CJQP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 2116

CJQP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2116 (23 April 2021)
Division:GENERAL DIVISION
File Number(s):2018/7538
Re:CJQP
APPLICANT

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

Tribunal:Senior Member B J Illingworth
Date:23 April 2021
Place:Adelaide

WRITTEN REASONS FOR DECISION DATED 14 APRIL 2021 NAMELY:
Pursuant to section 43 of the Administrative Appeals TribunalAct 1975 (Cth), the Tribunal sets aside the decision dated 11 December 2018 and substitutes a decision revoking the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa dated 16 June 2015.

.............................[SGND]......................................
Senior Member B J Illingworth
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – Ministerial Direction No. 79 applied – expectations of the Australian community – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth).
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185.
Gong v Minister for Immigration & Anor [2016] FCCA 561.
Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458.
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
QZGZ and Minister for Home Affairs [2018] AATA 3683.
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018.
REASONS FOR DECISION
Senior Member B J Illingworth
23 April 2021
INTRODUCTION

CJQP (the Applicant) seeks review of a decision by a delegate of the Minister for Home Affairs, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Respondent) made under s 501CA(4) of the Migration Act 1958 (the Act), not to revoke the mandatory cancellation of his Class BB Subclass 155 Resident Return visa.
The application for review was remitted by the Federal Court of Australia by Order of Justice Farrell dated 2 July 2019 and has now been heard by a differently constituted Tribunal. The documentary evidence received at first instance was received by the Tribunal by consent and was supplemented by further documentary evidence including, medical reports with respect to the Applicant’s mother[1], DFAT Country Information Report – Iraq – dated 17 August 2020[2] and oral evidence from the Applicant and his parents, who were both assisted by an interpreter.
[1] Exhibits X and Y.
[2] Exhibit Z.
At the hearing, the Applicant was represented by Mr Alkafaji, Alkafaji Migration. The Respondent was represented by Ms Laura Crick, Clayton Utz.
BACKGROUND
The Applicant said in evidence that he was born in 1995[3]. He is a 25-year-old citizen of Iraq. The Applicant arrived in Australia in 2009, aged 14 years.
[3] The Applicant said his father put the incorrect year of birth on his visa form.
In August 2010, when a child, the Applicant committed offences of stealing from a person, and assault with intent to rob in company, for which he was sentenced in January 2012 and placed on probation for 12 months[4]. In August 2013, when he was an adult, the Applicant was dealt with in the Local Court for possession of a prohibited drug and was fined. Then, in 2017, he was sentenced by the District Court of New South Wales for the offence of taking/detaining in company with intent to get advantage (kidnapping) committed in 2014 when aged 19 years. His co-offenders were aged 16 years and 20 years of age. The victim was a 16-year-old youth who was known to the Applicant. For the purpose of sentencing, the District Court of New South Wales took into account offences committed while in custody namely, inmate possessing mobile phone and property damage. In relation to the latter, the Applicant set fire to his cell. He was sentenced to four years and nine months imprisonment with a non-parole period of three years and one month.
[4] Exhibit 4, G5, page 223.
On 29 June 2017, the Applicant’s visa was mandatorily cancelled (the Original Decision)[5] by a Ministerial delegate under s 501(3A) of the Act on the grounds that he did not pass the character test because he had a substantial criminal record, had been sentenced to a term of imprisonment of more than 12 months, and was at that time serving a sentence of imprisonment on a full-time basis.
[5] Exhibit 4, G2 pages 61 – 65.
The Applicant made representations seeking revocation of the mandatory visa cancellation.
On 11 December 2018, a Ministerial delegate decided that the Minister was not satisfied that the Applicant passed the character test; nor was there another reason why the Original Decision should be revoked. Accordingly, the delegate decided not to revoke the mandatory visa cancellation and the Applicant applied to the Administrative Appeals Tribunal for a review of that decision.
The Evidence
The Applicant
The Tribunal received a statutory declaration dated 13 November 2019[6] supplemented by oral evidence.
[6] Exhibit C, pages 1 – 6.
The Applicant was born in a southern province of Iraq where he lived with his parents and younger brother. When he was aged approximately three – four years old his father fled Iraq to avoid being conscripted into the Army. He did not see his father again until he came to Australia in 2009.
The Applicant in his response to the proposed visa cancellation under s 501(3A) of the Act,[7] described his fear of returning to Iraq and witnessing the assassination of his paternal uncle as follows:
… Returning to Iraq will cause my death as my life will be taken by Asaib Ahlul Haq who assassinated my uncle [JAL] who was the governor of Alqadisiya province in 2008. I witnessed the assassination and provided my testimony to courts. As I identified the perpetrators, I was threatened by their militia group and escaped to Iraq along with my mother and other brother while our application of split family was being processed. The perpetrators have never been charged and yet they are leaders and part of the legitimate Popular Mobilisation. Therefore, my murder would happen as soon as I step on Iraqi soil. Similarly, my late uncle’s bodyguard was also killed in 2010.
[7] Exhibit A, AB1 page 82.
The Applicant, his mother and brother immediately after the assassination, fled their home and lived with his grandparents in another province, in a city north of Baghdad. This was some distance from their home in the south of Iraq. They lived there until the Applicant’s father successfully applied for them to come to Australia. They travelled briefly to Iran and then to Australia, arriving in 2009.
The Applicant said that his assassinated paternal uncle was the governor of their province and was with the new government following the fall of Saddam Hussein and worked with the Americans.
The Applicant said that the Asaib Ahlul Haq (AAH) who killed his uncle was a militia group and was one of many such groups in Iraq. He saw them regularly on the street where he lived. He said they carried weapons. Some militia groups worked for the government and some for their own group. He said the AAH fought the Americans and the Government for working for the Americans. The AAH hate everyone who works with the Government and will kidnap people and hold them for ransom. They will target the family of that person.
The Applicant said that his paternal uncle was targeted because he worked for the Government that was supportive of the Americans. His uncle supported the American forces and that is why he was killed.
The Applicant explained the assassination which he, his mother and younger brother witnessed. After the Applicant’s father fled Iraq, his paternal uncle had the responsibility of looking after the Applicant and his family. His uncle took them shopping. The AAH members surrounded them and shot his uncle in front of them. He said the police came and asked what happened and he gave a statement to the police. Later he was told by his father that the perpetrators were never arrested.
He said the that he will be killed by the AAH should he return. Alternatively, he will be kidnapped, held for ransom and then murdered. If he returned to Iraq, he could not live in another town because the AAH will know of his return and they will find him and kill him.
The Applicant said that they fled to his grandparents’ home approximately two days after the assassination where they lived for about two to three years until travelling to Iran, where they lived for approximately two months in preparation for his father bringing them to Australia.
When asked whether the AAH are still active, the Applicant responded “one hundred percent”. They can be seen on Facebook. They control Iraq and the government cannot do anything about it. He said if you send me back, you send me to my death. He then said it will be his death or he will be kidnapped. He said that militia groups including ISIS and other “crews” including new “crews”, which the Tribunal infers he means militia groups, continue to operate throughout Iraq. He said he grew up in a war and people were killed there every day. Even if the government provides protection, they cannot be stopped. His uncle had the police “underneath him” and they could not stop him being assassinated.
The Applicant said that after speaking with police they were threatened, and it was dangerous to go into the street. When they went to live at his grandparents, his mother and grandfather would always tell them to “watch out”, “don’t talk to people” and “don’t give your name”. He said they could not go out and could not play with other children for the whole time he resided there.
The Applicant said that he identified the people who killed his uncle. Those people were very well-known in the area in which they lived and were leaders in their crew. They walk the streets with their guns. He said they were always killing someone. His father has told him that they are still in Iraq and are still members of the AAH.
