CRJH and Minister for Immigration and Multicultural Affairs (Migration)

[2024] ARTA 276

CRJH and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 276 (13 November 2024)

Applicant/s:  CRJH

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2024/6220

Tribunal:R Cameron, General Member

Place:Melbourne

Date:13 November 2024  

Decision:Pursuant to s 105 of the Administrative Review Act 2024 (Cth), the Tribunal sets aside the decision under review and in substitution decides:

A.there is ‘another reason’ why the decision to cancel the visa should be revoked.

.................................[sgd].......................................

Member

Catchwords

MIGRATION – mandatory visa cancellation – decision of delegate of Minister not to revoke mandatory cancellation of the applicant’s Class XB Subclass 200 Refugee (Humanitarian) visa – character test – substantial criminal record – recklessly cause serious injury – applicant convicted of other crimes as a youth offender– Applicant is a 22-year-old citizen of Iraq who arrived in Australia when he was 14 years of age – Direction No 110 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct conceded to be serious as physical acts of violence – risk to the Australian community –  applicant has a history of post-traumatic stress disorder, alcohol and drug abuse and mental health issues relating to anger management – applicant demonstrated to have maturity, insight, and self-awareness into offending and risks of re-offending - best interests of minor sister– Australia’s international non-refoulement obligations to Iraq arise by reason of being a young Sunni male with Palestinian ethnicity – links to the Australian community – strength, nature and duration of ties to Australia – applicant has supportive and strong family ties – Tribunal not to defer consideration of non-refoulement – applicant unlikely to be granted protection visa - applicant could remain in immigration detention for many years – Reviewable Decision set aside and substituted – another reason why the decision to cancel the visa should be revoked.

Legislation

Administrative Review Act 2024 (Cth) 

Migration Act 1958 (Cth)

Sentencing Act 1991 (Vic)

Cases

Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Thornton (2023) 409 ALR 234
Lesianawai v Minister for Immigration, Citizenship & Multicultural Affairs [2024] HCA 6
FYBR v Minister for Home Affairs (2019) 272 FCR 454
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396
DWBG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17

Secondary Materials

Minister for Immigration, Multicultural Affairs, Migration and Citizenship, Direction No 110: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (21 June 2024)

Department of Foreign Affairs and Trade, Country Information Report Iraq (16 January 2023)

Statement of Reasons

INTRODUCTION

1. The applicant seeks a review of a decision made on 21 August 2024 by a delegate of the respondent which determined that there was not another reason to revoke the mandatory cancellation of the applicant’s Class XB Subclass 200 Refugee (Humanitarian) visa (‘the visa’) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’) (‘the reviewable decision’).

2. The applicant is a citizen of Iraq. He is presently 22 years of age having been born on 19 September 2002. He first arrived in Australia on 14 December 2016 as a 14-year-old. He has resided here ever since.

3. The visa was cancelled pursuant to the provisions of s 501(3A) of the Act on 9 February 2021.

   THE EVIDENCE AND MATERIAL BEFORE THE TRIBUNAL

4. There was both documentary and oral evidence before the Tribunal.

5. The following witnesses gave oral evidence:

   (a)The applicant;[1]

   (b)The applicant’s father;[2]

   (c)The applicant’s sister;[3] and

   (d)Ms Pamela Matthews, a forensic psychologist.[4]

   [1] The applicant made a witness statements dated 30 September 2024 and 25 October 2024 which were in evidence before the Tribunal, together with statutory declarations dated 28 September 2021, 13 January 2023 and 31 July 2024 previously made by him which were in the G documents.

   [2] The applicant's father made a witness statement dated 30 September 2024 which was in evidence before the Tribunal at JTB. 27, together with a statutory declaration dated 27 September 2021 previously made by him at G, 228.

   [3] The applicant’s sister also made a witness statement dated 30 September 2024 which was in evidence before the Tribunal at JTB, 30, together with a statutory declaration dated 27 September 2021 previously made by her at G, 237.

   [4] There was a Risk Assessment Report prepared by Ms Matthews, that was in evidence before the Tribunal and dated 29 October 2024 at JTB, 1.

6. The documentary evidence consisted of a Joint Tribunal Book (‘JTB’) together with the ‘G’ documents.

7. Both the applicant and the respondent lodged detailed Statements of Facts, Issues and Contentions.

   THE RELEVENT SECTIONS OF THE MIGRATION ACT

8. Section 501(3A) of the Act, specifies that the Minister (or their delegate) 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.

9. The character test prescribed by s 501(3A)(a) is set out in s 501(6) of the Act. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by s 501(7) of the Act). For the purposes of s 501(6)(a) of the Act, and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[5]

   [5] Migration Act 1958 (Cth), s 501(7)(c).

