CJQP and Minister for Home Affairs (Migration)

CJQP and Minister for Home Affairs (Migration) [2019] AATA 332 (5 March 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7538
Re:CJQP
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:5 March 2019
Place:Sydney

The decision under review is affirmed.
...........................[sgd]............................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION - non-revocation of mandatory cancellation of Class BB Subclass 155 Five Year Resident Return visa - – expedited matter – where visa was cancelled under s 501(3A) – applicant does not pass character test – 12 month imprisonment – whether discretion in s 501CA to revoke mandatory cancellation should be exercised – considerations in Direction No 79 – consideration in Direction No 75 – decision under review affirmed
Legislation
Crimes Act 1900 (NSW)
Interpretation Act 1987 (NSW)
Migration Act 1958 (Cth)
Young Offenders Act 1997 (NSW)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Greene v Assistant Minister for Home Affairs [2018] FCA 919
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Turay v Assistant Minister for Home Affairs [2018] FCA 1487
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003]
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA.
Direction No 75 – Refusal of Protection Visas Relying on Section 36(1c) and Section 36(2c)(b)
Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
5 March 2019
INTRODUCTION

On 29 June 2017, CJQP (‘the Applicant’) had his Class BB Subclass 155 Five Year Resident Return visa cancelled on character grounds by a delegate of the Minister for Home Affairs (‘the Respondent’ or ‘the Minister’).
After receiving an application from the Applicant seeking the revocation of the cancellation of his visa, a delegate of the Respondent decided, on 11 December 2018, not to revoke the cancellation decision. The Applicant applied to this Tribunal for a review of the delegate’s non-revocation decision on 19 December 2018.
BACKGROUND
The Applicant is a citizen of Iraq. He is currently 25 years of age. The Applicant first arrived in Australia in 2009 when he was 15 years of age.
The Applicant‘s criminal history spans a period of approximately 4 years, from August 2013 to May 2017.[1] The Applicant’s criminal history is as follows:
·On 28 August 2013, the Applicant was convicted for the offence of ‘possess prohibited drug’. He was fined $400 and the drugs were destroyed.
·On 13 April 2017, the Applicant was convicted for the offence of ‘Take/detain in With Intent to get advantage occasion abh-si’[2] and for the offence of ‘damage property by fire and/or explosion’. The Applicant was sentenced to a total of 4 years and 9 months imprisonment with a non-parole period of 3 years and 1 month.
·On 5 May 2017, the District Court of New South Wales included an additional offence of unlawfully possessing a phone and/or sim card while incarcerated, which was included in the sentence of imprisonment above.
[1] Exhibit 4, Section 501 G Documents, G02, pages 23-24.
[2] Crimes Act 1900 (NSW), s 86(3).
I note that the Applicant had been reprimanded and punished on at least 40 occasions for a range of offences committed while in criminal custody, such as harassment, intimidation, damaging or destroying property, possessing a prohibited drug and assault.[3]
[3] Exhibit 4, Section 501 G Documents, G04, pages 217-221.
ISSUES
Pursuant to s 501CA(4) of the Migration Act 1958 (‘the Act’) the Minister is able to revoke the decision to cancel the Applicant’s visa under s 501(3A) 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.
It is not disputed and indeed there is no question 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, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[4]
…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[5]
[4] [2018] FCAFC 151.
[5] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration & 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:
(a)Whether the Applicant passes the character test; and
(b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
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.[6] I will address each of these grounds in turn.
[6] Ibid.
ISSUE 1: 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’.
The Applicant’s representative concedes, in both his written submissions[7] and at the hearing, that he does not pass the character test. To my mind, this concession is properly made. Looking to the weight of the Applicant’s criminal record as summarised above, he has been sentenced to a term of imprisonment for 4 years and 9 months.
[7] Exhibit 1, Applicant's Statement of Facts, Issues and Contentions dated 11 February 2019, page 2, [4].
As this sentence had exceeded the threshold of 12 months’ imprisonment or more as defined in the Act, I find that the Applicant does not pass the character test. Accordingly the Applicant cannot rely on s 501CA(4)(b) for the cancellation of his visa to be revoked.
ISSUE 2: 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 in accordance with s 499(2A) to comply with any directions made under the Act. In this case Direction No 79 Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a visa under s501CA (‘the Direction’) applies. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
…a decision maker:
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[8]
[8] The Direction, [7(1)(b)].
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13(2) of the Direction provides the three primary considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
I note and emphasise the importance of these considerations being ‘other’ considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[9]
Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[10]
[9] [2018] FCA 594.
[10] Ibid at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)The Australian community expects that the Australian government can and should refuse entry to non-citizens or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(iii)A non-citizen who has committed a serious crime should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(iv)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(v)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(vi)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(vii)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A: Protection of the Australian Community
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that decision makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the offending
Paragraph 13.1.1(1) of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct, which relevantly (for present purposes) includes the following:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)…
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes.
(e)…
(f)…
(g)…
(h)…
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention…
The Respondent contended, in accordance with the application of subparagraph 13.1.1(1)(a) and 13.1.1(1)(b), that the Applicant’s offending is of a very serious nature and as the offence involved a level of harm towards a minor in the Australian community, it should be viewed very seriously regardless of the sentence imposed. I am inclined to agree with those contentions. The factual circumstances comprising the Applicant’s offending (as discussed below) and subsequent conviction is clearly indicative of a serious offence involving a direct and deliberate act of interference with, and subjugation of, the personal rights and liberties of the 16 year old victim.
The nature of this offence and damage inflicted on the victim is aptly summarised by the sentencing remarks of His Honour Judge Ingram, where His Honour noted:
‘…on 11 June 2014, the victim received a number of telephone calls from the offender. At about 10:25pm the offender said he wanted to meet the victim “now” and the victim said that he could only go outside for a short period of time and, further, that he would have to sneak outside of the house. At that stage the victim was aged about 16 years or slightly older and was living at home with his parents and family. The offender was 20 years of age[11]…
…
…the offender kicked the victim on the leg causing him to fall to his knees. The offender continued to kick the victim and the two other co-offenders…also began to kick the victim. The victim was in the process attempting to protect his face from being struck. Each of the offenders then continued to strike the victim, slapping him and punching him. The offender stopped bashing the victim and dragged him to some point some distance away[12]…
…
The victim was detained and attached over a period between 30 and 40 minutes, the offenders and the victim were at the location for that period of time[13]…
…
‘The injuries sustained by the victim…were head injuries described as numerous scalp abrasions and a left-ear pinna haematoma. On the face there were left periodic orbital swelling and bruising, a left eye subconjunctival haemorrhage, swollen nose and nasal bone crepitus, an intranasal haematoma, multiple lacerations. To the upper limbs there was swelling, tenderness and bruising to the right wrist and forearm. There was bruising to the left shoulder, bruising to the left arm, respectively 20 centimetres by 5 centimetres and 15 centimetres by 4 centimetres. There was also left wrist swelling and tenderness. The lower limbs disclosed bruising and tenderness. The back was bruised on both flanks.
The hospital performed a number of tests…the imaging showed displaced nasal bone fractures and an undisclosed facture of the left acromion, which is a bone in the shoulder.[14]
[11] Exhibit 4, Section 501 G Documents, G02, page 28.
[12] Ibid, page 30.
[13] Ibid.
[14] Ibid, page 31.
As mentioned above, the Applicant was sentenced to term of custodial imprisonment for a period of 4 years and 9 months. Taking into account that a term of custodial imprisonment is often seen as a ‘last resort’ in the sentencing hierarchy, this sentence of custodial imprisonment of 4 years and 9 months, to my mind, reflects a significant level of severity in the offence(s) committed by the Applicant. The level of severity is augmented by the fact that the Applicant, out of his own choice and doing, acted in company to effectively abduct and confine a minor (i.e. his victim) and proceeded to inflict personal, actual and not insubstantial harm to that victim, which resulted in multiple bruising, fractures and abrasions.
The Applicant, in his written submissions, sought to ameliorate the seriousness of his offending by suggestion the victim was not considered to be a child in Australia as ‘the age 16 [sic] is not a minor; in the Australian laws it is the age of consent and it is the age to apply for citizenship independently’[15] and that the delegate of the Minister has misconstrued (or misapplied) the Direction in this instance. It is plainly incorrect to associate the age of consent and the ability to apply for independent citizenship with whether or not the victim is considered to be a ‘minor’. I base this observation on the reality that (1) in NSW at least, the legislative meaning of ‘minor’ is anyone under the age of 18[16]; (2) whether or not someone is of the age of consent is specifically confined in its application to offences of a sexual nature, and (3) whether or not a person at the age of 16 can apply for citizenship independently of his or her parents has no relevance whatsoever to the considerations in the Direction and its application by a delegate or other decision maker.
[15] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions dated 11 February 2019, page 4 [12].
[16] See Interpretation Act 1987 (NSW) s 21 Definition of ‘Minor’; Young Offenders Act 1997 (NSW) s 4 Definition of ‘Child’.
Having regard to sub-paragraphs (a) and (b) of paragraph 13.1.1(1) of the Direction, I am of the view that the circumstances of the Applicant’s offending which involved the direct, physical harm and unlawful detaining of a minor in company with other people must and can only be viewed very seriously.
Sub-paragraph (d) of the paragraph 13.1.1(1) of the Direction concerns itself with the sentence(s) imposed by the court/courts for the crimes committed by the Applicant, with specific reference to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction. As observed by Senior Member Poljak of this Tribunal,
“The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him…Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.”[17]
[17] PNLB and Minister for Immigration and Border Protection [2018] AATA 162, paragraph [22]. This observation was made in the context of sub-paragraph 13.1.1(1)(c) of paragraph 13.1.1(1) of Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (‘Direction 65’).