The Applicant said that he was traumatised by the war and it affected him mentally. He said he witnessed things that no child should witness, and friends and neighbours died. He was scared to go into the street.
The Applicant was 14 years of age when he arrived in Australia and was still in fear of harm from the war. It was different in Australia and he did not talk much and was isolated from people. He could not speak English and went to the school to learn English.
He did not see any medical practitioner, psychologist or mental health practitioner upon arrival in Australia in respect of his mental health issues. When he was placed in juvenile detention for two days, he saw somebody from Anglicare and that was his first contact with anyone who provided him assistance. They offered to talk to him and his family, buy shoes and feed them if they were hungry. He said they looked after him.
The Applicant first saw a mental health practitioner (either a psychologist or psychiatrist) about one to two months after he was taken into custody following the kidnapping offence. He was at the Lithgow Correctional Centre and was prescribed medication. He said he was very depressed. He had smoked marijuana as a youth but when he went to jail, he then smoked mainly methylamphetamine.
The Applicant said that in jail he was able to fund his drug use because he would take money from his family on the pretext that he was buying clothes. In immigration detention, he said he wanted to get off the drugs; he sought help and he was put on the methadone program. He had a reaction to methadone, namely a rash, and so he was prescribed medication that made him immediately vomit if he smoked methylamphetamine. He remained on that medication for approximately eight months until he lost the craving for the drug. If he should crave a drug again, he knows to immediately seek help, and he will be placed back on that medication. He said he will not return to drugs.
The Applicant said that he continues to get depressed and takes medication for his depression. When depressed he does not eat and will sit in his cell and think. He may not eat for two to three days. He is depressed about the prospect of returning to Iraq and the thought that he will get killed. He will not see his family, his brothers or his niece and nephew again. He said he had made a mistake and lost everything.
As for his criminal offending, he said he has learned from his mistakes and in court he apologised to his victim and his mother and father. He said the Learned Sentencing Judge accepted that he showed remorse as evidenced by his apology. The Applicant said that he is older and wiser now and regrets everything that he has done. He has lost his family, his life and his trucks and removal business.
When asked how he could justify setting fire to his cell when in prison, he said he was very stupid, it was not right but he was depressed and taking drugs. He said that in jail it was different with a lot of people around him and he would get into fights. Now that he is in Villawood detention, life has been getting better. He and his fiancée broke up, but he now has a new relationship with a woman with whom he talks by telephone. His relationship with his fiancée ended at or about the time of the First Hearing before the Tribunal in early 2019.
The Applicant was asked about any minor children who may be affected by the cancellation of his visa. He said that he believed he had a son born to a former girlfriend. He did not know about the birth until his brother told him when he was in custody. He spoke to his former girlfriend and she told the Applicant that she thought he was the father of the child. He wanted to have a DNA test, but she refused. She now ignores the Applicant. The Applicant said that his family have said the child looks like him. He has never seen the child.
When asked if he wants to play a role in the child’s life he said “one hundred per cent, I want to see and have a relationship with my son. I want to be there for him”.
The Applicant said that he previously had responsibility for the care of his youngest brother A who is now 11 years of age. He loved and cared for him, took him to childcare and took him shopping. A was about 6 years old when the Applicant was imprisoned. They remain close and they talk every night on the telephone. He will continue to contribute to the care of A should his visa cancellation be revoked.
He also has a nephew aged two years and a niece aged one year. They are his brother’s children. They were born while he was in custody, but he was seeing them regularly until COVID-19 restrictions were imposed on visitors. He last saw them about two months prior to the hearing. He continues to communicate with them on Facebook.
The Applicant was asked about his alleged offending whilst in detention. In relation to the allegation of throwing a chair at a Serco officer, he said he did not throw it. Following visitor restrictions due to COVID-19 and the Serco officer saying he could not see visitors, the Applicant walked out of a room and “smashed a chair”. He did not throw it at the officer. He got angry and was charged. He said it was easy to get charged but no police have been involved.
The Applicant said he was a heavy cigarette smoker. He finds life in detention frustrating and he spends most of his time in his room. Every day he misses lunch. He said detention is breaking him mentally.
The Applicant did not deny his antecedent history[8] but said in the future he will stay out of trouble. If released back into the community, he said he will work hard with his trucks and help the family in the furniture removal business. He would like to settle down and start a family. He said if he were ever assaulted, he would now walk away and call 000. He referred to having had the benefit of an Anger Management Program whilst in gaol.
[8] Exhibit 4, G2, pages 22 – 24.
In cross examination, the Applicant was asked about his education in Australia. He had attended TAFE where he commenced a course in electronic welding, then transferred to a course in mechanics where he obtained a certificate qualification. He was self-employed in a removal business. That business was performing well, and he was making a good income. He had purchased two trucks and his father joined in that business which was called 5 Star Budget Removalists. It is his intention to start that business again should he be returned to the community.
The Applicant said that he can speak Arabic but to the majority of his family members he speaks in English. He speaks Arabic to his parents. He said that he had forgotten the Iraqi culture and was more used to the English culture. When asked about employment should he return to work, he said that he could not imagine himself working as a mechanic. He intended to re-start his furniture removal business.
The Applicant acknowledged that he had distant cousins still living in Iraq and that his grandmother still resided in the area in which he was born. He does not know where his cousins live and has had no contact with them. He believes they were from his mother’s side of the family. He has had no contact with his grandmother. She is now 70 to 80 years of age and not of good health. He does not know if anybody lives with his grandmother. He does not know where he would live, were he to return to Iraq.
The Applicant agreed in cross examination that his uncle was assassinated in 2006 when he was aged about 11 years. It was suggested to him that this was about 14 years ago, and militia will not recognise him. The Applicant disagreed. He said the militia had people everywhere and they are good at their job. He maintained that if they catch him, he will be dead.
Counsel for the Respondent asked the Applicant about incidents in immigration detention, including property damage and swearing at Border Force officers. The Applicant said that people in detention fight over little things such as items in the fridge, or clothes that get mixed up. People are angry. They will fight about someone snoring. He said it is difficult in immigration detention and his depression is bad and he suffers from anxiety and cannot sleep. However, most of the time he sits in his room. He repeated that being in immigration detention is breaking him.
The Applicant was cross-examined about his treatment for anger management. He said he had a certificate for completing the anger management course. He has learned to walk away from a fight and how to control himself. He undertook this course after he set fire to his cell. While at Villawood Immigration Detention Centre, he received weekly visits from a counsellor. They talked about anger management and breathing exercises.
The person who runs the anger management course is an anger management counsellor. He commenced this counselling about 12 months ago and last saw her approximately two months prior to the hearing. He sees her twice a year. He was also seeing a psychologist but that only happened on two or three occasions and he cannot now remember the name of that person. They talked about depression, losing self-control, and the worsening of his condition. He was able to open up to her and last saw her approximately three months prior to the hearing because he was having trouble sleeping and had suicidal ideations. He said he has not recently acted upon those suicidal thoughts.
The Applicant said that there was one occasion in the middle of the night where he used a rope, tied it around the sprinkler on the ceiling and then tied it around his neck and jumped. The sprinkler head broke. He told a friend and the psychologist that he wished he could die but he did not tell the officers in detention because he would be placed on a watch list.

