CLXZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

CLXZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1001 (28 April 2020)
Division:GENERAL DIVISION
File Number: 2020/0673
Re:CLXZ
APPLICANT

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

DECISION
Tribunal:Member Eteuati
Date:28 April 2020
Place:Brisbane

The decision under review is affirmed.
.....................[sgd]...................................................
Member Eteuati
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of Class XB Subclass 202 Global Special Humanitarian visa – Applicant does not pass character test –– whether there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked – consideration and application of Ministerial Direction No 79 –– decision under review is affirmed
Legislation
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66
Minister for Home Affairs v Omar [2019] FCAFC 188
Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Eteuati
28 April 2020
BACKGROUND

This is an application by CLXZ (“the Applicant”) for review of a decision made by a delegate of the Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (“the Minister” or “the Respondent’) on 31 January 2020 to refuse to revoke, under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), the cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa (“GSH visa”).
The Applicant first arrived in Australia in 2017 as the holder of a GSH visa. The Applicant was 41 years old when he first arrived in Australia.
The Applicant began offending in 2018, a year after he arrived in Australia. On 21 November 2018 the Applicant was found guilty of goods in personal custody suspected of being stolen and custody of knife in public place. The Applicant was fined $500 and $150 respectively for these offences.
On 13 May 2019 the Applicant was convicted of a number of violent offences which had been committed in late 2018. Two of the four offences for which the Applicant was sentenced on 13 May 2019 were each dealt with by way of a two-year community corrections order. For the one of the two offences of assault occasioning actual bodily harm (DV) the Applicant was convicted and sentenced to 13 months imprisonment with a non-parole period of seven months. For the offence of assault with act of indecency, the Applicant was convicted and sentenced to 12 months imprisonment with a non-parole period of four months. Those sentences were to be served, in part, cumulatively.
On 14 June 2019, while the Applicant was still in prison for his 13 May 2019 offences, a delegate of the Minister cancelled the Applicant’s GSH visa pursuant to section 501(3A) of the Act.
The Applicant’s visa was cancelled by the Minister on the basis that the Applicant did not pass the character test as set out in section 501(6)(a) of the Act (when read with section 501(7)(c)), as he had been sentenced to a term of imprisonment of more than 12 months and was serving a full-time term of imprisonment.
On 27 June 2019, the Applicant sought that the cancellation decision be revoked.
On 31 January 2020, the Minister refused to revoke the cancellation of the Applicant’s visa. That decision was notified to the Applicant on 4 February 2020.
On 9 February 2020, the Applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of that decision.
The matter was heard on the 6 and 7 April 2020. For the reasons below, the Tribunal has decided to affirm the decision under review. The Tribunal considers that this is the correct decision in this case.
ISSUES
Pursuant to section 501CA(4) of the Act, the Minister may revoke the decision made under section 501(3A) of the Act to cancel the Applicant’s visa. Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant was invited to make representations to the Minister about revocation of the cancellation of his visa and he made representations in accordance with the invitation. Thus, section 501CA(4)(a) of the Act is satisfied in this case.
The two remaining issues are:
(a)Whether the Applicant passes the character test as defined in section 501 of the Act; and
(b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Tribunal finds that the Applicant passes the character test or that there is another reason why the decision to cancel the Applicant’s visa should be revoked, the cancellation decision must be revoked.
The Tribunal considers that the meaning of “another reason” in subparagraph 501CA(4)(b)(ii) of the Act is a reason other than that the Applicant passes the character test. The Full Court of the Federal Court has found that there is no residual discretion to be exercised once the Minister (and in this case, the Tribunal) finds that the Applicant passes the character test or there is another reason why the cancellation decision should be revoked. The Full Court has also found that the “reason” in subparagraph 501CA(4)(b)(ii) of the Act does not mean “any reason” but rather the determinative reason for revocation arrived at after a balancing of factors both in favour and against revocation.
In Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66 the Full Court of the Federal Court (Collier J, with whom Logan and Murphy JJ agreed), after citing with approval the reasons of North ACJ at paragraphs [38] and [39] of his decision in Gaspar v Minister for Immigration and Border Protection[2016] FCA 1166, stated at [31] and [32]:
“I agree with this analysis. The primary Judge in these proceedings found, and the parties are ad idem, that s 501CA(4)(b) requires the Minister to revoke the cancellation if he or she is satisfied of relevant requirements. To that extent his Honour held that ‘may’ in s 501CA(4)(b) means ‘must’.
I consider that this is a correct construction of s 501CA(4)(b).
In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38]- [39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds ‘any’ reason why the cancellation decision ‘could’ be revoked’. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case. It follows that I respectfully agree with the view formed by his Honour at [52] and [53] of the primary Judgment.”
[Emphasis in original]
If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked the Tribunal must find in the Applicant’s favour. The appropriate decision in these circumstances would be for the decision refusing to revoke cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision.
EVIDENCE
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents” or “G1) and the documents tendered into evidence by the Respondent and marked as exhibit R1. The evidence contained in these documents is discussed throughout this decision: see ‘Annexure A’ to this decision.
A summary of evidence of witnesses is provided below from paragraph 39 of these reasons.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6) relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
…
Section 501(7) relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
…
The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more.
Section 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.
Offending history
An Australian Criminal Intelligence Commission (ACIC) Criminal History Check for the Applicant dated 7 August 2019 shows the following offences committed by the Applicant:

Court Court Date Offence Court Result

Wollongong Local Court 13 May 2019
Assault occasioning actual bodily harm (DV)
Convicted and sentenced to 13 months imprisonment with a non-parole period of 7 months

Contravene prohibition/restriction in AVO (Domestic)
Community Correction Order 2 years

Assault with act of indecency
Convicted and sentenced to 12 months imprisonment with a non-parole period of 4 months

Assault occasioning actual bodily harm (DV)
Community Correction Order 2 years

Downing Centre Local Court 21 Nov 2018 Goods in personal custody suspected of being stolen Fined $500