When one looks at the totality of the Applicant’s criminal offending that resulted in the imposition of a custodial term of imprisonment, one has no option than to consider his offending to immediately be very serious. The Applicant was charged with one count of Take/Detain in company with intent to commit a serious indictable offence, and occasion actual bodily harm, and one count of damage property by fire and/or explosion. The former offence is punishable to a maximum sentence of 25 years’ imprisonment[18] while the latter offence has a maximum sentence of 10 years’ imprisonment[19].
[18] Crimes Act 1900 (NSW), s 86(3).
[19] Crimes Act 1900 (NSW), s 195(1)(b).
The severity of the offences, as prescribed by the maximum legislated penalties, indicate that the legislature gave thought to the severity of the actions of an individual found guilty of the commission of such offences and that such conduct should be punished by significant periods of incarceration. This is clearly supported by a cursory view of the maximum penalties for each of the two stated offences. The actual length of head sentence imposed by the learned sentencing judge comprises one episode of the exercise of judicial discretion in sentencing. I do not accept that the imposition of a head custodial term of 4 years and 9 months’ imprisonment should somehow be construed as of ‘lesser severity’ having regard to (1) the respective maximum terms of imprisonment and (2) the possibility that similar offending may have been punished by greater head custodial terms. As noted by His Honour Judge Ingram when sentencing the Applicant in April 2017: ‘…in all the relevant circumstances, the index offence [committed by the Applicant] represents quite a serious example of an offence in contravention of s 86(3) [of the Crimes Act 1900 (NSW)]’.[20]
[20] Exhibit 4, Section 501 G Documents, G02, page 33.
I am thus left with the impression that the Applicant is a violent offender responsible for very serious offending. While the scale of violence is not necessarily at the highest end of the scale of harm capable of infliction on an individual, it has nevertheless been enough for him to be sentenced to a not insignificant term of custodial imprisonment of 4 years and 9 months.
I am of the view that sub-paragraph (d) of paragraph 13.1.1(1) of the Direction militates in favour of a finding that the Applicant’s offending can be readily categorised as ‘very serious’.
Sub-paragraph (h) of the paragraph 13.1.1(1) of the Direction concerns itself with a crime(s) committed while the Applicant was in immigration detention. I preface my comments in relation to this paragraph with a notation that this Applicant has, strictly speaking, not committed any offence in immigration detention of which he has been found guilty or in respect he has been otherwise dealt with by lawful authority.
While not determinative of any aspect of a finding in relation to this Primary Consideration A, I think it is nevertheless relevant to take into account the reality that this Applicant has committed something in the order of 40 offences while in criminal custody.[21] They are not insignificant transgressions. They range from a relatively common failure to obey lawful directions but then graduate into ‘assaults’, ‘possess drug’, ‘damage, destroy or deface cell’, ‘fight or other physical combat’, ‘intimidation’, and ‘damage, destroy property’. This offending caused those in charge of overseeing his period in criminal custody to remove him from mainstream custody and to effectively place him in more solitary-type confinement and to deny him privileges available to more well-behaved prisoners, such as television.
[21] Exhibit 4, Section 501 G Documents, G04, pages 219-221.
During his time in immigration detention, the Applicant has proved to be a less than exemplary detainee. His ‘Client Incident Report’[22] is replete with incidents of either the Applicant having a physical altercation with another detainee or displaying such conduct as to cause the detaining authorities to place him under mechanical restraint. For example, even a cursory review of his ‘Client Incident Report’ indicates the following:
[22] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, Annexure B.
·22/01/2019…missed three consecutive meals over a 24 hour period;
·14/01/2019 – Pre planned application of mechanical restraints applied to facilitate High Risk escorts;
·27/12/2018 – physical altercation between two detainees;
·22/11/2018 – Pre planned use of mechanical restraints was applied to a Detainee escorted from Blaxland to IHMS;
·29/10/2018 - Pre planned use of mechanical restraints was applied to a Detainee escorted from Blaxland to IHMS;
·10/10/2018 - Pre planned use of mechanical restraints used to facilitate High Risk escort to IHMS;
·24/09/2018 – Unplanned use of force by Serco Staff to separate detainees from fighting in Dorm 3;
·18/09/2018 – Pre-planned application of mechanical restraints was approved to facilitate a High Risk escort by ABFs’ Superintendent Detention Operations;
·12/09/2018 – Unplanned use of force was utilised by staff on detainees;
·12/09/2018 – DSO heard a minor disturbance in Dorm 3 between [the Applicant] and another;
·09/09/2018 – Pre-planned application of mechanical restraints was approved for detainee [the Applicant] from Lithgow CC to VIDC.
Again, and to be clear, while I do not allocate any great weight or reliance on this sub-paragraph (h) of paragraph 13.1.1(1) of the Direction, I nevertheless think the Applicant’s conduct in both criminal custody and immigration detention does him no favours in terms of any finding other than that his offending can only be regarded as very serious.
Upon application of the above relevant factors in paragraph 13.1.1(1) of the Directions in both written and oral evidence before me, I am of the view that the nature and totality of the Applicant’s offending can only be viewed as very serious.
The Risk to the Australian Community Should the Applicant Continue to Commit further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) of the Direction provides two factors the Tribunal must have regard to in determining the risk to the Australian community of the Applicant re-offending or continuing to engage in other serious conduct. They are:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending …
The nature of the harm to individual(s) or the Australian community
In addition to the above-discussed violent and serious offence(s) committed while in the Australian community, is apparent that the Applicant has exhibited a tendency to resort to violence as a means of communicating and/or imposing fear in others while incarcerated, be it in criminal custody or immigration detention. His propensity towards violence and creating an apprehension of violence in those around him is evident from the approximately 40 counts of offences committed by the Applicant while he has been incarcerated in criminal custody.
The imposition of violence upon others or creating the fear in those around him that he might resort to a violent option against them has been a feature of his time out of the community. His offending history while in the community is one of extraordinarily brazen conduct against a 16 year old individual whereby that person/victim was deprived of their liberty and subjected to significant physical harm. While his offending history may be said to be relatively short, it is nevertheless history which, from the outset, features a significantly violent act as its central theme. This is not an Applicant with a history of graduating seriousness in his history of offending.
It is clear that the Applicant is yet to develop a demonstrated demarcation between discussing and resolving a difference rationally compared to an immediate resort to violent means to achieve a desired outcome. The Applicant is 25 years old now. His very serious offending was committed when he was 19-20. I have significant difficulty in accepting that he will somehow desist from violent outcomes and interventions were he to be presented with a difficult and seemingly insurmountable problem if released back into the community. One would have expected that in the relatively close and tightly observed confines of criminal custody or immigration detention, he would have moderated his conduct with a view to positively coming through the other side of that custodial/detention period in order to re-establish himself in the broader Australian community.
This is not what has occurred in the intervening five year period. If the Applicant cannot restrain himself in the strict regime of custody/detention, how can it be reasonably expected that he will do so in the more open and liberal environment of the general community? Having regard to his demonstrated propensity to impose a violent or physical solution to a given impasse, how can the Tribunal be certain now that he would not do so again were he, for example, be challenged to some sort of physical or similar ‘showdown’ in a remote location involving a similarly disposed member of the general community?
Having regard to the Applicant’s evidence and adopting a longitudinal view of his history, one cannot be convinced that he has developed the necessary discipline to, as it were, ‘walk away’ from a situation where someone may have derided or otherwise insulted him. Yet this is the measure of self-control and moderation required by this component of sub-paragraph 13.1.2(1)(a) of paragraph 13.1.2 of the Direction.
This Applicant’s offending is also demonstrable of two further things. First, the Applicant seems to have no hesitation in refusing to follow a lawful direction, be it from the community corrections officers while in criminal custody or the detention officers while in immigration detention. Second, he seems to provide an excuse or some other kind of justification for the physically harmful results arising from his conduct. Quite often during his oral evidence, the Applicant sought to minimise and ameliorate his imposition of violence in a given incident along the lines of a mere disagreement or difference in views.
The repeated pattern of his evidence was to initially down-play or ameliorate its significance but to them adopt a ‘catch all’ approach wherein he would express remorse and take primary responsibility for the offending and to say he would not do it again. The overall impression of his evidence was one of not having sufficient insight into the actual and potential seriousness of his conduct but then, at the same time, purportedly taking responsibility for it.
Having regard to the totality of the Applicant’s history, both pre-custodial and while in criminal custody/immigration detention, I am of the view that should he reoffend in a similar manner, the risk that he would pose to a member of the general public would be very significant. That harm could result in others suffering anything from serious physical or psychological injuries or even more severe trauma, conceivably, even death. I am therefore of the view that the potential future harm he may cause to members of the Australian community is very significant.
Risk of future offending
The imposition of a not insignificant custodial sentence of 4 years and 9 months and the subsequent cancellation of his visa has not deterred the Applicant from violent and/or physical means in reaching a given outcome. While his rehabilitation may not have yet been tested in the broader community, it has, to an extent, been tested while he has been out of it. The outcome of that ‘in custody’ testing of any deterrence or rehabilitation he may have experienced has expressed itself in numerous transgressions – each having a recurrent theme of violence, actual or perceived – in criminal custody/immigration detention.
The Applicant’s representative contended in his written submissions that if released back into the community, the Applicant would not commit further offences of the nature and kind he inflicted on the victim in June 2014. It was further contended that ‘he [the Applicant] would have a network in the community is [sic] available to help him and bring him to the right path’[23] should he be released back into the Australian community.
[23] Exhibit 2 – Applicant’s Statement of Facts, Issues and Contentions dated 11 February 2019, page 6 [23].
I am of the view that, as optimistic as those submissions sound, the harsh reality of the Applicant’s offending and overall subsequent conduct in criminal custody or immigration detention points to a significant lack of insight into his offending, its consequences and how that pattern of often-violent offending is perceived by decision makers and those in authority charged with responsibility for regulating his conduct – be they sentencing judicial officers, the Minister’s delegate, and those in charge of his time in criminal custody and/or immigration detention. This is augmented by the fact that despite receiving ongoing treatment for his mental illnesses while in criminal custody and immigration detention, the Applicant continued to offend by way of intimidation, harassment and violent assault.
At the hearing, the Applicant was asked (in cross-examination) about the possibility of his propensity to offend somehow having its roots in his abuse of illicit substances. He was asked whether he had, in the past, used crystal methamphetamine (‘Ice’). The Applicant responded that he had used ‘Ice’ ‘a couple of times…’ but that he ‘…didn’t have an addiction to it.’ The Applicant added ‘…I used it three times, once with a girl, once with a friend of a friend, and once with another friend.’ He denied any addiction to either ‘Ice’ or any other illicit substance.
Having regard to this evidence, the Applicant was then asked why was the case that he told the consultant forensic psychologist, Mr Tim Watson-Munro about an addiction to ‘Ice’ causing Mr Watson-Munro to observe:
‘It would appear that at the material time, he was struggling not only with severe psychological problems but in addition, an addiction to crystal methamphetamines (ice), which had a dramatic impact upon his judgement, impulse control and overall behaviour.[24]
[24] Exhibit 4, section 501 G Documents, G02, page 115 - Report of Tim Watson-Munro dated 29 November 2016.
The Applicant was then asked that if it was his evidence that he was not addicted to an illicit substance, why then did he tell Mr Watson-Munro that he had ‘an addiction to crystal methamphetamines (ice)’? The Applicant’s response was both tepid and unconvincing. He said ‘Because I thought my use of it was an addiction.’
Likewise, the Applicant was asked in cross-examination why it was that the author of his pre-sentence report noted these things:
‘The offender reported occasional cannabis use but denied all other drug use. By contrast the offender reported to Mr Watson-Munro, in a report to which reference will be made below, a history of cannabis use and also described having an addiction to the drug Ice which he commenced at the age of 18 years. The presentence report also notes that Corrective Services records indicate that the offender returned a positive result for methylamphetamine in urinalysis that was carried out on 3 November 2016. As the author of the report indicates the extent of the drug use by the offender remains unclear.[25]
[My underlining]
[25] Ibid, G02, page 37.
In his evidence, the Applicant confirmed that he failed the two drug tests, one on 3 November 2016 and the other on 11 November 2016.
The Applicant was then asked whether he had used drugs while in prison. He confirmed ‘yes I did’. The Applicant specifically confirmed his use of illicit drugs on or about mid-2017 consistent with his prison record indicating that he was found in possession of a dangerous drug at that time.[26] He was asked about the type of drug found in his possession and he referred to it as ‘Avenza’ which he described as a drug to help someone to go to sleep.
[26] Ibid, G02, page 72.
The Applicant was then asked ‘Do you still have trouble with drugs today?’ the unconvincing and self-serving response was ‘No, absolutely not. I want to be a better person, I want to change my life, I’ll never use drugs again because I really regret what I have done.’
In terms of a diagnosis, Mr Watson-Munro said this: ‘Testing confirms my clinical impressions of [the Applicant] referrable to a Severe Depressive Disorder according to DSM-5 criteria.’[27] Further, Mr Watson-Munro noted:
‘[the Applicant] has had no treatment in the community beyond his incarceration which is indicated. There is some uncertainty referrable to the paternity of his former partner’s child, which I suspect is also causing him some anxiety. Beyond the mediation he is taking, [the Applicant] would benefit would benefit from Cognitive Behaviour Therapy focussed upon the further development of relapse prevention strategies, systematic desensitisation for his anxiety, social skills training and supportive and motivational psychotherapy.’[28]
[27] Ibid, G02, page 118.
[28] Ibid, G02, page 119.
The critical aspect of Mr Watson-Munro’s observations is this: there are clearly diagnosed psychological symptoms affecting the Applicant’s life. Mr Watson-Munro has laid out a regime of therapy and management which (1) is yet to be undertaken by the Applicant and (2) the effectiveness of that regime of treatment is yet to be tested in the broader community. As mentioned by Mr Watson-Munro, the Applicant ‘has had no treatment in the community beyond his incarceration…’ [emphasis added]
It is also necessary to make further reference to the comments of the learned sentencing judge, His Honour Judge Ingram made while sentencing the Applicant on 13 April 2017:
‘LIKELIHOOD OF RE-OFFENDING
…
In view of the conflicting accounts which the offender has given to the author of the pre-sentence report and to Mr Watson-Munro, his many misconduct offences while in custody and the pre-sentence report assessment that he is a medium to high risk of re-offending, the Court finds that the offender has somewhat guarded prospects of not reoffending.
PROSPECTS OF REHABILITATION
…
Again in view of conflicting accounts in relation to various matters the offender provided to the author of the pre-sentence report and to Mr Watson-Munro, his many misconduct offences while in custody and the pre-sentence report assessment of medium to high risk of re-offending the offender has guarded prospects of rehabilitation.’[29]
[29] Ibid, G02, pages 51-52.
Having regard to (1) the incomplete nature of any therapy undertaken by the Applicant; (2) the untested benefits of such therapy on the Applicant’s propensity to offend; (3) the Applicant’s numerous offences and transgressions while in criminal custody and/or immigration detention and (4) the less than convincing evidence provided by the Applicant regarding his abuse of illicit substances, I am satisfied that his likelihood of reoffending is in the range of medium to high – but more towards the high end.
In the event that he does reoffend, I find that the nature of the harm the Applicant will inflict on individuals or the Australian community is also great. Although the Applicant has been fortunate that his assault on the 16 year old victim did not inflict death upon him, he has consistently acted in a way that can generally be characterised as dangerous to people around him and to other members of society, be it the kidnapping of a 16 year old minor and inflicting actual bodily harm or the damaging of prison property by fire, or the other numerous offences committed during his time in criminal custody/immigration detention. Ultimately, his offending could conceivably result in serious physical or psychological harm and even death being inflicted on other members of the Australian community.

Accordingly, giving consideration to both the likelihood of the Applicant engaging in further offending conduct and the nature of the harm he would inflict if he did so, I am satisfied that there is a significant risk to the Australian community, should the Applicant commit further offences.
To be clear, my finding is that the Applicant’s demonstrated lack of insight into his offending and the impact it had on his victim, coupled with his demonstrated history of repeatedly breaching or otherwise failing to comply with lawful authority while in criminal custody and/or immigration detention points to a convincing likelihood that he will engage in further serious conduct if returned to the Australia community.
In consideration of all of the evidence, and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs heavily in favour of non-revocation.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(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 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 Respondent’s Statement of Facts, Issues and Contentions speaks of the Applicant having (1) a minor brother (ages 8 years), (2) a nephew and niece, and (3) putative child from a former relationship.[30]
[30] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions dated 18 February 2019, page 12, [14].
It is conceded by the Respondent that it would be in the best interests of the Applicant’s younger brother for the Applicant to remain in Australia.[31] The Applicant, during his oral evidence before the Tribunal, spoke of his close relationship between him and his younger brother, and how he, if released back into the Australian community, would look after and care for his younger brother.
[31] Ibid, page 13, [16].
With reference to his eight year old brother, the Applicant said of the relationship ‘me and him are very close…I used to look after him when I was living with my family…he has been stressed out and doesn’t want to go to school.’ Upon release back into the Australian community the Applicant said that he would return to live with his family and that he will ‘…probably be involved in caring for him. I want to be there for him.’
In relation to his niece and nephew, the Applicant said that they are both the infant children of his brother. He said the first of these two children was born under three years ago and that the first born child had been named after him (the Applicant). The Applicant gave further evidence that the second child had been born more recently.
The Applicant spoke of his closeness with his brother and his sister-in-law and, by implication, their two children. The Applicant said this closeness was augmented by the fact that all of the immediate family reside in the same residence. ‘All of the immediate family’ comprises the Applicant’s parents, his eight year old infant brother, his brother and sister-in-law and their two infant children. It is due to this proximity of residential arrangements that the Applicant says he has, in the past, and most likely in future, played and will play a parental and/or caring role in the lives of the three infant children.
The Applicant’s further evidence was that there is an intention to build a ‘granny-flat’ for him at the back of the family’s current residence so that the Applicant can ‘…go and live there because I want to get married straight away.’ This theme of family closeness and connectivity can also be found in the Applicant’s evidence that ‘…I want to assist my family financially.’ He told the hearing about gifting some $150,000 to his family that he received as part of a personal injuries award so that the family could put that money towards the mortgage of the subject property.
It thus seems clear to me that given these relatively confined domestic arrangements, there may well be some weight and veracity behind the Applicant’s evidence about playing, if not an outright parental role, then certainly a supportive role in the lives of the three infant children.
What is much less clear and more opaque is the relationship (if any) between the Applicant and a putative child apparently attributable to a previous relationship. He gave evidence of an ex-girlfriend with whom he was intimate during a period possibly commensurate with her conception of that child. The Applicant spoke of the relationship most likely being at an end. He was frank enough in his evidence to tell the hearing that she has, in fact, re-partnered. The Applicant spoke of his ex-girlfriend telling either his brother or an acquaintance of his that she had not been intimate with anyone else during the period of time during which she conceived.
The Applicant reported the possibility of him having a child to Mr Watson-Munro who noted (in November 2016):
‘He reported having a former girlfriend who is the mother of a child of uncertain paternity. He is 3½ years of age. She apparently is about 20 years of age now. He stated that they have had intermittent contact since he was young and that ultimately a DNA test will confirm his paternity or otherwise.[32]
[32] Exhibit 4, Section 501 G Documents, G02, page 116 – Report of Mr Tim Watson-Munro dated 29 November 2016.
In cross-examination, the Applicant had no qualms about submitting to a DNA test and was clear about accepting paternity when he said ‘…if he’s my kid, then 100%, I’ll look after him.’ While I am cognisant of the evidence about a putative child, I am of the view that – infant siblings, nieces/nephews and step-children aside – paragraph 13.2(2) of the Direction does not include children en ventre sa mère or children not confirmed to be biological children deriving their parentage from an Applicant.
Paragraph 13.2(4) of the Direction sets out a number of factors that must be taken into account when assigning weight to this consideration. Relevantly, those factors comprise:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where there have been long periods of absence, or limited meaningful 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;
(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 other ways they could maintain contact;
(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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Sub-paragraph (a) of paragraph 13.2(4) of the Direction refers to the nature and duration of the relationship between the child and the non-citizen. As a general proposition, less weight should be given to this factor where there have been long periods of absence or limited meaningful contact between the Applicant and the child/children.
It can be noted that the Applicant has had some measure of involvement in the lives of his infant brother and his infant nieces and nephews. Despite the relatively confined domestic residential arrangements, while I do not think he has played an actual parental role in any of the lives of those three infant children, I do not think his role in their lives has been superficial either. Be that as it may, the Direction compels the allocation of less weight to this factor due to the Applicant’s long period of absence from their lives, and, thereby, any meaningful contact between the Applicant and the three infant children for the virtual five years he has found himself in criminal custody and/or immigration detention.
The evidence of any involvement and contribution to the life of the putative child, regardless of whether that child is a child for the purposes of this Primary Consideration B, is both scant, and, at best, opaque. The Applicant spoke of ‘doing a DNA test’ but the reality is that the child was born over five years ago and he has had ample opportunity to organise a DNA test. One wonders about his sincerity in undergoing such a test and his professed intention to ‘100%’ assist with the care and upbringing of that child in circumstances where he has had five years to do so but has done nothing to prove that he is the biological father of the child.
I note the Applicant has not had a demonstrable parental relationship of any nature and duration with the niece and nephew for the simple reason that neither of them were born when he initially went into criminal custody. His infant brother was three years of age when this occurred. It is this very difficult to gauge any measure of length or duration of any relationship between the Applicant and the four infant children (including the putative infant child). Thus, I am of the view that factor (a) very slightly in favour of a finding that it is in the best interests of those infant children that the Applicant’s visa status be restored to him.
Sub-paragraph (b) of paragraph 13.2(4) of the Direction requires a decision maker to make an assessment of the extent to which the Applicant is likely to play a parental role in the future, taking into account the length of time there is until the child turns 18. Apart from the evidence of the Applicant and the Applicant’s mother and father, there is no expert and independent evidence before the Tribunal analysing (1) the role, if any, played by the Applicant in the lives of the children thus far and (2) any adverse impact on the minor children were the Applicant be compelled to return to Iraq. I have re-read Mr Watson-Munro’s report and while that report makes reference to a putative child, I cannot glean anything from it in relation to the Applicant’s relationship with the three infant children.
