BFMV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 5213
•8 December 2020
BFMV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5213 (8 December 2020)
Division:GENERAL DIVISION
File Number(s): 2020/5699
Re:BFMV
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:8 December 2020
Date of written reasons: 24 December 2020
Place:Canberra
The Tribunal affirms the reviewable decision dated 15 September 2020 not to revoke visa cancellation decision made under section 501(3A) of the Migration Act 1958.
Catchwords
MIGRATION – non-revocation of mandatory cancellation of visa –where visa was cancelled under s 501(3A) because applicant did not pass the character test - substantial criminal record under s 501(7) – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 79 – risk of re-offending – the protection and expectations of Australian community – minor children – consideration of non-refoulement obligations - strength nature and duration of ties – impediments to establishing and maintaining basic living standards if applicant removed – giving meaningful consideration to risk of harm – decision affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Ali v Minister for Home Affairs [2020] FCAFC 109
AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105
AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
CWGF v Minister for Home Affairs [2019] FCA 1802
DFTD v Minister for Home Affairs [2020] FCA 859
DWQ and Minister for Home Affairs (Migration) [2019] AATA 4622
FYBR and Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
KYMM and Minister for Home Affairs (Migration) [2019] AATA 5174
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar [2019] FCAFC 188
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection[2018] FCA 594
XBYC and Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4426
XBYC and Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4426Secondary Materials
Department of Foreign Affairs and Trade, Smart Traveller: Iraq, accessed 22 December 2020.
Department of Foreign Affairs and Trade, Country Information Report: Iraq, 17 August 2020.
REASONS FOR DECISION
Senior Member Linda Kirk
24 December 2020
BFMV (‘the Applicant’), a citizen of Iraq, was born in 1990.[1] He was granted a Class XB subclass 200 Refugee Visa (‘the visa’) in December 2009.[2] He arrived in Australia on 23 February 2010.[3]
[1] Exhibit R1, G2, 55.
[2] Exhibit R1, G2, 84.
[3] Exhibit R1, G2, 57, 83.
On 15 January 2019, the Applicant was convicted in the Liverpool Local Court of destruction or damage to property, two counts of common assault, and three counts of stalking/intimidating with intent to cause fear of physical harm (personal) and sentenced to an aggregate term of 18 months’ imprisonment.[4]
[4] Exhibit R1, G2, 24-26.
On 14 February 2019, the Department issued the Applicant with a Notice of Visa Cancellation (‘the Mandatory Visa Cancellation Decision’) under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that he did not satisfy the character test in subsection 501(6) of the Act by virtue of the term of imprisonment referred to above.[5] On this date, the Applicant was serving a sentence of full-time imprisonment at Glen Innes Correctional Centre in New South Wales. The Applicant was invited to make representations about revoking the decision to cancel his visa by letter dated 14 February 2019.[6]
[5] Exhibit R1, G2, 11.
[6] Exhibit R1, G2, 84-88.
On 12 March 2019, the Applicant made a request for revocation of the Mandatory Visa Cancellation Decision and made representations to the Minister in support of his revocation request.[7]
[7] Exhibit R1, G2, 44.
On 29 October 2019, the Department of Home Affairs (‘the Department’) provided a Natural Justice Letter to the Applicant.[8]
[8] Exhibit R1, G2, 77; G11, 242.
On 24 November 2019 the Applicant completed a statement in support of his request for revocation.[9]
[9] Exhibit R1, G2, 72.
On 25 November 2019 the Applicant’s representative provided further information to the Department including the Applicant’s response to the Department’s Natural Justice Letter.[10]
[10] Exhibit R1, G2, 69-71; G12, 243.
On 3 December 2019 the Applicant’s representative provided further material to the Department.[11]
[11] Exhibit R1, G13, 250.
On 14 September 2020, a delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision under section 501CA(4) of the Act (‘the Reviewable Decision’).[12]
[12] Exhibit R1, G2, 11-22.
On 18 September 2020, the Applicant lodged an application with the Administrative Appeals Tribunal (‘the Tribunal’) seeking a review of the Reviewable Decision.[13]
[13] Exhibit R1, G1, 3.
The matter was heard at a hearing of the Tribunal on 23 and 25 November 2020. The Applicant attended the hearing via video-conference from Yongah Hill Immigration Detention Centre and was represented. He gave oral evidence at the hearing and was assisted by an interpreter in the Iraqi and English languages.
The Applicant also called a number of witnesses who were cross-examined:
(a)SK, the Applicant’s father;
(b)AN, Applicant’s mother;
(c)AA, the Applicant’s sister; and
(d)Tarmida Khaldon, religious leader.
The material before the Tribunal consists of:
·Respondent’s Statement of Facts, Issues and Contentions (‘Respondent’s SFIC’) dated 9 November 2020;
·Applicant’s Statement of Facts, Issues and Contentions (‘Applicant’s SFIC’) dated 22 October 2020;
·Applicant’s further submissions dated 18 November 2020;
·Respondent’s further submissions dated 3 December 2020;
·Applicant’s further submissions in reply dated 4 December 2020;
·Section 501 G-Documents filed 6 October 2020 (261 pages) – Exhibit R1;
·Supplementary section 501 G-Documents (with redactions) filed 9 November 2020 (292 pages) – Exhibit R2;
·Psychological Report of Hanan Dover dated 15 May 2019 (10 pages) - Exhibit A1
·Email Statement of Tarmida Khaldoon M. Abdullah, dated 5 November 2020 (1 page) – Exhibit A2;
·Psychological Report of Kasim Abaie dated 29 October 2020 (1 page) – Exhibit A3;
·Patient Health Summary of Ms AN, Applicant’s Mother, dated 17 November 2020 (1 page) – Exhibit A4;
·Email from EA, undated (1 page) – Exhibit A5;
·Email Statement of AA, dated 10 November 2020 (1 page) – Exhibit A6;
·Psychological Report of Hasan Cinar, dated 11 November 2020 (10 pages) – Exhibit A7; and
·Letter from Psychocentral dated 10 November 2020 (1 page) – Exhibit A8.
The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A) 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.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Relevantly, pursuant to paragraph 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to ‘a term of imprisonment of 12 months or more’.
Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 79
When considering whether to revoke the cancellation decision, the Tribunal is required under subsection 499(2A) of the Act to have regard to the Minister’s Direction. The relevant Direction is Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’).
The Preamble to the Direction provides a framework for the guidance of decision-makers in deciding whether to exercise the discretion to revoke the mandatory cancellation of a visa under section 501CA of the Act. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The principles referred to in the General Guidance (and reproduced below) constitute a framework within which decision-makers apply the considerations in Part A, B, or C of the Direction.
Paragraph 6.2(1) of the General Guidance provides:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
The following Principles are set out in paragraph 6.3:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of the Direction sets out how the discretion under section 501 of the Act is to be exercised:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under subsection 501(3A) of the Act.
In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case. The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.
Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include ‘primary considerations’ and ‘other considerations’. The primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
The other considerations are:
(a) International non-refoulement obligations;
(b) Strength, nature and duration of ties [to Australia];
(c) Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 8(3) provides that ‘[b]oth primary and other considerations may weigh in favour of, or against … whether or not to revoke a mandatory cancellation of a visa.’ Paragraphs 8(4) and (5) provide that primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations.
ISSUES FOR DETERMINATION
Before the power in subsection 501CA(4) of the Act, to revoke the original decision, is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by paragraph 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[14] the Full Court of the Federal Court of Australia made the following observations in relation to subsection 501CA(4):
... there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view...[15]
[14] [2018] FCAFC 151.
[15] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are:
(a)whether the Applicant passes the character test; and
(b)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Background
The Applicant was born in Baghdad, Iraq in October 1990.[16] He is one of four children and his family are members of the Sabaean Mandean Christian minority in Iraq.[17] The Applicant attended school in Iraq until year 7. His family left Iraq when he was 10 or 11 years old due to them experiencing religious discrimination and oppression.[18] They fled to Syria where his family remain in refugee camps for seven years. They applied to the United Nations for a refugee visa and were approved to be resettled in Australia.[19] He arrived in Sydney as a holder of the visa in February 2010[20] at which time he was aged 20 years.
