BLTY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2023] AATA 1064

BLTY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 1064 (2 March 2023)
Division:GENERAL DIVISION
File Number(s): 2022/10010
Re:BLTY
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr Linda Kirk
Date:2 March 2023
Date of written reasons: 21 March 2023
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the Reviewable Decision dated 8 December 2022, to refuse to revoke the Mandatory Visa Cancellation Decision, and in substitution, decides that the cancellation of the Applicant's Class XE Subclass 790 Safe Haven Enterprise visa is revoked.
.................................[SGD].......................................
Senior Member Dr Linda Kirk
Catchwords
MIGRATION – Migration Act section 501CA(4) – primary considerations – other considerations – whether there is another reason to revoke mandatory cancellation of Applicant’s visa – Ministerial Direction No. 90 – substantial criminal record – nature and seriousness of offending – expectations of the Australian community – international non-refoulement obligations – detention with no chronologically fixed endpoint – extent of impediments if removed – links to the Australian community – strength, nature and duration of ties – Decision set aside and substituted.
Legislation
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Cases
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR and Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Jal v Minister for Immigration and Border Protection [2016] AATA 789
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417
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
Secondary Materials
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954)
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976)
UN General Assembly, Convention on the Rights of Persons with Disabilities: resolution/adopted by the General Assembly, 24 January 2007, A/RES/61/106
WRITTEN REASONS FOR DECISION
Senior Member Dr Linda Kirk
21 March 2023

BLTY (‘the Applicant’) is a 34 year-old citizen of Iran[1] who first arrived in Australia as an unauthorised maritime arrival on 29 June 2013.[2] On 27 August 2019, the Applicant was granted a Class XE Subclass 790 Safe Haven Enterprise visa (‘the protection visa’).[3]
[1] Exhibit R1, G8, 43.
[2] Ibid, G6, 34.
[3] Respondent’s Statement of Facts, Issues and Contentions (‘RSFIC’), [5].
On 1 March 2021, the Applicant was convicted in the Fairfield Local Court of NSW of three counts of Sexually touch another person without consent – T2 and sentenced to 12 months’ imprisonment with a seven month non-parole period for each offence. The Applicant lodged a severity appeal the District Court at Paramatta which resulted in the non-parole period being reduced to six months.[4]
[4] Exhibit R1, G5, 31.
On 23 March 2021, the Applicant’s visa was cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) (‘Mandatory Visa Cancellation Decision’) because a delegate of the Minister (‘the Respondent’) was satisfied the Applicant did not pass the character test in subsection 501(6) of the Act as he was considered to have, pursuant to subsection 501(7)(c), a ‘substantial criminal record’.[5] The Mandatory Visa Cancellation Decision invited the Applicant to make representations to the Respondent about revoking the decision to cancel the visa within 28 days of receipt of the letter.[6] At the time, the Applicant was serving a sentence of full-time imprisonment at the South Coast Correctional Centre in New South Wales for an offence against a law in Australia.
[5] Ibid, G7, 35.
[6] Ibid, G15, 69.
On 17 December 2021, the Applicant made representations seeking revocation of the Mandatory Visa Cancellation Decision.[7]
[7] Ibid.
On 8 December 2022, a delegate of the Respondent decided, under subsection 501CA(4), not to revoke the Mandatory Visa Cancellation Decision (‘the Reviewable Decision’).[8]
[8] Ibid, G2, 8.
On 8 December 2022, the Applicant applied to the Tribunal for review of the Reviewable Decision under subsection 500(1)(ba) of the Act.[9]
[9] Ibid, G1, 1.
The matter was heard by the Tribunal on 14 February 2023. The Applicant attended the hearing in person and was represented by his solicitor. The following persons gave oral evidence and were cross-examined at the hearing:
- The Applicant
- Dr Gerald Chew, Consultant General & Forensic Psychiatrist
The material before the Tribunal consists of:
- Applicant’s Tender Bundle filed on 24 January 2023 – Exhibit A1
- Applicant’s Supplementary Tender Bundle filed on 8 February 2023 – Exhibit A2
- Section 501 G-Documents (G1-29, pp 1-176) filed on 22 December 2022 – Exhibit R1
- Respondent’s Tender Bundle (TB1 –TB5, pp 1 – 267) filed 2 February 2023 – Exhibit R2
- Applicant’s Statement of Facts Issues and Contentions dated 24 January 2023
- Respondent’s Statement of Facts, Issues and Contentions dated 2 February 2023
The Tribunal has reviewed the evidence before it and refers to relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Respondent 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’. Paragraph 501(7) of the Act relevantly provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution.
Section 501CA of the Act applies if the Respondent makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Respondent 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 Respondent under subsection 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 90
The Respondent is empowered by subsection 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, except for the Respondent acting personally, such as the Respondent’s delegates and the Tribunal.[10]
[10] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
On 8 March 2021, the Respondent signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[11]
[11] Direction, [2-3].
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)Whether the conduct engaged in constituted family violence;
c)The best interests of minor children in Australia; and
d)Expectations of the Australian community.
Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:
a)International non-refoulement obligations;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘information and evidence from independent and authoritative sources should be given appropriate weight.’
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give a ‘other’ consideration the equivalent of or greater weight than a primary consideration.[12] Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as Kenny and Mortimer JJ stated in Jagroop v Minister for Immigration and Border Protection and Another: ‘the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501’.[13]
[12] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
[13] (2016) 241 FCR 461 at [57].
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 subsection 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). See also Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125 at [3] (Perry J).
The issues for determination are:
1)whether the Applicant passes the ‘character test’; and
2)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 in Iran
The Applicant was born in Ahvaz, Iran in August 1988. He is the second oldest of four children.[16]
[16] Applicant’s Statement of Facts, Issues and Contentions (‘ASFIC’), [9].
The Applicant and his family are Ahwazi Arabs. They experienced discrimination in Iran because of their ethnicity, finding it difficult to gain employment and subsist.[17] At school, the Applicant was subjected to racism from students and teachers. He had difficulty learning because Persian was not his first language. He dropped out of school after the first year of middle school, grade 6.[18] After leaving school, the Applicant worked helping his father, a truck driver and mechanic.[19]
[17] Exhibit R1, G17, 91-92; ASFIC, [10].
[18] Exhibit A1, 2, [8]]; ASFIC, [10]; Transcript of proceedings, 14 February 2023, 9.
[19] ASFIC, [11].
At age 18, the Applicant commenced compulsory military service. After 13 months, he was released for medical reasons, as he was diagnosed with schizophrenia. He was hospitalised for two to three months and treated with injections of antipsychotic medication.[20] He obtained an exemption for the remaining period of his military service and was discharged, following which he returned to working with his father.[21]
[20] Exhibit A1, 2, [9].
[21] Ibid, [10]; ASFIC, [12].
The Applicant’s older brother KA worked for an Arab separatist organisation, the Arab Party of Ahvaz (Tamazon or DSPA), which sought a separate Arab state in Khuzestan Province.[22] KA organised political gatherings and rallies, wrote materials for the organisation and photographed human rights abuses against Arabs. He left Iran in 2010 and was granted asylum in the United Kingdom.[23]
[22] Ibid, [11]; Exhibit R1, G17, [5].
[23] Exhibit R1, G17, 94; ASFIC, [13].
After KA left Iran, the Iranian intelligence visited the Applicant’s family’s house numerous times. The Applicant and his father were detained and interrogated. The Applicant was tortured and beaten with different objects including cables.[24]
[24] Exhibit R1, G17, 96; Exhibit A1, [12]; ASFIC, [14].
When the Applicant re-established contact with his brother in the UK, KA told the Applicant about his work for the Arab Party of Ahvaz and asked the Applicant to help him by delivering parcels, which he did.[25]
[25] Exhibit A1, [13]; ASFIC, [15].
The Applicant and his family feared he would be arrested again and killed. The Applicant left Iran in June 2013.[26]
[26] Exhibit A1, [14]; ASFIC, [16].
