbery” and the “Reckless Wounding in Company” and set out the sentences imposed for these offences. It was clear, however, that she had little understanding of the applicant’s offending. Her evidence was that she was not aware that the applicant was using drugs when he lived with her. She said in cross-examination that her husband went to the local shops or shopping centre to purchase household needs.[112]  

   [111] R2, 214 paras 12–13.

   [112] Transcript at 129.

4. The applicant’s father also provided a written statement[113] and gave evidence at the hearing. His evidence was to the effect that the applicant was the only child that they had in Australia and that he has two brothers in Australia, each of whom have children. He also stated that he “has many cousins in Australia”.[114] His evidence at the hearing was that he was his wife’s full-time carer and receives carer payments through Centrelink. His wife also receives Centrelink payments. While the applicant lived with his parents, he helped to support them financially. The applicant’s father also confirmed that he went to the local shops to do the shopping for himself and his wife.

   [113] R2, 217–9.

   [114] R2, 217 para 9.

5. The other witness called by the applicant was his girlfriend, Ms Contini. She had also provided a written statement.[115] Her statement and her evidence were to the effect that she and the applicant had been in a relationship since around May 2022, when the applicant was transferred from prison into immigration detention.[116] She presently lives with the applicant’s parents. Her understanding of the applicant’s offending was that it was “self-defence”.[117]

   [115] R2, 282.

   [116] Transcript at 138.

   [117] Transcript at 139.

6. I accept that the applicant has strong ties to his immediate family, being his mother and his father. I do not treat Ms Contini as immediate family. She said that she has been friends with the applicant for five years and in a “relationship” with the applicant since May 2022. I note that during the whole of their “relationship” the applicant has been in immigration detention. It is clear that she has no appreciation of the seriousness of the applicant’s offending.

7. I accept that the impact on the applicant’s parents of his being deported would be very significant. He is their only son in Australia and it appears, up until the time of his arrest, he provided support to them. They are both in poor health and while the applicant’s father is presently able to look after himself and the applicant’s mother, his health is declining, and I accept that they would be assisted by the applicant remaining in Australia.

8. In relation to the factors identified in para 9.4.1(2) of Direction 90, the applicant’s ties to the community are limited. He only arrived in Australia in November 2016 and has been in prison or immigration detention since November 2019, that is for approximately half of the time that he has been in Australia. A statement was provided by his former employer, Mr Pules,[118] who described the applicant as working well with other team members and acting, at times, in the role of steel-fixing leading hand/supervisor. He provided a further statement[119] to the effect that he would be prepared to offer the applicant a job.  A statement dated 10 August 2020 was provided by Ms Oraha[120] who said that she had, at that time, been dating the applicant for around four years. The applicant and Ms Oraha’s relationship, according to the applicant, ended in or around early 2021.[121]

   [118] R2, 246.

   [119] R2, 247.

   [120] R2, 236.

   [121] Transcript at 14.

9. In relation to the factors specifically identified in para 9.4.1(2)(a) of Direction 90, the applicant has lived in Australia for six years, three of which he has been in prison or immigration detention. He commenced offending soon after arriving in Australia and his contribution to the community, other than for a limited period of employment, has been minimal. Other than to his mother and father, he has few ties or social links to other members of the community. Little weight can be given to the factors identified in para 9.4.1(2) of Direction 90.

10. I accept that the impact on the applicant’s parents if he were to be deported would be significant. Overall, the consideration of the applicant’s links to the Australian community, because of the impact on his parents of an adverse decision, weighs in favour of revocation of the cancellation of the decision to cancel the applicant’s visa. Moderate weight should be given to this consideration.

    THE WEIGHING EXERCISE

11. Direction 90 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account (see [26] above).

12. A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[122] and the Full Court judgment in Minister for Home Affairs v HSKJ.[123]

    [122] [2018] FCA 594.

    [123] [2018] FCAFC 217; (2018) 266 FCR 591.

13. Colvin J’s judgment in Suleiman was considered by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[124] At [21], Wigney J cited [23] of Colvin J’s judgment which was as follows:

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

    (Emphasis omitted.)

    [124] [2021] FCA 775.

14. Wigney J then observed at [22]:

    It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.

    (Emphasis omitted.)

15. The Tribunal in CZCV at [164] summarised the legal position as follows:

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

16. I adopt the approach directed by the above cases.

17. I find that the first primary consideration, the protection of the Australian community, weighs against revocation of the cancellation of the applicant’s visa and that moderate weight should be given to it (see [69] above).

18. The second primary consideration, family violence, and the third primary consideration, the best interests of minor children, are not relevant in the present case.

19. The fourth primary consideration, the expectations of the Australian community, as it must, weighs against the revocation of the cancellation of the applicant’s visa and I find that moderate weight should be given to this consideration (see [84] above).

20. In relation to the “other considerations” identified in Direction 90, I find that international non-refoulement obligations weighs in favour of revocation of the cancellation of the applicant’s visa and I find that moderate weight should be given to it (see [98] above).

21. The consideration of the extent of impediments if removed weighs in favour of revocation of the cancellation of the visa, however, only minor weight should be given to this consideration (see [104] above).

22. I find that the consideration of links to the Australian community weighs in favour of revocation of the cancellation of the applicant’s visa and that moderate weight should be given to this consideration (see [121] above).

23. I am mindful that para 7(2) of Direction 90 states that primary considerations should generally be given greater weight than the other considerations (see [26] above). Nothing has been presented which would indicate that that general principle should not apply in the present case.  Having weighed the considerations in favour of the revocation of the cancellation of the applicant’s visa and the considerations against the revocation of the cancellation of the applicant’s visa, I find that the primary considerations, which both weigh against revocation, outweigh the other considerations in favour of revocation. Accordingly, I find that there is not another reason to revoke the cancellation of the applicant’s visa.

    DECISION

24. The decision of the delegate of the Minister dated 27 September 2022 not to revoke the cancellation of the applicant’s Class XB Subclass 202 Global Special Humanitarian visa pursuant to s 501CA(4) of the Act, is affirmed.

I certify that the preceding 135 (one hundred and thirty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

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

Associate

Dated: 14 December 2022

Dates of hearing:	28-29 November 2022
Counsel for the Applicant:	Mr N Poynder
Solicitors for the Applicant:	John Fasha Solicitors
Counsel for the Respondent:	Ms D Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers