BQNZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 1186
•27 April 2021
BQNZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1186 (27 April 2021)
Division: GENERAL DIVISION
File Number:2021/0606
Re:BQNZ
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal: Member Rebecca Bellamy
Date of Decision: 27 April 2021
Date of Written Reasons: 10 May 2021
Place: Brisbane
The decision under review is affirmed.
......................[SGD]..................................................
Member Rebecca BellamyCATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class AZ Subclass 866 (Protection) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – repeated domestic violence offending – rape of child victim – mental illness – consideration of Australia’s international non-refoulement obligations where receiving country is Iraq – likelihood of prolonged or indeterminate detention – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
AJL20 v Commonwealth of Australia [2020] FCA 1305
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
HZCP v Minister for immigration and Border Protection [2019] FCAFC 202
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar [2019] FCAFC 188
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 [2006] HCA 53
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Uelese v Minister for Immigration and Border Protection [2016] FCA 348YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member Rebecca Bellamy
10 May 2021
THE ISSUE BEFORE THE TRIBUNAL
The Applicant is a 50-year-old citizen of Iraq. In August 1999, when he was 28 years old, he moved to Australia.[1] The most recent visa granted to him was a Class AZ Subclass 866 (Protection) visa (“visa”).[2]
[1] Exhibit G1, Section 501 G-documents, G8, page 98.
[2] Exhibit G1, Section 501 G-documents, G15, page 172.
On 23 August 2018, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[3] On 4 September 2018, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[4] On 26 January 2021, the Respondent decided not to revoke the cancellation.[5]
[3] Ibid.
[4] Exhibit G1, Section 501 G-documents, G17, page 218.
[5] Exhibit G1, Section 501 G-documents, G2, page 17.
The Applicant subsequently lodged an application for review in this Tribunal on 3 February 2021.[6] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[6] Exhibit G1, Section 501 G-documents, G1, page 1 to 8.
The hearing of this application proceeded on 14, 15 and 16 April 2021. The Applicant gave evidence via videoconference. The Applicant’s current partner (“Ms J”) gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(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.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[7]
“…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…”[8]
[7] [2018] FCAFC 151.
[8] 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).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[9]
[9] Ibid.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 17 November 2017, the Applicant was sentenced to a term of imprisonment of three years with a non-parole period of 18 months. Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[10]
[10] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community. (Emphasis added)
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
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
I note that paragraph 7.2 provides that the primary considerations should generally be given greater weight than the other considerations and that paragraph 7.3 provides that one or more primary considerations may outweigh other primary considerations.
BACKGROUND AND OFFENDING
The Applicant was born in Iraq in 1970. He arrived in Australia in 1999 and in November 1999 he was granted a Refugee visa. He commenced offending in 2002, less than three years after arriving.
The Applicant was convicted of numerous offences between 2002 and 2017. Some are more relevant than others in terms of applying the Direction so I will focus on those.
The Applicant’s first victim was “Ms M”. The police reports state that the Applicant and Ms M had been in a relationship for approximately one year. There had been problems since November 2001. Ms M left Stanthorpe and moved to Banora Point in December 2001. They then attempted to reconcile and they visited each other.
On 23 April 2002, the Applicant visited Ms M at Banora Point. During this visit, Ms M told the Applicant the relationship was over for good, and he left the following day. He then proceeded to send numerous text messages to Ms M asking her to reconsider. On the afternoon of 25 April 2002, the Applicant sent her more text messages. Because of what he said in the messages, Ms M thought he may have been outside her home watching her. She called police to report a prowler. When the police arrived, they did not see the Applicant but they contacted him and told him not to have any further contact with Ms M as the relationship was over. He agreed not to contact her and requested suitable arrangements be made for the return of some of his belongings. Those arrangements were made.[11]
[11] Exhibit R2, pages 49 to 50.
On 30 April 2002, Ms M received a number of text messages from the Applicant. At about 11.20pm, she went to her bedroom and heard knocking on the window. The Applicant called out to her that he missed her and wanted to see her again. She then saw the Applicant standing outside her window in the front garden. They had a conversation and the Applicant said he would kill himself. Ms M could not take any more from the Applicant, and she ran out of the bedroom, down to the garage and got into her vehicle. The Applicant followed her to the garage where he told her he missed her. She called the police and drove away. Ms M subsequently got an apprehended violence order (“AVO”) issued against the Applicant that provided that, among other things, he could not come within 500 meters of her. The order was served on the Applicant on 20 May 2002.[12] Also on that day, the Applicant was convicted of destroy or damage property (x 2) and fined. He was also convicted of stalk/intimidate with intention to cause physical/mental harm and put on a 12 month good behaviour bond.
[12] Exhibit R2, pages 48 to 49.
While subject to that good behaviour bond and the AVO, at around 12.30am on 18 October 2002, the Applicant knocked on Ms M’s bedroom window and said he wanted to talk. Ms M told the Applicant to go away but he would not. He was crying and begging her to give him one last chance. Ms M again told the Applicant to go away and she went back to bed. Between 1.00am and 1.30am, Ms M again heard the Applicant at the bedroom window, and he was pointing towards her front door. Ms M went to the door and turned on the outside light. The Applicant was holding a metal pinch bar that was about 40cm long. He held the sharp end against his chest with the blunt end balanced on the wall. He said:
"I am going to kill myself in here. It is going to be all over the newspapers. People will know that it is about you."
Ms M told the Applicant that he was scaring her children and asked him to go away. The Applicant said "Is this the final thing you are going to say to me?" and Ms M said "Yes it is". The Applicant went away and Ms M went back to bed. At about 3am, she heard a noise and checked the doors. She noticed a light on in the garage and called 000. As she was talking to the operator, she could hear the Applicant calling out. Shortly afterwards she saw the Applicant's car drive away. When police arrived Ms M went to the garage and noticed the roller door had been jemmied open from the bottom and was off its tracks and bent in the middle. Ms M saw that a camera was missing from the glove box of her car. The Applicant had given her the camera about one year ago.
Later that morning, after Ms M dropped her sons off at school, she noticed the Applicant's vehicle facing her. He then followed her as she drove. She called 000 and drove to a police station. The Applicant drove past Ms M and mouthed the words, "Please don't ". She parked her car at a nearby market and walked toward the police station. The Applicant parked at the market. The police found the Applicant who claimed he was going to a nearby restaurant. He was arrested, and the police found Ms M’s camera and the pinch bar in his car boot.
When police spoke with the Applicant, he denied having gone to Ms M’s residence earlier that morning and claimed that Ms M had continually phoned him asking him to come to her house because someone was trying to get into her home. He said he was in Tweed Heads (whereas he lived in Brisbane at that time) because Ms M asked him to meet her at Tweed city. He admitted to following her to the police station thinking he was following her to the shops or restaurant. He said the camera in his car was his and Ms M gave it to him in Brisbane about four days ago. He said he knew about the AVO but believed if Ms M contacted him he could have contact.[13]
[13] Ibid.
On the first day of the hearing, the Applicant admitted to having gone to Ms M’s home and breaking in. He said he went there to get his belongings and that he used the metal bar only to gain entry to the garage. He said the camera belonged to him. He did not explain, when prompted, why he had sought to retrieve his belongings at 1.30am. When asked if he held a metal bar against his chest and threatened to kill himself, he said “No. Nothing happened like that”.[14]
[14] Transcript, pages 66, 69.
On the second day of the hearing, the Applicant said it was possible that he held the metal bar to his chest and threatened to kill himself, but he could not recall having done that.[15] Not only did the accounts the Applicant gave to the Tribunal differ from each other, they differed from the account that was recorded by police in which he denied having been at Ms M’s home.
[15] Transcript, page 87.
On 9 November 2002, Ms M returned home to find some mangoes on her doorstep. Thinking they were from the Applicant, she threw them out. On 15 November 2002, she received a number of calls during which the caller did not speak. The phone rang again and the Applicant said "Did you get the mangoes I left at the front of your door last Saturday". She replied:
"I don't need anything from you. I put them in the rubbish. You're not supposed to be coming anywhere near me, the order says that. You're going to end up in goal if you keep doing that."
The Applicant replied, "I don't care. Nobody can protect you. You can't run away from me forever". Ms M ended the call. Her phone rang a few more times and when she heard the Applicant’s voice, she hung up. She estimated that her phone rang 20 to 30 times that afternoon. Around 7pm, the Applicant called again and said "Give me five minutes, I want to talk. I am a different person. I want another chance". Ms M said "I had enough [Applicant] I a (sic )not wasting another second of my life with you". The Applicant then said, "I will kill you [name redacted]".[16]
[16] Exhibit R2, page 48.
On 8 April 2003, the Applicant was convicted of contravening the AVO on 18 October and 15 November 2002, and of break and enter building (steal) on 18 October 2002. He was sentenced to 12 months imprisonment wholly suspended with a 12 month good behaviour bond.
On seven occasions between April and November 2003, the Applicant entered or remained in a casino while being an excluded person. These offences, and further offences of the same kind that he committed in 2005, arose from his gambling addiction which he said coincided with him having mental breakdowns.[17]
[17] Exhibit G1, Section 501 G-documents, G3, page 47; Exhibit R2, page 86; Transcript, pages 80 to 81 and page 88, lines 30 to 35.
On 14 February 2003, the Applicant and a brother, “P” who was also living in Australia, were involved in a fight, in which his brother wounded the victim and the Applicant threatened violence. The Applicant described it as a “scuffle” with a security guard at the Sheraton hotel.[18] He denied having committed the offence, said he had taken the blame for P because P had only been in the country for one week, and claimed that the sentencing Judge had told him he knew he had nothing to do with it but his hands were tied. In fact, it was not just a “scuffle”: P attacked the victim with a broken piece of glass.[19] The sentencing remarks indicate that the Judge said the Applicant was briefly involved in the incident and was “disruptive” but had nothing to do with the subsequent wounding.[20] Further, P pleaded guilty to, and was convicted of, unlawful wounding,[21] indicating that the Applicant did not take the blame for him. The Applicant was convicted of a separate offence, being threatening violence - by words or conduct - at night. For his part, on 31 January 2005, the Applicant was sentenced to four months imprisonment to be served by way of an Intensive Corrections Order.
[18] Transcript, page 65.
[19] Exhibit G1, Section 501 G-documents, G4, page 78.
[20] Exhibit R2, page 80.
[21] Exhibit G1, Section 501 G-documents, G4, page 77.
The Applicant was subsequently in a “religious marriage” with “Ms C” from 2001 or 2002 until 2003, although he said the relationship continued for between six months to a year after the marriage ended.[22] According to the Applicant a “religious marriage” involved him merely saying that he is married and then renewing the marriage annually.[23] Ms C was Bhuddist but was not required to convert to Islam to enter into this “religious marriage”. The Applicant denied that his relationship with Ms C overlapped with his relationship with Ms M, and while his evidence was confusing and unconvincing, nothing turns on this point.