Arrival in Australia
The Applicant arrived in Australia by boat on 29 June 2013 when he was 24 years old.[27] He spent about two months at Christmas Island Immigration Detention Centre and Curtin Immigration Detention Centre. [28] In August 2013, he was released into the community on a bridging visa. He lived in Brisbane for about two months, and in Melbourne for about six months. He had no family or other supports in Australia, did not have work rights, and was not receiving any mental health treatment.[29]
[27] Exhibit R1, G6, 34; ASFIC, [17].
[28] ASFIC, [18].
[29] Exhibit A1, [16]-[17]; ASFIC, [19].
Drug use and mental health condition
The Applicant started drinking alcohol and smoking cannabis when he was 13 years old. When he was in his twenties, he was drinking daily and would drink one to two bottles of wine per day. He also smoked cannabis daily and smoked up to five joints a day. At the age of 17 he started smoking ice.[30] He stopped taking drugs for a period of three years with the assistance of his family. However, he relapsed into using alcohol and cannabis when he came to Australia.[31]
[30] Transcript of proceedings, 14 February 2023, 16.
[31] Ibid, 16-17.
The Applicant moved to Sydney in late 2014. A friend introduced him to synthetic cannabis, which he had not used before.[32] The Applicant was admitted to Cumberland Hospital from 26 September 2014 to 3 November 2014, after police found him running through traffic. He was treated initially for substance induced psychosis. His psychosis resolved on oral antipsychotic medication, and he was discharged with follow up by Community Mental Health Services.[33]
[32] Exhibit A1, [19]; Transcript of proceedings, 14 February 2023, 34.
[33] Exhibit R1, G21, 115; Exhibit A1, [26]; ASFIC, [20].

During his oral evidence at the hearing, the Applicant described the affect that synthetic cannabis had on him. He stated:
‘It’s hard to explain, but when I was using it, it was taking me out of this world. I was somewhere else. It’s very hard to explain.[34]
…
It was (indistinct) and the wall and everything was talking to me. Even door was shout or something. Suddenly I would hear things and it was like they’re talking to me.’[35]
[34] Transcript of proceedings, 14 February 2023, 10.
[35] Ibid, 11.
He told the Tribunal that synthetic cannabis severely impacted his mental health. He said that when he hears the name ‘synthetic cannabis’, ‘some kind of fear overtakes my whole body and I remember the first time I used it.’[36]
[36] Ibid.
After being discharged from hospital, the Applicant remained addicted to synthetic cannabis.[37] He stopped taking medication and was admitted again to Cumberland Hospital from 15 January 2015 to 19 February 2015. He was found to be ‘thought disordered and exhibited grandiose delusions and auditory hallucinations.’[38] He was placed on a community treatment order (CTO) and treated with injections of antipsychotic medication.[39]
[37] Exhibit A1, [22].
[38] Exhibit R1, G21, 115; Exhibit A1, [23]; ASFIC, [21].
[39] Ibid.
The Applicant’s bridging visa was cancelled, and he was detained in immigration detention in February 2016 where he remained for the next three years and six months. In November 2016, he was recognised as a refugee by the Immigration Assessment Authority (IAA),[40] and granted a protection visa on 27 August 2019.[41] The IAA found the Applicant faces a real chance of being detained and tortured if he returned to Iran for reason of his Ahwazi Arab ethnicity and his imputed or actual political opinion.[42]
[40] Exhibit R1, G17, 88.
[41] ASFIC, [22].
[42] Exhibit R1, G17, 96; ASFIC, [17].
Following his release from immigration detention in August 2019, the Applicant was housed in hotel accommodation for four weeks. At the end of this period, he was unable to secure other rental accommodation, and he became homeless.[43]
[43] Exhibit A1, [34]; ASFIC, [23].
The Applicant told the Tribunal that he remembers that when he was released from immigration detention, he was warned that he must not commit any further offences, and if he did then his visa may be cancelled.[44] He agreed that he signed an acknowledgment to this effect at the time.[45] He told the Tribunal:
‘Well, I’m a human being and I made a mistake. It happened, I went and used drug again, and here we are. What do I do to just get back to normal life?’[46]
[44] Transcript of proceedings, 14 February 2023, 40.
[45] Exhibit R1, G23, 142; Transcript of proceedings, 14 February 2023, 41.
[46] Transcript of proceedings, 14 February 2023, 41.
The Applicant returned to smoking synthetic cannabis and ceased injections of antipsychotic medication. His mental health deteriorated, and he was admitted to Cumberland Hospital in March 2020 as a voluntary patient, where he remained for about a month.[47] Upon discharge from hospital, the Applicant returned to homelessness and being unmedicated.[48]
[47] Exhibit A1, [41]; ASFIC, [24].
[48] Ibid; Ibid, [25].
At the hearing, the Applicant was asked why he resumed using synthetic cannabis following his release from immigration detention. He told the Tribunal that a friend visited him from Melbourne and, when he departed, he left a bundle of synthetic cannabis behind, and the Applicant started using it and then continued to do so.[49]
[49] Transcript of proceedings, 14 February 2023, 11; Exhibit A1, [42].
The Applicant was admitted to Liverpool Hospital on 26 November 2020.[50] He was placed on depot medication and a CTO. He was discharged from hospital on 16 December 2020.[51] The Applicant’s evidence is that he was still mentally unwell upon release as he ‘was paranoid, hearing voices and felt like someone was following and listening to him.’[52]
[50] Exhibit A1, [43].
[51] Ibid, 185-187; ASFIC, [26].
[52] Exhibit R1, G16, 83.
Criminal history in Australia
The Applicant’s National Police Check dated 17 February 2022 records his convictions in Australia.[53]
[53] Ibid, G5, 30-33.
Early offending
The Applicant’s first criminal conviction was recorded on 13 May 2015 for Possess prohibited drug. Between 2015 and early 2021, he was convicted of numerous further offences.[54] These included convictions for possessing marijuana, for which he was fined or given Community Correction Orders.[55] He was convicted twice of Goods in custody suspected of being stolen (being an Opal card and bank card which he had found), for which he was fined.[56] He was also fined without conviction for driving an unregistered vehicle, being unlicensed and above the prescribed concentration of alcohol, being offences that he committed in Melbourne in 2014.[57] He also has convictions without penalty for riding a bicycle without a helmet and travelling without a valid ticket.[58] On 9 November 2020, the Applicant was convicted in the Local Court of New South Wales of six counts of Possess prohibited drug and was sentenced to a Community Correction Order for a period of 12 months on each count.[59]
[54] Ibid, 33.
[55] Ibid.
[56] Exhibit A1, [26] and [39]; Exhibit R1, G5, 32-33.
[57] Exhibit A1, [18].
[58] Exhibit R1, G5, 32.
[59] Exhibit R1, G5, 31.
Sexual offences
On 1 March 2021, the Applicant was convicted of three counts of Sexually touch another person without consent. This offending occurred on 19 December 2020, three days after the Applicant was discharged from hospital. The sentencing Magistrate’s remarks record the circumstances surrounding these offences. At 10:50am, the Applicant approached two young women on a train. He placed his hand up the first woman’s skirt, touching her upper thigh. She pushed his hand away, and he attempted to put his hand up her skirt and touch her thigh a second time. As the women attempted to move away, he placed his hand on top of the second woman’s vagina above her pants. The Applicant did not speak throughout the incident, only smiled.[60] At 3:15pm on the same day, the Applicant approached a third woman on a train. He put his hand onto her vagina above her pants and said the word ‘pussy’. A few moments later he removed his hand, smiled and walked away. The victims felt uncomfortable and unsafe.[61]
[60] Ibid, G18, 106-107.
[61] Ibid.
The Applicant pleaded guilty to the offences. On 1 March 2021, the Fairfield Local Court sentenced the Applicant to 12 months imprisonment, with a non-parole period of seven months.
In his sentencing remarks, Magistrate McIntosh noted that one of the Applicant’s victims was ‘so scared and in complete disbelief’ at what had occurred. His Honour considered the offending to be ‘extremely serious’ and stated, ‘[y]oung women have the right to feel safe on public transport and everywhere for that matter. They should not have to be subject to this type of behaviour’.[62]
[62] Ibid, 107.
On appeal, the District Court at Parramatta varied the non-parole period to six months.[63]
[63] Ibid, G5, 31.
The Applicant was granted parole at the expiry of the non-parole period on 19 July 2021. He was released from gaol and transferred to Villawood Immigration Detention Centre (‘Villawood’).[64]
[64] ASFIC, [33].