The Applicant was cross-examined about his drug use. He admitted that he had used both marijuana and “ice”. As for the latter, he first used it in jail and the last time he smoked “ice” was in detention. However, he joined a methadone program about 10 months to a year prior to the time of the hearing and he has since managed to abstain from drug use. He had been drug-free for about a month prior to the hearing. He has since lost the craving for “ice” but can go back on the program should the craving return. He said there was no drug program in prison.
The Applicant said that he took “ice” in detention when he first arrived. He paid for it. It was supplied by a detainee. When he started the methadone program, he got a rash and he then changed medication which would make him vomit if he consumed a drug.
Counsel for the Respondent raised a reference in the Border Force records to a visitor of the Applicant bringing an illicit substance into detention. The Applicant vehemently denied any knowledge of such an event; it had never been put to him by the authorities in the Detention Centre and he challenged the Respondent to identify who the alleged culprit was. He said there was a visitors’ book that a person signs when coming into detention. He asked who the visitor was. Nothing further was put to the Applicant. No evidence was led in support of the allegation. The Tribunal disregards the allegation and makes no adverse finding in respect of the Applicant.
Counsel referred the Applicant to the offence of detaining a person in company (kidnapping). It occurred in 2014. He was sentenced in 2017. The Applicant explained the offence. He said a friend of his brother had told the brother that the Applicant had a “crew”. His brother told their father who then spoke to the Applicant. This angered the Applicant. He and others went to and spoke with the brother’s friend. They drove the victim’s home and told him not to make the allegation again. The Applicant hit him. Police subsequently came to the Applicant’s home and accused him of kidnapping. He was charged. He pleaded guilty to assaulting the victim.
Counsel referred the Applicant to the sentencing remarks of Ingram J of the District Court of New South Wales dated 13 April 2017[9]. The Applicant denied hitting the victim across the legs and he did not recall punching and kicking the victim to the legs. He did not recall the events as described in the sentencing remarks but said that the incident got out of control. The co-accused was a younger juvenile and the other offender was slightly older than the Applicant. The Applicant said he told the others to stop hitting the victim. He agreed the injuries to the victim were serious and the conduct was bad.
The Applicant’s Father (the father)
[9] Exhibit 4, G2, pages 27 – 60.
The father is 55 years of age. He is married to the Applicant’s mother. There are three children to the marriage, the Applicant being the eldest.
The Tribunal received a statutory declaration signed 1 November 2018[10] and a typed statement dated 19 July 2017,[11] together with oral evidence from the father.
[10] Exhibit C, pages 37 – 38.
[11] Exhibit A, pages 133 – 135.
He came to Australia in 1999 on a temporary protection visa and was unable to sponsor his family to come to Australia at that time. Therefore, he did not see his wife and children for a considerable period of time. He said that he feared persecution if he returned to Iraq.
The father confirmed that his brother was appointed Governor of his province of Iraq in 2003. The brother did not belong to a political party. He explained his brother’s assassination. The brother accompanied the Applicant then aged 11 years, his brother aged 8 ½ years and his wife aged 30 years, shopping. He was assassinated at the shopping centre. The father said that the group who targeted his brother was the Islamic Shia Militia, Jadish Al Mahdi Army, which was part of a terrorist group.
The father said the Applicant could identify the offenders. He said the bodyguard was also shot at that time.
The father was asked about the AAH group. He said they were all armed militia and until 2011 all part of the Jadish Al Mahdi Army. They are now separate but all part of the AAH.
The Tribunal asked the father what he believed would happen to his son, the Applicant, if he returned to Iraq. He referred to recent killings in Iraq and the large number of killings that occurred over recent months. He said that his son was the only witness to the assassination and said, “imagine what they would do to him”. The Applicant said that after the assassination he instructed his family to move to another area. His father-in-law also suggested they move to another town. He said his family had been in hiding since 2006 until they went to Iran prior to coming to Australia. They could never return to their place of origin. There is no family and no connection there.
The father said that when his family relocated, they did not receive any threats. The militia did not know of their whereabouts. They have remained safe living in Australia.
The father further explained the death of his late brother’s bodyguard. He said the bodyguard was able to identify the militia group involved in his brother’s assassination. On the day of their trial in 2013, he was assassinated at the court door. He said they know who the perpetrators were. There were three of them. One militia member is still part of the AAH. He did not know the whereabouts of the other two assassins, but he said one was a drug dealer dealing in ice. He said that if any member of his family went back to Iraq they would not survive. It is unsafe. There is no family left in Iraq.
In further describing the events of the assassination, he said his brother had taken his wife and children to a shopping centre. When they finished shopping and were about to drive home the Jadish Al Mahdi surrounded them, bullied his brother out of the car and shot him to death. They then tried to kidnap the family, but they survived the kidnapping because there were people surrounding them screaming and shouting saying, “please leave them alone, they are just kids and a woman”.
Because of the attempted kidnapping he and the father-in-law told his wife to go to another town. He said, when they went to that town there were no more threats, however the father-in-law’s residence was shot at. This, he said, is a traditional threat which means “you’re targeted”. He said they shot at the home several times.
In describing the Applicant’s kidnapping offence, the father said, “it’s not like you think”. The victim was a friend of the Applicant. Whenever the victim had an issue with his natural father he would come and stay with the father and his family. He said the boys were teenagers. The father believed that the Applicant had learnt a lesson. He is not a teenager anymore.
The father said that when the Applicant came to Australia he went to high school and then to TAFE. He then worked in their furniture moving company which was initially called Jiff. The father was asked about his observations of the Applicant when he came to Australia and following, particularly whether the events in Iraq appeared to have any impact on the Applicant. He said that the events in Iraq definitely caused the Applicant issues; that he was quite abnormal. His sleep pattern was “obstructed”, he was frightened and scared that the AAH were going to find him and his family. The father said that he tried to explain to the Applicant that they were in a safe country and there was no need to be scared.
In describing the Applicant’s role within the family prior to going to prison, the father referred to the Applicant being involved in a motor vehicle accident in 2012 when aged approximately 18 years. He subsequently received a compensation payment of $140,000 and he gave the money to the father. The family bought a house. If released back into the community, the Applicant will return to the family home and work in the business in which the Applicant has two trucks in his name. The business is now called 5 Star Budget Removalists.
The father said his wife is mentally unwell, a pensioner and is very close to the Applicant and needs him to return to the home.
In cross-examination, the Respondent referred to the seriousness of the Applicant’s kidnapping offence. The father said that they were heading to McDonald’s. The victim would write things on Facebook. They got out of the car and had a fight. After the Applicant had detained the victim, he spoke to the father, apologised and said it was a childish thing.
The father’s evidence was not otherwise challenged.
The Applicant’s mother (the mother)
The Tribunal received a statutory declaration dated 1 November 2019[12] and a typed statement signed and dated 12 July 2017,[13] together with her oral evidence.
[12] Exhibit C, pages 41 – 42.
[13] Exhibit A, page 135.
The mother said that her husband travelled to Australia in about 1999. After 2003, conditions in Iraq became worse under the Islamic militia. The family received threats that they, and in particular her children, were not to be involved with American soldiers.
The mother explained the circumstances of the assassination of her brother-in-law. She said it was at night at about 9:30pm in 2006. They were walking in the street around the market area. Her brother-in-law was in front with the Applicant. She heard shots fired and she immediately went to the Applicant. He was lying on the ground. She was crying. She thought he was dead. She saw people around and blood. She was not sure what happened but remembered screaming “my son”.
In her statement dated 1 November 2019 the mother described those events as follows:
In 2003 the US Army arrived in Iraq. Both my sons [the Applicant and his younger brother] welcomed the US soldiers taking photos together, playing soccer, while the soldiers was providing them food and water.
Then I received a letter from the Islamic militia saying that if I do not prevent my two sons from mixing with the US army they will shoot them. I scared and run straight forward to my brother-in-law [name] who was the governor…. and I told him the story.
Later on, on 31/05/2006, my brother-in-law [name] both of my sons and I were going shopping…….when we finished shopping and were about to drive home, three cars pulled over, a group of armed militia grabbed [brother-in-law] out of the car while others pointing out a gun to the security guards, to my sons and to me. The militia did shoot [brother-in-law] before our eyes. We all were screaming and then my son [the Applicant] fainted.
She explained that they moved to another city. They were tired, scared and had no sleep. They stayed there until they travelled to Australia via Iran.
The mother said in her statutory declaration she suffers from chronic depression and anxiety and has been seeing a psychologist once every month or two months for the last few years. She suffers from high blood pressure and cholesterol, has trouble sleeping, is tired and worried about her son’s future.
The mother said that she misses the Applicant and feels helpless. Her youngest son who was born in Australia in 2010 also misses the Applicant. He and the Applicant are very close. After her youngest son was born, the Applicant would buy him toys and he helped a lot in his day-to-day care, taking him to the park, childcare, and to the supermarket. They used to sleep in the same room. The youngest child always cries and asks for the Applicant and why is he in jail.
The mother said she has no parents or siblings living in Australia. Her two sisters are deceased as is her father. She feared for her son (the Applicant), should he be returned to Iraq. She believed he would be killed if returned. He has no relatives in Iraq who could save him. All other witnesses to this assassination have escaped Iraq and the bodyguard who witnessed the assassination was killed in 2013.
The mother was very distressed and crying when giving evidence and she was not cross-examined.
Medical Evidence
The Tribunal received into evidence a report of Dr Ismail, consultant psychiatrist, dated 20 March 2020[14] in relation to the mother’s mental health. He reviewed the mother and reported the following under the heading “Impression”;
Depression with psychotic features with dissociative features with Binge Eating disorder. Cluster B personality traits – Histrionic.
He referred to two delusional disorders namely, schizoaffective disorder and schizophrenia.
[14] Exhibit E.
Under heading “Plan”, Dr Ismail invited her general practitioner to refer the mother to a psychologist for cognitive behavioural therapy.
The Tribunal also received three reports from psychologist Kasim Abaie (KA) dated 21July 2017[15], 11 November 2017 and 13 March 2020[16] in relation to the mother.
Report dated 21 July 2017
[15] Exhibit A, pages 137 – 139.
[16] Exhibit F.
The mother was referred to KA by her general practitioner in 2016 for management of her chronic depression and anxiety. KA saw her for six sessions. Those sessions were to address chronic depression, anxiety and anger problems. She demonstrated episodes of mood swings, anger, low concentration, pain and stress. The mother demonstrated moments of laughter and happiness that were not appropriate and then low mood, sadness and not speaking.
KA reported the mother’s stress relating to her son’s court case and belief that he will be in danger of returning to Iraq. KA also reported the mother’s need for long-term psychotherapy, antidepressant medication and support and that she was at risk of self-harm or suicide due to the Applicant’s circumstance.
Report dated 11 November 2017
Mr KA provided a report dated 11 November 2017 in which he outlined the future psychological treatment plan he proposes for the Applicant “in coping with emotional difficulties, decision-making problems, anger issues, resolving symptoms of anxiety, feeling and depression.” This proposed treatment plan was for implementation immediately upon the Applicant’s release with fortnightly appointments.
Report dated 13 March 2020
This report followed a consultation on the same date. KA said the mother demonstrated symptoms of chronic depression, anxiety with schizophrenia symptoms. She was on antidepressant medication. KA listed numerous issues impacting on the mother’s well-being which included separation from the Applicant. It was reported she was suffering from schizophrenia, PTSD and depressive disorder with psychotic episodes.
Mr Tim Watson-Munro (Mr TW-M)
The Tribunal received a report in relation to the Applicant dated 29 November 2016[17],together with oral evidence.
Report dated 29 November 2016
[17] Exhibit A, pages 114 – 119.
Mr TW-M’s report was provided to the Learned Sentencing Judge of the District Court of New South Wales when the Applicant was sentenced on 13 April 2017. The Learned Sentencing Judge, when referencing the report, referred to the Applicant’s personal history which was consistent with the evidence before the Tribunal. His Honour said Mr TW-M reported long-standing symptoms of trauma referable to the Applicant’s early childhood in Iraq and the assassination of his uncle and loss of his father. The Applicant also referred to the deaths of two maternal aunts, one from a bomb explosion and the other by suicide[18]. The Applicant had memories of dead bodies and street fighting, and suffered from nightmares, depression, high levels of anxiety, hypervigilance to danger, low self-esteem and depression. The Applicant received no treatment at the relevant time or upon arrival in Australia.
[18] The mother gave corroborative evidence about the death of her two sisters.
Mr TW-M reported that, at the time of offending, the Applicant struggled with severe psychological problems in addition to crystal methamphetamine addiction which impacted on his judgement, impulse control and overall behaviour. He said the Applicant reported self-harm whilst in gaol and opined the need for ongoing psychological and psychiatric maintenance beyond his period of incarceration.
The Applicant reported to Mr TW-M use of marijuana and methylamphetamine. He commenced smoking marijuana at or about 18 years of age and soon moved to methylamphetamine. He had sleep disturbance and occasional psychotic breaks, namely auditory and visual hallucinations.
As the Learned Sentencing Judge observed, Mr TW-M reported the Applicant had no treatment in Iraq or upon his arrival in Australia and he continued to struggle. He opined the Applicant’s drug use, particularly his methylamphetamine use, was an inappropriate form of self-medication, which led to a severe rebound depression. Beyond psychotic episodes, the Applicant described severe paranoia.
At the time of examination in October 2016, Mr TW-M reported the Applicant to be well-orientated in time, place and person with no major psychiatric disturbance such as delusions, thought disorder, auditory or visual hallucinations. He expressed remorse for his behaviour and was of an improved mental state with insight into his wrongdoing.
Clinical tests confirmed the Applicant suffered from severe depressive disorder. Mr TW-M opined the Applicant was a cooperative, though psychiatrically troubled man; suffering unresolved psychological symptoms arising from early childhood trauma. This, he opined, was compounded by prior addiction to drugs.
Mr TW-M reported that since his remand in custody, the Applicant had been placed on psychotropic medication, in addition to antidepressant medication, to which he had an adverse reaction leading to further problems with the correctional system which, at the time of the report, had stabilised to an extent. The primary diagnosis was Post Traumatic Stress Disorder (PTSD) but with no treatment whilst in the community. He opined the Applicant would benefit from cognitive behaviour therapy with a focus on relapse prevention strategies, desensitisation for his anxiety, social skills training and supportive and motivational psychotherapy.
In his oral evidence, Mr TW-M was referred to his opinion that the Applicant was struggling with severe psychological problems in addition to addiction to crystal methamphetamine. The Tribunal raised with Mr TW-M inconsistency in the Applicant’s evidence, namely that he started to abuse crystal methamphetamine when in custody. Mr TW-M confirmed that the history he had taken was that the Applicant was addicted to methylamphetamine prior to the offending. He said if his amphetamine drug use only commenced when in custody, he would have had to consume a fair amount of the drug to get to his then psychological condition. He said the methylamphetamine had an impact on his judgement, impact control and consequential thinking. The Applicant had a difficult history and, upon arrival in Australia, had adjustment issues. He was young and immature when he arrived in Australia.
The Applicant was placed on a psychotropic drug, Serecol, but has since changed medication. Mr TW-M opined that all of the Applicant’s family members were affected by events in Iraq, including the murder of the Applicant’s uncle. The death of his aunts by bomb explosion and suicide also had an impact. The Applicant also suffered from the absence of a father figure for 10 years of his life.
Mr TW-M said the Applicant had seen a lot of dead bodies and suffered flashbacks which were features of his PTSD which, together with his immaturity and drug use, contributed to his difficulty with conduct issues. When using methylamphetamine he was out of touch with reality but now there are no auditory or visual hallucinations.
Mr TW-M last saw the Applicant in late 2019. He acknowledged the Applicant’s criminal history was troubling, but he was young at the time of the offence. He has matured, has family support and has a strong desire to remain drug free. He opined the Applicant will still require treatment on a regular basis.
Relevant considerations with respect to the Applicant’s risk of further offending included that he was drug-free, had now matured, had insight and expressed remorse in relation to his offending, had family support and a strong desire to be a member of the Australian community.