[22] Transcript, pages 51 to 52.
[23] Ibid.
On 29 November 2004, the Applicant pleaded guilty to, and was convicted of, raping one of Ms C’s young daughters, although he now claims innocence. The Schedule of Facts includes the following:
“The complainant child disclosed allegations of a sexual nature against her mother’s boyfriend, who she knows as [the Applicant]. She further stated that this occurred at her mother’s unit in her bedroom between the 15th day of August 2003 and the 10th day of September 2003. The complainant’s mother, [redacted in original] at the time was residing at [redacted in original]. The unit is a two story unit with two bedrooms on the upper level.
The complainant child stated that one night between the stated times the complainant child was at home with her two sisters…. Their father [redacted] was looking after them as their mother was at work. She further stated that late that night her father was asleep in the mainbedroom (sic) but her sisters and her were still awake, they went down stairs to get some water.
The complainant child states that the prisoner attended the unit and told them that they should be in bed. The prisoner has then taken the complainant child upstairs to the bedroom leaving her two sisters downstairs. The prisoner has turned off all the lights and put the complainant child into bed and pulled the covers over her.
The prisoner has then sat on the complainant child’s bed and has pull down the complainant child underwear and has then inserted his finger into the complainant child’s vagina. The finger was inserted a nails length. The complainant child stated that he did this for a little while and then they heard a noise at the door to the bedroom and the prisoner then removed his hand from under the covers.
The complainant child then stated that the bedroom light then went on and it was her sisters coming up to bed. The prisoner then left and the complainant child and her sisters then went to sleep.
On the 14th day of January 2004, the prisoner attended Logan Central Police Station where he declined to be interviewed in relation to the allegations.”
There is a signed handwritten notation on this document which the Applicant admitted was his. It says:
“I, [Applicant’s name], have had these facts read to me by my solicitor, [name redacted] of [name of legal practice]. I accept the factual basis contained herein.”[24]
[24] Exhibit R2, pages 419 to 420.
The Applicant was sentenced to imprisonment for 260 days for this offence. This was the Applicant’s first custodial sentence. The learned Judge noted that the Applicant had pleaded guilty in circumstances where his conviction may not have been certain and that it saved the child victim and another child witness from the ordeal of giving evidence in a criminal trial.[25]
[25] Exhibit G1, Section 501 G-documents, G4, page 84.
In the hearing, the Applicant denied having raped the victim, claiming that the alleged victim’s father was jealous of him and he put her up to making the allegations. He said he pleaded guilty, against everyone including Ms C’s advice, because he did not want the child to be damaged by cross examination, asserting that the more a child repeats a story that is fed to them by their parents, the more they will believe it. When I suggested to the Applicant that going along with the allegations was more likely to cement in the child’s mind the abuse that he says did not happen, rather than give a responsive answer, he suggested Ms C had falsely accused other boyfriends. When I reminded the Applicant that he had earlier said the child’s father, not Ms C, was behind it, he said he did not want the child to go through the “torture” of cross examination.[26] His evidence in this regard made little sense. He also sought to deflect some questions, for example, by referring to sexual abuse he suffered as an adult in Iraq.
[26] Transcript, pages 68 and 83 to 86.
In May 2005, the Applicant was convicted of obtain financial advantage (x 4) and sentenced to an 18 month good behaviour bond.
On five occasions between May and November 2005, the Applicant entered or remained in a casino while being an excluded person or contrary to an order or direction. He was fined for these offences.
On 14 October 2009, a woman “Ms V” was walking with her young son. The Applicant was in his car and beeped his horn at her. He then parked his vehicle, approached her and tried to make conversation with her. He followed her and asked for her telephone number. She was afraid of him and provided a fake number. As she continued walking towards her home, she noticed the Applicant following her in his car. When she was outside her home, he confronted her about giving him a fake number. She was afraid so she provided her real number to the Applicant who then followed her to the front door of her unit.
The following day, the Applicant called her and when she recognised his voice, she ended the call. That day she received numerous calls from him and ended each call. Eventually, she spoke with the Applicant who asked if her son liked strawberries. At around 11pm, she heard knocking at her front door and did not answer it, fearing it was the Applicant. The following morning, she found six punnets of strawberries outside her front door and she threw them in the bin. Over the course of that day she received several more telephone calls from the Applicant and she eventually answered one of them. She told the Applicant she was not interested in a relationship and asked him to leave her alone.
The following day, Ms V received another call from the Applicant and he told her he was standing outside her unit. She opened her front door and saw him standing at the bottom of the stairs. She went down the stairs and told him she was not interested in a relationship. He apologised for his actions and gave her two bottles of wine. She accepted his apology and asked him to leave. He then asked repeatedly if he could touch her face, to which she said he could not. He reached towards her face with his hand, Ms V pushed his hand away and told him not to touch her. The Applicant then grabbed her arm with both hands and bit it. Ms V asked him why he had done that and he said “Something to remember me by”. Ms V ran back inside and locked the door. Ms V provided information to the police from which they ascertained that it was him who had harassed and attacked her. The police contacted him and he refused to participate in an electronically recorded interview.[27]
[27] Exhibit R2, pages 150 to 151.
On 4 March 2010, the Applicant pleaded guilty to, and was convicted of, unlawful stalking for which he was sentenced to six months imprisonment suspended after serving 53 days, and assault occasioning actual bodily harm for which he was sentenced to three months imprisonment, also suspended after serving 53 days.
In the hearing, the Applicant denied this offending. He said he had known Ms V for two weeks, the mark on her arm had been inflicted during consensual sexual activity, and she had asked him to bring her strawberries. He also denied that she had a son. He said he pleaded guilty to the offences because her husband found the mark on her arm so he created a lie to protect her so her family would not break up. He admitted to saying “Something to remember me by” about the mark on her arm.[28] The Applicant’s account does not explain why the lie he claims to have created to explain the bite mark included harassment of Ms V in various ways over a three day period, why he came up with a scheme that would use up police resources establishing his identity, and why he did not tell the story to the police when they contacted him. I find his denial of guilt and his explanation unconvincing.
[28] Transcript, pages 92 to 93.
Also in 2010, the Applicant was convicted of failing to comply with reporting and was fined.
In 2011 and 2012, the Applicant was convicted of cheating by fraudulent act, practice or scheme, unauthorised dealing with shop goods (he stole three items of clothing) and public nuisance. He received fines for all of these offences.
In 2012, the Applicant was convicted of breach of bail condition and sentenced to six weeks imprisonment, suspended for nine months after having served three days.
According to the Applicant, in around 2011, he legally married Ms B.[29] He said he married her so she would stay in Australia[30] and that he was the sponsor of her spouse visa.[31]
[29] Transcript, page 54, lines 20 to 30; page 55, lines 37 to 39.
[30] Transcript, page 54, lines 33 to 44.
[31] Transcript, page 101, lines 30 to 35.
Police records from October 2013 refer to the Applicant and Ms B having been together for the past three years and married for the past year. They further say that during the past year, the Applicant had deprived Ms B both financially and economically, whereby he did not allow her to have access to their bank accounts and did not allow her to go out to see her friends. The Applicant was the sponsor of Ms B’s spousal visa, which he threatened to cancel if she did not obey him. Since their marriage, the Applicant progressively became aggressive towards Ms B and would slap her in the face, pull her hair and physically push her. She had not reported the violence or separated from the Applicant because she was afraid of him.[32]
[32] Exhibit R2, page 45.
At around 1.30pm on 1 October 2013, the Applicant and Ms B were at their home. Ms B needed to go to Parramatta for a work placement, and she asked the Applicant if he could drop her off. The Applicant refused and threatened to cancel her visa if she attended her appointment. This resulted in an argument where the Applicant said “You are not allowed to go out of the house, you are to stay inside the house at all times”. Ms B attempted to walk out of the unit but the Applicant took hold of her hair, pulled her back inside and dragged her down the hallway into the bathroom. Ms B attempted to escape by throwing a can of hairspray at him, however he held Ms B up against the wall and said “Stay inside the house”. Ms B again tried to escape but the Applicant took hold of Ms B’s arm and squeezed it, causing her pain. She slapped the Applicant in the face with her free hand. He then picked up a wooden cricket bat and hit Ms B in the lower back several times as she screamed “Stop”.
The Applicant then pushed her into the bedroom and onto the bed before slamming the door shut. Ms B changed her clothes, walked out of the bedroom and told the Applicant that she was going to the police station. He said “If you go to the police station you will be cut off from your visa”. However, Ms B did report the incident and the police took photographs of her injuries. The police report notes bruising to Ms B’s forearm. The Applicant was arrested and an AVO was issued on 2 October 2013.
After reporting the incident, Ms B could not locate her car. Later that day, the police located the Applicant and asked him where Ms B’s car was, to which he said “It is in Canberra, she has the keys". The police then found her car across the road and asked the Applicant about it, to which he replied "I don't know". The police searched the garden where they had found the Applicant and they found a metal hammer, a screwdriver and the keys to Ms B’s car. They asked him about the items, to which he replied "I don't know". The Applicant participated in an electronically recorded interview in which he did not make any admissions to the assault on Ms B or his possession of her car keys, the hammer or the screwdriver.[33] The Applicant was subsequently convicted, following a guilty plea, of common assault and sentenced to three months imprisonment. He unsuccessfully appealed that conviction.
[33] Exhibit R2, pages 45 to 46.
In the fortnight following the AVO being issued, the Applicant messaged Ms B multiple times. On 8 October 2013, when she was making a statement to the police, she received text messages from him.[34]
[34] Exhibit R2, pages 42 to 44.
Just prior to 15 October 2013, Ms B was told by family and other friends that the Applicant had been contacting them to get Ms B to contact him. This made Ms B feel stressed as she felt constantly harassed. At around 9pm on 15th October 2013, the Applicant called Ms B and said he wanted to meet with her and talk through some issues. Due to the stress Ms B was feeling from the Applicant’s harassment, she agreed to give him one more chance and invited him to stay with her.[35]
[35] Exhibit R2, page 41.
At around 7.30pm on 24 October 2013, the Applicant and Ms B argued at her home. During the argument the Applicant told Ms B he wanted her to withdraw the charge against him, saying "You will not cry from the tears, you will cry from the blood". Ms B felt intimidated and feared the Applicant would assault her. The next morning, Ms B handed her car keys to the Applicant, and he drove her to the Local Court. She went to the bathroom and phoned the multi-cultural liaison officer for advice because she did not want to withdraw the AVO. She left the bathroom and saw the Applicant speaking with court staff. He then left, and Ms B notified staff of her intentions not to withdraw the charge. The police were contacted and they spoke with Ms B in a separate room.
Upon leaving, the police saw the Applicant in the waiting area and asked him to go outside. Once outside, the Applicant was arrested. He declined an interview. He was subsequently convicted, following guilty pleas, of stalk/intimidate intend fear physical harm and contravene prohibition/restriction in AVO (Domestic) and sentenced to eight months imprisonment with a non-parole period of six months (concurrent with the three months imprisonment for the assault on 1 October 2013). He unsuccessfully appealed the convictions.