Remorse for offending
In his statement dated 8 November 2022, the Applicant stated:
‘When I think about the offence, I want to cry. I am sorry to the women and their families. I will be sorry all my life … Thinking about my nieces, it makes me think a lot about what I have done that I went to jail for, and I feel very sorry and ashamed. I have thought about hanging myself. God may punish me more than that. I can’t forget it.’[65]
[65] Exhibit R1, G28, 151-152.
In his most recent statement dated 23 January 2023, the Applicant described the shame he feels in relation to his offending:
‘I feel so ashamed about the offences I committed on the train. I can’t stop thinking about it. I affected the women’s lives. What I did was disgusting. I was not in control of myself.’[66]
[66] Exhibit A1, [46].
At the hearing, the Applicant was asked about this offending and whether he had any memory of the state of his mental health at the time. He stated:
‘It happened when I was deeply involved in the synthetic marijuana and I’m so ashamed - I’m ashamed of - very ashamed towards the family of that girl and the girl herself.’[67]
[67] Transcript of proceedings, 14 February 2023, 12.
Time in gaol
In his statement dated 23 January 2023, the Applicant described his experience of being in gaol:
‘My six months in jail were a very bad situation. I did not feel safe at all. I was still unwell. My mental health was not good.[68]
…
People asked me what are your charges, and I avoided answering. People get attacked in jail if they have sexual charges – I saw people with scars on their faces from being attacked with razors. I was moved into protection’.[69]
[68] Exhibit A1, [49].
[69] Ibid, [47].
The Applicant stated that he did not complete any programs in gaol because he was not there for long enough.[70]
[70] Ibid, [48].
Medical treatment for mental health condition
The Applicant received treatment in gaol for his mental health condition, seeing a psychiatrist every month. He received injections of antipsychotic medication, and initially experienced side effects causing his hands and body to shake.[71] The medication was adjusted and his condition stabilised.[72]
[71] Exhibit R1, G10, 53.
[72] Ibid, G16, 83.
In Villawood, the Applicant continued to receive medication by way of depot injections as a voluntary patient. In his statement dated 23 January 2023, the Applicant explained that in December 2022 he asked the psychiatrist if he could change his medication to tablets because the injections were painful. On 21 December 2022, the IHMS psychiatrist changed the Applicant to oral medication due to his good compliance.[73] The Applicant told the Tribunal that he is currently taking Olanzapine for his mental health condition.[74] He said that it helps him to control the voices and allows him ‘to live as a normal person.’[75] The Applicant’s treating psychiatrist in Villawood has noted that the Applicant ‘[h]as good insight, has been taking depot as voluntary patient and is willing to comply with oral medication’.[76]
[73] Exhibit A1, 38.
[74] Transcript of proceedings, 14 February 2023, 13.
[75] Ibid.
[76] Exhibit A1, 38.
In his statement dated 8 November 2022, the Applicant explained why he knows he requires medication for his mental health condition:
‘I know the injections are helpful for me – it clears my mind. A professor at Cumberland Hospital explained it to me in a way that it is food for my brain. My brain has gone lazy because I have damaged it with synthetic cannabis, and the depot makes it easier for my mind to get energy’.[77]
[77] Exhibit R1, G28, 152, [17].
At the hearing, the Applicant confirmed that he ceased taking his medication when he was released from immigration detention in August 2019. He was asked what would be different this time if he were released back into the community. He stated:
‘Well, I - like other people who are undergoing treatment, I will keep my medicine with me all the time. As soon as (indistinct) I go and seek and find a psychologist or psychiatrist to make sure I have the medicine renewed for me and … use the medicine to be able to control any urge controls drugs.[78]
…
And the medicine I used to control it, I wouldn’t stop it without consulting the counsellors or the psychiatrists or psychologist’.[79]
[78] Transcript of proceedings, 14 February 2023, 13.
[79] Ibid, 14.
The Applicant was asked what he would do if he noticed a change in his mental health condition. He said that he would immediately inform his case manager, and if his psychiatrist recommends that he needs to go back to an injection instead of tablets, he will accept this.[80]
[80] Ibid.
Drug use and treatment in immigration detention
After arriving at Villawood, the Applicant attended a drug and alcohol assessment on 23 October 2021. He acknowledged ‘struggling to stop drug use’ despite trying many times, and he asked to be considered for the opioid substitution therapy program (OSTP).[81] He was approved to commence the OSTP on 19 September 2022.[82]
[81] Exhibit A1, 165.
[82] Ibid, 83 and 87.
During cross-examination, the Applicant was asked whether he smoked a quarter of a strip of buprenorphine (bupe) daily when he was in gaol. He said that he only used it once.[83] A report by a IHMS nurse dated 23 October 2021 recorded that the Applicant told her that he last used bupe the previous day.[84] He told the nurse that when he did not have bupe, he was smoking ice. The Applicant’s urine test completed on the same day tested positive for bupe, THC (cannabis) and amphetamines.[85] Another urine test completed in November 2021 tested positive for bupe, cannabis and amphetamines.[86]
[83] Transcript of proceedings, 14 February 2023, 18.
[84] Ibid.
[85] Ibid, 19.
[86] Exhibit A1, 161.
A report by a IHMS psychiatrist dated 9 February 2022, records that the Applicant admitted to using ice, bupe and cannabis.[87] In another report dated 30 May 2022, the Applicant is recorded as admitting he was using bupe and he requested to join the methadone program.[88] He also said he was smoking one point a day of ice.[89] A urine test completed on the day tested positive for amphetamine and methamphetamine. In a report dated 27 June 2022, the Applicant is recorded as having said he was smoking one point of ice weekly.[90] A report by a IHMS nurse dated 5 September 2022 records that the Applicant said that in late August or early September 2022, he was still taking illicit drugs, specifically bupe, or ice when bupe was not available to him, and smoking cannabis almost every night.[91] The Applicant agreed that these reports were accurate.[92]
[87] Ibid, 150.
[88] Ibid, 139.
[89] Ibid.
[90] Ibid, 136.
[91] Ibid, 110; Transcript of proceedings, 14 February 2023, 23 and 24.
[92] Transcript of proceedings, 14 February 2023, 24.
On 5 September 2022, a IHMS nurse recorded that the Applicant said that he owed $1000 to other detainees from whom he had bought drugs, and that he had paid $500 and would be paying the balance soon.[93] The Applicant confirmed that this was correct.[94]
[93] Exhibit A1, 110.
[94] Transcript of proceedings, 14 February 2023, 23.
The Applicant’s evidence is that he has not used synthetic cannabis since he went to gaol.[95] In his statement he wrote:
‘Being clean from synthetic cannabis, I can see how different I am. I am never going to touch it again. I wouldn’t even have one more puff. It ruined my life’.[96]
[95] Exhibit A1, [52].
[96] Ibid.
The Applicant told the Tribunal that he commenced on the OSTP program five months ago. He explained:
‘Methadone helps me to keep away from the drugs. Even in prison, it’s very difficult for you to stay away from drugs - addictive drugs - but methadone is helping me to stay clean …’[97]
[97] Transcript of proceedings, 14 February 2023, 13.
In his statement dated 23 January 2023, the Applicant described how he has felt since commencing the methadone program:
‘I feel good on the methadone program. My dose is slowly going down. Eventually I would like to be able to get off methadone’.[98]
[98] Exhibit A1, [53].
The Applicant told the Tribunal that taking methadone allows him to refrain from using cannabis, bupe and ice.[99] He denied that he likes using methadone because it makes him ‘high’.[100] He agreed that when he first commenced on the methadone program he requested that the dose be increased, but it has subsequently been decreased on the advice of the doctor so as to better regulate his sleep.[101]
Psychiatric assessment
[99] Transcript of proceedings, 14 February 2023, 20, 21 and 24.
[100] Ibid, 25.
[101] Ibid, 26.
Dr Gerald Chew, Consultant General & Forensic Psychiatrist
Dr Chew conducted a psychiatric assessment of the Applicant via video link on 14 December 2022 and provided a report dated 12 January 2023.[102] He noted that the Applicant expressed to him ‘genuine remorse and a willingness to engage in treatment and rehabilitation.’[103] He also found that the Applicant ‘had good insight into his issues … and was motivated to engage in treatment and abstain from alcohol and drugs’.[104]
[102] Exhibit A1, 7-20.