Mr TW-M confirmed the Applicant would benefit from cognitive behaviour therapy and psychotherapy to address issues in his past. He opined that if he were removed from Australia and returned to Iraq, this would be devastating for him. His family would lose another family member and his return to a troubled part of the world would have a significant impact upon both he and his family.
Mr TW-M found the Applicant to be very cooperative and said he has now matured. Custody has had a salutary effect upon him and the “penny has dropped”. The Applicant consistently expressed that he would cease to engage in criminal activity in the future.
Mr TW-M said that he was prepared to locate the most effective person to engage with the Applicant’s future treatment and who is familiar with relevant cultural issues. That practitioner would benefit by engaging with other family members, all of whom have been affected at some level by events in Iraq. Mr TW-M opined the likelihood of a positive prognosis would be enhanced by such an approach, and that the treatment should be on an extended basis.
Mr TW-M’s evidence and opinion were not challenged.
LEGISLATIVE FRAMEWORK
Relevantly, s 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Pursuant to s 501(6)(a) of the Act, a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act. Section 501(7) of the Act relevantly provides that, for the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
Pursuant to s 501CA(4) of the Act, the Minister, or the Tribunal in place of 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.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant concedes that he does not pass the character test as he has been sentenced to a term of imprisonment of at least 12 months. Consequently, the Tribunal is satisfied that the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) for the cancellation of his visa to be revoked.
ISSUE BEFORE THE TRIBUNAL
Therefore, the issue to be determined is whether the discretion under s 501CA(4)(b)(ii) of the Act is enlivened, namely whether there is ‘another reason’ why the Original Decision should be revoked.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
In considering whether there is another reason why the original decision should be revoked, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act provides:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)The performance of those functions; or
(b)The exercise of those powers.
In this case, the relevant direction is Ministerial Direction No 79 (the Direction) which was issued on 20 December 2018 and applies on and from 28 February 2019. This Direction replaces what was previously Direction No 65.
Ministerial Direction No. 79
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. They are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 8 of the Direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One of more primary considerations may outweigh other primary considerations.
The Direction further provides guidance for decision-makers on how to exercise the discretion with respect to a mandatory visa cancellation. Relevantly, at paragraph 7(1)(b) of the Direction, it states that a decision-maker 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.
Paragraph 13(2) in Part C of the Direction provides the three primary considerations that the Tribunal must take into account, namely:
(a)Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia; and
(c) Expectations of the Australian community.
The Other Considerations which must be taken into account where relevant are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are (but not limited to):
(a)       International non-refoulement obligations;
(b)       Strength, nature and duration of ties;
(c)       Impact on Australian business interests;
(d)       Impact on victims; and
(e)       Extent of impediments if removed.
The Tribunal will now address these considerations.
Primary Consideration A: Protection of the Australian community
Paragraph 13.1 of the Direction sets out the first of the Primary Considerations the Tribunal should have regard to, and relevantly provides:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
(a)The nature and the 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 Tribunal will address each of the considerations in paragraphs 13.1(2)(a) and 13.1(2)(b) of the Direction.
(1) The nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1 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. It relevantly states:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that… violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is a trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)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);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen is in immigration detention … is serious …
In considering the nature and seriousness of the offending, counsel for the Applicant raised in both oral argument and the Applicant’s Statement of Facts, Issues and Contentions (SOFICs) that the Tribunal should find that the offence of kidnapping contrary to s 86(3) of the Crimes Act 1900 (NSW) (the Crimes Act), was not an offence committed against a child and, accordingly, paragraph 13.1.1.(1) (b) does not apply.
He argues that sub-sections 86 (5) and (6) of the Crimes Act provides that a person who takes or detains a child is to be treated as acting without the consent of the child; but does not commit an offence contrary to s 86 of the Crimes Act if the person is a parent of the child or acting with the parent’s consent, and the person is not acting in contravention of a court order relating to the child. Further subsection 86 (7) reads:
In this section “child” means a child under the age of 16 years.
Hence, counsel for the Applicant argues that the victim was not under the age of 16 years and accordingly the Applicant did not commit an offence against a child to which this Primary Consideration applies.
The Tribunal rejects the Applicant’s argument.
Section 86 of the Crimes Act is contained within Division 14 – Kidnapping. That Division also includes s 87 – child abduction. Section 87 (3) reads:
In this section “child” means a child under the age of 12 years.
The NSW legislation therefore codifies different criminal offences and, insofar as those offences may be committed against a child, defines differently the meaning of a child for those different offences.
The NSW criminal code does not inform s 501 of the Act nor does it inform the Direction as to the meaning of ‘child.’ The meaning of child is to be given its ordinary meaning, namely a person under the age of 18 years. Hence, paragraph 13.1.1(1) (b) of the Direction applies and directs the Tribunal that crimes of a violent nature against children are viewed very seriously, regardless of the sentence imposed.
In considering the seriousness of the offence, the Applicant’s personal circumstances are relevant.
The Applicant was born in 1995 and came to Australia in 2009 aged 14 years. He had a very disturbing life in Iraq. His family was separated when his father fled the country in 1999 to avoid conscription into the army. He was then aged 4 years. He witnessed the tragedy of war and conflict with militia groups. His uncle who was the governor of their province, was responsible for the care of the Applicant and his family following the absence of the father. His uncle was assassinated in front of the Applicant, his mother and brother in about 2006 when he was shot by militia. The Applicant was aged approximately 11 years. The family fled their hometown and lived in hiding with his grandparents for about two to three years before coming to Australia. They were sponsored by the Applicant’s father.
The Applicant’s father said that, at the time of his arrival in Australia, the Applicant had issues. He had disturbed sleep and was frightened and scared that the AAH militia were going to find him and his family.
The Applicant went to school in Australia, learnt English and studied at TAFE.
In 2011, when aged 17 years, the Applicant was involved in a hit and run motor vehicle accident when, as a cyclist, he was struck by a car. The medical record of Liverpool Hospital[19] reports that the Applicant was dragged under a car for some distance. He suffered lower back injury. He suffered persistent back pain and it is reported that he stopped his mechanic apprenticeship. His father gave evidence that he received a compensation payment of $140,000 which the Applicant gifted to his parents so they could purchase a home. The Applicant worked in the family’s furniture removal business.
[19] Exhibit A, pages 101 – 113.
The Applicant received no treatment for his mental health condition until after he was imprisoned for the offences giving rise to his mandatory visa cancellation.
The Applicant became involved in drugs, initially cannabis and then methylamphetamine. There was conflict in the evidence about when the Applicant started using methylamphetamine. The Applicant said it was when he was first taken into custody. The history taken by consultant forensic psychologist Mr TW-M was that he commenced using cannabis when aged 18 years, which rapidly escalated to methylamphetamine. He was addicted to methylamphetamine and suffered sleep disturbance with occasional psychotic breaks, namely auditory and visual hallucinations. Mr TW-M said, and the Tribunal accepts, that the Applicant gave him a consistent history of drug abuse, including methylamphetamine prior to his relevant offending. Mr TW-M first saw the Applicant when he was in custody. He said in evidence, that if the Applicant had, in fact, first commenced taking methylamphetamine when in custody, he would have had to have consumed a “fair amount of the drug” to have reached his then psychological condition. The Tribunal accepts Mr TW-M’s evidence that the Applicant’s presentation was consistent with the history provided to him by the Applicant.
Mr TW-M also said that the Applicant reported he was placed on psychotropic medication and antidepressant medication when in custody, to which he had an adverse reaction leading to problems with the correctional system. The Learned Sentencing Judge said[20]:
The offender reported also that he was prescribed antidepressant medication whilst in custody in 2015. Despite that, the offender reported having attempted to harm himself on two occasions, one of which was the incident in which he set fire to the cell… the offender reported to the author of the presentence report that the medication prescribed for him caused him to talk to himself and had negative effects on his behaviour.
[20] Exhibit A, page 38.
The kidnapping offence occurred in 2014. He was remanded in custody for much of the period since his arrest in June 2014[21] and committed the offence of damaging cell by fire in August 2016[22]. He came before the court for trial in 2016 and was sentenced in 2017.
[21] Exhibit A, page 56.
[22] Exhibit A, page 34.
Given the Applicant was in custody immediately following the kidnap offence, and that he was then placed on psychotic and antidepressant medication following his arrest, this also supports Mr TW-M’s history that the Applicant was addicted to methylamphetamine at the time he committed the offence of kidnapping and before he was taken into custody. The Tribunal accepts that the Applicant was addicted to methylamphetamine before he was in custody, and at the time he committed the relevant offending when aged 19 years.
The factual circumstances of the offending are detailed in the sentencing remarks of the Learned Sentencing Judge. I will not repeat them in detail. The offending was plainly serious. The Applicant required the victim, who was then aged 16 years, to sneak out of his home. It was about 10:35 p.m. The Applicant and his two co-offenders drove the victim to an area which appeared to be adjacent to a river. There, the Applicant repeatedly kicked, struck, slapped and punched the victim to his body and face. The Applicant dragged the victim some distance away and gave him a cigarette. A co-offender then took hold of the victim’s hands and the Applicant used his own cigarette to burn the back of the left hand of the victim. When seated on a log, the Applicant and another struck the victim’s body with tree branches. The victim was detained and attacked over a period of 30 to 40 minutes. The victim was then driven by the Applicant and his co-offenders to an apartment. He was given the opportunity to clean himself, treat his injuries, and clean the blood from his face. They then drove the victim back to an area close to his home.
It is not for the Tribunal to enquire into the circumstances of the offending. The Tribunal accepts the Learned Sentencing Judge’s remarks as the factual circumstances of the offending, which provides far more detail than the Applicant’s evidence. Notwithstanding that the Applicant was aged 19 years at the time and knew the victim, this was still an offence of violence against a child, about three years the Applicant’s junior. The Learned Sentencing Judge said, “the index offence represents quite a serious example of an offence” of this type.