In January 2015, the Applicant was convicted, following a guilty plea, of use carriage service to menace/harass/offend on 4 and 5 June 2014. At the time of those offences, the Applicant was still subject to the AVO which, among other things, prevented him from contacting or harassing Ms B. On 4 and 5 June 2014, he had sent around 50 text messages to her each day despite her telling him to leave her alone and to stop contacting her. On 6 June 2014, he had sent 70 text messages despite her again telling him to stop contacting her. He also phoned her 67 times.[36]
[36] Exhibit R2, pages 39 to 40.
On 30 April 2015, the Applicant was convicted of several offences arising from conduct in January 2015. According to police records in December 2014,[37] Ms B changed her mobile number and did not tell the Applicant her new number. She also concealed her place of employment from the Applicant. The employer put an alias for her on the work roster and made sure her mobile number was only available to her manager or shift manager.
[37] Exhibit R2, pages 24 to 25.
However, the Applicant discovered Ms B’s place of employment and was calling her up to 100 times per night (she was working night shifts) on the work phone number despite being told not to by staff and the manager. The Applicant tried to divulge information about Ms B to other staff who did not want to hear it. They were mostly female and became concerned for their safety. They ended up taking the phone off the hook at night time to stop the calls. The Applicant also called one of Ms B’s colleagues on her mobile phone. In one call he asked if she knew Ms B. This colleague gave her husband the phone and he asked the Applicant how he got the number. The Applicant continued calling this person multiple times over the following days. The Applicant also called Ms B on her new phone number over 100 times. He also sent multiple messages to her, some accusing her of cheating on him.
Ms B took a leave of absence from her work because of the ongoing issues and safety risk to the staff and residents due to the Applicant’s harassment.
At 4pm on 14 January 2015, Ms B attended a police station. While making a statement, the Applicant called Ms B’s phone and she put it on speaker phone. Police heard the Applicant say "Do what fucker you want to do, Go fuck with yourself, ok go on, but I will fuck you up again and again...ok...if you get another job I will fuck you up again..." and “Bring it on, I will know where you live and I will know where you go and u will come jumping, I think you should get in your car it would it would be better for you". The call lasted for 13 minutes and after Ms B ended it, the Applicant called her another 26 times between 4.30pm and 4.41pm, and he sent messages saying "Answer the phone" and similar. The Applicant also said "I'm happy to go to gaol for 5 years but I will not let you live".[38]
[38] Exhibit R2, page 27.
In the hearing, the Applicant conceded that he could have said these things to Ms B, adding that he was not mentally stable at the time and he did not mean the threats.[39]
[39] Transcript, pages 113 to 114, and 116.
On 17 January 2015, the Applicant contacted Ms B and said "I will come and kill your baby" referring to her niece (Ms B lived with her sister, sister’s husband and their young daughter). The Applicant continued to call Ms B on her mobile phone in excess of 100 times. At the date of the police report, being 20 January 2015, Ms B was still receiving constant text messages and phone calls. The police examined the call history on the Applicant’s phone and determined that:
·between 1 and 13 January 2015, he made over a thousand calls to Ms B and over 400 calls to her work; and
·between 14 and 17 January 2015, the Applicant called Ms B’s phone and her employer over of 2500 times.[40]
[40] Exhibit R2, pages 28 to 29.
Following guilty pleas, the Applicant was convicted of 10 offences of contravene prohibition/restriction in AVO (Domestic) and sentenced to 18 months imprisonment with a non-parole period of 12 months. On the same day, he was convicted of nine offences of use carriage service to menace/harass/offend, one offence of use carriage service to threaten serious harm, and two offence of use carriage service to threaten to kill. For these offences, the Applicant was sentenced to 12 months imprisonment (concurrent). The Applicant unsuccessfully appealed the convictions.
The transcript of the sentencing hearing indicates that during the proceedings the Applicant’s lawyer referred the learned Magistrate to a letter of apology from the Applicant that conveyed that he was sorry for what he had done and that he would not do it again. The Applicant’s lawyer also submitted that he was in the grip of a methamphetamine addiction which made him behave in ways he did not understand, and that the Applicant was disgusted by his behaviour. The Applicant’s lawyer said the Applicant understood that he had to leave Ms B alone.[41] The learned Magistrate told the Applicant that behaviour like his over a period of time in breach of court orders would not be tolerated.[42] In the hearing, the Applicant claimed he could not recall any of this occurring and that he did not smoke methamphetamine until 2017. However, he did not deny that he had accepted responsibility, apologised and would never do it again, or that he heard the Magistrate’s warning, and I am satisfied that these things happened.[43]
[41] Exhibit G1, Section 501 G-documents, G4, page 73.
[42] Exhibit G1, Section 501 G-documents, G4, page 74.
[43] Transcript, page 111.
There is no other evidence to the effect that the substance abuse contributed to the Applicant’s offending or was prominent in his life. I do not find it necessary to make a finding on this issue.
The Applicant now denied some of the offending against Ms B. In his revocation request dated 4 September 2018, the Applicant said:
“After we moved to Sydney, big changes happened to her. Every time I asked her did I do anything wrong, she wouldn’t give me an answer. After that, I find out she was in a relationship with a man from her country and she was still in this relationship even though she was married to me. This man’s name was Vs…
I also found out that when she came to Australia, she lied to immigration and she had a fraudulent marriage with his brother [name redacted] to bring him to Australia because every student that is allowed to Australia is allowed to bring a husband or wife with him or her. When I found out about all that, it contributed to my mental health condition and I was a very bad situation. I started to have very bad flashbacks about what happened to me in the past and it started to control my very bad behaviour.
In 2014, she accused me of assaulting her and I swear that I never put my hand on her in all the time we were together. All what she said to the police was a lie because from her friend who had advised her that if she charged me with domestic violence, she would stay in the country under law called McKenzie law. After she did this accusation, she moved to Queanbeyan and because I wanted to get divorced from her, I kept calling her repeatedly. Even though I had an AVO to not allow me to do that, but because of my mental health status, and anger and the betray that I was feeling, I didn’t evaluate the consequences of keeping on calling her. In the end, I called the immigration office and I told them about everything and what she did to me and they cancelled her visa and they asked her to leave the country in 28 days”.[44]
(Errors in original, underlining added)
[44] Exhibit G1, Section 501 G-documents, G18, pages 233 to 234.
In the hearing, the Applicant denied having threatened to kill Ms B’s baby.[45] Further, he denied having ever been violent to Ms B[46], saying there were not any marks on her body and that he pleaded guilty because he did not care.[47] The Applicant denied ever having been controlling to Ms B or threatening her visa.[48] He said he was calling her to get his car from her, not to rekindle the relationship or to persuade her to withdraw the charges against him[49]. This differs from the reason he gave in the account quoted above. In relation to the numerous text messages, he admitted having sent some, but he said others were sent by someone else using an application to make the messages look like they had come from his number.[50] This was not mentioned in the account quoted above or at all prior to the hearing.
[45] Transcript, pages 116 to 117.
[46] Transcript, page 102.
[47] Transcript, page 107, lines 1 to 15.
[48] Transcript, page 109.
[49] Transcript, page 104, line 33 to page 105, line 44.
[50] Transcript, page 110, lines 25 to 43.
The Applicant said Ms B had asked him to drive her to the courthouse and he did not know she planned to withdraw her complaint. When asked if he was concerned that he would be breaching the AVO, and doing so at a courthouse, he said he was not thinking about consequences as he was in “the worst part of my sickness”[51], which I take to be a reference to his mental health.
[51] Transcript, page 106, line 5 to page 40.
According to police records[52], on 27 July 2015, the Applicant phoned Ms B from gaol and said "How is your family?". She said "Why are you calling me? You are not supposed to be calling me?". He replied, "I just wanted to make sure that your family is safe". She replied, "You don't have to worry about my family". He said "Just tell me if your family is okay. Is the house still standing?" Ms B replied, "It's okay and my family is okay you don't have to worry about them". Ms B told the police she felt harassed and intimidated and was petrified of the Applicant. She said she was beside herself because she had thought the Applicant could not contact her from gaol. On 1 August 2015, Ms B received 18 calls from the Applicant. Ms B answered the last one as she stood at the counter of the police station she had attended to report the calls. Police observed that she was physically shaking and crying due to the stress and fear the Applicant had caused her by contacting her so many times. On 5 August 2015, the Applicant’s cell was searched and a Samsung mobile phone was located without a SIM Card. Police used the IMEi number to ascertain that the phone had made the calls to Ms B.
[52] Exhibit R2, pages 20 to 21.
The Applicant denied having called Ms B from prison. When asked to explain the evidence that the phone used to contact Ms B was found in his cell, he said he had the phone and SIM card in his cell because he was pressured into keeping them for other prisoners, up to 20 people used the phone but he did not, a pair of Nepalese prisoners who were at that prison when he was there used the phone to call Ms B, and Ms B falsely claimed that it was him who called her. When asked why Ms B would make false allegations, he said so she could claim to be a victim of domestic violence for the purpose of keeping her visa. When it was pointed out that he had already been convicted of several domestic violence offences against Ms B, he said making more allegations would make her case stronger.[53]
[53] Transcript, pages 120 to 123.
The Applicant claimed that Ms B had subsequently gone back to her country of origin and that she had sent him an email admitting to making everything up and lying to the police because she was angry with him. He provided a document that, on its face is a print-out of an email dated 25 October 2016. The Applicant claims that the sender address is Ms B’s email address. The email says:[54]
“Hi. I hope u are doing well. I am sorry for complaining you to police I was mad and made that story, sorry for everything wish u goodlife.”
[54] Exhibit G1, Section 501 G-documents, G22, page 267.
Apart from the Applicant’s word, there is no evidence as to the provenance of the email. Further it is dated 25 October 2016. The Applicant was sentenced, following guilty pleas, in November 2017 of two offences of contravening the AVO, two of using a carriage service to menace/ harass/offend, and one offence of inmate possess mobile phone/SIM card etc. There is no mention in the transcript of those sentencing proceedings of any admission by Ms B that she had been making false accusations against the Applicant, which strongly suggests that the court was not aware of the purported email or was aware of it but did not accept that it was authentic. I do not accept the email as genuine.
While the questions the Applicant asked in the phone calls he made to Ms B from gaol appear to be veiled threats, the learned sentencing Magistrate accepted that the phone calls were not threatening in the sense of threats being made in them[55] and I am bound to accept this.[56]
[55] Exhibit G1, Section 501 G-documents, G4, page 64.
[56] HZCP v Minister for immigration and Border Protection [2019] FCAFC 202.