[103] Ibid, 14, [35].
[104] Ibid, 13, [31].
In his report, Dr Chew concluded that the Applicant’s primary diagnosis is Chronic Schizophrenia with an additional diagnosis of Substance Use Disorder – Synthetic Cannabis and Opioids in particular.[105] He found that the Applicant was suffering from these conditions at the time of his offending behaviours.[106] He noted that the Applicant’s psychotic disorder is currently well treated and stable, and that he has been alcohol and drug free in detention since his treatment with methadone beginning September 2022, and he is motivated to remain abstinent.[107]
[105] Ibid, 13, [32].
[106] Ibid, 13, [33].
[107] Ibid, 14, [41].
At the hearing, Dr Chew opined that the Applicant’s Substance Use Disorder has been a result of his Schizophrenia and also at some times has exacerbated it.[108] He explained that it is not uncommon for patients with Schizophrenia to ‘self-medicate’ in order to deal with their psychological symptoms, however unfortunately this in turn can often exacerbate psychosis.[109] Dr Chew confirmed that it has been well documented that synthetic cannabis exacerbates psychosis, and it may be more potent in terms of producing psychosis than non-synthetic plant cannabis.[110]
[108] Transcript of proceedings, 14 February 2023, 28.
[109] Ibid, 29.
[110] Ibid.
Dr Chew found that the Applicant does not suffer from Personality Disorder.[111] He explained that this is significant because when trying to formulate and understand someone with offending behaviour, it is important to consider evidence of any underlying personality disorder to explain the offender’s behaviour.[112]
[111] Exhibit A1, 16, [42]; Transcript of proceedings, 14 February 2023, 29.
[112] Transcript of proceedings, 14 February 2023, 29.
Dr Chew found that the Applicant’s offending is attributable to his mental health conditions:
‘His offending behaviour appears to be very linked to his mental health and substance use. It appears that his offending has generally been directly caused by or significantly contributed to by his Substance Use Disorder and Schizophrenia. Many of his offences are directly related to drug possession which is in turn directly related to his Substance Use Disorder. At the time of the serious offending (sexual touching) he was experiencing psychotic symptoms which impacted his judgement and behaviour. I note that he was only recently discharged from hospital with well documented acute psychosis. In my experience it is common for discharge from hospital in an improved mental state compared to admission however still experiencing active symptoms. This is because of extreme pressure on acute psychiatric services necessitating discharge as early as practicable. This was further complicated by intoxication with substances at the time- synthetic cannabis in particular. He had been feeling paranoid thinking that people were having a go at him. In this mental state, coupled with substance use, he likely reacted in a disinhibited manner affected by voices and psychosis.’[113]
[113] Exhibit A1, 13-14, [34].
Dr Chew told the Tribunal that he observed that the Applicant ‘certainly demonstrated some insight’ into his substance use being a problem from his mental health, in that he made a number of comments about ‘some cannabis being really no good and evil and … mucking around with his mental health.’[114]
[114] Transcript of proceedings, 14 February 2023, 32.
Dr Chew was asked about the significance of the timing of the Applicant’s sexual offending, being three days following his discharge from a psychiatric admission. He explained that most patients with severe psychotic illnesses are generally not discharged from hospital because they are completely in remission, but because they are better than they were on admission, and it is thought that they are manageable at that point in the community. On this basis, Dr Chew opined that ‘it would have been highly likely that [the Applicant] would’ve had ongoing psychotic symptoms albeit (indistinct) from at the first point of first admission to hospital.’[115] In addition, patients are often discharged from hospital because there is pressure on acute mental health beds, particularly due to involuntary admissions under the Mental Health Act.[116]
[115] Ibid, 29.
[116] Ibid.

Dr Chew was asked whether it is of concern that the Applicant was not offered and did not complete any rehabilitation program targeted to sexual offences when he was in gaol. He said that, given the nature of the Applicant’s offences, it would have been preferable that he had specific treatment and assessment. However, from his experience working in NSW, he knows that under the triage and priority system the Applicant’s behaviour would not meet the criteria for any of the custody-based treatment programs. Furthermore, in his opinion, the primary contributors to the Applicant’s offending, rather than being ‘a sexual stimuli kind of sexual deviance was more likely to be a combination of psychosis and drug use’. In his view, these are ‘stress factors rather than an underlying sexual deviance’, which are, ‘the reversal risk factor that only a sexual behaviours program can look at and treat.’[117]
[117] Ibid, 30.
Dr Chew told the Tribunal that it is ‘not uncommon’ for people that do not use opioids at all in any other setting to develop a habit of using illicit suboxone while in custody.[118] He explained that any opioid use is extremely dangerous with the risk of overdose and death. However, in terms of its interaction with schizophrenia and psychosis, there is not a strong link between it exacerbating psychosis, and ‘if anything it may dampen down and minimise psychotic symptoms.’[119]
[118] Ibid.
[119] Ibid.
Dr Chew was asked to explain how the methadone treatment program works. He said:
‘It’s really a reduction strategy - and a very effective one, so it’s been demonstrated in numerous phase to reduce all sorts of harm including ongoing use of illicit opioids, the risk of overdose and death and it’s actually been associated with a reduction of criminal activity that is often associated with the use of illicit opioids as well’.[120]
[120] Ibid.
He explained that the exact dosage of methadone for a patient ‘is very individualised and very individual specific.’ It is necessary to find ‘a balance between being given a reduction of cravings and wanting to use illicit substances and any side effects’, because ‘methadone is a powerful opioid in itself and will have opioid-like effects’.[121] He told the Tribunal that methadone does not produce the same type of high as that from quick use of short-acting opioids. Methadone is ‘quite a long-acting, slow release opioid’ as opposed to heroin ‘which is very fast acting, gives you a high very quickly and it’s pretty short lasting.’[122] He explained that a request by a patient for a higher dosage of methadone is often an indication that they feel that the current dose is not ‘holding them’ and they are getting some impulses or cravings to use.[123]
[121] Ibid, 31.
[122] Ibid, 35.
[123] Ibid, 37.
Dr Chew told the Tribunal that while methadone is strictly used to treat the opioid dependence, ‘it is not uncommon for a variety of reasons for patients to report when they do commit to opioid and therapeutical opioid substitution therapy such as methadone, that all their drug use … lessens’.[124]
[124] Ibid, 35.
During cross-examination, Dr Chew was asked whether it is very common for people who are on the methadone treatment therapy in a closed setting, such as prison or detention, to relapse to other drugs once they are in the community. He stated:
‘Look, it does happen, but to be very honest, one of the protective factors for relapse … is to be on treatment programs such as methadone … However, of course, there are still a number of people that relapse but it certainly helps a lot of them.’[125]
…
‘So all … substance use problems are … difficult to treat and there’s always a risk of relapse in almost everybody … but there are certain things like being on the methadone program or any other opioid substitution program which improve people’s chances and I think being on something like methadone, it’s not just the pharmacological properties, it’s also the fact they are more sustained on methadone you need to continually engage with drug and alcohol services and so they don’t - you know, drug and alcohol services and continually don’t just prescribe, there are also going to be trying to alter the psychological interventions and various other interventions and medical check ups and so on and so forth along the course of your journey, so I think those are the sort of things that will be helpful in trying to make (indistinct) abstinent.’[126]
[125] Ibid, 36.
[126] Ibid.
Dr Chew noted that there are a number of protective factors that are associated with reducing the Applicant’s risk of offending and violence, including the empathy he expressed with regard to his victims and his expressed motivation for treatment and positive attitudes towards authority. He noted that the Applicant has achievable life goals, and he is motivated to adhere to intensive professional care from health, drug and alcohol and corrections professionals. He also is motivated to remain on antipsychotic medication including depot long acting if necessary, and on a CTO if necessary.[127]
[127] Exhibit A1, 16-17, [42].