The Learned Sentencing Judge detailed the injuries to the victim as follows[23]:
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, and 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, including a CT scan on the head, face, cervical spine and x-rays of the chest, pelvis, both shoulders, left elbow, hand, ankle and both wrists. The imaging showed displaced nasal bone fractures and an undisclosed fracture of the left acromion, which is a bone in the shoulder.
[23] Exhibit A, page 31.
The Applicant was sentenced to four years and nine months imprisonment commencing on 10 August 2014 with a non-parole period of three years and one month. The offending was plainly very serious.
(2) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction provides factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Should the Applicant reoffend, a potential victim will be at serious risk of both physical and psychological injury with possible long-term consequences.
In considering that risk, there are personal factors that were impacting upon the Applicant at the time of his offending. Those personal factors are important in considering this Primary Consideration, as it is with Primary Consideration C and the Other Considerations.
Of importance is the fact that the Applicant came to Australia as a traumatised 14-year-old child and received no psychological treatment for what must have been a terrifying life in Iraq. Then, as a 17-year-old teenager, he suffered a motor vehicle accident with lower back injury and ceased his studies as a mechanic. When aged 18 years, he became involved in drug consumption which Mr TW-M opined, and the Tribunal accepts, was in the nature of self-medicating.
The Applicant did not have an exemplary history while in custody, and at the time of sentencing in April 2017, the Learned Sentencing Judge observed:
…the offender has engaged in a number of serious incidents of institutional misconduct which have included numerous assaults, fights, damaging and destroying property and intimidation.
Indeed, as a consequence of that behaviour, on 15 November 2016 the offender was transferred to Individual Violent Offender Intervention Program for Inmates of High Level of Institutional Violence. Corrective Services records indicate that since being moved to that program the offender has been involved in yet another incident of a serious nature and that there are ongoing significant concerns in relation to the offender’s behaviour and the safety of staff.
The Applicant’s conduct when in custody must also be given context with respect to his ongoing psychological condition. He was placed on antidepressant and psychotropic medication. Mr TW-M first examined the Applicant in October 2016. In his report dated 29 November 2016, Mr TW-M reported the Applicant’s claim of adverse reaction to his medication leading to further issues whilst in gaol involving staff. The Applicant reported self-harm using razor blades. He set fire to his cell. Mr TW-M described the Applicant as suffering from a severe depressive disorder, psychiatrically troubled and suffering unresolved psychological symptoms arising from his childhood which was compounded by drug use. The Applicant was suffering from PTSD and a high level of unresolved depression. This is particularly relevant to those offences that were considered by the Learned Sentencing Judge.
Yet the Applicant continued to offend while in custody, including offences of violence and threats of violence. The Respondent in both the SOFICs at pages 10 – 14 and oral submissions referred to some of those offences referred to in the Client Incident Report[24]. Between 27 December 2018 and 14 July 2020, the Tribunal was directed to 17 infringements and altercations in immigration detention. They included verbal argument with other detainees, physical violence involving detainees, verbal threats and abuse to detention officers, agitated and aggressive behaviour and smoking triggering fire alarm. It was not submitted that the Applicant was reacting adversely to antidepressant and psychotic medication.
[24] Exhibit B.
Counsel for the Respondent raised in cross-examination an occasion when, in March 2020, the Applicant came aggressive and abusive towards detention staff and swung a chair at a staff member. He admitted becoming angry but denied that he attempted to hit the staff member with the chair. The Applicant’s response to this proposition was unconvincing and the nature and extent of his reported misdemeanours remains a concern. These later offences, and particularly those that occurred in 2020, are relevant when considering the Applicant’s risk of further offending.
In considering the likelihood of reoffending and the prospect of rehabilitation, the Learned Sentencing Judge found the Applicant has a “somewhat guarded prospect of not reoffending” and “has guarded prospect of rehabilitation.”
Four years have passed since those sentencing remarks. The Applicant has undertaken anger management treatment and received counselling, including by a psychologist. He has undergone drug rehabilitation, has been on the methadone program, and has recently been able to abstain from drug use. Thus, his ongoing drug use may give some explanation for his continued inappropriate behaviour in detention. However, Mr TW-M said in evidence that he last saw the Applicant in late 2019 and, in terms of risk of reoffending, observed that he was drug free, now matured, had insight and expressed remorse with respect to his offending. He has the support of his family, and his custodial sentence has had a salutary effect upon him. However, if the Applicant was and remained drug free from late 2019, his reported misconduct in immigration detention – including violence from 21 December 2019 to 14 July 2020 – remains a concern.
The Tribunal notes that the Applicant said in evidence that he has only been drug free for about a month. That means that from late 2019 until very recently, contrary to the evidence of Mr TW-M, the Applicant continued to use drugs which may provide explanation for his ongoing misconduct and violence. Hence, his expressed intention to not reoffend and that he has learnt mechanisms to deal with conflict, have not been tested for an extended period.
Mr TW-M is prepared to locate the most effective person to undertake the Applicant’s future treatment should he be released back into the community. Psychologist KA has a treatment plan prepared for the Applicant to commence upon that release.
Fresh alleged offending post hearing
After the hearing concluded and the Tribunal reserved its decision, but before the Tribunal delivered the decision, the Respondent requested that the Tribunal issue summonses to produce documents to New South Wales police and Bankstown Local Court. It was alleged that the Applicant had been charged with one count of reckless wounding contrary to s 35(4) of the Crimes Act. The Applicant did not oppose leave to issue the summons. Leave was granted on 6 November 2020. Summonses were issued and, after giving the Applicant and Respondent the opportunity to inspect the summonsed material, the Tribunal ordered the parties to provide any written submissions with respect to the receipt of that material on or before close of business 20 January 2021. The matter was then listed for further hearing on the question of the production of the material. The Tribunal heard that the alleged incident occurred in immigration detention on 19 October 2020 at about 5:55 am. After hearing from the parties, on 12 February 2021 the Tribunal decided that the material was relevant and received it into evidence as Exhibit H.The Respondent in written submissions with respect to the summons material accurately described its content as follows:
14. The offence with which the Applicant has been charged is one count of reckless wounding, resulting in the hospitalisation of the victim (another detainee at the immigration detention centre) who required surgery for multiple injuries, being:
(a) two penetrating wounds to the neck;
(b) one penetrating wound to the left rib resulting in a collapsed left lung; and
(c) one penetrating wound to the stomach.
15. The Fact Sheet prepared by NSW Police in relation to the charge states:
(a) CCTV footage shows that the victim knocked on the door and entered the Applicant’s bedroom at the Centre at approximately 5:55-5:56am on 19 October 2020 and did not appear to have visible injuries at the time;
(b) CCTV footage shows the victim and accused exited the room around 5:58am and the victim was depicted partially bent over, with the Applicant standing behind him, his chest pressed against the victim’s back, holding on to his arms with both hands;
(c) CCTV footage shows the victim fell to the ground and was depicted visibly bleeding from the vicinity of his head, as well as a large quantity of blood depicted on the right sleeve of the Applicant’s jumper;
(d) the Applicant immediately walked away from the victim, who was subsequently found lying in a pool of blood by security officers;
(e) the victim stated that he had been stabbed but did not know who had stabbed him;
(f) the victim was taken to hospital;
(g) the victim indicated he had sustained the injuries inside Room 30 at the Centre (being the Applicant's bedroom);
(h) security officers located the Applicant after the incident after reviewing the CCTV and observed blood on the accused’s clothing and hands;
(i) a large quantity of blood and several types of blood spatter were located in various areas throughout the Applicant's bedroom, indicating that the victim’s injuries were sustained during a physical confrontation; and
(j) the CCTV footage indicates that the Applicant and the victim were the only two people inside Room 30 during the period in which the victim sustained his injuries.
Further, the alleged victim in his statement said the Applicant “stabbed” him when he visited the Applicant’s bedroom. He saw the Applicant holding a “blade” after he was stabbed.
The Tribunal allowed the Applicant the opportunity to be heard in respect of the allegation and its relevance to the Tribunal’s decision, and call such further evidence including expert evidence if so advised. The Applicant did not wish to be heard or call any further evidence, but the parties provided further written submissions.
The Applicant’s counsel advised that the Applicant was no longer in immigration detention but was remanded in custody. He had pleaded not guilty to the alleged offence. His criminal barrister had advised that the matter was listed for committal hearing in about 3 – 4 months. His substantive trial would likely be heard in about 12 months.
Conclusion: Primary Consideration A
The Applicant’s personal circumstances changed since the time of his kidnapping offence and his incarceration when he was then suffering undiagnosed and untreated severe mental health issues with associated drug use. However, the Applicant has not returned to the community since his arrest and imprisonment for the kidnapping offence and he remains untested in the community.
Mr TW-M detailed the improvement in his mental health and cessation of drug use. Despite those observations, the Applicant continued to offend in immigration detention. The alleged offence of reckless wounding was after the Tribunal hearing and at a time when the Applicant said he was better able to deal with his anger issues, had undertaken an anger management program, would not reoffend and would walk away from conflict.
The Tribunal is reminded that the Applicant is innocent unless and until he is proven guilty of that alleged offence, but that does not mean that the Tribunal cannot have regard to the alleged offence when considering the weight to be given to a relevant Consideration.
In Gong v Minister for Immigration & Anor[25], Smith J said “…the mere fact that charges had been laid gives rise to an inference that there was a reasonable basis for those charges.”
[25] [2016] FCCA 561 at [55] (Gong).
In QZGZ and Minister for Home Affairs[26], with reference to Gong the Tribunal said, at [46],
…the fact that a charge has been laid by police, who currently appear to be progressing a brief of evidence to trial, requires weight to be given to the existence of that charge. The seriousness of the charges, even though they are unproven, must also be considered in that regard. That is because the consequences arising from the risk of such conduct occurring in the future, if the criminal charge is eventually proven, may be both serious and unacceptable to the community.
[26] [2018] AATA 3683 at [46] (QZGZ).
The charge of reckless wounding is a serious offence and it is appropriate that the Tribunal has regard to it when giving weight to this Primary Consideration in the terms referred to in both Gong and QZGZ. It is relevant to considering paragraph 13.1 of the Direction, including the nature and seriousness of the Applicant’s conduct to date, and the risks to the Australian community should he commit further offences or engage in other serious conduct.
The Applicant has a history of offending, including offences of violence which the Tribunal accepts were impacted upon by his mental health issues and drug addiction. However, insofar as the Applicant says that he has matured, has learnt to walk away from conflict, has limited his involvement with others in the immigration detention community and for the period of a month before the hearing abstained from drug use, these factors do not give the Tribunal comfort that the risk of the Applicant reoffending in the future is reduced to any significant degree.
Irrespective of the Applicant’s recent alleged offence, his antecedent history and continued issues in immigration detention lead the Tribunal to conclude that the Applicant is at significant risk of serious reoffending which is unacceptable. The fact of the alleged offence of reckless wounding only serves to reinforce the Tribunal’s conclusion.
The Tribunal accepts that the Applicant endured significant trauma when living in Iraq and witnessed the horror of his uncle’s assassination which is not challenged by the Respondent. Although that may give explanation for the Applicant’s mental health condition his continued misdemeanours in immigration detention do not satisfy the Tribunal that he is a changed person. The fact that he did not agree with the factual basis upon which the Learned Sentencing Judge sentenced the Applicant for the kidnapping offence also indicates that the Applicant is not prepared to accept responsibility for his offending and the impact his offending had on the victim. He sought unreasonably to minimise his culpability.
The Applicant was not an impressive witness. He did not demonstrate an appropriate level of insight into his offending. Insofar as he said he did not throw a chair at a detention officer; the Tribunal does not accept his explanation. The number of times he has been dealt with for misdemeanours in immigration detention, including in 2020, is a serious concern. His suggestion that such events or allegations are commonplace in immigration detention was an attempt to minimise the seriousness of his misconduct, demonstrates his lack of understanding about how his general demeanour is perceived and further demonstrates his failure to take any or adequate responsibility for his actions.
The Tribunal agrees with the Respondent’s submission that the seriousness of the alleged offence of reckless wounding is relevant in assessing the nature and seriousness of the Applicant’s conduct to date and the risk to the Australian community should he commit further offences.
The fact that the Applicant says he had abstained from drug use for a month immediately preceding his hearing gives the Tribunal no confidence that he will continue to do so in the future. The fact that the alleged offence has arisen post hearing further reinforces that the Tribunal should regard his overall conduct as serious, that there is a likelihood that he will reoffend in the future and the risk of reoffending is unacceptable.
When balancing the seriousness of the offence which gave rise to the mandatory cancellation of the Applicant’s visa, his continued misdemeanours in immigration detention, and the risk of reoffending to which the Tribunal has referred, the Tribunal is satisfied that Primary Consideration A weighs heavily in favour of the non-revocation of the Applicant’s visa cancellation.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2 of the Direction sets out the next Primary Consideration the Tribunal should have regard to and relevantly provides:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)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.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(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 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.