Custody of knife in public place
Fined $150

I am satisfied the Applicant has a substantial criminal record for the purposes of subsections 501(6)(a) when read with section 501(7)(c) of the Act, as the Applicant was sentenced to a term of imprisonment of 12 months or more.
Consequently, I am satisfied that the Applicant does not pass the character test.
The only remaining issue is whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked, the Tribunal must comply with any directions made by the Minister pursuant to section 499 of the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) applies. The Direction provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The relevant considerations in relation to consideration of revocation of a cancellation decision are contained in Part C of the Direction.
Paragraph 13 of the Direction provides for three primary considerations. They are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 14 of the Direction provides for other considerations. They include, but are 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.
Subparagraphs 8(3) to (5) of the Direction provide:
(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 or more primary considerations may outweigh other primary considerations.
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:
“… Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
The Tribunal considers that Colvin J’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the Direction.
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.
The principles in paragraph 6.3 provide a framework within which decision-makers should approach their task of deciding whether to revoke cancellation. The principles in paragraph 6.3 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 should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Summary of evidence
The following is a summary of the evidence before the Tribunal including evidence of witnesses who appeared before the Tribunal. The evidence referred to below includes evidence provided in written statements submitted to the Department and the Tribunal and evidence given by the witnesses at the hearing in response to questions under cross-examination and from the Tribunal.
The Applicant
The Applicant is a 44 year old who was born in Syria. The Applicant arrived in Australia in March 2017 with his mother, one of his three brothers, and that brother’s wife. All four of them arrived on GSH visas. The Applicant also has another brother who lives in Australia who has two children aged three years and two months respectively. The Applicant said that he also has a sister who lives in Austria and a brother who lives in Canada.
At the hearing the Applicant indicated that prior to arrival in Australia he had lived for two years in Lebanon after departing Syria. The Applicant indicated that he had completed six years of education in Syria. He said that he had worked for most of his adult life in Syria as a mechanic. At the hearing the Applicant indicated that he had worked for one month as a mechanic in Australia. When asked why he had only worked for one month, he indicated that he was receiving a government benefit as the carer for his mother leaving him no time to work. At the conclusion of the hearing the Applicant indicated that he had also worked as a painter in Australia.
The Applicant indicated that he suffered from mental illness, sleep deprivation and high blood pressure. When asked what mental illness he suffered from, he answered that he suffered from depression. The Applicant indicated that he had suffered from depression in Syria although he said he was not prescribed with the correct medication there. The Applicant indicated that he ceased taking medication when he arrived in Australia as he felt better here. In her statement, the Applicant’s mother indicated that the Applicant’s mental problems related to sleep deprivation and overthinking.
The Applicant said that he was married in August 2018. He indicated that the pressure of marriage made his depression and sleeplessness worse. He attributed much of his offending to his mental health and his failure to take medication. The Applicant said that since he has been in immigration detention he has seen a psychologist and been prescribed with medication for his depression. He said that prior to his imprisonment he had not been taking medication and had only been treated by his family’s general practitioner.
The Applicant indicated that he had been divorced from his wife for about two months and that they had been separated for some time. He said that they separated because an Apprehended Violence Order (AVO) had been issued for her protection from him and that he had beaten her. The Applicant indicated that he has had no contact with his former wife or her family members for some time.

The Applicant indicated that one of his brother’s wives was pregnant. He said that the other brother had two children. The first child was three years old and the second child was two months old. The Applicant said that he had not met the younger child. He said that the three-year-old had visited him in detention on two occasions.
The Applicant said that he was close with his mother and two siblings. He said that his mother and his siblings had visited him in immigration detention once a month when he was being held in Sydney. He said that he would currently speak with his mother every day by telephone and that he would speak with his brothers every two days. He said that during his conversations he would also speak with his brother’s three-year-old child.
The Respondent’s solicitor took the Applicant through his history of criminal offending.
In relation to his offence of assault with act of indecency for which he was sentenced on 13 May 2019, the prosecutor briefly outlined the offending conduct for the court as follows:
“Your honour will either hear from or read a statement from the alleged victim who states she caught the train then a male sat next to her and the act that is said to constitute the offence-is there’s an allegation that that male has rubbed his hand against her leg repeatedly, even after requests by the alleged victim to stop and it is alleged also that at some stage whilst doing that has masturbated under his clothes at the same time whilst on the train or certainly appeared to the alleged victim to be masturbating at the same time.”
The Applicant pleaded not guilty to this offence but was ultimately found guilty. At the hearing the Applicant at first said that he could not remember the incident. He then admitted to touching the victim’s leg but denied masturbating under his clothing. Instead, the Applicant indicated that while he was touching the victim’s leg, he happened to be scratching his own leg.
The Respondent’s solicitor took the Applicant to police records relating to the first of two his convictions for assault occasioning actual bodily harm for which he was convicted on 13 May 2019. Those records indicate that the Applicant’s former partner returned home on 21 October 2018 after leaving the home on 19 October owing to a reported domestic matter. The Applicant’s then wife, the victim, returned to the premises with her two sisters, brother-in-law and their nephew to collect some of the victim’s belongings. The Applicant began arguing with the victim about attending “his home” and told them to leave. The Applicant grabbed hold of some personal items and started throwing them around the unit. The Applicant then used a leather belt with a metal belt buckle to hit the victim to the right leg causing her immediate pain. The victim’s brother-in-law intervened to defend the victim. They grabbed each other and the Applicant struck the witness to his face twice with his hands. An AVO was issued in relation to this offending for the protection of the Applicant’s former wife.
The Applicant pleaded not guilty to this offence but was ultimately found guilty. At the hearing before the Tribunal, the Applicant did not dispute the police version of events. He said that he had hit his wife with the belt because she and her siblings had been mocking him. He said that he had made a mistake and that what he had done was wrong.
The Respondent’s solicitor took the Applicant to police records relating to the second of two his convictions for assault occasioning actual bodily harm for which he was convicted on 13 May 2019. Those records indicate that on 8 October 2018 the victim, the Applicant’s mother, had missed a number of telephone calls from the Applicant.
The police report indicated that the Applicant entered his mother’s residence and immediately began screaming abuse at her, calling her a “prostitute”, apparently angry that his mother had not answered her phone. The Applicant then punched his mother in the head and slapped her to her left eye and head area approximately five times. The Applicant’s mother said words to the effect of “son, what have I done to you? Why are you doing this?” The Applicant screamed at his mother “Fuck you. Fuck you. You’re an escort.” The Applicant’s mother then pretended to use the toilet as she feared further assault. The Applicant’s mother left the house and did not return for some days.
On 14 October 2018, the Applicant returned to his mother’s home demanding that she assist him in using the toilet as he had diarrhoea. He screamed at his mother “You’re a prostitute. Come here. I want to bruise the other eye also so that you remember it.” He yelled at his mother “I am calling five people to come and I want to sell jackets”. It was recorded that the Applicant’s mother believed that comment to be a threat that the Applicant would have five men attend her home to rape her. The Applicant continued to scream vile abuse at his mother. The Applicant’s mother called another son by telephone asking that he collect her as she was afraid of further physical violence by the Applicant.
The Applicant pleaded guilty to this offence. Again, the Applicant did not dispute the police notes in relation to this offending. He indicated that he had made a very big mistake and that he would never assault his mother again.
The Applicant said that despite the offending against his mother, she wanted the Applicant to remain in Australia so that the two of them could live together in the same house.
The Respondent’s solicitor took the Applicant to police records relating to contravene prohibition/restriction in AVO (Domestic) for which he was convicted on 13 May 2019. Those records indicate that the Applicant’s former wife had indicated that after they married in 2018 the Applicant began threatening the wife saying things like “I will hurt you, I will get a knife and kill you, or I can burn you by fire, I’m not scared, I can do anything”. As discussed above, on 21 October 2018 the Applicant was charged with assault occasioning actual bodily harm (he was later convicted of this offence on 13 May 2019). On the same date a provisional AVO was issued against the Applicant for the protection of his former wife. One of the conditions of the provisional AVO was that the Applicant was not to go within 100 m of the victim’s place of residence. It was also a condition of his bail that he abide by the conditions of the provisional AVO.
The police reports indicate that on 23 October 2018 the Applicant attended the victim’s home, in breach of the provisional AVO, where he was met by police.
The Applicant pleaded not guilty to this offence but was ultimately found guilty. At the hearing the Applicant denied that he had ever threatened his former wife with violence. He admitted that he had breached the AVO. He said that he had known that he was not permitted to attend his former wife’s place of residence. However, the Applicant said that he had received a telephone call from an unknown woman indicating that he should attend his wife’s home as his wife wished to speak with him.
The Respondent’s solicitor took the Applicant to police records relating to his convictions for goods in personal custody suspected of being stolen and custody of knife in public place for which he was convicted on 21 November 2018.
Those reports indicated that on 20 October 2018 the police received a call from the victim who indicated that he had found his bicycle which had been stolen the previous evening. The victim showed the police his bicycle which was attached to 3 other bicycles by a bicycle chain. Along with the bicycles the police located a bag containing medication in the name of the Applicant. The police also located tools in the bag which the police suspected were used for stealing the bicycles.
The Applicant returned to the bicycles and was interviewed by the police. Upon being searched by the police the Applicant was found to have five knives in his possession. They included a foldout Gerber knife, a knife that doubled as pliers, a paring knife, and two pocket knives.
At the hearing the Applicant, at first, denied that he had stolen any bicycles. Instead, he said that he had taken the bicycles without permission to repair them. The Applicant then admitted that he stole the bicycles. The Applicant said that he did not know why he was carrying five knives with him at the time. He later said that he was not carrying five knives and said that the purported knives were in fact repair tools. Consistent with the Applicant’s criminal record, the Tribunal finds that the Applicant was in custody of knives in a public place. The Tribunal cannot go behind the Applicant’s criminal convictions or the material facts upon which those convictions are founded: HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
The Applicant admitted that he had never undertaken any rehabilitation programs in relation to his offending. The Applicant indicated that the only course that he had taken in Australia was an English language course that he took for a year after arriving in 2017. He said that the reason that he offended was because of his depression and that he had failed to take his medication for depression prior to his offences. The Applicant said that he is currently taking his medication and therefore would never reoffend.
The Applicant indicated that he wished to remain in Australia so that he could care for his mother and siblings.
In relation to any harm or hardship that the Applicant fears if he were to be removed to Syria, in his request for revocation of the cancellation decision form the Applicant stated:
“I love Australia. I have mental illness. I have no family in Syria and all my support network in family are here. I am medicated for my mental illness. Australia is my home.”
In the Personal Circumstances Form which the Applicant submitted with his application for revocation of the cancellation decision the Applicant stated:
“They would kill me there. I would not be able to have medication for my mental issues.
…
I have no Syrian passport. Nothing in Syria. The family house was destroyed in the”
In a statement provided to the Department by the Applicant the Applicant stated:
“I don’t have anyone to go to in Syria and with the ongoing war it will be very hard for me to survive and besides it will be really very hard for me to leave all my family behind and be all alone, I can’t survive that.”
At the hearing the Applicant was directly asked a number of questions by the Respondent’s solicitor as to any fears of harm or hardship in Syria. The following exchange occurred during the hearing :
“MS CRAWFORD:      Why can't you go back to Syria?
INTERPRETER:        Because doctors there are not good. I will not - I will not receive treatment there in Syria, proper treatment. There is no medicine, there is no work in Syria.
MS CRAWFORD:      Is there any other reason you don't want to return to Syria?
INTERPRETER:        Because my family and my brothers are here in – in Australia.
MS CRAWFORD:      Are you - do you have a fear of returning to Syria?
INTERPRETER:        I did not understand.
MS CRAWFORD:      Are you afraid of returning to Syria?
INTERPRETER:        No, I can't go back.
MS CRAWFORD:      Is there any other reason-you can't go back to Syria other than because your family and brother and here and because Syria has no proper treatment and no work?
INTERPRETER:        I don't know what will they do to me if I go back. Maybe they will make me go - maybe they will take me as a soldier.
MS CRAWFORD:      Who is "they"?
INTERPRETER:        Take me as a soldier. I don't know.
MS CRAWFORD:      Why would they take you as a soldier?
INTERPRETER:        Because all the places - in all the places there is - there is war. I want to stay here in Australia. I don't want to go back to Syria. Please.”
During the hearing the Tribunal explained the nature of Protection visas, indicating that if the Applicant was unsuccessful before the Tribunal he could make an application for a Protection visa if he feared persecution of significant harm in Syria. The Applicant indicated that he understood the nature of Protection visas and that he would apply for a Protection visa if he was unsuccessful in these proceedings.
Applicant’s mother
The Applicant’s mother provided a statement to the Department in support of the Applicant. The Applicant’s mother gave evidence at the hearing by telephone.
The Applicant’s mother indicated that the Applicant had mental health issues including not sleeping and overthinking. She indicated that she blamed herself as she cared for the Applicant and had not insisted that he take his medication.
The Applicant’s mother indicated that she had problems eating and sleeping since the cancellation decision was made. She indicated that she was depressed and that the thought of the Applicant being sent back to Syria filled her with fear and despair as she did not believe that he would survive there as there was no one there he could go to and no way for him to survive with the ongoing war in Syria. She said that both she and her other family members were greatly affected by the cancellation of the Applicant’s visa as they were concerned for the Applicant’s survival in Syria owing to his mental health issues and because the Applicant may try to self-harm. She indicated that the Applicant had done so on one previous occasion.
The Applicant’s mother indicated that she would speak with the Applicant every day by telephone. She indicated that she had visited him in immigration detention when he was being held in Sydney. She indicated that if the Applicant were allowed to remain in Australia that he would live with her. She appeared to indicate that the reason that he assaulted his former wife was because she was not a good wife; that she did not work, did not cook and did not clean the house.
The Applicant’s mother indicated that she did not believe that the Applicant would reoffend. She indicated that her son was easily irritated and that she had learned to live with that. She suggested that she had learnt to cope with his violent behaviour but that his former wife had not. She indicated that she was now in her 70s and was living alone. She said that she was lonely and needed her son. However she admitted that her two other sons provided support for her.
The Applicant’s mother indicated that the family home in Syria was destroyed before the family came to Australia.
PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction provides that decision-makers should give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, subparagraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(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 was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
The Applicant has committed a number of violent offences in Australia including two counts of assault occasioning actual bodily harm and assault with act of indecency. In addition, the Applicant has been convicted of contravene prohibition/restriction in AVO (Domestic) which was issued in relation to an assault on his former wife. Finally, the Applicant has been found guilty of custody of knife in public place and goods in personal custody suspected of being stolen. All of these offences were committed within a short period of time in 2018.
In sentencing the Applicant for his offence of assault with act of indecency, for which he was convicted on 13 May 2019, the sentencing Judge made the following remarks relevant to the protection of the Australian community consideration:
“Yes, thank you. There was no remorse was there? We sat here for how long this morning going through all this. No pleas of guilty to anything as far as I can see, what does that tell me? Could not care less is what I think. Predatory behaviour. I do not think why anybody should look at me amazed. No hand going up, "Yes, I wasn't taking my pills and I did something very awful, it's out of character".
No, the lady had to turn up today, she had to give evidence. I can imagine, she was really looking forward to that on a Monday morning. That is one of the things that I have to take into consideration. I do hear what you say [Applicant’s lawyer] regarding your client's medical condition. I hope he is taking medication for it but young people, not just young people, anybody, God, to be able to get on the train from Wollongong to Town Hall not be molested. I use the old fashion term for it.
I cannot imagine what she feels like now from going on public transport I really cannot and thankfully there were other people on the carriage that stepped in or else it could have been far more traumatic than it was. If your client has mental issues, a lot of people do, well he has to stand up and be counted and take responsibility and this was not it. Not by a long way was it and I was unimpressed, you can probably tell. It was clearly him, clearly. Yet, we all sat here watching the films, yes, I wonder if it was or it is not. Of course, the prosecution have to make their case, I understand all that. But one cannot have ones cake and eat it and say, "Well I wasn't taking my medication" and look what happened.”
The nature of the Applicant’s offending has been described in detail above. On one occasion he struck his former wife with a belt that had a metal belt buckle. The Applicant breached a prohibition of an AVO, issued in consequence of the assault on his former wife, by attending her place of residence. On another occasion he hit his mother in the head and then struck her to the side of the face multiple times. The Applicant also rubbed his hand against a woman’s leg while masturbating despite requests by the victim that the Applicant stop. On another occasion the Applicant stole bicycles and was found in possession of five knives in public. The Tribunal notes that, of his violent offences, the Applicant only pleaded guilty to the offence in relation to his mother.

The Direction prescribes that crimes of violence are to be viewed very seriously. Crimes of violence against women are to be viewed very seriously. All of the Applicant’s violent offending was committed against women. The Applicant was convicted of assault occasioning actual bodily harm against his former wife. He was also convicted of assault occasioning actual bodily harm against his mother. The victim of his offence of assault with act of indecency was a woman on a train. The Applicant’s offence of contravene prohibition/restriction in AVO related to the Applicant attending the residence of his former wife in breach of the conditions of an AVO issued after he had assaulted her causing her actual bodily harm.
The Tribunal also considers that the sentences of imprisonment imposed on the Applicant for his 2019 offences, especially the sentence of 13 months imprisonment for assault occasioning actual bodily harm committed against his former wife and the sentence of 12 months imprisonment for his offence of assault with act of indecency, are indicative of the seriousness of those offences.
It does not appear that the Applicant has provided false or misleading information to the Department, such as to justify any significant increase in an assessment of the seriousness of the offending or its nature.
The Applicant has not been convicted of an offence after being given a warning in writing about the consequences of further offending in terms of his migration status.
The Applicant has not been convicted of committing a crime while in immigration detention; during an escape from immigration detention; or after an escape from immigration detention.
The Tribunal has taken into account that the Applicant claims that he suffers from depression and that during the time when he was offending he was not taking medication aimed at treating his depression. That the Applicant was suffering from mental illness also appears to have been accepted by the sentencing judge for the Applicant’s 2019 offences. The Tribunal considers that the Applicant’s depression, and his failure to undertake appropriate treatment including by taking medication may provide part of an explanation for the Applicant’s offending. However, the Tribunal does not consider that these issues, of themselves, alter the nature of the Applicant’s offending, or its seriousness.
The Applicant offended relatively frequently over a short period of time in 2018.
While it is difficult to gauge the cumulative effect of the Applicant’s repeated offending, it is safe to say that the Applicant’s violent offending has resulted in a number of members of the Australian community being subjected to violence with the resulting physical and psychological effects this kind of violent offending brings.
The Tribunal finds that the Applicant’s violent conduct is serious and his offences of assault occasioning actual bodily harm are very serious. The Applicant has committed violent offences against a number of members of the Australian community including his mother, former wife and a female commuter on a train.
In addition to the Applicant’s violent offences the Applicant has committed the offences of goods in personal custody suspected of being stolen and possess knife in public place. These offences were far less serious than the Applicant’s violent offences and that is reflected by the punishment meted out to the Applicant in the form of fines.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Subparagraph 13.1.2 of the Direction provides that in considering the risk to the Australian community presented by an Applicant, the Tribunal must have regard to the two sub-considerations listed in paragraph 13.1.2(1) of the Direction cumulatively. They are:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
The Tribunal finds that, if the Applicant were to re-engage in criminal conduct similar to his violent conduct, that is, if he were to attack members of the Australian community it is likely that the nature of the harm to victims would be that they would suffer from violent crime including actual or grievous bodily harm with potential lifelong physical and mental consequences.
If the Applicant were to re-engage in criminal conduct similar to his other crimes, members of the community may be dispossessed of their belongings or be at an increased risk of being harmed by knives in public. However, the Tribunal notes that these offences were relatively minor.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
There is no expert evidence before the Tribunal as to the risk that the Applicant will reoffend. In the sentencing remarks relating to the Applicant’s offence for assault with act of indecency, the sentencing judge remarked on the Applicant’s plea of not guilty and lack of remorse.
The Tribunal has also taken into account that the Applicant pleaded not guilty for three of the four offences for which he was sentenced in 2019. However, the Tribunal notes that at the hearing the Applicant, for the most part, admitted to all of the conduct for which he had been convicted. The Tribunal has also taken into account the Applicant has described his conduct in the past as resulting from “big mistakes” that the Applicant has made. Therefore, while the Tribunal has taken into account that the Applicant has previously refused to accept responsibility for some of his criminal conduct, the Tribunal considers that the Applicant has recently shown some remorse and accepted that he committed the conduct for which he was convicted.
The Tribunal has taken into account the Applicant’s claim that he suffers from depression, sleep deprivation and high blood pressure. The Tribunal has also considered the evidence of the Applicant’s mother that the Applicant suffers from “overthinking”. The Tribunal accepts that the Applicant’s depression and his failure in the past to undertake proper treatment for his depression, including by taking his medication, provide part of an explanation for the Applicant’s past offending. The Tribunal has taken into account that the Applicant claims that he has been seeing a psychologist in immigration detention and taking his medication.
That being said, the Tribunal still has some real concerns that the Applicant will continue to reoffend. First, the Applicant admits that he has not undertaken any rehabilitation courses relating to his offending. Secondly, there is no expert evidence that the Applicant’s offending was caused by his depression, and no expert evidence that any treatment that he is currently undertaking will reduce his risk of reoffending. Thirdly, the Applicant’s mother indicated that the Applicant is easily irritated which in the past has resulted in him becoming violent. There is no evidence to suggest that the Applicant has adequately addressed this significant behavioural problem.
The Tribunal is also concerned that if the Applicant is allowed to remain in Australia that both he and his mother have said that it is planned that the Applicant will reside with his mother. This is a concern as the Applicant’s mother was one of the victims of his violent offending. Indeed, the Tribunal finds that the Applicant’s mother is the most likely potential victim of any reoffending by the applicant. She is certainly the most readily identifiable potential victim.
The Tribunal has considered the statement of the Applicant’s mother in support of the Applicant. The Tribunal accepts that, despite the harm that the Applicant has caused to his mother and consequently to his brothers, the Applicant has the support of his mother. Although neither of the Applicant’s brothers provided statements in support of the Applicant, the Tribunal is willing to accept that the Applicant would receive some support from his brothers if he were allowed to remain in Australia.
The Tribunal has taken into consideration that for most of his adult life in Syria the Applicant worked as a mechanic. The Tribunal has taken into account that the Applicant worked as a mechanic for a month in Australia. The Tribunal is also willing to accept that the Applicant worked as a painter for some time in Australia. The Tribunal considers that there is some prospect that, if the Applicant were to remain in Australia, he would be engaged in work here. This in turn may lessen the risk of the Applicant would reoffend. However, the Tribunal is not overly confident that the Applicant will work if he is allowed to remain in Australia. It appears that he has not been working for most of his time here. The Applicant explained that this was because he was acting as a carer for his mother. It is also apparent that the Applicant has very poor English language skills which may act as an impediment to gaining work in Australia.
The Tribunal is also concerned that the Applicant had the support of his mother and brother’s previously and that this did not deter him from committing offences.
After taking all these matters into account, the Tribunal finds that there remains a real risk that the Applicant will re-offend if he is allowed to remain in Australia.
Conclusion: Primary Consideration A
The Tribunal has found that the Applicant’s violent conduct is serious and his offences of assault occasioning actual bodily harm are very serious. The Applicant has committed violent offences against a number of members of the Australian community including his mother, former wife and a female commuter on a train.
The Tribunal considers that the Applicant’s other offences of goods in personal custody suspected of being stolen and possess knife in public place were far less serious than the Applicant’s violent offences.
The Tribunal has found that, if the Applicant were to re-engage in criminal conduct similar to his violent conduct, that is, if he were to attack members of the Australian community it is likely that the nature of the harm to victims would be that they would suffer from violent crime including actual or grievous bodily harm with potential lifelong physical and mental consequences.
The Tribunal has found that if the Applicant were to re-engage in criminal conduct similar to his other crimes, members of the community may be dispossessed of their belongings or be at an increased risk of being harmed by knives in public. However, the Tribunal notes that these offences were relatively minor.
The Tribunal has found there is real risk that the Applicant will reoffend if he is allowed to remain in Australia.
After giving thoughtful and thorough consideration to this primary consideration, the Tribunal concludes that the primary consideration of protection of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa. The Tribunal considers that the protection of the Australian community and its members are best served by the Applicant no longer being present in Australia.
The Tribunal attributes significant weight against revocation of the cancellation of the Applicant’s visa to the primary consideration of the protection of the Australian community.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Subparagraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is, or is not, in the best interests of a child who may be affected by the cancellation of the Applicant’s visa. Subparagraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Subparagraph 13.2(4) of the Direction provides a list of factors which must be considered under this consideration where relevant. These are:
(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 does not have any children of his own in Australia.
The Applicant has two nephews, aged 3 years and 2 months old respectively, who live in Australia. They are the sons of the Applicant’s brother. The two boys live in Wollongong with their parents. They are cared for by the Applicant’s brother and his wife, the boys’ mother.
The Applicant said that he had not met the younger child. He said that the three-year-old had visited him in detention on two occasions. The Applicant said that he would speak with his brothers every two days and that during these conversations he would also speak with his brother’s three-year-old child.
The Tribunal is willing to accept that is in the best interest of each of the Applicant’s nephews for the Applicant to remain in Australia. Although there is no evidence that the Applicant has ever provided financially for these children, or has ever had a parental role in relation to them, the Tribunal accepts that the Applicant loves his brother’s children very much. The Tribunal accepts that the older boy has visited the Applicant in immigration detention and that he and the Applicant have maintained contact by telephone. The Tribunal considers that, because the elder child has a relationship with the Applicant, it would be in that child’s best interests if the Applicant remained in Australia so that that relationship could continue. The Tribunal accepts that the elder child may be upset if the Applicant was removed from Australia. In addition, the Tribunal accepts that each of the Applicant’s immediate family members, including his mother and his brother, the father of the children, would be distraught if the Applicant were to be removed from Australia. This may in turn have a negative impact on each of the children. In that way, the Tribunal accepts that it is also in the best interests of each of the Applicant’s nephews that he be allowed to remain in Australia.
There is no evidence that the Applicant has ever abused either of these children in any way. There is no evidence of any of the children suffering any trauma arising from the Applicant’s conduct.
Conclusion: Primary Consideration B
For the purposes of this decision, the Tribunal is willing to accept that, it is in the best interests of each of the Applicant’s nephews for the Tribunal to revoke the cancellation of the Applicant’s visa.
As the Applicant does not play a parental role in the lives of any of these children, and is unlikely to do so in the future, the Tribunal places only slight weight in the Applicant’s favour on this consideration.
PRIMARY CONSIDERATION C: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Subparagraph 13.3(1) of the Direction states:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”
How are those expectations determined?
The decisions of Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500 establish that:
·the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of that community;
·it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations; and
·the Government’s views in relation to community expectations are to be found in the Direction itself. It is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community, as it has in the Direction, and for the Tribunal to act on that statement.
These principles were confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction, including the principles in subparagraph 6.3(5) and (7) of the Direction, can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
An application for special leave to appeal to the High Court from the decision of the Full Court was dismissed on 24 April 2020.
In the present case, the Applicant failed to meet the expectation of the Australian community to abide by the law: see subparagraph 13.3(1) of the Direction. This expectation was breached when the Applicant committed numerous offences in 2018.
The Tribunal has considered and taken into account the principles in paragraph 6.3 of the direction including:
·the principle that the Australian community expects that the Australian government should cancel the visas of non-citizens if they commit serious crimes in Australia (see subparagraph 6.3(2) of the Direction); and
·that a non-citizen who has committed a serious crime should generally expect to be denied the privilege of staying in Australia (see subparagraph 6.3(3) of the Direction).
The Tribunal has considered that Australia may afford a higher level of tolerance to 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 (see subparagraph 6.3(5) of the Direction). In the present case, the Applicant arrived in Australia in 2017 as a 41-year-old adult. He began offending in 2018 soon after he arrived. The Applicant has not lived in Australia for most of his life or from a very young age. In those circumstances, the Tribunal considers that the Applicant should not be afforded a higher level of tolerance.