In Dr Chew’s opinion, with treatment, rehabilitation and abstinence from illicit drugs, the Applicant’s ‘prognosis is good and his risk of reoffending will be much reduced.’[128] During cross-examination, Dr Chew agreed that without these, the Applicant’s ‘prognosis is poor.’[129] He explained that non-compliance with medication can take a while before symptoms reappear, but illicit drug use can cause almost immediate evidence of symptoms. He agreed that if the Applicant became acutely psychotic because of non-compliance and illicit drug use, his statements about his insights into his offending are not much comfort.[130]
[128] Ibid, 14, [36].
[129] Transcript of proceedings, 14 February 2023, 34.
[130] Ibid, 37.
Dr Chew was asked whether there is treatment that would be beneficial to the Applicant in the community that he is unable to receive in detention. He stated:
‘… I know in detention he does receive the basis of treatment and the mainstay of treatment certainly is medication. However, you know, psychiatric treatment is really more wholistic of the prime bio-social approaches is what our college likes to talk about and certainly he would have access to a psychosocial intervention and a lot of those are aimed at … not just treating symptoms but helping him … cope and live in the community and certainly those sort of interventions are not really available in detention.’[131]
[131] Ibid, 33.
Dr Chew outlined what he considers would be the impact on the Applicant of ongoing immigration detention:
‘Ongoing detention would be negative for [the Applicant] and impede his chances of remaining in appropriate treatment. Detention would likely exacerbate his underlying mental conditions. Treatment is less available in detention than in the community. It is also well documented that detention can worsen psychotic and trauma illnesses and even induce psychosis.’[132]
[132] Exhibit A1, 14, [37].
He elaborated on this in his oral evidence at the hearing:
‘… so it’s very well documented especially if people are placed in seclusion type of environments and I guess solitary confinement and things like that which can happen from time to time, so even individuals without psychoses have developed - can develop psychosis in those situations, so someone who has got a psychotic illnesses almost invariably becomes psychotic in those sort of situations.’[133]
[133] Transcript of proceedings, 14 February 2023, 33.
Future plans
The Applicant’s evidence is that he is motivated to continue receiving treatment if he is released to the community, and to live his life without drugs.[134] He will receive immediate practical support through the Department’s Status Resolution Support Service (SRSS), which includes four weeks of accommodation and case management support. He will also be supported by Anglicare’s Mental Health Community Living Support for Refugees program, which includes practical support with everyday life tasks, attending appointments, and finding accommodation and employment.[135] The Applicant has not previously had this sort of support available to him in the community.[136] He told the Tribunal:
‘Just little bit help might push me one step forward and let me live my life like a normal person.’[137]
[134] Exhibit A1, 5-6, [51]-[58].
[135] Exhibit A2, 8-10.
[136] Ibid, 2.
[137] Transcript of proceedings, 14 February 2023, 45.
In his statement dated 23 January 2023, the Applicant wrote that he hopes to get a job at a car wash, now that his health is better and his English language skills have improved. He has done this work before in Iran and is good at it.[138] He told the Tribunal that he had four days training to work at a car wash in Sydney.[139] They said they would call him, but he could not pursue this opportunity because of his cannabis problem at the time.[140]
[138] Exhibit A1, [57].
[139] Transcript of proceedings, 14 February 2023, 44.
[140] Ibid.
At the hearing, the Applicant said that if he is released into the community he wants to live in Brisbane. He intends to ‘get help from community services and live happily there.’[141] The Applicant told the Tribunal that when he first arrived in Australia in 2013, he lived in Brisbane with an Iraqi family for a period of two months ‘without any problem’.[142] However, he has not been in contact with the family since he left Brisbane.[143]
[141] Ibid, 43.
[142] Ibid, 43-44.
[143] Ibid, 44.
The Applicant told the Tribunal what he hopes his life will be like in Australia in the future. He stated:
‘I want my life to be like - like any other normal person, and I will make sure my life be in the way like, you know, thinking about my future, like I have children, I have to have children, and I have to get married one day, and all this I have to think about it today before tomorrow, and it’s too late for me now. But the life is short. I have to think about this stuff. So, the only thing I can say to Judge - the only thing I have to fix my future from today on, because it’s too late for me. I see very bad situation in the past. I been in police station, but I never been in gaol. And when I went to gaol, like, completely changed my mind about my life and in the future only - the only thing I’m thinking about to married and have children in Australia and around my family, you know. I live - continue the rest of my life.[144]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[144] Ibid, 15.
1)Does the Applicant pass the ‘character test’?
In the representations and documents that the Applicant submitted to the Department of Home Affairs (‘the Department’) and the Tribunal, he does not dispute the information in the National Criminal History Check report dated 17 February 2022 recording his criminal convictions and sentences. It records that on 1 March 2021, the Applicant was convicted in the Fairfield Local Court of three counts of Sexually touch another person without consent – T2 and sentenced to 12 months’ imprisonment. The Tribunal is satisfied that the Applicant has a ‘substantial criminal record’ for the purposes of section 501(3A)(a) and section 501(6) of the Act, as he has been sentenced to a term of imprisonment of 12 months or more: section 501(7)(c). The Tribunal is also satisfied, for the purposes of section 501(3A)(b) of the Act, that on 23 March 2021 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.
Having found that the Applicant does not satisfy the character test, the Tribunal finds that section 501CA(4)(b)(i) cannot be invoked to revoke the Mandatory Visa Cancellation Decision.
2)Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
The issue for determination by the Tribunal is whether, for the purpose of subparagraph 501CA(4)(b)(ii) of the Act, there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked. The Tribunal must in accordance with paragraphs 8 and 9 of the Direction take into account the relevant ‘primary considerations’ and ‘other considerations’. The existence or otherwise of ‘another reason’ is to be established on the balance of probabilities.
The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Federal Court of Australia in Viane v The Minister for Immigration and Border Protection:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.[145]
Primary Considerations
[145] [2018] FCAFC 116; 162 ALD 13 per Colvin J, [64].
Primary Consideration 1 – Protection of the Australian community
Reiterating the general guidance and principles in the Direction, paragraph 5.2 states that:
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
Paragraph 8.1(2) states that in considering the need for protection of the Australian community, decision-makers should also have regard 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 8.1.1(1) sets out factors to be considered in determining the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Relevant to the Applicant’s conduct, the Tribunal must have regard to the following factors:
a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)   crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)    without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)   …
(ii) crimes committed against vulnerable members of the community …, or government representatives or officials due to the position they hold, or in the performance of their duties.
(iii) …
(iv) …
c)    with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)    the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)    the cumulative effect of repeated offending;
f)     …
g)    whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
Guided by paragraphs 8.1.1(1)(a)(i)-(ii) of the Direction, the Tribunal finds that the Applicant’s sexual offences are to be viewed very seriously, as they are sexual crimes committed against women. The Tribunal concurs with the sentencing Magistrate who described these offences as ‘extremely serious’ noting that young women have the right to feel safe on public transport. The Applicant also accepts that these offences are very serious.[146]
[146] ASFIC, [40].
Having regard to paragraph 8.1.1(1)(c) of the Direction, the Tribunal finds that the custodial sentence imposed on the Applicant for these sexual offences 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.[147]
[147] Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]; 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].
Relevantly to paragraph 8.1.1(1)(d) and (e) of the Direction, the evidence before the Tribunal is that the Applicant frequently offended following his arrival in Australia in 2013. Between the period 2015 to 2021, the Applicant was convicted or found guilty of numerous offences, including drug related offences, driving offences, dishonesty offences, and travel related offences. His most recent sexual offences are objectively the most serious and indicate an escalating seriousness in his offending behaviour. The frequency of the Applicant’s earlier criminal offending adds to its serious nature as it has resulted in a cost to the community in terms of law enforcement and judicial resources.
Guided by paragraph 8.1.1(1)(g) of the Direction, the Tribunal notes that the Applicant committed his most serious offences in December 2020 after being formally warned in August 2019 about the consequences of further offending on his migration status. He agreed that he signed an acknowledgement confirming that he understood that further offending or serious conduct might weigh heavily against him in any future decision to cancel his visa. The fact that the Applicant committed very serious offences following him being warned about the consequences of him re-offending is a further indication of the seriousness of his criminal behaviour.
On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant’s criminal offending is very serious in nature, and this 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
Paragraph 8.1.2(1) of the Direction states:
‘In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.’
Paragraph 8.1.2(2) of the Direction provides that in assessing the risk that may be posed to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …

Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to reoffend in accordance with paragraph 8.1.2(2)(a) of the Direction, the Tribunal finds that if the Applicant were to engage in further sexual offending, this could cause serious physical, psychological and emotional harm to members of the Australian community, particularly women. The potential extent of the harm that may be caused to members of the community is heightened by the fact that the Applicant’s offending occurred in a public place, and his victims were unknown to him. Further drug related offending by the Applicant also has the potential to expose members of the Australian community to financial and physical harm. For these reasons, the Tribunal finds that the nature of the harm to individuals should the Applicant engage in similar criminal offences, particularly sexual offending, is serious and that any risk that it may be repeated is unacceptable.
In relation to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 8.1.2(2)(b) of the Direction, the Applicant contends that he is ‘unlikely’ to engage in criminal conduct in the future. The evidence before the Tribunal, particularly the professional opinion of Dr Chew, is that the Applicant’s offending is attributable to his mental health condition and his substance use disorder. In his view, with treatment, rehabilitation and abstinence from illicit drugs, the Applicant’s ‘prognosis is good and his risk of reoffending will be much reduced.’[148]
[148] Exhibit A1, 16-17, [36].
Dr Chew found that the Applicant’s psychotic disorder is currently well-treated and stable. He found that the Applicant displayed no current positive psychotic symptoms of schizophrenia at the time of his assessment.[149] The evidence is that the Applicant has been compliant with his medication and his psychiatrist has permitted him to switch to oral tablets instead of depot injections. The Applicant recognises that this treatment is essential ‘food for [his] brain’ to control any urge he feels to take drugs, and he is adamant that unlike in 2019, he will ensure that he does not cease taking his medication and will obtain necessary support from a psychologist or psychiatrist.
[149] Transcript of proceedings, 14 February 2023, 31.
The evidence is that the Applicant has been drug free in immigration detention since he commenced treatment with methadone in September 2022. Dr Chew’s evidence is that the methadone program is a very effective reduction strategy, and it has been associated with a reduction of criminal activity that is often associated with the use of illicit opioids. In addition to the pharmacological effects of methadone, the program requires the Applicant to be connected to a drug and alcohol service, which will allow a more holistic approach to his continued treatment and abstinence that goes beyond simply the administering to him of methadone.[150]
[150] Transcript of proceedings, 14 February 2023, 51.
Whereas the Applicant has only been taking methadone for a period of approximately six months, before which he was regularly using bupe, ice and cannabis, the evidence is that since his arrival at Villawood in June 2021, he had requested help to break the addictions he previously had been unable to control himself. This indicates that the Applicant has had the resolve for a considerable period of time to break the drug habit he has had for many years, and which he recognises has ‘ruined [his] life’.
The evidence before the Tribunal is that the Applicant is remorseful for his offending, and he has insight into how his untreated schizophrenia and use of synthetic cannabis contributed to his criminal conduct. Furthermore, the Applicant has a number of supports that will be available to him when he leaves immigration detention. These include the Department’s Status Resolution Support Services (SRSS), which includes four weeks of accommodation and case management support, and Anglicare’s Mental Health Community Living Support for Refugees program, which includes practical support with everyday life tasks, attending appointments, and finding accommodation and employment. This support was not available to the Applicant when he left immigration detention in 2019. It will provide him with access to the assistance he will need to re-establish himself in the community and prevent him from re-lapsing into drug use or being non-compliant with his medication. The support services that will be available to the Applicant upon his release will be especially important in light of the evidence that the Applicant does not have a support network of friends and/or family in Australia who could assist him in abstaining from drug use and not engaging in further offending. The Applicant’s evidence is that he intends to relocate to Brisbane in the future. His evidence is that he is aware of similar community organisations in Brisbane which can provide him with necessary support. He also will be able to obtain advice and support from his case manager in Sydney in relation to linking to an appropriate similar service to assist him in achieving his goal of moving to Brisbane.
There is no evidence that the Applicant has undertaken any rehabilitation targeted at sexual offending during his periods in goal and immigration detention. However, according to Dr Chew, this is not surprising because under the triage and priority system in NSW the Applicant’s behaviour would not have met the criteria for any of the custody-based treatment programs. Furthermore, there is no indication that an underlying sexual deviance contributed to the Applicant’s offending, which is what sexual behaviours programs are intended to treat.
On the basis of the evidence before it and taking into account available information and evidence of the risk of the Applicant re-offending and his rehabilitation, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is low to moderate. In the context of the potential harm to the Applicant’s victims should he engage in the same or similar criminal conduct in the future, the Tribunal finds this risk to be unacceptable.
For the reasons above and applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, Primary Consideration 1 weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 – Family violence committed by the non-citizen
Paragraph 8.1.1(2) of the Direction prescribes that this consideration is relevant where the non-citizen has been convicted of an offence that involves family violence and/or there is information or evidence from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence. This consideration does not arise on the material before the Tribunal.
Primary Consideration 3 – The best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction requires decision-makers to determine whether revocation is in the best interests of the child. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made: paragraph 8.3(2). The Applicant has not identified any minor children and this consideration does not arise on the material before the Tribunal.
Primary Consideration 4 – The expectations of the Australian community
Paragraph 8.4 of the Direction states:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)…
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature …
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(e)…
(f)…
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 8.4 of the Direction, in FYBR and Minister for Home Affairs (‘FYBR’).[151] 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.[152] 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.[153]
·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.[154] It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of ‘appropriateness’.[155]
[151] [2019] FCAFC 185.
[152] Charlesworth J, [66]; Stewart J, [91].
[153] Ibid, [67]; Ibid, [104].
[154] Charlesworth J, [76].
[155] Stewart J, [97].
The effect of paragraph 8.4 is that it imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. The question to be addressed does not involve an inquiry into what the Australian community does or does not expect, because that is normatively expressed in the terms of the consideration: paragraph 8.4(4). Rather, the relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed community expectation’ of non-revocation of a mandatory visa cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences’.[156] As a normative expression, this consideration indicates the likelihood that community expectation will in most cases lead to non-revocation, without dictating an inflexible conclusion. The question for the decision-maker is the weight to be attached to this consideration.
[156] Charlesworth J, [77].
Having regard to the expectations of the Australian community as stated in paragraph 8.4, particularly paragraph 8.4(2)(c), and in accordance with principles 5.2(2)-(5) of the Direction, the Applicant has committed multiple sexual offences, which the community would generally expect to result in the cancellation of his visa. The Applicant also is the holder of a temporary protection visa which, according to principle 5.2(4), would result in a low tolerance by the Australian community of any criminal or other serious conduct by the visa holder.
Despite having held his temporary visa for less than four years, the Applicant has resided in Australia for almost a decade. Accordingly, the factors in principle 5.2(4) of the Direction, particularly the length of time the Applicant has been in Australia, support a finding that there would be higher level of tolerance by the Australian community for his criminal conduct than there would be for a non-citizen who has not lived in the community for an extended period of time.
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 the nature, seriousness and impact of the Applicant's criminal offending, and the duration of his residency in Australia, the Tribunal finds that Primary Consideration 4 weighs against revocation of the Mandatory Visa Cancellation Decision.
Other considerations
While the primary considerations carry particular weight, the Direction acknowledges at paragraph 9 that ‘other considerations’ must be taken into account by the decision-maker where relevant. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’
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 (‘Suleiman’):[157]
‘Direction 65 [now Direction 90] 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.’
[157] [2018] FCA 594, [23].
In FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[158] Wigney J held that this analysis ‘tends to overcomplicate or over intellectualise the issue’.[159] His Honour held that the use of the word ‘generally’ in clause 8(4) of Direction 79 (the same wording is used in section 7(2) of Direction 90) ‘recognises that there may well be cases where the circumstances are such that one or more “other considerations” may be deserving of more weight than one or more primary considerations’.[160] His Honour also held that the formulation identified in Suleiman ‘is at least potentially problematic because it tends to suggest that a decision-maker cannot give greater weight to one or more of the “other considerations” in any given case unless they consider that the case is somehow unusual or out of the ordinary’.[161]
[158] [2021] FCA 775, [22].