In the same sentencing episode, in November 2017, the Applicant was also convicted of a raft of other offences including custody of a knife in public (x 2), dishonestly obtain property by deception, obtain or attempt – prohibited drug by false representation (x 4), fail to appear in accordance with bail acknowledgement and assault police officer in execution of duty cause actual bodily harm.
In relation to the assault police and possession of knives, police records indicate that on 20 August 2017, the police intercepted the Applicant while driving and discovered he was wanted on two outstanding warrants for domestic violence and fraud offences. He was arrested. The police found a pocket knife on his person and another one in his car. He told the police the knives were to fix the broken rear vision mirror. The police also discovered that he was concealing a small pair of metal scissors inside a material brace on his hand. He could not provide a reason for this. He was also driving disqualified. The police arrested the Applicant.
The following day a police officer handcuffed the Applicant in preparation to convey him to court. As a police officer went to grab the Applicant’s right arm, he jolted backwards and said, "Don't fucking touch me." The officer attempted to grab him again, and he again jolted backward. Another officer said, "Do what the officers say you're going to court" and leaned in to grab the Applicant’s right arm. The Applicant leaned forward and bit the officer’s right index fingers, causing a 1cm cut and blood to drip from his finger. Another officer wrestled with the Applicant, trying to pull him out of the cell. The Applicant kept leaning backwards and the police had to use force to drag him out of the cell. The Applicant continued to resist and attempted to bite the officer again on the hand. He continued to struggle as he was conveyed to the courtroom cells. The officer sustained a laceration to his right hand which took the top layer of skin of his pointer finger.[57]
[57] Exhibit R2, page 11.
For the assault police, the contraventions of the AVO and the possession of the mobile phone, the Applicant was sentenced to three years imprisonment with an 18 month non‑parole period. For using a carriage service to menace/harass/offend, he was sentenced to seven months imprisonment. He was given lesser penalties for the rest of the offences. The Applicant unsuccessfully appealed the convictions. (It appears that the Applicant did not pursue any of the appeals he commenced so they were not decided on the merits[58])
[58] Transcript, page 109.
When passing sentence for the assault police offence, the learned Magistrate accepted that the Applicant had jolted backwards and said “Don’t fucking touch me”, jolted backwards again, and bitten the police officer’s right index finger causing a 1cm cut and taking the top layer of skin of his pointer finger.[59]
[59] Exhibit G1, Section 501 G-documents, G4, page 64.
In the hearing, the Applicant denied having bitten the police officer, instead claiming that his teeth hit the officer’s finger in a scuffle. He claimed that the fact that the injury was to the top of the finger and not also to the bottom was proof that he did not bite the finger.[60] I find this unconvincing as the Applicant could plausibly have bitten the officer across the top of his finger. The Applicant also claimed that he requested the CCTV footage and was told there was not any, and he alleged that the police had insulted and attacked him.[61] I also find this part of his evidence unconvincing, particularly as he pleaded guilty.
[60] Transcript, pages 117 to 119.
[61] Transcript, pages 117 to 119.
Between June 2019 and February 2020, Ms J had been in a relationship with the Applicant and had visited him regularly with her children until January 2020.[62] They had previously been in a relationship between 2004 and 2006. On 5 February 2020, Ms J told the police that she had broken up with the Applicant and he had threatened to send intimate photographs of her to her family and that he had sent a photograph of him having sex with a woman to her cousin.[63]
[62] Transcript, pages 160 to 161.
[63] Exhibit G1, Section 501 G-documents, G27, page 277.
According to an application for a protection order made by police on behalf of yet another female on 28 February 2020, the Applicant phoned “Ms Y” and threatened to kill her. Ms Y was a receptionist at a medical clinic and the Applicant called her wanting information about Ms J. He said if she did not provide the information he would kill her. On 4 March 2020, the Applicant made a further call to Ms Y, again wanting information about Ms J, and Ms Y has hung up. He called her again on 5 March 2020 and breathed heavily into the phone. The Applicant was in immigration detention at the time he made these calls.[64] An interim intervention order was granted on 10 March 2020,[65] and an intervention order was applied for in May 2020.
[64] Exhibit G1, Section 501 G-documents, G27, pages 281 to 282.
[65] Exhibit G1, Section 501 G-documents, G27, pages 283 to 287
Ms J later retracted the allegations she had made against the Applicant and it appears that no further action was taken.
The Applicant denied the allegations made by Ms J and he denied ever having threatened Ms Y. He said both were lying.[66] Ms J subsequently reconciled with the Applicant and she gave evidence that she made up the allegation, although her evidence in that regard was quite implausible and I will address it in more detail in my consideration of the best interests of minor children.
[66] Transcript, pages 127 to 128.
The Applicant denied that he did the following things of which he has been found guilty:
· stalked and harassed Ms M;
· raped Ms C’s daughter;
· stalked, harassed and assaulted Ms V; and
· assaulted Ms B, phoned her from gaol or harassed her and the staff at her workplace to the extent that the police and she alleged.
The Applicant admitted that Ms M, Ms C and Ms V did not know each other.[67] Indeed, there is no evidence that any of the victims knew each other except that Ms Y worked at a medical clinic where Ms J was a client.
[67] Transcript, page 94.
The Applicant is effectively asking the Tribunal to find that Ms M, Ms V and Ms B, who do not know each other, falsely accused him of similar crimes of violence and/or harassment in the context of him wanting a relationship with them and them not reciprocating. He further asks the Tribunal to accept that another unfounded allegation was made against him in the context of his relationship with Ms C. There are also the allegations of harassment and threats made against Ms Y in the context of Ms J not wanting a relationship with him (at that time), which is, again, controlling behaviour following a failed relationship. Not only that, the Applicant asks the Tribunal to accept that he pleaded guilty to offences he did not commit, then abandoned appeals despite being innocent[68].
[68] Transcript, page 109.
The Applicant’s evidence was problematic. He often appeared to advocate for himself and paint himself as a victim rather than answering the question that was asked. He referred to emails and other documents that he said would corroborate his evidence, and to a witness who he said would do that, but he did not produce any of that evidence or the witness. Much of his exculpatory evidence seemed implausible and I have pointed to some of the weakness in the accounts he gave and his explanations for having pleaded guilty to offences he now claims he did not commit.
I must make findings consistent with the convictions and factual findings on the sentence that grounded the decision-making power in this matter. In relation to other offending, I need strong reasons to depart from those findings.[69] I am not satisfied that there are strong reasons to reject any of the findings of guilt or findings of fact on sentence. I am satisfied that the Applicant committed all of the offences of which he was convicted. Further, whereas I find the Applicant’s evidence generally unreliable, the facts recounted in the police records do not appear to be inherently implausible and they are not inconsistent with the findings subsequently made by sentencing courts. I am satisfied that the Applicant did what the police records allege he did to Ms M, Ms C’s daughter, Ms V, the police officers who sought to transfer him to the court, and Ms B. Further, I am satisfied that he harassed and threatened Ms Y as alleged in the application for a protection order, particularly given his established tendency to behave in that way.
[69] HZCP v Minister for immigration and Border Protection [2019] FCAFC 202.
I make no finding about the allegations in relation to Ms J as I find her evidence to be as unreliable as the Applicant’s and there is already ample evidence of the Applicant victimising other females.
There was some evidence before the Tribunal of rape and sexual assault allegations made by several women against the Applicant,[70] although there is no evidence of convictions arising from those and the allegations were denied by the Applicant.[71] I have no regard to those.
[70] See, for example, Exhibit R2, pages 159, 173, 174, 183 and 242.
[71] Transcript, page 132.
Traffic infringements
In May 2015 the Applicant was convicted of drive motor vehicle during disqualified application period. In 2017 he was convicted of two further offences of drive motor vehicle during disqualification and two offences of driving while his licence was cancelled.
Behaviour in custody
Incident reports obtained from the Department of Home Affairs indicate that the Applicant has been involved in several incidents while in immigration detention. Meanwhile, he claims to have been the victim of assaults by inmates and staff. A handful of the alleged incidents were put to him in the hearing and, of those, he admitted to the following:
·on 11 October 2019, two syringes and an orange tablet were found in a room solely occupied by him. He said they were not his, they must have been put there by someone else, and the guards said “don’t worry about it…we know somebody [hid] it in your room”[72];
·on 4 November 2019, he was found with a glass smoking pipe on his person which he said he was pressured to keep for another detainee[73];
·on 6 November 2019, he said to guards “Why the fuck are you looking at me in the eyes? You do not know what I am capable of. You do not know what I can do. I lived under Saddam and I can do things you do not know”, which he explained on the basis that he had earlier been attacked[74]; and
·on 21 November 2019, he spoke aggressively to an emergency response team, saying “You fucking dogs, come in that room, I’m going to fuck you up” which he explained on the basis that he had suffered abuse in detention[75].
[72] Transcript, page 148.
[73] Transcript, pages 146 to 147.
[74] Transcript, page 146.
[75] Transcript, page 145.
It seems rather a coincidence that on two occasions the Applicant was found with contraband that belonged to others. Further, I find it implausible that other detainees would hide their contraband items in the Applicant’s room without a prior arrangement with him. A glass pipe is normally used for smoking methamphetamine. The Applicant earlier in the hearing admitted to some methamphetamine use, saying “I never touched ice before 2017”[76], although he gave no further details. I am satisfied that the Applicant knowingly possessed the contraband items, and not under duress, whether for his own use or for the use of others. I am satisfied that the Applicant engaged in the abusive and threatening conduct he admitted to.
[76] Transcript, page 112, line 6.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The Applicant committed a sexual crime, being rape, against a female child victim. She was, according to him, seven years old at the time. The fact that he took it upon himself to order her to go back to bed and she complied demonstrates that he had a degree of authority over her, and he exploited that vulnerability.
It was contended on behalf of the Applicant that the sentence of 260 days for the rape is a relatively light sentence reflective of the seriousness of the offending. However, the objective seriousness of an offence is not the only factor that determines a sentence. The learned sentencing Judge took into account the Applicant’s guilty plea which spared two children from giving evidence, his lack of prior convictions for that type of offending, and his “personal circumstances”. His Honour was invited by the Applicant’s barrister to order probation, but he instead imposed a sentence of imprisonment, which is the last resort in the hierarchy of available sentencing options, and the Direction stipulates that sexual crimes are to be viewed very seriously in any event. In passing sentence, His Honour said:
“The offence is a very serious one. It is an offence that offends the moral sense of the community, and is a type of offence the community regards as totally unacceptable. The need to protect children from such conduct means that almost invariably for this offence prison sentences are imposed.”[77]
[77] Exhibit G1, Section 501 G-documents, G4, pages 84 to 85.
This offence is very serious regardless of the sentence imposed.
The Applicant committed crimes of physical violence against Ms V and Ms B. Ms B was a female partner/former partner of the Applicant at the time he assaulted her. He breached AVOs on numerous occasions. He injured a police officer in the performance of duty by biting that officer’s thumb. These are all very serious offences. Further, the Applicant engaged in behaviour that caused Ms V, Ms B and Ms Y to feel physically threatened. Some of Ms B’s colleagues also felt afraid for their safety. He threatened to kill Ms B, to kill her niece, and to “fuck” her up. He also told Ms M that she could not run away from him forever and nobody could protect her. He threatened to kill Ms Y, a criminal offence, while he was in immigration detention.
Aside from the violence and threats, the Applicant engaged in harassing behaviour towards Ms M, Ms V and Ms B in his efforts to coerce them into being in relationships with him. His harassment pushed each victim to the point where each felt they could not take any more. His harassment of Ms B was extreme and obsessive. He even continued it in prison. His campaign of harassment put Ms B’s employment in jeopardy, and he threatened to do it again if she got another job. The Applicant’s harassing and threatening behaviour is very serious.
The Applicant has also engaged in other types of offending, including crimes of dishonesty and threatening violence in a public hotel, demonstrating a willingness to victimise people outside the context of his personal relationships with females and consequent dealings with law enforcement. His criminal versatility is a serious matter.
The Applicant has been sentenced to imprisonment on numerous occasions. In 2003, he was sentenced to imprisonment (wholly suspended) for 12 months for his 2002 offending against Ms M. In 2005, he was sentenced to imprisonment for four months (served by way of Intensive Correction Order) for threating violence (at a hotel). In 2010, he was sentenced to imprisonment for six months (for stalking) and three months (for assault), to serve 53 days, for his offences against Ms V. In 2012, the Applicant was sentenced to six weeks imprisonment (suspended after serving three days) for breaching bail. In January 2014, he was sentenced to three months and eight months imprisonment (concurrent) with a non-parole period of six months for his offences against Ms B. In April 2015, he was sentenced to 18 months imprisonment with a non-parole period of 12 months, and 12 months imprisonment (concurrent) for further offences against her. In November 2017, he was sentenced to three years imprisonment with an 18 month non-parole period for assault police, contraventions of the AVO protecting Ms B and for possession of a mobile phone/SIM in custody. For using a carriage service to menace/harass/offend, he was sentenced to seven months imprisonment. In passing sentence for those offences, the learned sentencing Magistrate said:
“I am of the opinion that no sentences are warranted other than a custodial sentence and in my view they need to be served by way of full time imprisonment”.[78]
[78] Exhibit G1, Section 501 G-documents, G4, page 66.
The more recent head sentences and non-parole periods are substantial, reflecting serious criminality.
The Applicant’s offending, specifically against current or former partners, is frequent when one considers how many offences he committed since he started offending, and it became even more frequent since 2013. He committed a very serious offence in 2003, being rape, so there is not an over-all trend in increasing seriousness, however his harassing and violent behaviour did become more serious over time with his offending against Ms B.
The cumulative effect of repeat offending is that several women in the Australian community, mostly women who were involved in relationships with him, have been terrorised by the Applicant with a ripple effect to those known to them. It appears that it is not safe to break up with the Applicant or to reject his advances. The evidence before the Tribunal suggests that others have also been impacted: Ms M’s children were frightened by the Applicant’s behaviour as were Ms B’s colleagues, and Ms Y was targeted because of work connection to Ms J. A great deal of the resources of the criminal justice system have been wasted on appeals that the Applicant abandoned, good behaviour undertakings that he breached and protection orders that he violated. Even sentences of imprisonment did not deter him from continuing to offend. The Applicant has demonstrated a long-standing contempt for the liberty and safety of others in the community and the criminal justice system. The Applicant’s offending, in its totality, is very serious.
While some of the evidence given by the Applicant to the Department in his revocation request differed from the evidence he gave in the hearing, the Respondent does not submit that he has provided false or misleading information to the Department, and I make no such finding.
Nor do I make a finding that the Applicant re-offended after being formally warned or otherwise being made aware, in writing, about the consequences of further offending in terms of his migration status, given his evidence that he was not aware of the written warning given in January 2011 as it was delivered to an old address.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non‑citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non‑citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The harm from the type of offending the Applicant committed against Ms M, Ms V, Ms B and Ms Y includes physical injury, fear and anxiety, long-term psychological harm and economic harm, as well as collateral harm to others in the victim’s circle. The harm from sexually molesting a child includes psychological harm that can be long-term and far‑reaching in addition to the harm to the victim’s family unit. The potential harm to others, including police officers, of further assaults includes physical injury and psychological harm.
Likelihood of the Applicant engaging in further criminal or other serious conduct
If the Applicant gets his visa back, he intends to remain in Australia on a long-term basis. In his revocation request for, signed in September 2018, he said, in relation to the likelihood of re-offending “Unlikely because I am doing everything humanly possible to prevent this from happening”.[79]
[79] Exhibit G1, Section 501 G-documents, G18, page 229.
I do not have any independent, expert evidence before me as to the risk of re-offending. It was contended on the Applicant’s behalf that he had completed the following rehabilitation programs while in custody:
·Men’s Family Service Sex Offenders Program with 18 one on one sessions with a Psychologist in 2006-2007; and
·EQUIPS Domestic Abuse Program in 2015.
It is apparent from the Applicant’s offending history that these courses were unsuccessful.
The Applicant has previously expressed remorse and a resolve not to re-offend, then gone on to re-offend. In the hearing, he demonstrated a marked lack of insight into his offending. He denied all of the violence, his molestation of Ms C’s daughter and some other offending. He blamed others for some offending that he admitted to, e.g. his harassment of Ms B. Also he sought to excuse some of his offending on the basis of his mental state at the time although there is no evidence that he made efforts to manage his mental health so he would of not continue to offend (as opposed to seeking treatment for his own benefit).
His evidence was self-focused, often straying into the abuse that he suffered in Iraq and the poor treatment he claims to have suffered in immigration detention. While he volunteered a few times that he behaved badly, I did not detect any genuine remorse for his offending or empathy for his victims or the others who were impacted by his behaviour, such as Ms M’s children and Ms B’s colleagues. Further his evidence that he effectively fell on his sword to protect Ms C’s daughter and Ms V which, if accepted would show compassion, was unconvincing and I have rejected it.
As recently as late 2019, the Applicant was engaging in aggressive behaviour towards staff in immigration detention and had banned items in his possession. In the hearing, he sought to justify his aggressive behaviour and he blamed others for the banned items.
Court orders, a warning from a Magistrate, and the obvious threat of criminal sanctions has not previously deterred the Applicant from continuing to offend.
There is not any reliable evidence that the Applicant’s mental health contributed to his offending, or that the Applicant would responsibly manage his mental health to reduce his risk of re-offending if he were allowed to return to the wider Australian community.
There are some letters of support before me that speak about the Applicant in positive terms. Such letters mean very little in light of the Applicant’s extensive offending, particularly as none of them claim that the Applicant has undergone significant reform since his most recent offending.
I am not satisfied that the risk that the Applicant will re-offend is any less than what it was prior to his incarceration.
I consider that it is very likely that the Applicant will commit further offences of the kind that he has committed.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2 – FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
The Applicant’s offending against Ms M, Ms C’s daughter and Ms B come within the meaning of family violence for the purposes of the Direction. In my consideration of Primary Consideration 1, I have addressed the matters I am required to address under Primary Consideration 2, and I apply rather than repeat that analysis here. I would add that inherent in family violence is abuse of power and violation of trust. For example, the Applicant’s relationship with Ms C gave him access to, and a degree of influence over, her daughter in a place (her home) where she should have been safe from harm and protected by the adults around her. Likewise, Ms B was attacked in her home by a person who, by virtue of their relationship, should have been the first to protect her from harm. Family violence warps and destroys the healthy bonds that should exist between partners and within families. The psychological, emotion and social impacts are insidious and serious. The Direction stipulates that the Australian Government, on behalf of the Australian community, has a very low tolerance for this kind of abuse.
Conclusion: Primary Consideration 2
Primary Consideration 2 weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3 – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant is currently in a relationship with Ms J. According to them both, they were in a relationship between 2004 and 2006 but her family opposed the relationship as they wanted her to marry another man.[80] They resumed contact and their relationship, and were religiously married in July 2019, while the Applicant was in immigration detention.[81] The Applicant had previously been in a religious marriage with Ms Z since 2017 and he claimed that this relationship ended in May 2019.[82]
[80] Exhibit A4.
[81] Transcript, pages 61 and 161 to 162.
[82] Exhibit G1, Section 501 G-documents, G24, page 270; Transcript, pages 56 to 57.
Ms J has three minor children, aged six, eight and nine.[83] They are all, according to her, autistic and reliant on assistance from the National Disability Insurance Scheme (“NDIS”). Between July 2019 and January 2020, Ms J and her children frequently visited the Applicant in immigration detention. They normally stayed for around seven hours.[84] They could not continue to visit after January 2020 but they kept up telephone contact. Ms J said the Applicant’s bond with her children is “unbreakable”.[85] The Applicant claims to regard Ms J’s children as his step-children. She intends to continue her relationship with the Applicant if he is allowed to return to the wider community, however she gave evidence that she and her children would be in danger in that event, and she said she would be willing to relocate with them to Iraq which she described as unsafe. It is helpful to set out her evidence, and the way it emerged, in some detail.
[83] Transcript, page 59.
[84] Transcript, pages 140 to 141 and 160.
[85] Transcript, page 160.
As stated above, in February 2020, Ms J sought a protection order on the basis that she had broken up with the Applicant and he had sent threatening messages to her. Both she and the Applicant gave evidence in the hearing that she later withdrew the allegations and the application did not go any further.
Ms J’s explanation for having made up the allegations was that her family are dangerous criminals and extreme Sunni Muslims who objected to her being with the Applicant because he is Shia, and that her ex-husband is in business with her brother. She said she broke off the relationship in 2006 because she feared her family would kill the Applicant if she did not, and she claimed her family threatened her into making the allegations in 2020. She said her brother once “put a screwdriver through” her eye and her cousin had recently finished serving a 16 year sentence for attempted murder arising from him stabbing a man 34 times and throwing him into oncoming traffic.[86]
[86] Transcript, page 159, lines 33 to 37, and page 165, lines 1 to 5.
When probed for details and logical connections, her evidence became very shaky and somewhat disturbing. For example, when asked “Aren’t they going to kill [the Applicant] if he remans in the community” she said “It’s one of my fears. I really do fear that they will”. When asked “So is it really a benefit if [he] remains in Australia? Why would you want him to stay here if he is going to be killed by your murderous family?” she said “Honestly it’s a risk that I’m willing to take”. When it was put to her that it was the Applicant’s life, not her own, at risk she avoided the question, instead saying that if he was deported to Iraq she would follow him – “like I’ve said to my partner, if he goes to Iraq, I will follow him. I will be at the airport before him”.[87]
[87] Transcript, page 159, line 43 to page 160, line 6.