Even in the absence of any such report, it is reasonable to conclude that it is more likely than not that the Applicant will play at least some measure of a positive role in the lives of his younger brother, his niece and nephew and the putative child from his previous relationship (subject to DNA paternity testing) until each of those infant children attain the age of 18 years. I therefore positively apply this factor (b) to my consideration of whether restoration of the Applicant’s migration status is in the best interest of those four children.
Sub-paragraph (c) of paragraph 13.2(4) of the Direction involves an assessment of any negative impact of the Applicant’s prior conduct, and any likely future conduct, on the infant children. There is no direct evidence to suggest that the Applicant’s very serious offending in Australia has had any direct impact on his younger brother, his niece and nephew or his putative child from a previous relationship. I am cognisant of the Applicant’s evidence about the effect of his absence on his infant brother, but in the absence of any positive finding about the impact of the Applicant’s prior conduct on any of the four children, I am not able to allocate any weight to this factor (c) for the purposes of this consideration.
Sub-paragraph (d) of paragraph 13.2(4) of the Direction refers to an assessment of the likely effect that any separation of the three (possibly four) infant children from the Applicant would have on them, taking into account the Applicant’s ability to maintain contact in other ways. We live in an age of electronic communication and it is undeniable that the Applicant will be able to have at least some measure of contact with his younger brother, his niece and nephew and his putative child (subject to DNA paternity testing) from Iraq by SMS and/or social media platforms. The logical extension to this involves the introduction and maintenance of visual and real-time contact with the three (possibly four) infant children via Skype and other digital platforms. Even if one accepts the Applicant’s evidence about an apparently strong bond between him and the three (possibly four) infant children, it is clear that were he to be returned to Iraq, he would be able to maintain a level of contact with them.
In these circumstances, this factor (d) is of minimal and only slight weight in assessing whether restoration of the Applicant’s migration status is in the best interests of the three (possibly four) minor children.
Sub-paragraph (e) of paragraph 13.2(4) of the Direction asks whether there are other persons who already fulfil a parental role in relation to the children. On the present state of the evidence, there clearly are. The Applicant’s niece and nephew are parented by the Applicant’s brother and sister-in-law. The putative child from the Applicant’s previous relationship is being parented by the mother and her new partner. In relation to the Applicant’s eight year-old brother, I cannot glean from the evidence anything other than a reality that he is primarily parented by his parents and, put at its highest, the Applicant’s role has been limited to that of a “big brother”/mentor with whom the younger brother has the usual close, brotherly relationship. For the purposes of this factor (e) I am of the view that it is of minimal weight in assessing whether restoration of the Applicant’s migration status is in the best interest of the three (possibly four) minor children.
Sub-paragraph (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of the children about their separation from the Applicant, having regard to their age and maturity. As best as I understood the evidence, the Applicant – since his time in criminal custody and then immigration detention – has had some contact with his eight year-old brother. It is unclear what level of contact the Applicant had with his niece and nephew and the putative child from the previous relationship.
Apart from the evidence of the Applicant’s mother and father, which speaks positively of the role the Applicant has played in the eight year-old brother’s life, there are no known views of the three (possibly four) minor children such as to facilitate a positive application of this factor (f) in favour of the restoration of the Applicant’s visa status.
Sub-paragraph (g) of paragraph 13.2(4) of the Direction looks to evidence that the Applicant has abused or neglected the children in any way, including physical, sexual, and/or mental abuse or neglect. This factor has no weight and is not determinative of any finding about Primary Consideration B.
Sub-paragraph (h) of paragraph 13.2(4) of the Direction looks for evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. While I am mindful of the Applicant’s evidence regarding his infant brother, in the absence of any positive finding of the impact of the Applicant’s conduct on any of the children, I am of the view that this factor (h) is of no weight and is not determinative of any finding about Primary Consideration B.
Conclusion: Primary Consideration B
Having regard to:
(a)the evidence of the Applicant’s mother and father about the historical nature of the relationship between the Applicant and his eight year-old younger brother;
(b)the relative absence of any convincing evidence of any parental or other role the Applicant has played in the lives of his niece and nephew or, indeed, the putative child from his previous relationship;
(c)the slight weight to be taken from factors (a), (b), (d), and (e), of paragraph 13.2(4) of the Direction;
(d)the Respondent’s concession that limited weight should be allocated to any of these factors indicating that revocation is in the best interests of any of the three (possibly four) infant children
- I am of the view that the best interests of three (possibly four) minor children in Australia does weigh in favour of revocation of the decision to cancel the subject visa. I qualify this finding by saying that the weight attributable to this Primary Consideration B is moderate only and does not outweigh that weight attributable to Primary Consideration A.
Primary Consideration C – Expectations of the Australian community
I turn now to the final Primary Consideration: the expectations of the Australian community. In making this assessment, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government’s views in this respect. Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an applicant’s offending is such that the Australian community would expect that they should not hold a visa.
For the purposes of considering the present matter, the essential question with respect to Primary Consideration C is whether the Australian community, as a whole, would expect that a non-citizen with the Applicant’s history of very serious offending in this country should retain the right to remain in Australia. Each offender’s criminal history and circumstances of offending is, of course, different. This broadly stated question must be broken down into a series of components so that it is properly understood and can be properly assessed.
The essential question posed by paragraph 13.3(1) of the Direction may be stated thus: would the Australian community expect the Applicant to hold a visa to remain in Australia in circumstances where:
·He arrived in Australia in May 2009 as a 15 year old and had first offended and convicted in August 2014 for possessing a prohibited drug, just over four years since he has been in this country;
·His subsequent offending to which he was sentenced to 4 years and 9 months imprisonment has caused him to be excluded from the Australian community for over five years, taking into account the fact that his was immediately placed into immigration detention after serving his term of imprisonment;
·The stark reality is that, taking into account the combined period of criminal custody and immigration detention, his offending has seen him removed from the Australian community for virtually half his time in this country;
·His offending in the Australian community, while not frequent, had been clearly of a significantly serious nature for a sentencing judge to impose a not insignificant term of imprisonment;
·His conduct while in criminal custody had seen him reprimanded or punished on at least 40 occasions;
·His conduct while in immigration detention has attracted intervention by those overseeing his detention on 14 occasions;
·His offending in this country can only be described as very serious;
·A sentencing judicial officer found that he was of a medium to high risk in terms of a likelihood of re-offending;
·The same sentencing judicial officer found that the he had only ‘guarded prospects of rehabilitation’;
·Despite the recommendations of Mr Watson-Munro, there is no definitive evidence that the Applicant (1) has undertaken or completed the recommended course of remedial therapy such that (2) the Applicant has a demonstrable level of insight into his offending so that (3) this Tribunal can confidently find that there is no real risk of him re-offending.

I am mindful of the elements necessary to be balanced in any proper consideration and application of Primary Consideration C to the present factual matrix. Since the early 2000s, Courts and Tribunals have been defining formulae to assist a decision maker in reaching a decision that accords with the expectations of the Australian community.
As a general proposition, Deputy President Block, in 2003, said that one must look to the expectations of ‘…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.’[33]
[33] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[34] The learned Deputy President thought this paragraph leads a decision maker to:
‘102… conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgement, the facts on which that judgement is made must be on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgement that is ultimately made by a decision-maker must be able to be explained.’
[my underlining]
[34] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103]. This consideration was made in the context of Direction 65.
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection:[35]
‘In substance this consideration is adverse to any Applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any Applicant who has failed the character test and has been convicted of serious crimes.’
[my underlining]
[35] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
‘…[are] not a consideration dealing with any objective or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the Executive Government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do.’
[my underlining]
In Afu v Minister for Home Affairs,[36] Justice Bromwich said:
‘The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.’
[my underlining]
[36] [2018] FCA 1311 at [85].
The resulting question is whether an informed and reasonable member of the Australian community would consider that the Applicant has been adequately punished by serving a custodial term or terms for his very serious offending to date, such that he should now be allowed to remain in this country.
I cannot come to that conclusion in light of my findings as to:
(i)The very serious nature of his offending to date;
(ii)His demonstrated lack of insight into the nature of his offending;
(iii)My assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to reoffend;
(iv)The comments of the learned Justices Mortimer and Bromwich and Deputy President Forgie about how a decision maker applies paragraph 13.3(1) of the Direction in the current context.
I therefore find that the Australian community would consider that this Applicant, who has committed a very serious and potentially catastrophic offence, has breached the trust they have placed in him to obey Australian laws while in Australia. Accordingly, I find that the Australian community would expect that the Applicant should not hold a visa to remain here.
At the hearing, the Applicant spoke of wanting to return to the community to, in effect, re-define his life and to re-engage with his immediate and extended family and otherwise participate as a member of the Australian community. Does he deserve such an opportunity? The answer depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[37]
[37] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
The Applicant came to Australia in 2009, aged 15 years. He commenced offending approximately four years after that, in 2014 when aged 19-20. His offending has seen him before lawful authority on at least two occasions. The two occasions refers to the Applicant being dealt with by a court for offences exactly as would occur with any other member of the Australian community who may have similarly offended. These two occasions do not take into account the multitude of transgressions/offences committed by the Applicant in criminal custody/immigration detention, most of which would have caused him to appear before lawful authority in a formal sentencing context were they committed in the broader community.
Two further, and to my mind, critical points arise from the Applicant’s own evidence and that adduced on his behalf:
(i)The evidence around the Applicant no longer abusing illicit substances is both incomplete and unsubstantiated by independent evidence. Any suggestion that the Applicant’s reliance on such substances is at an end derives from his own evidence. It is not corroborated by an independent and expert evidence;
(ii)Any likelihood of him reoffending is yet to be tested in the community because he has been removed from that community on a continuous basis for virtually the last five years.
Conclusion: Primary Consideration C
Having regard to this Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory cancelation of his visa. I accordingly find that this Primary Consideration C weighs heavily in favour of non-revocation.
Other Considerations
There are five “other considerations” disclosed in the Direction:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.[38]
[38] The Direction, [14(1)].
I will address each of these considerations, and their respective weights, in turn.
(a) Non-Refoulement Obligations
The Applicant contends that non-refoulement obligations are owed to him as he ‘has well founded fears of persecution if he were to return to Iraq’.[39] This claim was largely based on evidence that the Applicant’s paternal uncle was assassinated in Iraq and that he had provided testimony against the perpetrators in an Iraqi court to which led to his family fleeing Iraq as the perpetrators are still active in Iraq.[40]
[39] Exhibit 1, Applicant's Statement of Facts, Issues and Contentions dated 11 February 2019, page 9 [37].
[40] Ibid, see also Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions dated 18 February 2019, page 15, [24].
The question of non-refoulement obligations is perhaps one of the most difficult issues to be resolved in this case. The inquiry must start, as ever, with the terms of the Direction, paragraph 14.1 provides:
1A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm…
2The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
3Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
4Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether the non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
5If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa…
6In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
Consistent with paragraph 14.1(4), above, it was previously the practice for the Tribunal to not determine whether protection obligations are owed to an applicant where the visa that was cancelled was a visa other than a Protection visa. This position was changed after the Full Court of the Federal Court of Australia handed down its decision in the matter of BCR16 v Minister for Immigration and Border Protection (“BCR16”).[41] There, Bromberg and Mortimer JJ held that a decision-maker may fall into error if they assume that non-refoulement obligations would necessarily be considered in the assessment of a Protection visa, therefore obviating the need for the decision-maker at hand to consider the non-refoulement obligations. This decision seems to seriously undermine paragraph 14.1(4).
[41][2017] FCAFC 96; 248 FCR 456. The Full Court of the Federal Court of Australia refused to regard this decision as wrongly-decided: Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68.
In the wake of BCR16, the Respondent made another Direction under s 499 of the Act. This Direction, Direction No 75 – Refusal of Protection Visas Relying on Section 36(1c) and Section 36(2c)(b) (“Direction No 75”), provides guidance on the assessment of Protection visas. At Part 2 of Direction No 75, decision-makers are directed to assess individuals’ refugee and complementary protection claims “before considering any character or security concerns”. In this way, decision-makers such as the Tribunal can now take solace that errors such as those identified in BCR16 are no longer as relevant as they once were.
Direction No 75 was discussed by the Federal Court in Ali v Minister for Immigration and Border Protection (“Ali”).[42] In Greene v Assistant Minister for Home Affairs,[43] Logan J referred to Direction No 75 in summarising, in my respectful view very aptly, the decision in Ali:
The existence of that particular direction [in Part 2 of Direction no 75] persuaded Flick J in Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali) that, adverting to that practice by the Assistant Minister in reasons was sufficient recognition, even assuming the consideration was relevant, of non-refoulement and related obligations. In this case, the Assistant Minister’s reasons, at para 29, evidence a like recognition on this direction and related departmental practice. It suffices to say that, for the reasons given by Flick J in Ali, with which I respectfully agree, there is no substance in the allegation that non-refoulement obligations have not been taken into account.[44]
[42] [2018] FCA 650.
[43] [2018] FCA 919; cited with approval in Turay v Assistant Minister for Home Affairs [2018] FCA 1487.
[44] Ibid, [19].
Consequently, it seems that the present position has – at least in part – somewhat returned to the preferred position prior to when BCR16 was decided.
Here, the Applicant he entered Australia in May 2009 on a Class XB Class 202 Special Humanitarian visa. I must note that the Applicant was later granted a Class BB Subclass 155 Five Year Resident Return visa in June 2015. This visa is distinct from Protection visas, and is not a visa, the holding of which would bar a person from applying for a Protection visa.
Accordingly, I find that there is a possibility that the Applicant may still apply for a Protection visa. In making that determination, the decision-maker would be bound by Direction No 75, and so would have to make an assessment of the Applicant’s refugee and complementary protection claims before assessing any character or suitability concerns that may exist.
On the balance of the evidence before me, while this factor should to some extent weigh in the Applicant’s favour, I cannot find that it weighs heavily or to any other notable extent in his favour. The effect of Direction No 75 and subsequent Federal Court decisions is such that the Applicant will have further avenues through which he can pursue his refugee status in Australia. In those processes, Australia’s non-refoulement obligations to the Applicant will be assessed in a fulsome manner. I find that this limits the extent to which the non-refoulement obligations in this matter favour the granting of the subject visa. Consequently, I find that this Other Consideration (a) weighs slightly in favour of the grant of the subject visa.
(b) Strength, nature and duration of ties
The Respondent appropriately concedes that the Applicant’s immediate family (mother, father, brother, and minor brother) all reside in Australia and that he has a close relationship with them. The Respondent further acknowledges that removal of the Applicant would have a significant effect on his family.[45] Be that as it may, as I have mentioned earlier, in relation to the best interests of minor children, there is no evidence to suggest the Applicant will not be able to make contact with his family via Skype, SMS, and/or other electronic/digital platforms.
[45] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions dated 18 February 2019, page 16, paragraph [28(d)].
The Applicant arrived in this country in May 2009, aged 15 years. Given that he commenced offending four years after his arrival in this country, less weight should be afforded to this Other Consideration (b).[46] There is little or no significant evidence before the Tribunal to enhance the weight attributable to this Other Consideration (b) on the basis of the Applicant having made any positive contribution to the Australian community during his time in this country.[47] I have taken into account that the Applicant is a member of his local Islamic Centre and a local community centre and note his work with homeless people and the provision of assistance to new refugee arrivals. Commendable though that community involvement may be, it should not, in my view, displace the reality and thus weight attributable to (1) the Applicant’s commencement of offending in this country relatively soon after his arrival and (2) the very serious nature of that offending.
[46] The Direction, paragraph 14.2(1)(a)(i).
[47] Ibid, paragraph 14.2(1)(a)(ii).
It was propounded in oral evidence given at the hearing that any removal of the Applicant would seriously compromise the care of his apparently ailing father who is said to suffer from poor health. I also note that the mother seems to be suffering from mental health symptoms.[48] Much was sought to be made of an apparently pivotal role played by the Applicant in the care of his parents but aside from the evidence of his parents, there was little else before the Tribunal to convince me that the care of either or both of his parents would be irredeemably compromised were he to be removed. The stark reality is that both of his parents have dealt with their circumstances satisfactorily for the almost five years that the Applicant has been out of the community in either criminal custody of immigration detention.
[48] Exhibit 4, Section 501 G Documents, G02, pages 114-119.
I am prepared to accept that the Applicant’s family is a close-knit one, and that he did play some type of de-facto fatherly role at home. Once again, that submission can only go so far because it was clear from the evidence of both his mother and father that they have made alternate domestic arrangements for the past five years that the Applicant has been out of their lives.
The Respondent’s further contention, with which I agree, is that this Other Consideration (b), if found to weigh in favour of revocation, should be allocated limited weight and does not outweigh Primary Considerations A and C for the purposes of determining this application. Accordingly, I find that this Other Consideration (b) moderately weighs in favour of revocation.
(c) Impact on Australian business interests
I cannot recall any evidence that this Other Consideration is of relevance in determining this Application. It is important to understand what is meant by the phrase ‘Australian business interests’ in this paragraph 14.3 of the Direction. It refers to the significant compromise of the delivery of ‘a major project’ or significant compromise of a delivery of ‘an important service in Australia’.
In the evidence, particularly of the Applicant and his father, much was sought to be made about a possible adverse impact on a removalist business which had been commenced by the Applicant and his father prior to the Applicant’s incarceration. The hearing received evidence from the Applicant and his father about one or two trucks associated with that business ‘still in my [the Applicant’s] name’ and that those vehicles, and indeed the business, simply await the return of the Applicant from custody/immigration detention so the business can start operating again.
While such business optimism is commendable, it must be tempered against the reality that little or no evidence was led about the genuine commercial existence of any business prior to the Applicant’s lengthy incarceration. He has been away from and out of the business for something like five years. There was little or no evidence that the father has carried the cudgels of ‘the business’ during the Applicant’s absence and, therefore, it is difficult to be convinced that there is indeed any business for the Applicant to return to. I also note that in his evidence, the father said that he was a tiler by trade and not a removalist.