[159] Ibid.
[160] Ibid, [23].
[161] Ibid.
The ‘other’ considerations relevant to the Applicant’s circumstances are considered in the following paragraphs.
International non-refoulement obligations
Paragraph 9.1 of the Direction relevantly provides:
1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
2)In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
6)It may not be possible at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non-citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
Non-refoulement obligations owed to the Applicant

As the Applicant is the subject of a protection finding, by virtue of section 197C(3)(b) of the Act, his removal to Iran is neither required or authorised by the Act and accordingly it would not be a legal consequence of a decision by the Tribunal not to revoke the Mandatory Visa Cancellation Decision. The consequence of the Tribunal’s decision not to revoke the cancellation will therefore be that the Applicant remains in immigration detention until such time as the Respondent’s non-compellable powers under sections 195A or 197AB are exercised, the Applicant is resettled in a safe third country or until one of the situations in section 197C(3)(c) apply. The consequence of this is that the Applicant’s detention would be prolonged for the period during which such processes are completed.[182]
[182] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55.
Guidance in relation to the legal consequences of a non-revocation decision where non-refoulement obligations are engaged is provided by the Full Court of the Federal Court decision in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘WKMZ’).[183] This decision was made in the context of Ministerial Direction No. 79, but the principles it outlines in relation to how a decision-maker should consider the legal consequences of a non-revocation decision are also relevant to the Direction. Kenny and Mortimer JJ observed that the completion of the various steps and inquires available to the Respondent may take some time. Accordingly, it follows that: [184]
‘The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end. It may be inferred that any decision by the executive to abandon its adherence to Australia’s international obligations would, as White J said in AQM18, be a serious step and not a decision taken quickly.’[185]
[183] [2021] FCAFC 55.
[184] Ibid, [132].
[185] Ibid.
In MNLR v Minister for Immigration, Citizenship and Multicultural Affairs, Wigney J considered the potential for ‘indefinite detention’ arising from circumstances where it is not reasonably practicable to remove an unlawful non-citizen from Australia:
There could be little doubt that the length of time that an unlawful non-citizen may spend in immigration detention may in some circumstances be very uncertain and very lengthy. That is particularly the case where the circumstances are such that it is not reasonably practicable to remove the unlawful non-citizen from Australia, for example where they are stateless or their nationality or citizenship is uncertain and no country will agree to receive them, and it cannot be said with any certainty when those circumstances may change. Detention is nonetheless to continue indefinitely in those circumstances until the person is able to be removed: Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 at [33]-[35] (per McHugh J), [227]-[231] (per Hayne J), [299], [301] (per Callinan J) and [303] (per Heydon J).’[186]
[186] [2021] FCAFC 35, [93]–[94].
There is no evidence before the Tribunal that consideration had been given to removal of the Applicant to another country in circumstances in which he is unable to be removed to Iran. Nor is there evidence as to whether the Respondent has considered exercising his discretionary powers in favour of the Applicant. In the Applicant’s circumstances, there is most likely to be a significant delay while steps are taken to identify a country, if any, which will agree to receive him. During this period, he would be subject to ongoing immigration detention. In WKMZ, Kenny and Mortimer JJ recognised the significant impact on a person who is subject to immigration detention for an undefined or ‘indefinite’ period:
‘The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a visa decision maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law. As we explain below, for our own part we see no difficulty in attaching the adjective “indefinite” to such further period of detention, in circumstances where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom.’[187]
[187] Ibid, [123].
The Respondent accepts that the legal consequences of a decision not to revoke the Mandatory Visa Cancellation Decision is that the Applicant’s detention would be prolonged for a period while any processes are carried out and that this loss of liberty should be taken into account by the Tribunal.[188] The Applicant contends that the impacts of prolonged detention on his mental health are particularly grave, given that he has been diagnosed with Chronic Schizophrenia.[189] He drew the Tribunal’s attention to a 2018 article in BMC Psychiatry which provides a review of research that has established that immigration detention has severe mental health consequences, exacerbating the impact of trauma and existing psychological conditions:
‘Adverse mental health consequences of immigration detention are consistently recognised across the literature. Such findings prevail even in countries where detention standards are regarded as relatively benign. Much of the clinical literature reports high levels of anxiety, depression and PTSD and poor quality of life. Whilst such mental health difficulties cannot be viewed in isolation from past histories and pre-detention traumas, which are not consistently measured across studies, controlled studies with non-detained controls uniformly suggest greater symptoms and ‘caseness’ (i.e. meeting diagnostic criteria for a specific mental health condition) in detained samples. This indicates that detention plays an independent role in contributing to poor mental health outcomes amongst asylum seekers.’ […]
‘Overall, the findings suggest that detention exacerbates the mental health burden of asylum seekers and refugees and that such detention should be viewed as a traumatic experience in and of itself. This may be particularly true for those detainees who are particularly vulnerable prior to detention.’[190]
[188] RSFIC, [45].
[189] ASFIC, [73].
[190] M von Werthern et al, ‘The Impact of Immigration Detention on Mental Health: A Systematic Review’ (2018), BMC Psychiatry 382, 14, <>
In his report, Dr Chew outlined the negative impacts for the Applicant of ongoing detention:
‘Ongoing detention would be negative for [BLTY] and impede his chances of remaining in appropriate treatment. Detention would likely exacerbate his underlying mental conditions. Treatment is less available in detention than in the community. It is also well documented that detention can worsen psychotic and trauma illnesses and even induce psychosis.’[191]
[191] Exhibit A1, 14, [37].
Having regard to the evidence, particularly the opinion of Dr Chew, about the impact on the Applicant of prolonged immigration detention, the Tribunal finds that this weighs very heavily in favour of revocation of the Mandatory Visa Cancellation Decision.
Australia’s international obligations
The Applicant contends that in addition to the impact on the Applicant, the prospect of indefinite immigration detention implicates Australia’s international obligations.[192] Specifically he contends that his indefinite detention may breach Australia’s international obligations under Articles 7 and 9 of the International Covenant on Civil and Political Rights (‘ICCPR’)[193] and Article 14 and 15 of the Convention on the Rights of Persons with Disabilities (‘CRPD’)[194] as he is a person with a disability, namely Schizophrenia. It is submitted that indefinitely detaining the Applicant would likely breach Australia’s international obligations under the ICCPR and the CRPD, and that the length and circumstances of his detention to date, without appropriate consideration of less restrictive alternatives to detention, may already amount to a breach of these obligations.[195] The Applicant claims that the breach of these obligations, and the potential damage to Australia’s reputation such a breach may cause, are factors that weigh in favour of revocation of the Mandatory Visa Cancellation Decision. The Applicant concedes that whether indefinite or prolonged detention is or may be in breach of international obligations under the ICCPR and CRPD is not a mandatory relevant consideration.[196] However, a decision-maker is nonetheless required to ‘read identify, understand and evaluate the plaintiff’s representations’ that raise a potential breach of Australia’s international obligations.[197]
[192] ASFIC, [74]-[82].
[193] ASFIC, [75]-[76]; Article 9 of the ICCPR provides that ‘no one shall be subjected to arbitrary arrest or detention’ and Article 7 provides that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’.
[194] ASFIC, [79]; Article 14 of the CRPD requires States Parties to ensure that persons with disabilities enjoy the right to liberty on an equal basis with others, are not arbitrarily detained, and that ‘the existence of a disability shall in no case justify a deprivation of liberty’. Under Article 15, States Parties are obliged to ‘take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment’.
[195] ASFIC, [80].
[196] Ibid, [81] citing Plaintiff M1 v Minister for Home Affairs [2022] HCA 17.
[197] Ibid, [9].