[16] Exhibit R1, G2, 55.
[17] Exhibit R1, G2, 19.
[18] Transcript of Proceedings, 23 November 2020, 16.
[19] Transcript of Proceedings, 23 November 2020, 15; Exhibit A1, 2.
[20] Exhibit R1, G2, 57, 83.
The Applicant worked in a range of jobs consisting of manual labour such as car washing and cleaning.[21] He subsequently he worked as a removalist for four years. Prior to being charged with assault, he was in the process of commencing a removalist business with his brother and he had been able to buy a few trucks to manage his sub-contracting work.[22] He ceased working following his 2018 offending.[23]
[21] Exhibit A7, 4.
[22] Exhibit A7, 4.
[23] Exhibit A1, 3.
Criminal history in Australia
The Applicant’s Nationally Coordinated Criminal History Check dated 8 February 2019 records the Applicant’s criminal history in Australia.[24] The following table lists the convictions recorded against the Applicant during the period December 2012 to January 2019:[25]
[24] Exhibit R1, G2, 24-34.
[25] Exhibit R1, G2, 24-34; Exhibit R2, SG2, 339-342.
Date Event 11 December 2012 The Applicant is convicted of Exceed speed limit by more than 10 km/h but not more than 20 km/h 21 January 2012 The Applicant is convicted of Exceed speed limit by more than 30 km/h but not more than 45 km/h whilst driving a motor vehicle The Applicant receives a police suspension from 21 January 2012 until 20 April 2012 29 May 2012 The Applicant receives a demerit point suspension until 28 August 2012 for his traffic offences dated 11 December 2011 and 21 January 2012 15 November 2013 The Applicant commits the offences of:
· Destroy or damage property (DV)
· Assault occasioning abh in company of other(s) (DV)-T2
16 November 2013 An Apprehended Violence Order is made against the Applicant in relation to his offending dated 15 November 2013. 8 October 2014 The Applicant is sentenced to three months imprisonment for Destroy or damage property (DV) The Applicant is sentenced to 16 months imprisonment for
Assault occasioning abh in company of other(s) (DV)-T2
2 December 2014 The Applicant commits the offences of:
· Not comply with conditions of provisional licence (not display signs) as required
· Exceed speed limit by more than 45 km/h whilst driving a motor vehicle
The Applicant receives a police suspension until 1 January 2015.
17 April 2015 The Applicant's three month order for imprisonment for committing the offence of Destroy or damage property (DV) is varied to a 16 month Intensive Correction Order 8 May 2015 The Applicant receives a demerit point suspension until 7 October 2015 for his traffic offences dated 2 December 2014. 15 January 2019 The Applicant is sentenced to 18 months imprisonment in Liverpool Local Court for the offences of:
· Destroy or damage property (DV)
· Common assault-T2
· Common assault-T2
· Destroy or damage property <=$2000-T2
· Stalk/intimidate intend fear physical etc harm (personal)-T2
· Stalk/intimidate intend fear physical etc harm (personal)-T2
· Stalk/intimidate intend fear physical etc harm (personal)-T2
2014 convictions
On 8 October 2014 the Applicant was convicted in the District Court of New South Wales at Penrith of Destroy or damage property (DV) and Assault occasioning actual body harm in company of other(s). He was sentenced to a 16-month term of imprisonment for the assault conviction and a three month term of imprisonment for the damage property conviction. He was released subject to supervision and lodged a severity appeal. On 17 April 2015 the Destroy or damage property (DV) sentence was varied, and he received a three year good behaviour bond; on 12 June 2015 the Assault occasioning actual bodily harm in company of other(s) (DV) sentence was varied to allow the sentence of imprisonment to be served by way of a 16 month intensive correction order.
The offences occurred when four males, including the Applicant, approached a van and one of them used a bat to smash the driver’s side window. The Applicant then thrust a knife in the window of the car and attempted to try and stab the victim in the chest. The Applicant stated that all his offending involved ‘distant relatives’.[26] In sentencing the Applicant for his 2018 offending, Magistrate Miller described these offences as ‘a disgraceful example of an assault.’[27]
During his oral evidence, the Applicant agreed that he committed a violent offence.[28] He told the Tribunal the incident came about as a result of a dispute between his family and his extended family and that he committed the offence with his brother.[29] He explained that the victim was his brother-in-law, his sister’s husband, and he had been violent towards her and this is what led to the dispute.[30] At the time of the offending, he was living with his family and had their support and that of his religious community.[31]
[26] Exhibit R1, G2, 45.
[27] Exhibit R1, G2, 39.
[28] Transcript of Proceedings, 23 November 2020, 23.
[29] Transcript of Proceedings, 23 November 2020, 24.
[30] Transcript of Proceedings, 23 November 2020, 12.
[31] Transcript of Proceedings, 23 November 2020, 26.
2019 convictions
On 15 January 2019 in the Local Court of New South Wales at Liverpool the Applicant was convicted of two counts of Common assault, three counts of Stalk/intimidate intend fear physical etc harm (personal) and Destroy or damage property less than or equal to $2000. These offences occurred while the Applicant was still subject to the bond for his earlier offending. The bond was revoked and he received an 18 month aggregate sentence, with a nine month non-parole period, for the offences. The Applicant’s appeal against the 15 January 2019 sentence was withdrawn on 2 September 2019.
The circumstances of the offending were that the Applicant had taken offence at some relationship the victim (his sister’s ex-husband) had with the Applicant’s fiancée. The Applicant kicked the victim on the ground a number of times. Magistrate Miller stated that in these circumstances the potential for injury was high and the offence was ‘extremely serious as the potentiality of injury is enormous’.[32] Following the assault, the Applicant and his co-accused went to the victim’s house armed with weapons. They cut flyscreens on the house with a knife and made threats to the occupants, who included the victim’s two minor children and his wife, who were ‘terrified’. The Magistrate noted the intimidation offences were ‘significant and are well above the midrange of objective seriousness for those type of offences’ and there was ‘actual and threatened use of violence’ and ‘possession and threats of the use of weapons that they were armed with.’ [33]
[32] Exhibit R1, G2, 37-38.
[33] Exhibit R1, G2, 38.
In determining the Applicant’s sentence, Magistrate Miller stated that in his view ‘there is a significant need for punishment’ and a ‘specific need for specific deterrents’ and concluded that ‘no other sentence other than a sentence of full-time imprisonment’ was appropriate.[34]
[34] Exhibit R1. G2, 40.
During his evidence at the hearing, the Applicant told the Tribunal that he was engaged to his maternal cousin and he discovered that she had a boyfriend. The boyfriend came to the Applicant’s house and they had a fight and they ‘bashed’ each other.[35] He agreed that he kicked the victim repeatedly while he was on the ground. The Applicant admitted that he later went to the victim’s home and used a knife to stab through flyscreens and made threats to the occupants who included a woman and young children. He denied that he committed a violent offence against the woman and the children.[36] He agreed that the incident was related to a domestic dispute.[37]
[35] Transcript of Proceedings, 23 November 2020, 27.
[36] Transcript of Proceedings, 23 November 2020, 28.
[37] Transcript of Proceedings, 23 November 2020, 27.
Mental health and psychological treatment
The Applicant told the Tribunal that he had no intention of committing the offences for which he received the 2014 and 2019 convictions. He was ‘under stress’ and ‘was angry’[38] and ‘had some mental problems’.[39]
[38] Transcript of Proceedings, 23 November 2020, 6.
[39] Transcript of Proceedings, 23 November 2020, 8, 10.
The Applicant sought psychological treatment in October 2014 and was diagnosed with Chronic and Complex Post Traumatic Stress Disorder and Major Depressive Disorder.[40] His trauma related psychological symptoms are attributed to his experiences escaping war in Iraq and traumatic experiences in Syria. He sought psychological interventions during the period 2014-2016 and then ceased treatment ‘for fear of having to recall and discuss the traumatic event.’[41]
[40] Exhibit A1, 1.
[41] Exhibit A1, 5.
In May 2019 the Applicant was assessed by Hanan Dover, Clinical psychologist, who diagnosed him with Post Traumatic Stress Disorder. She noted there were ‘high levels of consistency’ between his current presentation and his self-reported description of his symptoms in 2014-2016 and their history, the information provided by his GP and the psychometric self-reports.[42] She recommended that the Applicant obtain ‘urgent psychological interventions to help him to return to his high functioning ability.’[43]
[42] Exhibit A1, 6-7.
[43] Exhibit A1, 7.
In early 2020, the Applicant was assessed by a psychologist in Villawood Detention Centre. In her report dated 24 January 2020, Mirjana Askovic, psychologist, wrote that the Applicant reported a long history of trauma that commenced in his early childhood.[44] When talking about his experiences in Iraq he stated ‘All I remember from my childhood is people dying. I’ve see (sic) terrible things that is hard to talk about.’ He described his traumatic flight from Iraq and the years in Syria where he was deprived of education or a chance to develop any skills. He spoke of the fear he experienced when exposed to danger.[45] Ms Askovic found that the Applicant’s reported symptoms were indicative of depression, anxiety and features related to post-traumatic stress disorder.[46]
[44] Exhibit R1, G2, 95.
[45] Exhibit R1, G2, 95.
[46] Exhibit R1, G2, 100.
On 26 October 2020, the Applicant was assessed by Hasan Cinar, psychologist. In a report dated 11 November 2020,[47] the Applicant was found to continue to meet the criteria for Post-Traumatic Stress Disorder and it was recommended that he ‘consider continuous treatment for his PTSD symptoms.’[48]
[47] Exhibit A7, 7.
[48] Exhibit A7, 10.
Remorse and insight into offending
At the time he was sentenced in relation to the 2019 convictions, the Applicant denied committing the offences. Magistrate Miller remarked that:
The defendant… denies having committed these offences that I have found him guilty of. Clearly there is no punishment for the defendant not accepting the findings of the Court. However, that aspect goes considerably to the assessment of the likely prospects of rehabilitation of the offender having regard to the fact that he has showed - in my view - no contrition and nor remorse for his actions on this occasion.[49]
[49] Exhibit R1, G2, 39.
The Pre-Sentence report prepared for the Applicant’s sentencing in January 2019 noted he was ‘unable to demonstrate any insight into the impact of his offending’.[50]
[50] Exhibit R1, G2, 40.
The Applicant claims he is ‘sincerely remorseful’ for his past actions and for the ‘harm that they have caused others’.[51] In his statement dated 24 November 2019 he wrote:
I greatly regret my past actions. I wish I could go back and change everything, because I know what I has done has hurt people. After what I have experienced, wasting my life in jail and in Villawood, I will never commit another offence.[52]
[51] Exhibit R1, G2, 70.
[52] Exhibit R1, G2, 72.
In his oral evidence, the Applicant told the Tribunal he is ‘so regretful’ for his offences and wishes he ‘could go back to the time and [he] would never do it.’[53]
[53] Transcript of Proceedings, 23 November 2020, 32.
Courses in gaol
The Applicant told the Tribunal that when he was in prison he applied to do some courses, but he was not accepted because his visa was cancelled, and he was not entitled to do them. He agreed that he has not undertaken an anger management course.[54]
[54] Transcript of Proceedings, 23 November 2020, 33.
Rehabilitation
In his sentencing remarks, Magistrate Miller described the Applicant’s prospects of rehabilitation as follows:
… he was on conditional liberty at the time of the offending behaviour and that is a substantial aggravating feature. It is difficult to assess his prospects of rehabilitation, but particularly in light of his continued denial of the offences, his lack of remorse and contrition. The fact that these matters were defended, it is difficult to find that he has good prospects of rehabilitation.[55]
[55] Exhibit R1, G2, 40.
The Applicant states he has ‘exhibited good behaviour’ in prison and immigration detention and claims he can maintain this self-control and good behaviour in the community. He has not committed any further offences since entering custody and immigration detention.[56]
[56] Exhibit R1, G2, 72
The Applicant claims that he has taken steps to recommence treatment for his mental health conditions. In his statement dated 24 November 2019, the Applicant wrote that he had asked the International Health and Medical Services if he can see a psychologist but was still waiting to see one.[57] He has since attended consultations with two psychologists, namely Mirjana Askovic in January 2020 and Hasan Cinar in November 2020.
[57] Exhibit R1, G2, 72.
Risk of re-offending
The Applicant agreed that he re-offended in 2018, despite being assessed as a ‘low to medium risk of re-offending’ in an Intensive Correction Order Assessment Report,[58] which was prepared for the purposes of sentencing in relation to his 2014 offences.[59]
[58] Exhibit R2, SG2, 299-302.
[59] Transcript of Proceedings, 23 November 2020, 31-32.
The Applicant claims he will not reoffend, as he never wants to return to prison and/or immigration detention, he does not want to hurt his family, he is taking steps to address his mental illnesses and has decided to ‘absolutely detach’ himself from the family members against whom he offended.[60] He told the Tribunal that he will not ‘detach’ from his brother, but he will ‘definitely stay away from trouble.’[61] He stated:
I don’t want this prison life … I don’t want to be here again. I want to go back to my family, to my work. I want to live my life – my future. I … don’t want even thinking (sic) about any offence – or thinking about any re-offending. I learned my lesson … If you decide to remove me from here I have nowhere to go. I don’t want to go away from my family. I will when I go outside I will definitely go and see counsellor. I will do anything to control my anger. I don’t want to be in this prison again. I don’t want to come here again. I will never commit or recommit.[62]
[60] Exhibit R1, G2, 45.
[61] Transcript of Proceedings, 23 November 2020, 31.
[62] Transcript of Proceedings, 23 November 2020, 33-34.
The Sentencing Assessment Report prepared for the Applicant’s sentencing in January 2019 assessed the Applicant as a ‘medium/low risk of reoffending and suitable for community service.’[63]
[63] Exhibit R1, G2, 40.
However, in sentencing the Applicant to full-time imprisonment, Magistrate Miller noted the following in relation to the Applicant’s 2013 offending:
The defendant was sentenced initially to terms of fulltime imprisonment which were ultimately commuted by the District Court to a s9 bond for the malicious damage and to an intensive corrections order which was a fulltime gaol sentence served in the community for 16 months. It is clear that the imposition of an alternative to a fulltime custodial sentence did not provide significant disincentive to this offender in committing a near identical type of offence on this occasion.[64]
[64] Exhibit R1, G2, 72.
In his report dated 11 November 2020, Hasan Cinar reported that a Level of Service Inventory-Revised risk assessment in relation to the Applicant indicated that he falls in the ‘low-moderate risk range for overall risk needs offences.’ According to his Self-Assessment Questionnaire score, he falls in the ‘low-moderate risk range for re-offending risk.’ It was noted that the Applicant ‘has protective factors that may subjugate the likelihood of reoffending.’[65]
[65] Exhibit A7, 10.
Plans for the future
The Applicant told the Tribunal that if he is released into the community, he will reside with his parents in Liverpool but will eventually move away from Sydney.[66] In his statement dated 24 November 2019 he wrote:
If I am released, I want to live a quiet life. I want to work hard doing removalist work, and one day I hope to start my own business. I want to provide support to my parents, and to be with my family. They are my whole life and I miss being with them. I want to be able to spend time with my parents, and go fishing with my brother. I want to go back to training at the gym and live a normal life.
If I am given a chance to live in the community, I will not waste it. I know I can be a positive member of the Australian community, and I will not take this chance for granted.[67]
[66] Transcript of Proceedings, 25 November 2020, 51.
[67] Exhibit R1, G2, 72.
The Applicant told the Tribunal that wherever he is living he will continue to obtain psychological treatment for his mental health condition.[68]
[68] Transcript of Proceedings, 23 November 2020, 38.
Family members in Australia
The Applicant’s mother, father, sister and two brothers live in Australia and reside at the family home in Liverpool.[69] In his written submissions, the Applicant stated that his parents and two brothers are permanent residents and his sister is an Australian citizen.[70] He told the Tribunal that he thinks his parents are now Australian citizens.[71] His extended family in Australia include 20 aunts and uncles, 35 cousins and three grandparents.[72]
[69] Exhibit R1, G2, 63; Transcript of Proceedings, 25 November 2020, 51.
[70] Exhibit R1, G2, 48.
[71] Transcript of Proceedings, 23 November 2020, 40.
[72] Exhibit R1, G2, 63.
The Applicant told the Tribunal that his parents are ‘truly devastated’ by his criminal offending and ‘they’re paying the price on (sic) their own health for [his] mistakes.’[73] Before he went into custody, he assisted them financially and would take them to their medical appointments.[74]
[73] Transcript of Proceedings, 23 November 2020, 19.
[74] Transcript of Proceedings, 23 November 2020, 19-20.
In his written submissions, the Applicant wrote that he is worried about his parents as his father is suffering from a disability because of problems with his back and his mother is also not very well. He is concerned about their well-being and the distress they will have to go through if he is removed from Australia or indefinitely detained, and that this will cause a further deterioration to their health.[75] He told the Tribunal that if he were returned to Iraq his parents ‘will be destroyed’ particularly in terms of their health.[76]
[75] Exhibit R1, G2, 48.
[76] Transcript of Proceedings, 23 November 2020, 17.
Religious community
The Applicant is a member of the Sabean Mandean Community and Religious Association. He told the Tribunal he attended the temple many times.[77]
[77] Transcript of Proceedings, 23 November 2020, 15.
Impediments
In his written submissions the Applicant claims that if he is returned to Iraq he would be without family support, unable to support himself, unable to obtain any reliable treatment for his mental illness, and be exposed to the risk of imminent harm and death. He claims to have a fear of persecution due to his religious beliefs as a member of the Sabean Mandean faith. [78]
[78] Exhibit R1, G2, 49.
Evidence of family and friends
Applicant’s father
The Applicant’s father provided a written statement dated 24 November 2019,[79] and gave oral evidence by telephone at the hearing. In his statement he wrote that he is ‘very close’ to his son and that the Applicant ‘worked so hard’ and gave him and his wife most of his income so they could pay bills and go to medical appointments.[80] When his son went to gaol, he ‘became very sick and sad’ and it ‘really hurt’ him. It had a big impact on his family he is ‘still negatively affected’ because he is missing from the family. He is worried about his son in detention and it has been very hard for him. He ‘cannot even talk about what would happen’ if the Applicant were returned to Iraq. He becomes ‘too distraught’ when he thinks about it. If the Applicant were return home, he ‘would be so happy.’ He believes that the Applicant ‘cares about his family too much to get into trouble again.’ He wants to get their family back together again so they can support each other, and he will give the Applicant ‘everything he needs until he is back to his normal life.’
[79] Exhibit R1, G2, 75.
[80] Exhibit R1, G2, 75; Transcript of Proceedings, 25 November 2020, 57.
In his oral evidence, the Applicant’s father told the Tribunal he has diabetes, and his blood pressure is a bit high and he needs surgery on his hands.[81] He is currently in receipt of a disability support pension.[82]
[81] Transcript of Proceedings, 25 November 2020, 57.
[82] Transcript of Proceedings, 25 November 2020, 60-61.
During cross-examination, the Applicant’s father was asked whether he agreed that his son’s offending was very serious and violent to which he replied,
That's wrong. It's not any crime. That's wrong. That's only one mistake. He committed only one mistake. That's all what happened. One mistake.[83]
[83] Transcript of Proceedings, 25 November 2020, 74.
The Applicant’s father was asked what he believes will happen to his son if he is returned to Iraq to which he replied ‘One hundred per cent, one hundred per cent, he would be killed. They will capture him from the airport and kill him.’[84]
Applicant’s mother
[84] Transcript of Proceedings, 25 November 2020, 58.
The Applicant’s mother provided a written statement dated 24 November 2019[85] and gave oral evidence by telephone at the hearing. In her statement she wrote that their family is ‘very close’ and they always spend a lot of time together. She confirmed that the Applicant ‘contributed much of his income to the family’ and always supported them. When her son was imprisoned, she was ‘so distraught’ and she had to ‘go see a counsellor’. It still affects her ‘greatly’ and she finds it ‘hard to talk about.’ If her son were to return home, she would ‘so overjoyed’. If he has to return to Iraq or remain in detention it will tear her and her family apart.[86]
[85] Exhibit R1, G2, 73.
[86] Exhibit R1, G2, 73.
In her oral evidence, the Applicant’s mother said that since her son went to gaol her mental health has deteriorated and she has been diagnosed with depression.[87] She also suffers from low blood pressure and has lost some of her hearing and she uses hearing aids. She is very stressed and suffers from phobia, anxiety and migraine and her white cell blood count is very low.[88]
[87] Transcript of Proceedings, 25 November 2020, 70-71; Exhibit A4.
[88] Transcript of Proceedings, 25 November 2020,71.
She confirmed that before he went into custody, the Applicant would support her and the family psychologically and he would take her shopping, to the beach, to the counsellor, and sometimes to her medical appointments.[89]
[89] Transcript of Proceedings, 25 November 2020, 71.
During cross-examination, the Applicant’s mother was asked about his criminal offending. She stated:
Well, in our culture Iraq way we say as this crime - we understand it is like a fight, was a fight. I don’t see - I don’t look at it as crime.[90]
[90] Transcript of Proceedings, 25 November 2020, 73.
She told the Tribunal she was unaware the Applicant used a knife during his offending, and that if she had known, she never would have allowed it to happen.[91] She also denied knowledge that the Applicant had threatened a woman and children.[92] She said that the problems were caused by her family who ‘all love trouble, they instigate problems, instigate fighting.’[93]
[91] Transcript of Proceedings, 25 November 2020, 73.
[92] Transcript of Proceedings, 25 November 2020, 74.
[93] Transcript of Proceedings, 25 November 2020, 75
The Applicant’s mother was asked what she believes will happen to her son if he is returned to Iraq to which she replied,
Well first of all, my son is not Muslim. Secondly, he doesn’t look like Arab man, all the time they ask him are you Italian, from Italy. And thirdly, the situation in Iraq is a very bad situation, it is terribly bad, it’s really not safe. If you going to make decision to deport my son, that’s (indistinct) sentencing (indistinct) or to die. Also my son knows nothing about Iraq, he was so little and I did everything possible myself to escape from Iraq, to save them from a life there, to send him back that will be very hard … if he goes back, he will be killed immediately, he will be killed straight away at the airport.[94]
Applicant’s sister
[94] Transcript of Proceedings, 25 November 2020, 75.
The Applicant’s sister provided a written statement dated 20 November 2019,[95] and an email dated 10 November 2020,[96] and gave oral evidence by telephone at the hearing. In her statement she wrote that she and the Applicant have had a ‘close relationship’ for as long as she can remember, and they have a ‘special bond’ and he is ‘an integral part of her life.’ The Applicant’s detention has had ‘a profound impact’ on their family. She is concerned about him being returned to Iraq and not being able to practice his religion freely and safely.
[95] Exhibit R1, G2, 74.
[96] Exhibit A6.
In her oral evidence, the Applicant’s sister told the Tribunal that both her parents are sick and very stressed about her brother being in detention.[97] They are all nervous as they do not know what will happen to him if he is returned to Iraq as he does not know anyone there and they think he might be killed there.[98]
[97] Transcript of Proceedings, 25 November 2020, 66.
[98] Transcript of Proceedings, 25 November 2020, 67.
During cross-examination she admitted that she does not know much about his offending, but she knows he is regretful and remorseful.[99] She told the Tribunal that what her brother did was ‘a big mistake’ and she ‘will do everything possible to help him not to repeat it …’[100] She will help him seek a doctor, a counsellor, or any course he needs to stay away from trouble and to keep him away from repeating such an offence.[101]
Tarmida Khaldoon M. Abdullah
[99] Transcript of Proceedings, 25 November 2020, 68.
[100] Transcript of Proceedings, 25 November 2020, 67.
[101] Transcript of Proceedings, 25 November 2020, 69.
Mr Khaldoon provided a written statement dated 5 November 2020,[102] and gave oral evidence by telephone at the hearing. In his statement, he wrote that the Applicant ‘was helpful and used to participate in our Mandaean rituals.’ He stated that when the Applicant leaves detention, they ‘plan to offer him social, emotional and moral support.’
[102] Exhibit A2.
In his oral evidence, he confirmed he is a religious Minister of the Mandaean church and has known the Applicant for three years. He met him through his family when his family used to come to the church, and he would sometimes help with maintenance or renovations of the church.[103] The Applicant was baptised at the church and he would come to the church on Sundays once a month for activities and he would attend some of the three religious occasions per year.[104] He did not see the Applicant outside church and has not been in contact with him since he has been in gaol and immigration detention.[105]
[103] Transcript of Proceedings, 25 November 2020, 81.
[104] Transcript of Proceedings, 25 November 2020, 82-83.
[105] Transcript of Proceedings, 25 November 2020, 83.
He told the Tribunal that he knows about the incident that happened with the Applicant and his fiancée and he believes there was some type of violence. He has not been in contact with the Applicant since the incident, but he heard about it from his family.[106] He admitted he does not know the exact details of the Applicant’s offending nor the level of violence it involved.[107]
[106] Transcript of Proceedings, 25 November 2020, 81.
[107] Transcript of Proceedings, 25 November 2020, 83.
He told the Tribunal that violence is taboo and unacceptable in their religion.[108] They provide support for members of the community who have been involved in violence, involving weekly consultations to assist them to ‘go back to our principles of our religion that means to avoid or not to commit any type of violence.’[109] The Applicant will be encouraged to join one of the church committees for education, health, art, drama and sport, ‘which will help him to be a better person.’[110] He told the Tribunal that he was prepared to personally help the Applicant. He will visit him and offer his support and ‘encourage him and advise him to come more often to the church.’[111]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[108] Transcript of Proceedings, 25 November 2020, 81.
[109] Transcript of Proceedings, 25 November 2020, 81.
[110] Transcript of Proceedings, 25 November 2020, 81.
[111] Transcript of Proceedings, 25 November 2020, 84.
Does the Applicant pass the character test?
In the representations and documents that the Applicant submitted to the Department and the Tribunal, he does not dispute the information in the National Criminal History Check dated 8 February 2019 regarding his criminal convictions and sentences.
The evidence before the Tribunal is that on, the Applicant was convicted in the Liverpool Local Court of destruction or damage to property, two counts of common assault, and three counts of stalking/intimidating with intent to cause fear of physical harm (personal) and sentenced to an aggregate term of 18 months’ imprisonment.[112] On the basis of this evidence, the Tribunal is satisfied that the Applicant does not pass the character test prescribed in paragraph 501(6)(a) of the Act, as he has ‘a substantial criminal record’ as defined in paragraph 501(7)(c). The Tribunal is also satisfied, for the purposes of paragraph 501(3A)(b) of the Act, that the Applicant was serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the state of New South Wales.
[112] Exhibit R1, G2, 24-26.
For these reasons, the Applicant cannot rely on subparagraph 501CA(4)(b)(i) for revocation of the Mandatory Visa Cancellation Decision.
Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.
PRIMARY CONSIDERATIONS
Primary Consideration A – Protection of the Australian community
Primary Consideration A of Part C of the Direction is the Protection of the Australian Community. Paragraph 13.1(1) provides:
When considering protection of the Australian community, decisionmakers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) directs that 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.
(a) Nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. In the circumstances of this case, the following factors may be relevant:
(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b) The principle that crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed;
(c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f) The cumulative effect of repeated offending;
(g) …
(h) …
(i) …
The Applicant has committed multiple violent crimes in Australia, specifically those for which he was convicted in 2014 and 2019, which caused physical and psychological injuries to his victims, who included a woman and children, as well as a number of traffic offences. In accordance with sub-paragraphs 13.1.1(1)(a) and (b) of the Direction, the Tribunal is required to view his violent offences very seriously.
The Tribunal has given weight to the sentencing remarks of Magistrate Miller who described the offence of Assault occasioning bodily harm in the company of others (DV) for which he was convicted in 2014 as ‘a disgraceful example of an assault’. It has further given weight to Magistrate Miller’s observation in relation to the Applicant’s common assault offences for which he was convicted in 2019 as ‘extremely serious’ given the potential for injury to the victim. The Tribunal finds that the seriousness of the Applicant’s offending is increased by the fact the Applicant re-offended in a similar manner in 2018 despite his sentence for the 2013 assault offences being varied in June 2015 from a 16 month term of imprisonment to a 16 month intensive correction order. The serious nature of this subsequent offending is also increased by the fact that it was in breach of a good behaviour bond to which the Applicant was then subject.
Having regard to paragraph 13.1.1(d) of the Direction, the custodial sentences imposed on the Applicant by the courts are an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50]. The Applicant was sentenced to a term of 18 months’ imprisonment for his most recent offending. The Tribunal finds that while the sentences imposed on the Applicant are not at the higher end of the sentencing range, they do not detract from the serious nature of his criminal offending.
The Tribunal has had regard to paragraphs 13.1.1(1)(e) and 13.1.1(1)(f) of the Direction and finds that the Applicant’s criminal offending was violent and repetitive and occurred in a domestic context on two occasions. The Applicant engaged in violent and intimidating conduct against his victims, which included physical assaults against his male victims while he was armed with weapons, including a bat and a knife, and verbal threats and intimidatory behaviour towards a woman and young children. The Tribunal finds that the frequency and cumulative effect of the Applicant’s repeated offending increases its severity.
Based on the evidence before it and having regard to the considerations in paragraph 13.1.1 of the Direction, the Tribunal finds that the Applicant’s criminal offending has been repetitive and violent, and his victims included a woman and children, and is therefore serious.
The seriousness of the Applicant’s criminal offending weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must have regard to paragraph 13.1.2(1) of the Direction:
In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
i.The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
ii.The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to re-offend, the Tribunal finds that any future re-offending by the Applicant may involve physical and/or psychological harm to members of the Australian community. The Applicant's criminal offending has included actual and threatened violence committed against his victims, which include family members and a woman and young children. The potential harm to individuals and the Australian community should he again engage in such conduct is serious. His violent behaviour has caused, and has the potential to cause in the future, substantial harm to victims, being both the psychological and physical impacts of his offending, and significant financial cost to the community associated with emergency services and law enforcement activities.
Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of him re-offending the Tribunal has given weight to the various risk assessments that have been conducted in relation to the Applicant. The Sentencing Assessment Report prepared for the Applicant’s sentencing in January 2019 assessed the Applicant as a ‘medium/low risk of reoffending and suitable for community service.’[113] In his report dated 11 November 2020, Hasan Cinar reported that a Level of Service Inventory-Revised (LSI-R) risk assessment in relation to the Applicant indicated that he falls in the ‘low-moderate risk range for overall risk needs offences’ and according to his Self-Assessment Questionnaire score, he falls in the ‘low-moderate risk range for re-offending risk.’
[113] Exhibit R1, G2, 40.
Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct, the Tribunal notes that, despite being afforded a concession by the courts through the imposition on him of an intensive correction order in June 2015, the Applicant demonstrated a disregard for judicial orders and breached the trust of the community in January 2018 by committing the offences of common assault, stalk/intimidate intend fear physical etc harm (personal) and destroy or damage property.[114] As Magistrate Miller observed in his sentencing remarks on 15 January 2019 ‘the imposition of an alternative to a fulltime custodial sentence did not provide significant disincentive to this offender in committing a near identical type offence on this occasion’.[115]
[114] Exhibit R1, G2, 37.
[115] Exbibit R1, G2, 39.