In the final analysis, little or no weight can be attached to this Other Consideration (c) because the removalist business propounded by the Applicant and his father, does not come within the ambit of this Other Consideration.
(d) Impact on victims
The Respondent has not called any evidence relating to any impact that the Applicant’s continued presence in Australia would have on his victim. Without such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact this would have on that victim(s). Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa.
(e) Extent of impediments if removed
It was contended on behalf of the Applicant that, as he is a member of a family that came to Australia as a refugee, that the ‘family reunification is essential to keep the applicant with the family and protect and preserve the unity of this fundamental unity of society, to restore basic dignity to a refugee’s life.’[49] While the Tribunal has the greatest of respect for the dignity and fundamental integrity of refugees who come to this country, this submission, with respect, goes nowhere in establishing whether there are any impediments to the Applicant if he were to be sent back to Iraq.
[49] Exhibit 1 Applicant’s Statement of Facts, Issues and Contentions dated 11 February 2019, page 11 [46].
The Respondent concedes that this consideration would weigh slightly in favour of the Applicant given his extensive medical history. I am inclined to agree. Having regard to the factors appearing in paragraph 14.5(1) of the Direction, the following findings can be made:
(a)The Applicant’s age and health: the Applicant seems physically fit and well, young man aged 25 years. As noted by the Respondent, he does have mental health issues in the form of a diagnosis for post-traumatic stress disorder and unresolved depression. It is conceded by the Respondent that despite the Applicant’s relatively young age, he has experienced certain health issues which may pose impediments in terms of him establishing himself and maintaining basic living standards in Iraq. I think that concession is fairly made;
(b)There would be no language or other cultural barriers that this Applicant would experience in terms of re-establishing himself in Iraq. He arrived here as a 15 year old and is now bilingual. I would not expect the Applicant to have so severely forgotten his language skills and cultural connectivity with Iraq such as to now render those matters significant difficulties militating against his re-establishment in Iraq.
(c)There seems no doubt that in terms of available social, medical and economic support, the Applicant would have access to the same services available to other Iraqi citizens. As against that, there is a notation by the Respondent that mental health services of the type to which the Applicant has become accustomed in Australia, may not necessarily be available to him given the extensive damage to Iraqi infrastructure resulting from recent military conflict.
I note the Respondent’s acknowledgement of the limited availability of mental health facilities in Iraq. As against that, regard must be had to the ambit of paragraph 14.5(1) of the Direction which relevantly stipulates that the extent of any impediments confronted by a non-citizen if removed from Australia to their home country, in establishing themselves and maintaining basic living standards, is to be considered in the context of what is generally available to other citizens of that country.
While there is an acknowledgement of limited facilities in Iraq, it does not necessarily follow that Iraq is entirely devoid of such facilities. Nor is there evidence that the Applicant would not be able to access those facilities in the same manner as they are available to all of the other citizens of Iraq.
It seems fair to assume that the Applicant may face initial difficulty in re-establishing himself in Iraq. However, the evidence does not demonstrate that such impediments would be insurmountable. While I accept that this Other Consideration (e) weights in favour of revocation, it does not outweigh Primary Considerations A and C, favouring non-revocation.
Conclusion: Other Considerations
The weight attributable to these Other Considerations can be summarised as follows:
(a)International non-refoulement obligations: weighs slightly in favour of the Applicant;
(b)Strength, nature and duration of ties: weighs moderately in favour of the Applicant;
(c)Impact on Australian business interests: not relevant;
(d)Impact on victims: weighs neither in favour of nor against the Applicant;
(e)Extent of impediments if removed: weighs in favour of the Applicant.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration B weighs moderately in favour of revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with Primary Consideration B, outweigh the significant combined weight I have attributed to Primary Considerations A and C.
·A holistic view of the considerations in 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.
CONCLUSION
The decision under review is affirmed

I certify that the preceding 137 (one hundred and thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

................................[sgd].................................
Associate
Dated: 5 March 2019

Date of hearing: 25 February 2019

Advocate for the Applicant: Mr Baker Al Musawi

Australia Migration Centre

Counsel for the Respondent: Ms Laura Crick

Solicitors for the Respondent: Clayton Utz

[2019] AATA 332

5 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice

Date of hearing:	25 February 2019
Advocate for the Applicant:	Mr Baker Al Musawi
Australia Migration Centre
Counsel for the Respondent:	Ms Laura Crick
Solicitors for the Respondent:	Clayton Utz