In the Tribunal’s recent decision SCDZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) (‘SCDZ’),[198] Deputy President Redfern accepted that such a consideration may be relevant and may add weight to the factors that weigh in favour of cancellation. However, she was ‘not persuaded that on its own ongoing immigration detention in these circumstances is or may be in breach of Articles 7 and/or 9 of the ICCPR.’[199] These matters, the Deputy President noted, ‘are contested and complicated.’ She referred to the following observations of Jagot J in BNGP v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs (‘BNGP’):
‘I do not dispute that it is reasonably arguable, and may be correct, that the indefinite detention of a person under the Migration Act as a result of the operation of ss 189, 196 and 197C(3) may place Australia in breach of some or all of these international obligations. It may also be the case that such detention is in breach of Australian law (see below). The point I am making is that in deciding whether a decision is legally unreasonable or not, in effect, because the decision-maker did not consider the full legal consequences of the decision, there may be a material difference between a legal consequence which is accepted by the Minister to be inevitable or is certain (that is, as in CWY20 and ENT19, that return of the person to a particular country would breach Australia’s international non-refoulement obligations) and a legal consequence which is merely probable or reasonably arguable – in this case, both because there was a rational possibility of the Minister exercising a power the effect of which would be to release the applicant from detention and because it is not certain that the indefinite detention of the applicant under the Migration Act would be in breach of Australia’s international obligations.’
‘The contestable nature of proposition (c) is also exposed in the Statement of Compatibility with Human Rights which accompanied the amending Act, required under s 8 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). In that statement (attached to the Explanatory Memoranda for the Bill) at p 14, it says that:
While some unlawful non-citizens affected by the amendments made by the Bill will be subject to immigration detention while awaiting removal, the Minister’s decision not to grant them a visa or place them in community detention will be made in consideration of their individual circumstances. This helps to ensure that an immigration detention placement is reasonable, necessary and proportionate to their individual circumstances and therefore not be arbitrary and contrary to Article 9 [of the ICCPR].
The contestable nature of proposition (c) is exposed further in the Minister’s submissions in which the Minister said that the applicant had not explained how immigration detention in accordance with the Migration Act (ss 189 and 196) contravenes the ICCPR, UDHR or CAT…’ [200]
[198] [2022] AATA 4442 (22 December 2022).
[199] Ibid, [139].
[200] [2022] FCA 878, [48]-[50].
Her Honour found that she did not need to make findings on these contentions. Noting that the question of whether continuing immigration detention was lawful under Australian law remained ‘unanswered’, she stated:
‘This question also does not arise directly in the present case. It arises indirectly only in that the continuing detention of a person in accordance with ss 189 and 196 of the Migration Act, who is not able to be returned to a country due to international non-refoulement obligations (now as provided for in s 197C(3) of the Migration Act), may be in breach of Australian law. If it is in breach of Australian law, the detention can and will be brought to an end by a court of competent jurisdiction in response to an application to that end brought by the applicant. For present purposes what is relevant is that this reinforces the contestable character of the applicant’s proposition that a legal consequence of the Minister’s decision will be the indefinite detention of the applicant and that such indefinite detention will place Australia in breach of its international obligations.’
Her Honour concluded:
‘In this case, however, I am unable to conclude that in not considering the matter the applicant identified (the violation of international laws by reason of the applicant being indefinitely detained as a consequence of the refusal of his visa) in reaching his state of satisfaction about the national interest (or otherwise) the Minister acted legally unreasonably. This is because: (a) the actual legal consequence of the decision to refuse the visa was not the certainty, but the likelihood, of indefinite detention of the applicant, (b) more importantly, it is reasonably arguable but by no means certain that such detention would place Australia in breach of its international obligations, (c) it is at least as reasonably arguable that such detention would place the Commonwealth in breach of Australian law and, if this is found to be so by a court of competent jurisdiction, such detention could not continue, and (d) the applicant did not make any claim for consideration by the Minister that his indefinite detention would place Australia in breach of any international obligation.’
In BNGP, the applicant did not claim that the likelihood of indefinite detention would place Australia in breach of its international obligations. This claim was made by the applicant in SCDZ. Deputy President Redfern found that whether the continued detention in immigration of the applicant means he would be ‘subjected to torture or to cruel, inhuman or degrading treatment or punishment’, as provided by Article 7, ‘necessarily involves a detailed analysis of, and evidence about, the conditions facing the applicant in Villawood and the impact on him in the circumstances of the case.’[201] Having considered the evidence before the Tribunal, she was ‘unable to form a concluded view on whether the conditions in immigration detention, even having regard to the applicant’s particular circumstances and vulnerabilities, breach Article 7 of the ICCPR.’[202] She continued:
‘As stated in BNGP, the question of whether indefinite or prolonged detention would place Australia in breach of its international obligations is reasonably arguable. However, there has been no authoritative final ruling on this. I accept that immigration detention without a defined endpoint may be considered to be ‘cruel or inhuman’ in the circumstances, but it is still a contestable matter, and such a finding could not and should not be made without further evidence and analysis.’[203]
[201] Ibid, [144].
[202] Ibid.
[203] Ibid, [146].
In relation to the applicant’s claim that prolonged detention would place Australia in breach of Article 9 ICCPR, the Deputy President stated:
‘Article 9 provides that no one should be subjected to arbitrary arrest or detention. There is nothing arbitrary about the applicant’s detention, although I accept that detention without an endpoint is harsh.’[204]
[204] Ibid, [147].
She concluded:
‘In summary, I am not satisfied, based on the evidence and submissions before me, that indefinite or prolonged detention is in breach of international obligations under the ICCPR. However, I do not consider this issue to be determinative in any event because, as already noted, I am persuaded that indefinite or prolonged detention in the circumstances of the applicant’s case weighs heavily in favour of revocation. In other words, I do not consider that the question of whether this may also breach obligations under the ICCPR, and thereby tarnish Australia’s reputation, significantly adds to the weight that should be afforded to the legal and practical consequences of Australia meeting its international non-refoulement obligations.’[205]
[205] Ibid, [148].
Having regard to the authority in BNGP and the Tribunal’s decision in SCDZ, the Tribunal finds that there is insufficient evidence before it to form a concluded view on whether the ongoing and prolonged detention of the Applicant is in breach of Australia’s international obligations under the ICCPR and/or the CRPD. However, as in SCDZ, the fact that the Tribunal cannot attribute weight to the potential contravention of Australia’s international obligations resulting from the prolonged detention of the Applicant does not affect its finding that his ongoing immigration detention without a chronologically fixed endpoint as a legal consequence of Australia meeting its international non-refoulement obligations to him weighs heavily in favour of the revocation of the Mandatory Visa Cancellation Decision.
In conclusion, the legal and practical consequences of a decision not to revoke the Mandatory Visa Cancellation Decision is the prospect of the Applicant’s ongoing immigration detention with no chronologically fixed endpoint. The Tribunal finds that this weighs very heavily in favour of revocation.
CONCLUSION
The Tribunal finds that Primary Consideration 1 weighs against revocation of the Mandatory Visa Cancellation Decision. The Applicant’s criminal offending is very serious, particularly as it involved sexual offences against women. The low to moderate risk of him committing future criminal offences coupled with the nature and seriousness of the harm this would cause to his victims is such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 4 weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that the Applicant’s serious sexual offences should cause him to forfeit the privilege of remaining in Australia, and this is not outweighed by the duration of his residency in Australia.
In regard to the relevant Other Considerations, the significance of Australia’s non-refoulement obligations owed to the Applicant and the potential for him to be held in immigration detention for a very lengthy period with no chronologically fixed endpoint weigh heavily in favour of revocation of the Mandatory Visa Cancellation Decision. The extent of impediments the Applicant will face if he were to voluntarily return to Iran also weigh heavily in favour of revocation of the Mandatory Visa Cancellation Decision.

The Tribunal is satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked and decides that the Reviewable Decision should be set aside.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the Reviewable Decision, dated 8 December 2022, to refuse to revoke the Mandatory Visa Cancellation Decision, and in substitution, decides that the cancellation of the Applicant's Class XE Subclass 790 Safe Haven Enterprise visa is revoked.

I certify that the preceding 179 (one hundred and seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk

..................................[SGD]......................................
Associate
Dated: 21 March 2023

Date(s) of hearing: 14 February 2023

Solicitors for the Applicant: K. Bones, Legal Aid New South Wales

Solicitors for the Respondent: K. Eskerie, Sparke Helmore Lawyers

Date(s) of hearing:	14 February 2023
Solicitors for the Applicant:	K. Bones, Legal Aid New South Wales
Solicitors for the Respondent:	K. Eskerie, Sparke Helmore Lawyers