When Ms J was asked how exactly her family threatened her, she variously said they threatened to kill her if she did not return to her ex-husband, that they told her to either get the Applicant out of her life or they would do it for her, they threatened to take action either to hurt her or the Applicant, and she was told that when she went to report the allegations to the police, if she said one thing wrong, she would never see her children again. When asked what that last threat meant, she said she did not know, and that if her children went back to Lebanon she would never see them again. When asked how her family would be able to take her children to Lebanon, she said her brother, father and cousin would take them. When challenged about the implausibility of a non-parent being able to take her children to Lebanon, she said their father still had their passports. Until that point, she had not claimed that her ex-husband was involved in the threats.[88] When asked if there would be an alert at the airport if her ex-husband tried to take her children out of Australia, she said “I have placed my children on the alert list in the airport, yes.” When asked how the threat of taking her children out of the country was a real one she said “It wasn’t a real threat but just the fear that they placed inside me by saying I would never see my children again is enough”.[89]
[88] Transcript, pages 162 to 163.
[89] Transcript, page 162, lines 27 to page 164, line 4.
When Ms J was asked what the point of forcing her to break up with the Applicant was, given the Applicant was in detention facing deportation, she said she did not tell her family he was in detention and that it would not have made any difference to them.[90] When asked what her family were trying to achieve with the allegations, she said they wanted her to return to her ex-husband. When asked how forcing her to make such allegations would have helped achieve that, she said the purpose was to make the Applicant hate her so that he would “stay out of the picture” and that she was secretly in contact with him while living with her father the “whole entire time”. When asked why she did not consider it safe to withdraw the allegations immediately but she did a few weeks later, she said she ended up leaving her father’s house and as soon as she was safe she contacted the police and withdrew her statement.[91] She did not explain how her family would have known that she had withdrawn her statement had she done it earlier, especially given she managed to continue her relationship without her family finding out. Nor is her evidence that she remained in contact with the Applicant the whole time consistent with Ms Y’s evidence that the Applicant harassed her for information about Ms J in February and March 2020.
[90] Transcript, page 165, lines 19 to 41.
[91] Transcript, page 166.
When Ms J was asked if it was realistic that she and the Applicant could be in a relationship if he were to get his visa back, given her family, she said they would move interstate. When asked why she had not done that already, she said she did, she went to Sydney, and they found her. When asked what would stop them from locating her again, she said “I can’t answer that. There is nothing stopping my family from relocating me”. When asked again how realistic it was that they could be in a relationship, she said “It is very realistic”.[92] When it was pointed out that according to her, her children and the Applicant would be in danger, she said:[93]
“But in saying that, the relationship is worth it. I know this man through thick and thin, he is the only person that has supported me, he’s the only person that are said to me, hey, the sun is shining, go have a coffee. Hey, you haven’t done your hair in a while, go out and do it.”
[92] Transcript, page 168.
[93] Transcript, page 168.
Earlier in her evidence, she had said:
“I honestly have no problem with going to Iraq. The only thing stopping me is a proper education for my children, getting the services that they need.”[94]
[94] Transcript, page 167, lines 9 to 14.
It was then suggested to her that she was not worried about living in Iraq. She said:
“I am, seeing that I do have three autistic children and they are all on the NDIS scheme, and to my knowledge there is no kind of support for any mental illness or disabilities in Iraq, so that’s going to be one of the main issues. But again, it’s a risk I’m willing to take if [the Applicant] is sent to Iraq, I will follow him.”[95]
[95] Transcript, page 160, lines 8 to 13.
In response to further questions, she said she would take her children with her, being away from the Applicant would be worse than not having a speech pathologist, and her six-year-old son has started speaking because of the Applicant, although she did not explain how this came about.[96] Later, when asked if it was her evidence that it was safer for her, the Applicant and her children in Iraq, she said “Honestly it is not safer…I’m pretty sure if you go onto the internet right now, say travel to Iraq, all Australia will be advised please do not go.” It was put to her that all Australians do not have murderous family members, and she said “in Australia or in Iraq, there pretty much is no safe place for us”. When reminded about what she said her brother and cousin had done, she said:
“Okay. But in Iraq you have Daesh, you have ISIS, you have a lot of people that are willing to hurt Australians. How could you say that there’s no one in Iraq to hurt me?”[97]
[96] Transcript, page 160, lines 18 to 27.
[97] Transcript, page167, lines 16 to 34.
I find it significant that despite the questioning about safety in Iraq relating to her, the Applicant and her children, she ended up speaking only about the risk to her. Her evidence, which was very much, although not exclusively, focused on her and the Applicant, does not give me confidence that her children’s best interests are a high priority for her.
With respect to Ms J’s evidence, it is difficult to know what, if anything, to accept. The Applicant himself gave evidence that Ms J would lie to protect him.[98] What does seem reasonably certain is that Ms J considers herself to be in a relationship with the Applicant, she wishes that relationship to continue, she has some questionable beliefs including her belief that it is better for her children to have access to the Applicant than specialised disability services, and she is apparently prepared to expose her children and the applicant to risk from her family or the dangers in Iraq for the sake of continuing her relationship with the Applicant.
[98] Transcript, page 124, lines 5 to 14.
My impression is that, given the difference in living standards, security, education and support services between Australia and Iraq, if it comes to the crunch Ms J will choose to remain in Australia. Her children will therefore be without the physical presence of a person who had no physical contact with them until July 2019 and has had only limited telephone contact since then. While the Applicant and Ms J may consider the Applicant to be a father figure, he is not the children’s father and he has never lived with them. Even if I accept Ms J’s evidence that the Applicant has had a positive impact on her younger child and her children have a strong bond with him, there is no evidence that the visits ending in January 2020 adversely impacted the children. Nor is there any expert evidence about how a non‑revocation decision is likely to impact them. Their views are not known.
The Applicant is not the children’s biological father and he has never fulfilled a parental role in terms of meeting the children’s daily physical, financial or emotional needs. Ms J fulfils a parental role for the children, and they have a biological father, although his involvement is unknown. Ms J claimed he was abusive and she has an intervention order against him.[99]
[99] Transcript, page 163.
Historically, the Applicant’s relationships have not lasted more than a few years. Given his history of broken relationships and offending against current and former partners, and my assessment that he is likely to continue that behaviour, there is a significant risk that a relationship between him and Ms J will result in indirect harm to her children through witnessing their mother being abused or receiving a lower level of parenting from her because she is dealing with abuse. There is also a risk of sexual assault against the female child and any such risk is unacceptable. Relevant to this is, as her evidence indicated, the very real risk that Ms J will prioritise her relationship with the Applicant over the interests of her children. Any potential benefit the Applicant may bring to the children’s lives is limited to the duration of his relationship with Ms J which is uncertain, and is outweighed by the risk of harm he would pose to them.
It may be that Ms J’s family is dangerous and they would seek to harm her children if she were in a relationship with the Applicant. However, her evidence about this is unreliable. Even disregarding this, there is a real risk of harm to the children should I revoke the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 3
The best interests of Ms J’s children weigh to a limited extent in favour of non-revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a 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 are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
“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.”
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs[100](“FYBR”) which affirmed the approach established in previous authorities that 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. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[101]
[100] [2019] FCAFC 185.
[101] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision-maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
·the Applicant moved to Australia in 1999 when he was 28 years old. He is now 50 years old;
·the Applicant commenced offending less than three years after arriving;
·the Applicant has committed a variety of offences including dishonesty offences, violent offences and breaches of AVOs. His offences include acts of family violence against multiple victims. He raped a vulnerable child, and he bit a police officer who was trying to restrain him;
·the Applicant’s offending, in its totality, is very serious;
·it is likely that he will re-offend;
·his offending displays contempt for the laws and legal system regulating the community that he seeks to re-enter;
·he held employment until 2011 and since then he has been unemployed. There is some evidence of voluntary work in the community; and
·if he is removed to Iraq it will adversely affect Ms J but it will avoid a risk of harm to her children.
Conclusion: Primary Consideration 4
The Applicant repeatedly breached the trust of the Australian community and he continued to do that even while serving a prison sentence. The nature of his offending is such that the Australian community would expect that he should not hold a visa. There is very little in his favour. Considering all relevant factors, Primary Consideration 4 weighs very heavily in favour of non-revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
I found the Applicant’s evidence about his siblings’ attitude towards him to be speculative and unconvincing.[166] In re‑examination, he said that the last time he had spoken to any of them was in 2016 or 2017,[167] however he had earlier disclosed that he had sent a text message to a brother and received replies in March 2019 (although there is no admissible evidence of the nature of those messages).[168]
[166] Transcript, page 48.
[167] Transcript, page 151.
[168] Transcript, pages 26 to 34.
The Applicant estimated that he last spoke with his mother eight or nine months ago.[169] According to him, he has provided ad hoc financial support to all of his siblings over the years,[170] although he has not done that since becoming unemployed in 2011.[171] His description of his family gave the impression of cohesion, with his siblings co-operating to help his mother move back to Iraq and provide financial support to her, and three of his siblings having formerly lived in the same town in Sweden (two still do). Considering all of the evidence, it seems unlikely that his siblings have or would shun him for the reasons he gave, especially after he helped them financially and while his mother is still alive. I am not satisfied that his siblings have abandoned him and would not want to support him if he were removed to Iraq. Nor am I satisfied that his mother would not seek to provide or arrange some kind of support for him.
The Applicant’s extended family in Iraq
[169] Transcript, page 33.
[170] Transcript, page 36, lines 20 to 25.
[171] Transcript, pages 152, lines 1 to 16
The Applicant said that since he developed a mental illness, he has been too ashamed to contact the members of his tribe in Iraq.[172] He did not explain how they would have known about his mental illness nor did he express concern about them discovering his criminal record which, to my mind, would attract more social stigma (and which he said he would not reveal to anyone in Iraq[173]). When asked if his uncle would help him if he was sent back to Iraq, he said his uncle would not want to help him and would be angry to see him because his mental illness would bring shame on his family and that his uncle had to protect his tribe.[174] When asked how his uncle would know he had a mental illness, he initially said he would see him screaming at night time, crying or having a breakdown.[175] The Applicant did not suggest that anything other than this extreme sort of behaviour would reveal his mental illness. When he was asked how his uncle would witness him doing those things, he did not give a sensible answer, instead asserting that he would behave that way when having flashbacks about his sexual abuse or being shot and his uncle would know of his mental illness if he did not act properly around him (“if I don’t act not proper front him”).[176] He did not indicate that not acting properly entailed behaviour other than the behaviour he had already identified.
[172] Transcript, page 38.
[173] Transcript page 139.
[174] Transcript, pages 41 to 42.
[175] Transcript, page 41, lines 9 to 45; and page 36, line 44 to page 43, line 5.
[176] Transcript, page 43, lines 1 to 4.