The Applicant said that despite the assassination of his uncle occurring 14 years ago when he was then aged 11 years, if he returned to Iraq and he will face certain death by the AAH militia.
The circumstances of the assassination were corroborated by the Applicant’s mother who was present at the assassination and father who was in communication with family members after the assassination. After the assassination, the Applicant’s father recommended the Applicant and his family flee to live in a different province with grandparents. The Applicant’s parents expressed similar fear for the life of the Applicant should he be returned to Iraq. A family friend, Mr FK, in his statement[30] also expressed the belief that the Applicant’s life will be in serious danger if returned to Iraq.
[30] Exhibit A, pages 152 – 153.
The Tribunal received a DFAT Country Information Report dated 17 August 2020. It is reported that corruption in Iraq is endemic, systemic and a major threat to the country’s stability[31]. There is a perception that corruption is getting worse. It plays out in all levels of Iraqi society. Anti-corruption efforts are hampered. Anti-corruption law enforcement and judicial officials, as well as civil society and media, have faced threats, intimidation and abuse in their efforts to combat corruption.
[31] Exhibit G, page 14.
It is reported that Iraqi High Commission for Human Rights[32] does not fully comply with the Paris Principles governing national human rights institutions. There is a lack of coherent strategy to affect real change in human rights violations. It is observed that Iraqi human rights institutions have failed to hold perpetrators of extreme violence to account, including Iraqi security forces and militias.
[32] Exhibit G, page 19.
The security situation in Iraq varies according to location but is highly unstable and fluid. Security incidents occur often and without warning, including kidnapping and holding people for ransom. Incidents occur in a range of places, including airports and markets.
There is a targeting of anyone speaking out against conduct of security forces.[33] Protestors are repeatedly threatened and beaten, and Militia groups continue to operate, including AAH who recruit children who attend training camps.[34]
[33] Exhibit G, page 37.
[34] Exhibit G, page 47.
It is reported that enforced or involuntary disappearances occur, and that Iraq has the highest number of missing persons anywhere in the world and popular mobilisation forces systematically carry out forced disappearances[35].
[35] Exhibit G, page 51.
Arbitrary or unlawful detention enforced disappearances and abusing and torturing individuals during arrest continues. Local crime rings engage in killing, kidnapping and extortion throughout the country. There is an assassination campaign by militia groups against their critics.[36]
[36] Exhibit G, page 56.
In respect of those returning to the country, it is reported that an Iraqi returning to the country will only be arrested if he or she committed an offence and there is a warrant for that person’s arrest. Those who left the country illegally would not be subject to arrest on arrival. There is limited evidence to indicate difficulty in assimilating back into Iraq, albeit sources have reported integration can be difficult if a person does not return to their original community.
Conclusion: Other Consideration (a)
The evidence of the Applicant, his family members and Mr FK has not been challenged by the Respondent in respect of the assassination of the Applicant’s uncle. Nor was it challenged that the Applicant’s family was threatened by the AAH following the assassination when the home of the Applicant’s uncle was shot at, as a warning. The Tribunal has no reason to doubt that evidence and accepts that the events as described by those witnesses occurred.
The murder of the Applicant’s bodyguard, prior to giving evidence in court, was also not challenged. The Tribunal accepts that the murder occurred in 2013.
The Respondent referred at length to the country information as it relates to the Applicant’s claims[37]. This includes, but is not limited to, the DFAT travel advice which reports the country is unstable; there is a very high, severe and ongoing risk of kidnapping; terrorist and criminal gangs kidnap expats working in Iraq; terrorist attacks occur without warning; violent crime and corruption is common and includes kidnapping, murder and robbery. It is reported that organised criminal gangs, militia and tribal groups are a significant threat.
[37] Respondent’s Statement of Facts, Issues and Contentions at [29],
The Respondent accepts the Applicant may face hardship upon return to Iraq. Further, that similar violence is common and the risk of kidnapping of Western nationals is high. DFAT reports human rights abuse including enforced disappearance, extortion, torture and extrajudicial killings.
The Tribunal is reasonably satisfied that non-refoulement obligations are owed to the Applicant and that, although the assassination of his uncle occurred 14 years ago, the uncle was a high-profile member of the community. The assassins remain at large, and the Tribunal accepts the evidence of the Applicant’s father that one of the assassins continues to reside in the Applicant’s home province. Should it be known that the Applicant, who can identify the offenders, has returned to Iraq, he will be at risk of serious harm and potentially death. Accordingly, Other Consideration (a) weighs heavily in favour of the Applicant and the revocation of his visa cancellation.
Indefinite detention
In the recent submissions received from the Applicant, the Applicant has also submitted that should the revocation of the Applicant’s visa remain in place, Iraq is a country from which the Applicant fears persecution and that he will be subject to indefinite detention, to which, the Tribunal should have regard, as a reason for revoking the Applicant’s visa cancellation.
It is not disputed that there is no legal impediment to the Applicant applying for a protection visa in the future. The Direction provides that when considering a protection visa application, a delegate must first assess a person’s refugee and protection claim before considering any ineligibility grounds. It is not for the Tribunal to here speculate about the outcome of such an application for a protection visa or even potentially a visa application under s 195A of the Act.
In MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[38] , Wigney J, in approving the Tribunal’s approach to indefinite detention, said:
...the existence of the non-refoulement obligations does not, or cannot, alone give rise to indefinite detention. That is because the effect of s 197C of the Act is that an officer’s duty to remove an unlawful non-citizen from Australia arises irrespective of, or despite the existence of, any such obligations…The Tribunal found, in substance, that if the cancellation decision was not revoked and the appellant was not granted another visa, his detention would not be indefinite because he would only remain in detention until he was removed from Australia under s198 of the Act, which would occur as soon as that was reasonably practicable. That removal would occur irrespective of Australia’s international non-refoulement obligations.
It follows that…the Tribunal was correct to approach the appellant’s representations concerning indefinite detention on the basis that, if the cancellation of his visa was not revoked, and he was not subsequently granted either a protection visa or a visa under s 195A of the Act, s 198 of the Act would operate so as to require the removal of the applicant from Australia to Iraq, his country of origin, as soon as reasonably practicable, despite or irrespective of Australia’s international non-refoulement obligations.
[38] [2021] FCAFC 35 at [96] – [97].
The Applicant is not currently in detention but is remanded in custody pending trial for the alleged criminal offence of reckless wounding. If the Applicant’s visa cancellation is not revoked and he applies for a protection visa or visa under s 195A of the Act, which is granted, the Applicant would cease to be an unlawful citizen and would be no longer subject to detention. Should at any future time thereafter, he apply for, and is granted bail, he would be permitted to return to the community.
If the Applicant’s visa cancellation is not revoked and he fails in his application for a protection visa or visa under s195A of the Act or does not apply for such visa, he will remain in custody, not immigration detention, pending the outcome of the criminal trial, and any custodial sentence imposed if found guilty.
Further if found not guilty, or if found guilty but is not sentenced to a term of imprisonment, the Applicant would be returned to immigration detention. If found guilty and sentenced to a term of imprisonment to be served, at the completion of his non-parole period the Applicant will be returned to immigration detention.
At the point in time when the Applicant returns to immigration detention, s198 of the Act would be enlivened to require the removal of the Applicant to Iraq as soon as reasonably practicable. As observed in MNLR that removal would occur despite, or irrespective of Australia’s international non-refoulement obligations.
Hence the decision of the Tribunal that non-refoulement obligations arise, in the words of Wigley J “does not, or cannot, alone give rise to indefinite detention. That is because the effect of s 197C of the Act is that an officer’s duty to remove an unlawful non-citizen from Australia arises irrespective of, or despite the existence of, any such obligations.”
The time that the Applicant will spend in immigration detention will not be an indefinite period. Such period is, however, dependent upon and subject to those variables referred to above, but those factors do not give rise to an indefinite period in immigration detention. They impact upon that point in time when he may be liable to return to immigration detention at which time the Minister’s obligations under the Act will be immediately enlivened.
Accordingly, indefinite detention does not arise in this matter.
Other Consideration (b): Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction provides that decision-makers must have regard to the following:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that;
(i)Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)More weight should be given to time the non-citizen has spent contributing positively to the Australian community; and
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australian indefinitely).
The Applicant came to Australia aged 14 years and offended when aged 19 years. He, his younger brother and mother were sponsored to come to Australia by their father who fled conscription in Iraq at the time of civil war and unrest.
The circumstances of the Applicant’s offending and his contribution to the Australian community have been canvassed above.
The Applicant commenced offending within soon after his arrival in Australia as a youth. Hence, paragraph 14.2(1)(a)(i) of the Direction provides that less weight should be given to this Other Consideration in favour of the Applicant where he began offending soon after arriving in Australia. However, it is important to consider the Applicant’s untreated mental health conditions and his personal circumstances and tragedies that he endured as a child which impacted upon him, and which gives explanation for his offending.
Paragraph 14.2(1)(a)(ii) provides that more weight should be given to the time the Applicant has spent contributing positively to the Australian community. It is important to have regard to the Applicant’s contribution to his family, the care of his youngest brother who was born in 2010 and his involvement in the family business prior to the commission of the relevant offence.
At the First Hearing of this matter before the Tribunal, the Applicant was then engaged to SS. SS, her father MS, and her uncle SH provided written statements attesting to the Applicant’s good character. The Applicant’s engagement ended shortly after the First Hearing before the Tribunal. Nonetheless, the Tribunal still accepts that evidence insofar as it provides testimony to the Applicant’s character.
The Tribunal also received a letter from Mr FK,[39] an Australian citizen and long-term family friend. He confirmed the evidence before the Tribunal in relation to the Applicant’s contribution to his family, purchase of the family home and contribution to establishing their business. He confirmed the Applicant was the victim of a hit and run car accident when he was aged 17, to which the Tribunal has referred. He also said the Applicant’s life will be at serious risk if returned to Iraq, and his departure “will have an enormous impact emotionally and financially on his family”.
[39] Exhibit A, pages 152 – 153.
The Applicant said in evidence that he has lost his Iraqi culture and has adopted an English culture. He lost his two aunts in Iraq to a bombing and suicide. His grandmother still resides in Iraq but is elderly and unwell. He has no contact with her. He has no ties to Iraq. His cousins live somewhere in Iraq but has no contact with them.
The balance of his family, namely his parents, two brothers, niece, nephew and his possible son, all live in Australia.
The Tribunal heard evidence from the Applicant’s mother. She was distressed and crying throughout most of her evidence and proclaimed her son’s innocence, wanting him to be returned to her. The medical evidence with respect to the mother’s mental health condition was before the Tribunal and is referred to above. It was reported that she was severely depressed and anxious requiring long-term psychotherapy, antidepressant medication and support. She was at risk of self-harm or suicide due to her son’s condition. The Tribunal is satisfied that relocating the Applicant to Iraq will have a devastating effect on the mother and her psychological condition.
The Tribunal is also satisfied that his relocation to Iraq will impact on the balance of his family members, in particular his youngest brother and his father with whom the Applicant is very close.
Conclusion: Other Consideration (b)
The Applicant and his family suffered significant hardship and personal loss in Iraq in consequence of the tragedy of civil war. The family was separated from the Applicant’s father for approximately 10 years, and they lived in hiding for two to three years after witnessing the assassination of the Applicant’s uncle.
The non-revocation of the Applicant’s visa will have a significant impact upon the whole of his family who are all permanent residents or citizens of Australia. It will have a particularly devastating impact upon his mother and her mental health. His inability to be involved in the family business will also have a financial impact on the family.
To the extent that the Applicant offended within a relatively short time after arriving in Australia, the Tribunal did not significantly reduce the weight it might otherwise give to this Other Consideration. The Tribunal has taken into account his personal circumstances generally and in particular his suffering in Iraq, and his mental health condition that went undiagnosed and untreated until after he was taken into custody, all of which must be placed into the scales when undertaking the decision as to the appropriate weight to be given to this Other Consideration.
In balancing the whole of the evidence, the Tribunal has decided that this Other Consideration weighs heavily in favour of the Applicant and the revocation of his visa cancellation, despite the fact of his offending occurring in a relatively short time after arriving in Australia. The fact that an 11-year-old boy witnessed such tragedy and received no mental health treatment or support, is a significant consideration for the Tribunal in deciding that this Other Consideration (b) should still weigh heavily in the Applicant’s favour.
Other Consideration (c): Impact on Australian business interests
Paragraph 14.3(1) of the Direction provides that decision-makers must have regard to the following where relevant:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant was engaged in the family removal business which he established with his father. There is no evidence before the Tribunal that, as a consequence of the non-revocation of his visa, it would significantly compromise the delivery of a major project within Australia, or the delivery of an important service in Australia
The evidence before the Tribunal indicates that the business was operating successfully, and the Applicant owns two trucks used in that business.
Conclusion: Other Consideration (c)
The Tribunal is satisfied that the non-revocation of the Applicant’s visa would, however, seriously impact upon the ability of the family business to restart, that it will likely impact upon the family and that it would also deny the community the benefit of what was a successful furniture removal business.
The Tribunal therefore gives slight weight to this Other Consideration in favour of the Applicant and the revocation of the Applicant’s visa cancellation.
Other Consideration 4: Impact on victims
Paragraph 14.4(1) of the Direction provides that decision-makers must have regard to the following where relevant:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
No evidence or argument was advanced in relation to impact on the victim such that it is of relevance in determining the application.
Other Consideration (d): Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that decision-makers must have regard to the following where relevant:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The Applicant is now approximately 25 years of age. There are no substantial language barriers to the Applicant returning to Iraq and, albeit he has lived in Australia since age 14, there is no evidence before the Tribunal that suggests he would suffer from any cultural barrier.
The Applicant has no family or friends in Iraq, save for an elderly grandmother who is not in good health.
He has limited education. He commenced a course in welding and transferred to mechanics. The Applicant said he had a certificate qualification in mechanics. This qualification would be readily transferable to Iraq. The Tribunal infers that given the Applicant is the owner of two trucks, which he used in his family business, he has a level of qualification permitting him to drive a heavy vehicle. That is a skill which could be transferable to Iraq. But there is no evidence to suggest he will readily find employment were he to return there. The Tribunal infers that it will be very difficult for him to find and sustain employment.