In his report, Hasan Cinar noted that the Applicant ‘has protective factors that may subjugate the likelihood of reoffending.’[116] The Applicant states he has ‘complete support’ from his family and religious community, including physical, mental, psychological, and spiritual support, and he will absolutely detach’ himself from the family members against whom he offended, which will allow him to refrain from re-offending in the future. However, the evidence before the Tribunal is that he enjoyed similar familial support when he committed the offences for which he was convicted in 2014 and 2019, yet this did not prevent or deter him from violent offending against members of his extended family. The Applicant claims he is remorseful and regrets the impact of his offending on his victims and his family. However, his concerns for his family did not prevent him violently offending on two previous occasions, indeed the evidence indicates that it was his relationships with family members that motivated him to offend.
[116] Exhibit A7, 10.
The Applicant attributes his offending to his anger issues and mental health condition. However, while the Applicant asserts that he will seek help to prevent him re-offending in the future, including psychological support and treatment, there is limited evidence of the Applicant's rehabilitation since his incarceration and detention. The Applicant confirmed that he did not undertake any courses in gaol and that he has only attended a few sessions with psychologists, including for the purposes of this review application. Whereas he claims he will seek psychological support upon his release, he has not identified any specific treating specialists, programs or courses with which he intends to engage. The Tribunal further notes that the Applicant sought psychological treatment following his 2013 offending, however this did not prevent the Applicant from committing similar violent offences in 2018.[117]
[117] Exhibit R2, 280, 284.
The Applicant’s evidence is that if he is permitted to return to the community, he will have secure accommodation living with his parents in Liverpool. The Applicant intends to resume work as a removalist and to eventually establish his own business. Based on the evidence before it, the Tribunal finds that if the Applicant has secure accommodation and regular paid employment, these will be protective factors against him engaging in future criminal offending.
On the basis of the evidence before it and taking into account available information and evidence on the risk of the Applicant re-offending, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is low to moderate, and that this level of risk is unacceptable given the nature of the harm he may cause to his victims if he does re-offend.
For the reasons above and applying the guidance in paragraphs 13.1.1(1) and 13.1.2(1) of the Direction, Primary Consideration A weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration B – The best interests of minor children in Australia affected by the decision
Primary Consideration B of Part C in paragraph 13.2 of the Direction requires decision-makers to make a determination whether revocation is in the best interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made. The Applicant does not have any children of his own and there is no evidence before the Tribunal of any minor children that will be affected by his removal from Australia.
Primary Consideration C – The expectations of the Australian community
Primary Consideration C of Part C in paragraph 13.3(1) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 11.3(1) of the Direction, in FYBR and Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The majority (Charlesworth and Stewart JJ) concluded as follows:
·Paragraph 11.3 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[118] It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations.[119]
·However, the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[120] It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of “appropriateness”.[121]
[118] Charlesworth J at [66]; Stewart J at [91].
[119] Charlesworth J at [67]; Stewart J at [104].
[120] Charlesworth J at [76].
[121] Stewart J at [97].
The effect of Paragraph 13.3(1) points to the likelihood that community expectation will in most cases call for non-revocation of a mandatory visa cancellation decision, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.
Having regard to the expectations of the Australian community as stated in paragraph 13.3(1) of the Direction, the Applicant has breached numerous Australian laws and has been convicted of a number of offences in Australia. The Applicant’s offences include serious offences involving violence, which as recognised by Principles 2 and 3 of paragraph 6.3, should generally result in the cancellation of his visa.
The Applicant arrived in Australia at the age of 20 years and is now aged 30 years. Having regard to the factors in Principle 5 of paragraph 6.3 of the Direction, particularly the length of time the Applicant has been in Australia, the Australian community would likely afford a higher degree of tolerance for the Applicant’s criminal behaviour than if he had been resident in Australia for a shorter period of time. The Tribunal finds that the length of time the Applicant has been living in Australia, namely a period of more than 10 years, is a factor that supports a finding that there is a higher level of tolerance by the Australian community for his serious criminal conduct than there would be for a non-citizen who has not lived in the community for an extended period of time.
Having regard to the factors in Principle 7 in paragraph 6.3 of the Direction, relevant to determining the expectations of the Australian community are the consequences of the non-revocation of the mandatory visa cancellation decision on the Applicant’s mother, father, two brothers, sister, aunts and uncles, cousins and other family members who are Australian permanent residents or citizens and reside in Australia. The Applicant’s removal from Australia will prevent some of these family members from re-establishing their relationship with him and will require them to maintain contact with him by phone and other electronic methods of communication. The evidence before the Tribunal in relation to the impact of the Applicant’s removal from Australia on the Applicant’s immediate family members, particularly his parents and sister, is that they will be ‘devastated’ and it will impact particularly adversely on his parents’ health and their financial and emotional well-being. The negative impact on the Applicant’s family members in Australia is a factor which would likely cause the Australian community to have a higher degree of tolerance for the Applicant’s serious criminal conduct.
The Tribunal also has had regard to the contribution the Applicant has made to the Australian community during his 10 year residency in Australia. The evidence is that the Applicant has been employed in a range of different jobs over the past decade and he worked as a removalist for a period of four years and plans to establish his own business. The Applicant has therefore contributed to the Australian economy and paid taxes which would raise to a degree the level of tolerance of the community of his criminal offending.
Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight and taking into account other factors relevant to the Applicant’s circumstances, the Tribunal finds that Primary Consideration C weighs against revocation of the Mandatory Visa Cancellation Decision.
OTHER CONSIDERATIONS
While the three primary considerations carry particular weight, the Direction acknowledges at paragraph 14 that ‘other considerations’ must be taken into account by the decision-maker where relevant.
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection[2018] FCA 594at [23]:
... Direction 65 [now Direction 79] 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.
International non-refoulement obligations
Paragraph 14.1 of Direction 79 requires the decision-maker to take into consideration Australia’s international non-refoulement obligations:
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 reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
2)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
5)If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them — sections 48A and 48B of the Act refer).
6)In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
The Applicant is a national of Iraq and was granted the visa in December 2009. The Departmental file in respect of the Applicant's application for, and grant of, the visa relevantly:[122]
(a)indicates the Applicant and his family were mandated as refugees and referred for resettlement to Australia by the UNCHR;
(b)indicates that, in 2009, the Applicant and his immediate family were accepted as Sabean-Mandeans, being members of a minority religious group in Iraq;
(c)acknowledges that religious minorities are targeted and vulnerable in the absence of law and order in Iraq;
(d)includes a copy of the Applicant's claimed Mandean Identification Card; and
(e)indicates that the Applicant’s father was the principal applicant for the visa, and that the Applicant was assessed as a dependent of his father based on claims made by the Applicant’s parents.
[122] Exhibit R2, SG1.
Having regard to the decisions of the Full Federal Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 and Minister for Home Affairs v Omar [2019] FCAFC 188, the Tribunal is required to turn its mind to the Applicant's claims to fear harm if returned to his country of citizenship. This requires the Tribunal to meaningfully engage with representations made by the Applicant in relation to his fear of harm on return to Iraq.
In Ali v Minister for Home Affairs [2020] FCAFC 109 (‘Ali’), the Full Federal Court found that it was not open to the Assistant Minister to defer consideration of whether non-refoulement obligations are owed to an applicant until any application for a protection visa may be lodged (per Collier, Reeves and Derrington JJ at [101]), and that the failure to take into account a non-refoulement claim is a material error (at [105]).
The evidence before the Tribunal is that the Applicant may make an application for a protection visa. In light of the decision in Ali, the Tribunal must consider whether Australia owes non-refoulement obligations to the Applicant.
Non-refoulement obligations
The Applicant’s current claims are that he will be the subject of serious harm on return to Iraq for the following reasons:
(a) he is a member of the Sabean-Mandean minority in Iraq;[123]
(b)the risk to Sabean-Mandean in Iraq persists presently;[124]
(c)as a result, if he were returned to Iraq, ‘he would be subject to very adverse treatment and his life would be in danger’;[125]
(d)he was granted the visa on the basis that he would be persecuted if returned to Iraq because of his Sabean-Mandean religion;[126]
(e)the risk of harm that he would face if returned to Iraq is very high;[127] and
(h)non-revocation of the Reviewable Decision ‘would lead to either refoulement or the prospect of indefinite immigration detention’.[128]
[123] Exhibit R1, G2, 47.