The Applicant said his entire tribe were opposed to the Saddam regime who killed up to 24 of his extended family.[177] Although the Applicant did not agree with this, I am satisfied that he was not by any means the only person in his extended family who suffered psychologically because of their experience under the Saddam regime.[178] The Applicant’s uncle who, according to him is a nice, good man charged with protecting the family’s branch of the tribe, must be aware that there are members of that branch who have experienced psychological trauma. Further, the Applicant’s uncle’s foot was amputated when he was a child so he,[179] the leader of the family’s branch, has a conspicuous disability. This all tends to undermine the Applicant’s evidence that his uncle and extended family would be ashamed of his mental condition, if they were to become aware of is, and shun him. Rather, I am satisfied that the Applicant would have access to support from his family’s branch of his tribe.
[177] Transcript, page 44, lines 10 to 15.
[178] Transcript, page 44, lines 15 to 20.
[179] Transcript, page 43.
I am not satisfied that the Applicant is a member of a particular social group, being people with psychological disabilities in Iraq without access to family or social support networks. Rather, I consider that the Applicant is a member of a particular social group, being people with a psychological disability.
Perception of persons with mental health issues
According to the DFAT report, Iraq has one of the world’s highest rates of persons with physiological or psychological disabilities. While the WHO estimates 10% of persons worldwide have a disability, disability advocates estimate that anywhere up to one-third of Iraqis have some form of disability. Long-running war and conflict have contributed to this high number, including through both battlefield injuries, terrorist attacks and the legacy of mines and other explosive devices.[180] In term of mental illness specifically, the ITOA referred to an article, which reported in April 2019 that almost 20% of Iraq’s population is affected by mental illness.[181]
[180] Exhibit A5, DFAT Report, pages 49 to 49.
[181] Exhibit G1, Section 501 G-documents, G28, page 339.
There is significant societal stigma against those suffering from mental health issues in Iraq, which results in under-reporting of problems and underutilisation of the services that are available.[182] DFAT reports that people with disabilities face a high risk of societal discrimination that may include violence or sexual abuse, particularly women with intellectual disabilities or mental health issues.[183] That part of the report does not distinguish between physical, psychological or intellectual disabilities where men are concerned. The ITOA cites country information that suggests that mental disorders that can be linked to traumatic experiences suffered during the conflict in Iraq are considered more acceptable than others and that the approach to mental health problems is gradually improving.[184] This category includes the Applicant.
[182] Exhibit A5, DFAT Report, page 16.
[183] Exhibit A5, page 49.
[184] Exhibit G1, Section 501 G-documents, G28, page 312.
The ITOA refers to a letter from Dr Talib Tahir, Rheumatologist, dated 16 July 2020.[185] In submission with respect to the ITOA, Dr Tahir was described by the Applicant’s legal representative as being an Iraqi doctor practicing in Australia who has seen the Applicant several times recently. He said the Applicant was from a place with a distinguished cultural background and community involvement. He said people are always monitoring and engaging in the lifestyles of each other, and that “any mental health issues with psychological problems can be easily recognise (sic) by people and it can be very embarrassing to the person with the mental health issues”. He added that a person with any mental health issues can be very difficult to live with and considered a burden on their community. Generally, patients will be treated by their General Practitioner, with limited resources for mental health treatment. He said he could not imagine the Applicant going back to his home city with mental health problems as it would be a “disastrous problem” to him.
[185] Exhibit A2, unpaginated.
While Dr Tahir forecasted a “disastrous problem”, he did not forecast any tangible harm coming to the Applicant due to his mental health, only embarrassment and possibly the indignity of being considered a burden on the community if he is difficult to live with.
The Applicant was asked if he would tell anyone, apart from a health professional, in Iraq about his mental health to which he replied, “Have to be very far away from my state”. He was then asked if he would share that information socially, to which he replied, “I will have to be the doctor or institution have to be far away than my state”.[186] He added that he would not be able to afford to travel to seek treatment. I found the Applicant’s evidence here to be deliberately pessimistic.
[186] Transcript, page 139.
On the Applicant’s own evidence, he thinks his uncle would only identify his mental illness if he were to exhibit screaming at night, crying or behaviour associated with having a breakdown. The Applicant has not had a breakdown since 2017, including during periods when he was not engaged in treatment. Screaming at night is not behaviour that is only associated with mental illness: it is primarily associated with nightmares. Further, the Applicant’s behaviour during the night would surely only be witnessed by someone living with him which would most likely be family members. It seems unlikely that crying would be seen as a symptom of a mental illness.
I am satisfied that the Applicant’s membership of his uncle’s branch of his tribe would provide some insulation from societal stigma or harm should people in his community come to know of his PTSD. I am not satisfied that there is a real possibility that any societal discrimination he would suffer would rise to the level of serious harm or would constitute significant harm within the meaning of s 36(2A) the Act. Further, given the degree of insulation that he would have, and based on his past behaviour, I am satisfied that if he were to experience a marked deterioration in his mental health so that he was not able to function at a basic level or he felt suicidal, he would not be deterred from seeking treatment locally by fear of being stigmatised.
Access to mental health treatment
According to the DFAT report, despite enormous need, there are very few mental health services or financial support schemes available to the general public. A January 2017 study found there were only around 80 clinical psychologists working in the entire country. Much of the burden for treating mental health issues falls on international non-government organisations (NGOs) such as Medicins sans Frontieres.[187] Country information cited in the ITOA indicates that there are four hospitals that specialise in psychiatry in Iraq: one is in southern Iraq (Diwaniyah in Qadisiyah Governorate), two are in Baghdad and the fourth is in Kurdistan.[188] I accept that the accessibility of mental health treatment, including the cost of medication, is worse in Iraq than Australia, however I find that he could access crisis mental health intervention at a hospital or seek assistance through an NGO. I do not accept that he could not, and would not, access treatment if his mental health suffered a marked deterioration.
Impaired ability to function and be employed/earn a living in Iraq
[187] Exhibit A5, DFAT Report, pages 15 to 16.
[188] Exhibit G1, Section 501 G-documents, G28, page 310.
According to the DFAT report, although Iraq is classified as an upper middle-income country by the World Bank, social indicators, including on health, education and poverty, remain low. Unemployment (11%) and underemployment are both very high, particularly for the young, women and those segments of the population unable to access public sector employment. The report did not suggest middle-aged men have particular difficulties. The public sector provides around 40% of employment. Despite being low contributors to the overall economy, the agriculture and industry sectors are significant employers of Iraqis.[189]
[189] Exhibit A6, pages 12 to 13.
The Applicant put forward a recent report by the International Labour Organisation[190] that indicates that poverty rates in Iraq hover at around 30%, and a UNHCR document which indicates unemployment has been exacerbated by the pandemic.[191] The DFAT report contains a brief reference to the government providing social welfare in the context of increasing allocations of social welfare in the 2019 budget, however it is not apparent what it involves and who is able to access it.
[190] Exhibit A6, page 116 to 119.
[191] Exhibit A6, page 124.
The Applicant is university educated and presents as being intelligent. He speaks English reasonably well. He has experience in the agricultural industry, having worked on strawberry farms in Australia, although his medical conditions would presumably limit the types of manual labour he could perform. While the Applicant has not been employed since 2011, it is not apparent that he was unable to work for the entire period since 2011. He held employment in the eleven years prior to 2011 despite experiencing what he called mental breakdowns in 2003 and 2005. I accept that if the Applicant experienced severe symptoms it could make it hard or impossible to obtain or maintain employment while experiencing those symptoms.
The Applicant’s mental health does not appear to have stopped him from accessing services, securing accommodation or functioning on a basic level while in the wider community. While in detention, he has shown some gumption, securing the assistance of a refugee legal service and utilising the IHMS.
The Applicant said his uncle could not help him to gain employment, however this is contrary to the country information and the Applicant’s own evidence that his uncle is respected and influential. I am satisfied that the Applicant’s extended family community could be of some assistance to him in gaining employment and accessing any social welfare that might be available to him.
The Applicant’s sister B’s household is very full, with her mother, husband, children and grandchildren. There is no admissible evidence before me about the financial position of the Applicant’s mother or siblings. It seems unlikely that between them they would not and could not provide some level of financial or practical assistance if the Applicant was in critical need or assist him to access crisis mental health care at a hospital or through an NGO.
I accept that due to the high unemployment in Iraq and the Applicant’s medical and psychological conditions, he will find it difficult to earn a living, but I do not accept that the situation is as dire as he claims. I also accept that there are fewer support services in Iraq than in Australia, however the access to, and standard of, services applies to the general population and there is no evidence that he would have greater difficulty accessing services because of his mental illness and/or any social stigma surrounding mental illness.
Further, the Applicant will have some family and community support. I consider that there is no more than a remote chance that the Applicant will be without the ability to function or earn a living or he will be without the basic necessities of life due to lack of family or social support networks, his mental health and societal discrimination regarding mental illness, or the poor standard of (practically and financially) accessible mental health treatment individually or cumulatively.
Conclusion
Having considered the Applicant’s claims, and the integers of his claims, individually and cumulatively, I am have found that he does not satisfy the criteria in subsections 36(2)(a) or 36(1)(aa) of the Act. I am not satisfied that returning the Applicant to Iraq would breach Australia’s international obligations with respect to non-refoulement. I am, however, satisfied that the Applicant is likely to experience hardship in Iraq in the ways mentioned above.
I now turn to the legal and practical consequences of a non-revocation decision. As the visa that was cancelled was a Protection visa, the Applicant is prohibited from applying for another visa by virtue of s 501E(1) of the Act. He may only apply for another Protection visa if the Respondent exercised his non-compellable power under s 48B of the Act to “lift the bar” in s 48A, or a Bridging R (Class WR) visa if invited to by the Respondent.
If I do not revoke the cancellation of the Applicant’s visa, and he is not permitted to apply for a Protection visa (and there is no evidence suggesting he would be), he is liable to be held in immigration detention until it is reasonably practicable to remove him from Australia.[192] The DFAT report indicates that returning Iraqis who are not in possession of an Iraqi passport must apply for a laissez passer at an Iraqi embassy or consulate abroad. To issue a laissez passer, an Iraqi diplomatic mission verifies, among other things, that the person is returning to Iraq voluntarily. The Applicant’s position is that he will not return voluntarily. Accordingly, unless the Applicant changes his mind or Iraq changes its policy, it will not be reasonably practicable to remove him to Iraq. Separate to that, the security situation in Iraq will affect whether it is reasonably practical to return the Applicant.
[192] Sections 189, 196 and 198 of the Act.
The Applicant contended that due to his criminal record, it is most unlikely that he would meet guidelines for referral to the Minister for intervention powers, let alone the Minister actually acting on his intervention powers.[193] I accept that contention. The Applicant might appeal an adverse decision, which would prolong his time in detention.
[193] Transcript, page 7.
There is no indication that the Applicant will change his mind about returning to Iraq, and it is not known whether Iraq will change its policy or could be persuaded to issue a laissez passer to the Applicant despite its policy. Currently, non-revocation will result in the Applicant remaining in immigration detention for a period that cannot, at this point, be determined. As the law currently stands, if there comes a time when it can no longer be said that the Applicant is being detained for the purpose of removing him or alternative options being considered by the Minister, continued detention would become unlawful.[194]
[194] AJL20 v Commonwealth of Australia [2020] FCA 1305.