The Applicant suffers from ongoing mental health issues which require cognitive behaviour therapy and a management plan of the type indicated by KA in the report dated 11 November 2017. He will need to continue with treatment from an appropriately qualified psychologist for some time.
The DFAT Country Information Report on Iraq dated 17 August 2020 under heading “Mental Health”[40] reports that there are very few mental health services or support available to the general public. A January 2017 study reported 80 clinical psychologists working in Iraq. Further, the report reads:
The absence of community-based mental health care means often the only care available is family-based or in psychiatric institutions, which have been linked to inhumane treatment and degrading living conditions. There is significant social stigma against those suffering from mental health issues.
[40] Exhibit G, page 16.
Under heading “Persons with Disabilities” (PWDs)[41] it reports that Iraq has one of the world’s highest rates of PWDs. It is estimated that up to one third of Iraqis have some form of physical or psychological disability. A significant portion of the population suffers from a mental health or psychological disability. There is little understanding or awareness of the challenges faced by PWD’s. At paragraph 3.150 it reports:
DFAT assesses PWDs in all parts of Iraq face a moderate risk of official discrimination… and are unlikely are to receive sufficient support from government to enable them to participate fully in society. PWDs face a high risk of social discrimination that may include violence or sexual abuse, particularly women with intellectual disabilities or mental health issues.
[41] Ibid, pages 48 – 49.
Under heading “Substance Abuse and Treatment”[42] it reports that illicit substance abuse is an increasing problem in Iraq, with the most abused substance being crystal amphetamine. Iraq opened the first specialised mental health and rehabilitation centre in 2018. The shortage of available places means drug users are often jailed.
Conclusion: Other Consideration (d)
[42] Ibid, page 16.
The Tribunal accepts that, should the Applicant be returned to Iraq, he will face very significant challenges. The absence of family, friends and financial support, together with his mental health issues will all impact adversely upon him and his ability to establish and maintain basic living standards commensurate with others in that community.
The Applicant has a need for ongoing mental health treatment to which the Tribunal has referred. Having regard to the DFAT report, the Tribunal is reasonably satisfied that the Applicant will not receive the appropriate level of psychological treatment to ensure his future health and to a level he might reasonably expect, should he be allowed to return to the Australian community. Further, the general stress and distress that will likely occasion his return to Iraq will adversely impact upon his mental health condition. The Tribunal accepts that the Applicant has a genuine fear of returning to Iraq, including fear of death which will significantly impact upon his mental health condition.
Should the Applicant have a renewed craving for drugs in the future, it is unlikely that he will have access to or receive the appropriate medical support or medication to overcome such craving, with the real risk that he will return to drug abuse and addiction.
Accordingly, it is in the Applicant’s best interests that his visa cancellation be revoked. The Tribunal is satisfied that Other Consideration (d) weighs heavily in favour of the revocation of the Applicant’s visa cancellation.
There are no more Other Considerations that the Tribunal should have regard to on the available evidence.
CONCLUSION
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Based upon the Applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then 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, the Tribunal has had regard to those considerations referred to in the Direction including that Primary considerations should generally be given greater weight than the Other Consideration.
Accordingly, the Tribunal finds:
(a)Primary Consideration A weighs heavily in favour of the non-revocation of the Applicant’s visa cancellation;
(b)Primary Consideration B weighs significantly in favour of the Applicant and the revocation of the Applicant’s visa cancellation;
(c)Primary Consideration C weighs significantly in favour of the non-revocation of the Applicant’s visa cancellation; and
(d)Other Consideration (a) weighs heavily in favour of the Applicant and the revocation of the Applicant’s visa cancellation; and
(e)Other Consideration (b) weighs heavily in favour of the Applicant and the revocation of the Applicant’s visa cancellation; and
(f)Other Consideration (c) weighs slightly in favour of the Applicant and the revocation of the Applicant’s visa cancellation.
(g)Other Consideration (d) weighs heavily in favour of the Applicant and the revocation of the Applicant’s visa cancellation.
The combined weight of the Primary Consideration B and the Other Considerations is such that they outweigh the heavy and significant weight that the Tribunal has attributed to the Primary Considerations A and C respectively.
The Tribunal therefore finds that, taking into account all of the considerations in the Direction, they weigh in favour of the revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal exercises the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
268.Pursuant to section 43 of the Administrative Appeals TribunalAct 1975 (Cth), the Tribunal sets aside the decision dated 11 December 2018 and substitutes a decision revoking the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa dated 16 June 2015.

I certify that the preceding two hundred and sixty-eight (268) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

………..……[SGND]……………..
Administrative Assistant Legal
Dated: 23 April 2021

Date of hearing: 16 June 2020, 18 August 2020 and 19 August 2020

Advocate for the Applicant: Mr Ali Alkafaji, Alkafaji Migration

Advocate for the Respondent: Ms Laura Crick, Clayton Utz

Date of hearing:	16 June 2020, 18 August 2020 and 19 August 2020
Advocate for the Applicant:	Mr Ali Alkafaji, Alkafaji Migration
Advocate for the Respondent:	Ms Laura Crick, Clayton Utz