There is very little significant evidence before the Tribunal that the Applicant has made a positive contribution to the Australian community (see subparagraph 6.3(7) of the Direction). There is evidence that he has had some limited employment in Australia. Although the Applicant indicated that he was the carer for his mother, this is diminished by the fact that the Applicant committed a serious violent offence against his mother. The Applicant has also spent very little time in Australia.
The Tribunal has also considered that if the cancellation of his visa is not revoked this will have a negative impact on his mother, his two brothers and his nephews in Australia. The Applicant claimed, and the Tribunal accepts, that his family members are all Australian permanent residents (see subparagraph 6.3(7) of the Direction).
Conclusion: Primary Consideration C
Overall, given the serious nature of much of the Applicant’s offending, the real risk that he will reoffend, and notwithstanding the negative effects on the Applicant and his family members in Australia if the cancellation of his visa is not revoked, the Tribunal finds that the consideration of expectations of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa.
The Tribunal places significant weight on this consideration in favour of non-revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
While the list of “other” considerations in the Direction is not exhaustive, there are five “other considerations” named in the Direction under subparagraph 14(1):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
(a) International non-refoulement obligations (and claims of harm or hardship)
Paragraph 14.1 of the Direction provides:
“(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude non- revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501 CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5) If, however, the visa that was cancelled was a protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class W R) visa (section 501 E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them — sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s protection visa remains cancelled, they would face the prospect of indefinite immigration detention.”
As matters stand, there are currently conflicting authorities in the Federal Court as to whether it will be an error for a decision-maker not to make an assessment as to whether an Applicant is a person in respect of whom Australia has non-refoulement obligations in circumstances where it is open for an Applicant to apply for a Protection visa. It was thought that this issue would be settled by a five-member bench of the appellate jurisdiction of the Federal Court in Minister for Home Affairs v Omar [2019] FCAFC 188 (“Omar”).
In the Omar appeal, a Full Bench of the Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) found that they did not need to decide the issue. However, the result of the Full Court decision appears to be that the answer to the question as to whether it will be an error for a decision-maker not to make an assessment as to whether an Applicant is a person in respect of whom Australia has non-refoulement obligations in circumstances where it is open for an Applicant to apply for a Protection visa, appears to be of less significance than may have previously been thought.
In short, this is because the Full Court in Omar has found that a decision-maker must give meaningful consideration to clearly articulated claims of harm made by the Applicant, including those claims, which if made out, would result in Australia owing non-refoulement obligations in respect of the Applicant. This will include a decision-maker making findings of fact as to whether the feared harm is likely to eventuate by addressing the claims in the way they have been expressed by the Applicant.
The Full Court emphasised the distinction between the harm, or the risk of harm and hardship that a person claims and the assessment of whether a person is one in respect of whom Australia owes non-refoulement obligations. The assessment of whether a person is one in respect of whom Australia owes non-refoulement obligations will depend on a decision-maker’s findings in relation to the harm or hardship that an Applicant may face if returned.
The Full Court found that a decision-maker must give meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm claimed, independently of a claim concerning Australia’s non-refoulement obligations. There has to be active intellectual engagement with the Applicant’s claims relating to the risk of harm. The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed.
The Full Court found that a decision-maker must do more than simply acknowledge or note that claims of harm that have been made. Depending on the nature and content of the representations, the decision-maker may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations.
The Tribunal considers that the result of the Full Court decision in the Omar appeal is that decision-makers must engage properly with, and consider all claims of harm made by an Applicant, including those claims which, if made out, would result in Australia owing non-refoulement obligations in respect of the Applicant. Engaging properly with claims of harm made by an Applicant may require a decision-maker to make specific findings of fact including, whether the feared harm is likely to eventuate. The claims of harm must be addressed in accordance with the way that they have been expressed by the Applicant.
If the Tribunal fails to make a finding on a substantial, clearly articulated argument relying upon the established facts, this can be both a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.[1] The Tribunal must have regard to the representations put as a matter of substance.[2]
[1] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
[2] Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 (Rares and Robertson JJ at [45])
There is no independent information about Syria before the Tribunal.
The Applicant has not made any express claims that his return to Syria will be in breach of Australia’s international non-refoulement obligations.
In relation to any harm or hardship that the Applicant fears if he were to be removed to Syria, in his request for revocation of the cancellation decision form the Applicant stated:
“I love Australia. I have mental illness. I have no family in Syria and all my support network in family are here. I am medicated for my mental illness. Australia is my home.”
In the Personal Circumstances Form which the Applicant submitted with his application for revocation of the cancellation decision the Applicant stated:
“They would kill me there. I would not be able to have medication for my mental issues.
…
I have no Syrian passport. Nothing in Syria. The family house was destroyed in the”
In a statement provided to the Department by the Applicant the Applicant stated:
“I don’t have anyone to go to in Syria and with the ongoing war it will be very hard for me to survive and besides it will be really very hard for me to leave all my family behind and be all alone, I can’t survive that.”
At the hearing the Applicant was directly asked a number of questions by the Respondent’s solicitor as to any fears of harm or hardship in Syria. The following exchange occurred during the hearing :
“MS CRAWFORD:      Why can't you go back to Syria?
INTERPRETER:        Because doctors there are not good. I will not - I will not receive treatment there in Syria, proper treatment. There is no medicine, there is no work in Syria.
MS CRAWFORD:      Is there any other reason you don't want to return to Syria?
INTERPRETER:        Because my family and my brothers are here in – in Australia.
MS CRAWFORD:      Are you - do you have a fear of returning to Syria?
INTERPRETER:        I did not understand.
MS CRAWFORD:      Are you afraid of returning to Syria?
INTERPRETER:        No, I can't go back.
MS CRAWFORD:      Is there any other reason-you can't go back to Syria other than because your family and brother and here and because Syria has no proper treatment and no work?
INTERPRETER:        I don't know what will they do to me if I go back. Maybe they will make me go - maybe they will take me as a soldier.
MS CRAWFORD:      Who is "they"?
INTERPRETER:        Take me as a soldier. I don't know.
MS CRAWFORD:      Why would they take you as a soldier?
INTERPRETER:        Because all the places - in all the places there is - there is war. I want to stay here in Australia. I don't want to go back to Syria. Please.”
During the hearing the Tribunal explained the nature of Protection visas, indicating that if the Applicant was unsuccessful before the Tribunal he could make an application for a Protection visa if he feared persecution of significant harm in Syria. The Applicant indicated that he understood the nature of Protection visas and that he would apply for a Protection visa if he was unsuccessful in these proceedings.
In the absence of any evidence to the contrary, the Tribunal is willing to accept that the Applicant does not have any known family members living in Syria. The Tribunal accepts that the Applicant’s family members in Australia are unlikely to visit him in Syria. The Tribunal accepts that the Applicant’s mother and two of his brothers live in Australia. The Tribunal accepts that the Applicant has a sister who lives in Austria and a brother who lives in Canada. The Tribunal accepts that the Applicant would have no family support in Syria. The Tribunal accepts that the Applicant would be lonely and miss his family members dearly if he were return to Syria.
In the absence of any evidence, the Tribunal is not willing to accept that the Applicant would not be able to undertake treatment for depression, sleeplessness or high blood pressure and Syria. Indeed, the Applicant had said that he had previously been prescribed medication in Syria in relation to his depression. However, the Applicant indicated that he stopped taking his medication when he reached Australia. He also claimed that the medication which he was prescribed was the “wrong” medication.
In addition, the Tribunal does not except that there is no prospect of the Applicant securing employment in Syria. While the Applicant told the Tribunal that he had only completed six years of schooling in Syria, his evidence was that he had been employed for most of his adult life in Syria as a mechanic.
The Tribunal also accepts that the Applicant loves Australia and considers Australia to be his home. The Tribunal accepts that the Applicant would be very upset if he were removed from Australia and returned to Syria where he has no family members and no support network.
The Tribunal is willing to accept the Applicant’s claim that he has no house in Syria as it was destroyed during the war. This is consistent with his mother’s evidence.
While there is no independent evidence before the Tribunal about Syria, the Tribunal considers that it is reasonable to effectively take judicial notice that there is still armed conflict in Syria and that Syria is a particularly dangerous place for the population there.
However, the Tribunal is not convinced that the Applicant’s claims to fear harm in Syria, owing to the armed conflict there, are likely to give rise to international non-refoulement obligations.
The Tribunal is not satisfied that the Applicant would be “taken as a soldier” if he were returned to Syria. There is no information before the Tribunal to support that claim. In addition, the claim was vague and the Applicant was not able to identify who would take the Applicant as a soldier, or why they would do so. Similarly, the Applicant’s claim that “They would kill me there” is very vague and not supported by evidence. The Applicant does not explain who would kill him or why he would be killed.
To the extent that the Applicant’s claim is to fear generalised violence in Syria owing to the conflict, that claim is bound to fail as a claim under the Refugees Convention as the Applicant has not identified a Convention reason for the feared persecution. The claim would also fail as complementary protection claims (ones giving rise to non-refoulement obligations under the ICCPR or the CAT) because there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister (or the Tribunal) is satisfied that the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
The Tribunal considers that any risk of harm of generalized violence that the Applicant may face as a result of armed conflict Syria is a risk faced by the population Syria generally and not faced by the non-citizen personally. The Tribunal considers that there is insufficient evidence before the Tribunal to find that the Applicant’s particular circumstances are such as to differentiate the risk faced by the Applicant owing to armed conflict in Syria, from that faced by the population generally.
While the Tribunal is not satisfied that the non-revocation of the cancellation decision will result in a breach of Australia’s international non-refoulement obligations, the Tribunal has accepted the Applicant’s claims that his removal to Syria will result in great hardship and possible harm to the Applicant. That hardship could include the Applicant being unsupported and without family in Syria, he may have difficulty finding employment and there is the possibility that he may be harmed as a result of the generalised violence in Syria.
Therefore, the Tribunal places significant weight on the harm or hardship that the Applicant is likely to suffer if he is removed from Australia to Syria.
The Tribunal notes that although it has considered the risk that Australia will breach its international non-refoulement obligations if the Applicant’s visa remains cancelled, there is no legal prohibition on the Applicant applying for a Protection visa. During the hearing the Applicant indicated that he understood the nature of Protection visas and that he would apply for a Protection visa if he was unsuccessful in these proceedings.
The Tribunal also notes that any future Protection visa decision maker will not be bound by my findings in this case. There was a distinct lack of evidence before the Tribunal in this case and the claims that the Applicant made were brief and vague. If the Applicant applies for a Protection visa, which the Tribunal finds is very likely if he is unsuccessful in this application, the Applicant will have the opportunity to put on more detailed claims and evidence to support those claims.
(b) Strength, nature and duration of ties
Paragraph 14.2 of the Direction provides:
… Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the noncitizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant first arrived in Australia in 2017 when he was a 41 years old. He has lived here for about three years. The Applicant began offending in 2018, the year after he arrived.
There is very little significant evidence before the Tribunal that the Applicant has made a positive contribution to the Australian community. There is evidence that he has had some limited employment in Australia. Although the Applicant indicated that he was the carer for his mother, this is diminished by the fact that the Applicant committed a serious violent offence against his mother. The Applicant has also spent very little time in Australia and has been in prison or immigration detention since October 2018.
The Tribunal accepts that all of the Applicant’s family members in Australia are Australian permanent residents. The Tribunal accepts that his mother and his two brothers would be distraught if the Applicant was removed from Australia. This is especially so given they would have some understanding of the difficulties faced by those in Syria at present. The Tribunal is willing to accept that they would be worried for the health and safety of the Applicant in Syria.
The Tribunal is also willing to accept that if the Applicant were to remain in Australia, he may provide emotional and other support to his family members, especially his mother. The Tribunal has taken into account that his family members, including his mother, have had to make do without the Applicant’s direct support for some time as a result of his imprisonment and detention.

Overall, the Tribunal finds that the Applicant does not have significant ties to Australia. He has lived here for only three years and he has been in prison or immigration detention since October 2018. He began offending soon after arriving and has not spent any significant time contributing positively to the Australian community. Of course the Applicant has strong family links to his mother, two brothers and two nephews who are all permanent residents.
The Tribunal finds that this consideration weighs in favour of the revocation of the decision to cancel Applicant’s visa. The Tribunal places slight weight on this consideration in the Applicant’s favour.
(c) Impact on Australian business interests
This consideration is not relevant in this matter and the Tribunal places no weight on this consideration.
(d) Impact on victims
Subparagraph 14.4(1) of the Direction provides:
“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.”
It is likely that this consideration was envisaged to take into account any expressed views of members of the Australian community, in particular victims or members of their families, on the positive impact on them of a decision not to revoke the cancellation of an Applicant’s visa.
This appears to be a rare case where one of the victims of an Applicant’s most serious offending has expressed that she wishes for the cancellation of the Applicant’s visa to be revoked. That is, that a decision not to revoke the cancellation of the Applicant’s visa would have a severe negative impact on one of the victims of the Applicant’s offending. In this case, the Applicant’s mother is one of the victims of the Applicant’s most serious offending. The Tribunal considers that she is the most likely potential victim of any future violent offending.
The Applicant’s mother has expressed that she dearly wishes for the Applicant to be able to remain in Australia.
However, as the Applicant’s mother is the most likely potential victim of any future violent offending and the Tribunal has found that there is a real risk that the Applicant will reoffend, it is not clear that a decision not to revoke will necessarily have an overall negative impact on the Applicant’s mother. In addition, there is no evidence as to the impact of a non-revocation decision on the other victims of the Applicant’s violent offending.
In those circumstances, the Tribunal considers that the prudent course of action is to place no weight on this consideration.
(e) Extent of impediments if removed
Paragraph 14.5 of the Direction provides:
(1) 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 44 years of age. The Applicant suffers from depression, sleeplessness and high blood pressure. There is no evidence before the Tribunal that suggests that the Applicant could not be treated for his medical conditions in Syria. Indeed, the Applicant indicated that he was prescribed medication for his depression in Syria but that he stopped taking the medication in Australia, and that, in any event, it was the wrong medication.
The Applicant has lived almost his whole life, until the age of about 40, in Syria. The Tribunal finds that there would be no language or cultural barriers which would act as impediments to the Applicant establishing himself in Syria.
While the Applicant has only completed six years of education in Syria, he gave evidence that for most of his adult life he worked as a mechanic in Syria. The Tribunal considers that the Applicant’s extensive work history in Syria as a mechanic would help them find work as a mechanic in Syria. The Applicant also has some very limited work experience in Australia.
The Applicant would have no family support or community network in Syria. There is no evidence that the Applicant would be supported by the Governments of Syria as he has been in Australia.
The Tribunal has found that the Applicant is likely to suffer hardship if he returns to Syria. That hardship could include the Applicant being unsupported and without family in Syria, he may have difficulty finding employment and there is the possibility that he may be harmed as a result of the generalised violence in Syria. The Tribunal also considers that there is a possibility that the applicant may self-harm if he is removed to Syria as claimed by his mother.
The Tribunal finds that this consideration weighs against cancellation of the Applicant’s visa. The Tribunal attributes significant weight to this consideration in the Applicant’s favour. The Tribunal notes that it has already made very similar findings in relation to the hardship or harm to the Applicant. To the extent that these considerations overlap, the Tribunal has not doubled up on the weight that it has afforded these types of hardship considerations.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
The Tribunal has found that the primary consideration of the protection of the Australian community weighs significantly against revocation of visa cancellation. The Tribunal has found that much of the Applicant’s offending was serious, that there would be great harm to members of the Australian community if they were repeated and that there is a real risk that the Applicant will re-offend. The Tribunal has also found that the consideration of the expectations of the Australian community weighs significantly against revocation of visa cancellation, notwithstanding the hardship to the Applicant and his family that non-revocation would cause.
The Tribunal has found that the primary consideration of the best interests of minor children, in this case, each of his two young nephews, weighs slightly in favour of revocation of the cancellation decision.
The Tribunal has found that the consideration of Australia’s international non-refoulement obligations is a neutral consideration in this case.
The Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia weighs in favour of revocation of the cancellation decision and attributed slight weight to this consideration. The Tribunal has found that the consideration of the extent of impediments if removed weighs in favour of revocation of the cancellation decision and attributed significant weight to this consideration. Finally, the Tribunal has found the consideration of hardship to the Applicant weighs in favour of revocation of the cancellation decision and has attributed significant weight to this consideration.
After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh all other considerations in the Applicant’s favour. In all the circumstances in this case, the Tribunal finds that the risk of future harm from the Applicant is unacceptable.
The Tribunal has found that the Applicant does not pass the character test and that there is not another reason why the cancellation decision should be revoked.
Therefore, the Tribunal finds that the Minister’s delegate’s decision, to refuse to revoke the decision to cancel the Applicant’s visa, is the correct decision.
DECISION
The decision under review is affirmed.

I certify that the preceding 189 (one hundred and eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati

.........................[sgd]..............................................
Associate
Dated: 28 April 2020

Date of hearing:

6 and 7 April 2020

Applicant:

Self-represented by video link

Solicitor for the Respondent:

K Crawford, Clayton Utz by video link

Attachment A
EXHIBIT REGISTER
File No: 2020/0673................................................................................................................
Between: CLXZ...................................................................................................... (Applicant)
And:Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs........................................................................................................... (Respondent)

Heard on: 6 and 7 April 2020

Exhibit Number Description of Evidence

G1

Section 501G Documents received 19 February 2020 (Paged 1 to 278)

R1

Respondent’s Tender Bundle received 13 March 2020 (Paged 1 to 28)

[2020] AATA 1001

28 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Court	Court Date	Offence	Court Result
Wollongong Local Court	13 May 2019	Assault occasioning actual bodily harm (DV)	Convicted and sentenced to 13 months imprisonment with a non-parole period of 7 months
Contravene prohibition/restriction in AVO (Domestic)	Community Correction Order 2 years
Assault with act of indecency	Convicted and sentenced to 12 months imprisonment with a non-parole period of 4 months
Assault occasioning actual bodily harm (DV)	Community Correction Order 2 years
Downing Centre Local Court	21 Nov 2018	Goods in personal custody suspected of being stolen	Fined $500
Custody of knife in public place	Fined $150

Date of hearing:	6 and 7 April 2020
Applicant:	Self-represented by video link
Solicitor for the Respondent:	K Crawford, Clayton Utz by video link

Exhibit Number	Description of Evidence
G1	Section 501G Documents received 19 February 2020 (Paged 1 to 278)
R1	Respondent’s Tender Bundle received 13 March 2020 (Paged 1 to 28)