[124] Exhibit R1, G2, 47.
[125] Exhibit R1, G2, 19; Applicant’s Statement of Facts, Issues and Contentions dated 22 October 2020, [32].
[126] Exhibit R1, G2, 47.
[127] Exhibit R1, G2, 47.
[128] Exhibit R1, G2, 47.
The Respondent accepts that there is evidence that returning to Iraq would be difficult for the Applicant, that civil unrest and violence are common in Iraq, and that there is a risk to Sabean- Mandeans.[129]
[129] Respondent’s Statement of Facts, Issues and Contentions dated 9 November 2020, [67].
To the extent that the Tribunal is required to consider and weigh the Applicant's claims with respect to non-refoulement obligations and/or fears of harm, the Tribunal has had regard to the available country information in relation to the Applicant's claims relating to the circumstances he would face if returned to Iraq.
The Department of Foreign Affairs and Trade (DFAT) has published the following travel advice in relation to Iraq:[130]
The security situation is unstable. It could worsen with little warning. Leave as soon as possible. If you decide to travel to or stay in Iraq despite our advice, get professional security advice. In the current environment, if you travel to Iraq or stay in Iraq despite our advice, it may not be possible to return to Australia when you want to.
3 January marks the anniversary of a US airstrike near the Baghdad International Airport which killed an Iranian military commander and the deputy commander of Iraq’s Popular Mobilisation Forces. It is possible that the security situation could deteriorate around this date.
There’s a very high, severe and ongoing risk of kidnapping. Terrorists and criminal gangs may kidnap expats working in Iraq. Academics, journalists and aid workers are at particular risk.
Large, coordinated attacks by armed groups have killed and injured 1000s of people. Terrorist attacks occur often and without warning. Avoid possible targets. If you must visit them, always have an exit plan.
Political rallies and protests often happen in Baghdad and other regions of Iraq. These grow quickly and can turn violent. Avoid large public gatherings. If you're caught in an affected area, stay indoors. Follow the advice of local authorities or your security provider.
Violent crime and corruption are common. Crime includes kidnapping, murder and robbery. Organised criminal gangs, militia and tribal groups are significant threats. If you decide to travel to or stay in Iraq despite our advice, travel with your vehicle doors locked and windows up. Secure your accommodation against intruders.
[130] Department of Foreign Affairs and Trade, Smart Traveller: Iraq, accessed 22 December 2020.
The most recent Country Information Report published by DFAT in relation to Iraq, dated 17 August 2020 (the DFAT Report) provides the following in relation to Sabean-Mandeans in Iraq:[131]
… The community reports experiencing discrimination and negative stereotyping in all aspects of public life, as well as being targeted for attacks and kidnappings. The departure of many Sabean-Mandean religious leaders from Iraq has also threatened the ability of the remaining community members to retain their rituals, and many have reportedly left their faith.
DFAT assesses Sabean-Mandeans face a low risk of official discrimination. Like other minorities, Sabean-Mandeans face a moderate risk of social discrimination and violence in areas where they are a minority. Those living in areas controlled by PMFs [Popular Mobilisation Forces] are likely to keep a low profile to avoid negative attention, including through adopting hijab. Those living in areas where violence continues or who have been displaced face a risk of societal violence similar to that faced by other groups living in those areas or situations.
[131] Exhibit R2, SG4, 509 at [3.54]-[3.55].
The DFAT Report states the following in relation to the treatment of returnees:[132]
In-country sources advise that authorities would only arrest an Iraqi on return if they had committed a criminal offence and a warrant had been issued for their arrest. Others, even those who had left illegally, would not be subject to arrest on arrival.
The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted among Iraqis, as evidenced by the large numbers of dual nationals from the US, Western Europe and Australia who return to Iraq. There is considerable evidence that Iraqis who are granted protection by western countries often return to Iraq, sometimes only months after securing residency abroad, to reunite with families, establish and manage businesses or take up or resume employment.
[132] Exhibit R2, SG4, 542 at [5.38]; [5.43].
Having regard to the evidence before the Tribunal, particularly the country information contained in the DFAT report cited above and noting the Respondent’s acceptance that there is an existing risk of harm to Sabean-Mandeans in Iraq, the Tribunal finds that the Applicant is owed non-refoulement obligations by Australia. It is satisfied that there is a real chance of the Applicant being persecuted or a real risk of him suffering serious harm due to his religious beliefs as a member of the Sabean Mandean faith.
Legal consequences of decision
In making its decision, the Tribunal is bound to consider the legal consequences of its decision. The Applicant submits that if the Tribunal decides, as it has, that non-refoulement obligations are owed to him, and it decides not to revoke the Reviewable Decision, the Applicant may be subject to indefinite immigration detention.
Section 198 of the Act relevantly provides:
(2B) An officer must remove as soon as soon as reasonably practicable an unlawful non-citizen if:
(a) a delegate of the Minister has cancelled a visa of the non-citizen under subsection 501(3A); and
(b) since the delegate's decision, the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and
(c) in a case where the non-citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate's decision - either:
(i) the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii) the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate's decision.
Note: The only visa that the non-citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).
Despite subsection (5), an officer must not remove an unlawful non-citizen if:
(a) the non-citizen has made a valid application for a protection visa (even if the application was made outside the time allowed by section
195(1)); and(b) either:
(i) the grant of the visa has not been refused; or
(ii) the application has not been finally determined.
Section 197C of the Act provides:
(1) For the purposes of section 198, it is irrelevant whether Australia has non- refoulement obligations in respect of an unlawful non-citizen.
(2) An officer's duty to remove as soon as reasonably practicable an unlawful non- citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia non-refoulement obligations in respect of the non-citizen.
The Tribunal is required to identify the circumstances in which it would become reasonably practicable for Australia to remove the Applicant, and to properly appreciate the likely significant harms consequent on the Applicant’s refoulement: CWGF v Minister for Home Affairs [2019] FCA 1802 at [37] and [40].
In DFTD v Minister for Home Affairs [2020] FCA 859 (‘DFTD’), the Federal Court stated the following in circumstances in which, as is the case here, the applicant was owed non-refoulement obligations at [40]-[42]:
The primary legal consequence attaching to the applicant's status as an unlawful non-citizen is that he must be removed from Australia as soon as might reasonably be practicable: the Act, s 198. The fact that the applicant is, as the Tribunal found (and the Minister accepts), a person in respect of whom Australia owes obligations of non-refoulement has no bearing upon that requirement: the Act, s 197C (above, [13]).
The prospect, if there is one, that the applicant might languish for a prolonged period in immigration detention arises (at least in large part) because it is the policy of the Australian government that unlawful non-citizens in respect of whom there exist obligations of non-refoulement will not be returned to the countries within which the properly fear that they will be persecuted. In order that the applicant might be removed from Australia, there must first be somewhere to which he might be removed. His homeland, Indonesia, is not an option in that respect because taking him there would offend government policy. Thus, removal "as soon as reasonably practicable" might take longer in the case of the applicant than would otherwise be the case; but that is not so because of anything in the Act.
To observe that removal might take longer in the applicant's case is to invite speculation as to what might be in store for the applicant following the Tribunal's Decision. There are a number of avenues by which the applicant's time in immigration detention might be brought to an end (and that do not involve him being sent to Indonesia). Perhaps the most obvious is that he might apply for and obtain a protection visa: a possibility that the Tribunal itself urged the applicant to explore (Tribunal's Decision, [97]; above, [24]). The mere possibility of prolonged immigration detention is not a circumstance of which the subject matter, scope and/or purpose of the legislative scheme require, by implication, that a decision maker take account when exercising (or not exercising) the power conferred by s 501CA(4) of the Act [emphasis added]
In this case, as was the relevant situation in DFTD, the Applicant can apply for a protection visa in circumstances in which the cancellation of the visa is not revoked by the Tribunal. Sections 48A and 501E of the Act do not prevent the Applicant from lodging an application for a protection visa.