The Applicant does not consider himself to be safe in immigration detention due to multiple incidents when, according to him, he has been attacked by inmates and staff. Ms J claims to have witnessed two of the alleged assaults.[195] The incident reports do not reveal any assaults by staff, but they do reveal aggression and rule breaking by the Applicant and altercations between him and staff and between him and other detainees. The Applicant raised the issue with his case officer in the Department[196] and he has made complaints to the Human Rights Commission[197] and the Commonwealth Ombudsman. Those bodies have not made determinations about the Applicant’s allegations. What does seem certain is that the Applicant has been involved in physical altercations while in detention and he has sustained injuries. Regardless of fault, the Applicant is not faring well in immigration detention and I have no reason to think things will change. I am satisfied that prolonged detention will cause the Applicant hardship. This hardship is somewhat militated by the availability of medical and psychological support in detention.
[195] G27, page 288.
[196] Exhibit G1, Section 501 G-documents, G21, page 261.
[197] Exhibit A6, page 143.
On that basis, this Other Considerations (a) weighs moderately in favour of revocation.
(b) Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant lived in Iraq until he was 28. He speaks the language and he is familiar with the culture as it was when he left 22 years ago. Although societies progress and change I am not satisfied that the Applicant would face any substantial cultural or language barriers if returned to Iraq.
In his revocation request the Applicant said he would not be safe in Iraq because it is a war zone.[198] There is no evidence of any war in Iraq. However, the DFAT country report states that the security situation in Iraq, while varying according to location, is highly unstable and fluid. Security incidents occur often and without warning, including rocket attacks, mortar attacks, attacks with improvised explosive devices (IEDs), grenade attacks, small arms fire, assassinations and kidnapping for ransom. Targets include government security forces, government offices, diplomatic missions, coalition and Iraqi military facilities, checkpoints, police stations, recruiting centres, airports and public transport centres, places of worship and religious gatherings, markets, non-government organisations, schools and universities, and civilian infrastructure. Despite its territorial defeat in December 2017, Da’esh remains a major perpetrator of abuses and atrocities. These abuses are particularly evident in Anbar, Baghdad, Diyala, Kirkuk, Ninewah and Salah al-Din.[199] These are all areas in the central, west or north of Iraq. The Applicant is from the south. I am satisfied that in Iraq the Applicant would face a risk of injury or death, albeit very low, due to the poor security situation.
[198] Exhibit G1, Section 501 G-documents, G18, page 231.
[199] Exhibit A5, DFAT Report, page 19.
I have considered whether the Applicant’s tendency to offend against females in ways that are conspicuous (yelling outside a window at night, stalking in broad daylight, phone calls to a place of work, text messages that can be shown to others etc) would lead to him being ostracised, imprisoned or less able to keep employment in Iraq. Islam is the official religion in Iraq[200] and extra-marital sex is illegal[201]. I am of the view that living among family and extended family in a community that, as Dr Tahir indicated, takes an interest in what its members are doing would significantly limit the Applicant’s ability or desire to have an intimate relationship other than a socially acceptable official marriage, and would therefore limit the potential for him to engage in the kind of conspicuous aberrant behaviour he engaged in when his relationships failed or he wished to pursue a relationship in Australia.
[200] Exhibit A5, DFAT report, pages 25 to 26.
[201] Exhibit A5, Human Rights Watch report.
I have canvassed the challenges the Applicant will face in Iraq with respect to his age, health, any social, medical and/or economic support available to him in Iraq, and other relevant matters in the previous Other Consideration. I have accepted that he will experiences a lower standard of medical and mental health care, he will have difficulty earning a living, he will not have access to the level of government financial and other support that he has in Australia, he may suffer some societal discrimination due to his mental health, and all of these things will contribute to a significantly lower standard of living. I am to regard these matters in the context of what is available to other citizens of Iraq. Given the Applicant has been away for over 20 years, and given his medical and psychological conditions, life will be harder for him.
It is likely that the Applicant will face significant difficulty re-establishing himself in Iraq for the reasons identified. This Other Consideration (b) weighs heavily in favour of revocation of the reviewable decision.
(c) Impact on victims
This Other Consideration (c) requires a decision-maker to assess the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
I have declined to make a finding that the Applicant committed any offence against Ms J. Accordingly, I am not required to consider the impact on her as a victim. However, I am required to consider the impact of the Applicant’s removal on Ms J under Other Consideration (d)(i). There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any other of his victims. This Other Consideration (c) is therefore neutral.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision-makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
i).the strength, nature, and duration of ties to Australia; and
ii).the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant came to Australia at the age of 28 and has lived in Australia for 22 years. He commenced offending a relatively short time after arriving in Australia. He is not entitled to any weight in his favour under paragraph 9.4.1(2)(a) of the Direction. In his revocation request form the Applicant listed employment from 1999 to 2011.[202] In the hearing, he confirmed that he had not held paid employment since 2011.[203] He has therefore been supported by the Australian government for around 10 years.
[202] Exhibit G1, Section 501 G-documents, G18, page 230.
[203] Transcript, page 152.
He also listed volunteer work from 2013 to 2014 with “SSI” (which was identified as Settlement Services International in submissions) and the Red Cross. He said the volunteer work involved helping new arrivals and being involved in cultural activities. It was contended on the Applicant’s behalf that he helped with a food van for feeding the homeless.[204] There is a letter before me from the Northern Beaches Refugee Sanctuary confirming that the Applicant assisted that organisation between June and November 2013.[205] I found no independent evidence of the other volunteer work the Applicant claimed to have done, however, giving him the benefit of the doubt, I am prepared to accept his claims.
[204] Exhibit A1, page 24.
[205] Exhibit G1, Section 501 G-documents, G26, page 273
The Applicant’s employment and voluntary work afford him some limited weight under paragraph 9.4.1(2)(a) of the Direction.
The Applicant has been in a relationship with Ms J since June 2019. They have known each other since 2004 at the latest but they did not keep in regular contact between 2006 and 2018. Ms J seems to have strong feelings for the Applicant and a desire to have him remain in her life and the lives of her children. The Applicant has a history of short, broken relationships, so his return to the wider Australian community would not necessarily result in a long term relationship with Ms J. Further, there is a risk that he will offend against her at some point. However, I accept that she does not believe those things, and that the Applicant’s removal would cause Ms J some emotional hardship. I have found Ms J to be an unreliable witness so I do not give her evidence to the effect that her children have an unbreakable bond with the Applicant any weight. There is no independent evidence that Ms J’s children would suffer any hardship if the Applicant were to be removed and I do not accept that they would. I am not satisfied that the Applicant has any other familial ties in the Australian community.
Nor am I satisfied that he has significant social ties. I note that there is a letter of support from the woman to whom the Applicant was religiously married in 2016 or 2017 and who he said he broke up with in May 2019 before he entered into a religious marriage with Ms J in June 2019.[206] The letter is undated, although the writer refers to the Applicant as “my husband” indicating that she wrote the letter when she believed she was married to the Applicant. In that letter, she said she would suffer psychologically and mentally if the Applicant were to be deported. There is no evidence before me of any continuing relationship between the Applicant and his former wife. I am satisfied that this woman has already experienced the loss of her relationship with the Applicant. Accordingly, I am not satisfied that his deportation would significantly impact her.
[206] Exhibit G1, Section 501 G-documents, G24, page 270.
The Applicant is entitled to limited weight in his favour under paragraph 9.4.1(2)(b) of the Direction.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Conclusion: Other Consideration (d)
Overall, I allocate limited weight in favour of revocation on the basis of the Applicant’s links to the Australian community.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(e)international non-refoulement obligations: moderately in favour of revocation;
(f)extent of impediments if removed: heavily in favour of revocation;
(g)impact on victims: neutral; and
(h)links to the Australian community: of limited weight in favour of revocation.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration 1 weighs heavily in favour of non-revocation;
·Primary Consideration 2 weighs heavily in favour of non-revocation;
·Primary Consideration 3 weighs to a limited extent in favour of non-revocation;
·Primary Consideration 4 weighs very heavily in favour of non-revocation; and
·To the extent that Other Considerations (a), (b) and (d) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh the Primary Considerations.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa. Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.
I certify that the preceding 254 (two hundred and fifty-four) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy
...........................[SGD].............................................
Associate
Dated: 10 May 2021
Date of hearing: 14, 15 and 16 April 2021 Solicitor for the Applicant:
Alison Battisson (by video link)
Human Right for AllSolicitor for the Respondent Tigiilagi Eteuati (by video link)
Australian Government SolicitorANNEXURE A – EXHIBIT LIST
EXHIBIT No
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
G1
Section 501 G-Documents (G1 to G31 pages 1 to 357)
R
-
22 FEB 2021
A1
Applicant’s Statement of Facts Issues and Contentions (25 pages)
A
-
12 MARCH 2021
A2
Applicant’s Evidence lodged on 12 March 2021 (omitting duplicates of documents contained in Section 501 G-documents).
A
-
12 MARCH 2021
A3
Human Rights Council Working Group on Arbitrary Detention ‘Opinions adopted by the Working Group on Arbitrary Detention at its eighty-ninth session, 23–27 November 2020’ –Opinion Nos.70 - 72/2020
A
-
12 MARCH 2021
A4
Letter of Ms J (one page)
A
1 MARCH 2021
12 MARCH 2021
A5
Country of Origin Information including
· DFAT Country Information Report – Iraq dated 17 August 2020
· UNHCR – International Protection Considerations with Regards to People Fleeing the Republic of Iraq dated May 2019
· UNHCR – Iraq: Prevalence of Rape and Other Forms of Sexual Violence against Men and Boys, and Possible Repercussions against Survivors dated June 2019
· DFAT Smarttraveller- Iraq Travel Advice & Safety (dated 12 March 2021)
· World Health Organisation (Regional Office for the Eastern Mediterranean) - Iraq: Health System Strengthening Programmes (dated 2021)
· Human Rights Watch – Iraq: events of 2020
· Crisis24 – Iraq Country Report (dated 2021)
· Doctors Without Borders – Focus on Iraq
A
-
19 MARCH 2021
A6
Statutory Declaration of the Applicant including Attachments 1 to 5 (187 pages)
A
9 APRIL 2021
9 APRIL 2021
R1
Respondent’s Statement of Facts, Issues and Contentions (30 pages)
R
6 APRIL 2021
6 APRIL 2021
R2
Respondent’s Tender Bundle (T1 to T3 pages 1 to 511)
R
-
6 APRIL 2021
R3
Medical Report of the International Health and Medical Services (IHMS)
R
12 MAY 2020
14 APRIL 2021
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
-
Remedies
-
Natural Justice
2
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