As it remains open for the Applicant to apply for a protection visa, the immediate legal and factual consequences of non-revocation do not necessarily include his removal from Australia or indefinite detention: AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105, [70].
The Applicant’s circumstances are distinguishable from those in XBYC and Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4426 (‘XBYC’), on which the Applicant relies.[133] In XBYC, the applicant applied to the Tribunal for review of a decision not to revoke the mandatory cancellation of the applicant's protection visa. As his protection visa had been cancelled, he was ineligible to apply for a protection visa, unlike the Applicant in this matter.
[133] Applicant’s submissions in reply, filed 18 November 2020 at [6]; Applicant’s Supplementary Submissions dated 3 December 2020 at [12].
Accordingly, for the reasons stated above, the Tribunal finds that the legal consequences of the Applicant engaging Australia’s non-refoulement obligations are not necessarily his removal from Australia in breach of those obligations, or indefinite detention.
Based on the evidence before it and having regard to the factors in paragraph 14.2(1), the Tribunal finds that this consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision.
The Respondent contends that if, as it has, the Tribunal finds that the Applicant is owed non-refoulement obligations, this consideration is outweighed by the seriousness of his offending and the expectations of the Australian community.[134] As the Full Federal Court observed in AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105 at [70], the Tribunal:
may conclude that Australia does owe non-refoulement obligations in respect of a person but that the risk to the Australian community posed by the person outweighs Australia[‘s] compliance with those obligations such that there is no ‘other reason’.
[134] Respondent’s Statement of Facts, Issues and Contentions at [76].
The Tribunal has in previous decisions concluded that the Primary considerations in the Direction outweigh findings that non-refoulement obligations are owed to an applicant.[135] These findings have been upheld by the Federal Court on judicial review, even in light of Ali.[136]
[135] QDWQ and Minister for Home Affairs (Migration) [2019] AATA 4622;KYMM and Minister for Home Affairs (Migration) [2019] AATA 5174.
[136] KYMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1069.
For the reasons stated above, the Tribunal finds that this Other consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision, however it is not outweighed by the two relevant Primary considerations.
Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
(1) Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen has 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, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Guided by paragraph 14.2(1)(a) of the Direction, the Tribunal recognises that the Applicant has resided in Australia for 10 years, having arrived here as a refugee aged 19 years. Having regard to paragraph 14.2(1)(a)(i) of the Direction, the Tribunal notes that the Applicant received his first traffic conviction in December 2011, less than two years after arriving in Australia, and began his violent criminal offending in 2013, less than four years after arriving in Australia. Accordingly, the Applicant arrived in Australia as an adult, and began offending relatively soon after his arrival. Relevant to paragraph 14.2(1)(a)(i) of the Direction, the Tribunal notes the Applicant held paid employment in the period prior to his incarceration in 2019 which included working as a removalist for a period of four years. The Applicant has not identified any other positive contributions that he has made to the Australian community.
Having regard to the considerations in paragraph 14.2(1)(b), the Tribunal accepts the Applicant has ties to Australia through his mother, father, two brothers, sister and other family members and members of his religious community who want him to remain in Australia, and many of whom will be adversely impacted if he is returned to Iraq. The evidence before the Tribunal is that the Applicant’s parents and his sister, all of whom are Australian citizens or permanent residents, rely on the Applicant for financial, emotional and practical support and they will suffer considerable hardship if he were removed.
Based on the evidence before it and having regard to the factors in paragraph 14.2(1), the Tribunal finds that this consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant was employed as a removalist prior to his incarceration. There is no evidence of a relevant ‘employment link’, and the Applicant does not claim that any Australian business interests would be affected by his removal to Iraq.
Impact on victims
Paragraph 14.4(1) of the Direction states:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
There is no evidence before the Tribunal of the impact of the non-revocation of the Mandatory Visa Cancellation Decision on the Applicant’s victims.
Extent of impediments if removed from Australia
The Direction states in paragraph 14.5(1) that:
The extent of any impediments that the non-citizen 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.
Having regard to the considerations in paragraph 14.5(1)(a), the Tribunal notes that the Applicant is aged 30 years. He has previously been diagnosed with Post-Traumatic Stress Disorder and Major Depressive Disorder. The Applicant claims that, if he is returned to Iraq, he will be unable to obtain any reliable treatment for his mental health conditions. The Respondent acknowledges that available country information indicates that there is limited mental health support in Iraq, and that the Applicant is likely to receive less support for his mental health in Iraq than he would in Australia.
In relation to the availability of treatment for mental health issues in Iraq, the DFAT Report provides the following:[137]
Despite enormous need, there are very few mental health services or financial support schemes available to the general public. A January 2017 study found there were only around 80 clinical psychologists working in the entire country. Much of the burden for treating mental health issues falls on international non-government organisations (NGOs) such as Medicins sans Frontieres. The absence of community- based mental health care means often the only care available is family-based or in psychiatric institutions, which have been linked to inhumane treatment and degrading living conditions. There is significant societal stigma against those suffering from mental health issues, which results in under-reporting of problems and underutilisation of the services that are available.
[137] Exhibit R2, SG4, 495 at [2.37].
On the basis of this evidence, the Tribunal finds that there is limited mental health support available to Iraqi citizens, and the Applicant is likely to receive less support for his mental health conditions in Iraq than he would in Australia. Accordingly, the Tribunal finds that the Applicant’s mental health conditions will constitute an impediment to him establishing himself and accessing necessary mental health treatment, in the context of what is generally available to other citizens of Iraq.
Having regard to paragraph 14.5(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on return to Iraq. The Applicant was born and raised in Iraq and did not leave there until he was aged 13 years, and therefore the Iraqi culture is not foreign to the Applicant and he speaks Arabic.
Having regard to paragraph 14.5(1)(c) of the Direction, there is no evidence before the Tribunal that the Applicant would not have access to the same services, including social, healthcare and medical services, which are available to other citizens in Iraq. However, the evidence before the Tribunal is that Sabean-Mandeans may experience discrimination as a result of their religion. The possibility that the Applicant may be discriminated against as a result of his religious beliefs may have an impact on his capacity to access welfare services in Iraq. Accordingly, the Tribunal finds that the Applicant’s religious faith may constitute an impediment to him accessing social, medical and/or economic support in the context of what is generally available to other citizens of Iraq.
The Applicant’s evidence is that he has no family in Iraq[138] and his return there will cause him emotional hardship due to the separation from his family and he will experience significant difficulties in establishing himself in Iraq.
[138] Transcript of Proceedings, 23 November 2020, 40.
On the basis of the evidence before it, the Tribunal finds that, on his return to Iraq, the Applicant will face hardship, particularly financial and emotional stress, while he finds suitable accommodation, accesses available welfare and mental health services, and looks for a job or education and training opportunities.
Having considered the factors in paragraph 14.5(1) of the Direction, the Tribunal finds that this consideration weighs in favour of the revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration A weighs against revocation of the Mandatory Visa Cancellation Decision. The nature, frequency and seriousness of the Applicant’s violent offending against his victims, who included a woman and minor children, and the low to moderate risk of him committing future offences and the nature of the harm to any future victims, are such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration C weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that the Applicant’s serious and violent offending should cause him to forfeit the privilege of remaining in Australia.
In regard to the relevant other considerations, international non-refoulement considerations, the strength, nature and duration of ties and the extent of impediments on return to Iraq weigh in favour of revocation of the Mandatory Visa Cancellation Decision. However, these other considerations do not outweigh the primary considerations which weigh heavily against the revocation of the Mandatory Visa Cancellation Decision.
The Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, and therefore the decision to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.
I certify that the preceding 164 (one hundred and sixty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk.
......................................................................
Associate
Dated: 24 December 2020
Date(s) of hearing:
23 and 25 November 2020
Applicant’s representative:
Mr Fardin Nikjoo, Nikjoo Lawyers
Respondent’s representative:
Ms Emma Letcher-Boldt, Clayton Utz
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