10. Where a visa has been cancelled, as set out above, the Minister has a power under s 501CA(4)(b) of the Act to revoke the cancellation decision if satisfied, after the person has made representations to them, that the visa holder passes the character test, or that there is ‘another reason’ why the original decision should be revoked.

11. Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2A) of the Act, comply with a relevant direction. Currently, the applicable direction that the Tribunal as decision-maker must apply, made by the Minister on 7 June 2024, is Direction No. 110 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 110’).[6]

    [6] Direction 110 commenced on 21 June 2024.

    ISSUES BEFORE THE TRIBUNAL

12. There is sufficient evidence before the Tribunal to demonstrate that the applicant has made representations to the respondent in compliance with s 501CA(4)(a) of the Act.[7]

    [7] See, G3 Attachments E2 to O for details of the representations made by the applicant to the respondent which were considered by the delegate of the respondent in making the reviewable decision. The representations included, amongst other things, detailed submissions from WLW Migration Lawyers dated 28 September 2021 and 16 January 2023 together with several statutory declarations from the applicant's father, mother, elder and younger sisters. Naturally they have been considered by the Tribunal.

13. Therefore, two issues remain for determination by the Tribunal as follows:

    (e)whether the applicant passes the character test; and

    (f)if he does not, whether there is ‘another reason’ why the decision to cancel the visa should be revoked.

    THE CHARACTER TEST

14. The applicant does not pass the character test. He does not do so, by operation of s 501(6)(a) and s 501(7)(c) of the Act, as he has a ‘substantial criminal record’, having been sentenced on a charge of recklessly causing serious injury to a term of imprisonment of 12 months or more in the County Court of Victoria on 25 January 2023, namely 20 months imprisonment. He was also convicted on several charges including possessing a controlled weapon without an excuse, committing an aggravated burglary with an offensive weapon, breach of a youth attendance order, assault with a weapon, assault by kicking, throwing a missile injure/danger/damage property, affray and intentionally causing injury and robbery. He was sentenced to a term of imprisonment of 12 months or more at the Geelong Children’s Court on 9 December 2020 when he was ordered to be detained in a Youth Justice Centre for a period of 16 months as an aggregate sentence.

15. It should also be recorded that in the applicant’s Statement of Facts, Issues and Contentions lodged with the Tribunal in this application and dated 1 October 2024, at paragraphs 4 and 37 of that document, it is accepted that the applicant does not pass the character test as defined in sub-section 501(6) of the Act.[8]

    [8] See also , a submission to the National Character Consideration Unit dated 28 September 2021 from WLW Migration Lawyers, in support of a request for revocation of the mandatory cancellation of the visa also acknowledged that the applicant did not pass the character test as set out under s 501(6) of the Act as he was serving a full-time sentence of imprisonment of greater than 12 months at the time his visa was cancelled (G26,178).

    AN INTRODUCTION TO DIRECTION 110

16. Since its commencement, there has been much attention paid to Direction 110. At the outset in undertaking the tasks cast upon it, in an application such as this, reference should be made to several of its provisions which guide decision-makers when applying Direction 110, such as the Tribunal. This overview is of course in no way exhaustive, and no substitute for careful consideration and application of each of its provisions. Several of those provisions warrant mention at this stage of the process.

17. Paragraph 4 Interpretation’, provides a definition of several expressions or terms that are referred to in the ‘primary’ and ‘other’ considerations that the Tribunal is obliged to apply.

18. ‘Family Violence is in paragraph 4, and is expressed to mean violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful. Examples of behaviour that may constitute family violence include, an assault, a sexual assault or other sexually abusive behaviour.

19. Paragraph 5.2 ‘Principles’, provides the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act. These ‘Principles’ include the following:

    (1)  Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to 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 safety of the Australian community is the highest priority of the Australian Government.

    (3)  Non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in, Australia.

    (4)  The Australian community expects that the Australian Government can and should refuse entry to non-citizens or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (5)  Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (6)  With respect to decisions to refuse, cancel, and revoke cancellation of a Visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    (7)  Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

    (8)  The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

20. Paragraph 6 ‘Making a decision’, provides that informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

21. Paragraph 7 ‘Taking the relevant considerations into account’, provides that:

    (1)  In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (2)  The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

    (3)  One or more primary considerations may outweigh other primary considerations.

22. Paragraph 8 ‘Primary considerations’, provides that in making a decision under, amongst others, s 501CA(4), the following are primary considerations:

    (1)  protection of the Australian community from criminal or other serious conduct;

    (2)  whether the conduct engaged in constituted family violence;

    (3)  the strengths, nature and duration of ties to Australia;

    (4)  the best interests of minor children in Australia;

    (5)  expectations of the Australian community.

23. Paragraph 9 ‘Other considerations’, provides that in making a decision under s 501CA(4), amongst other sections , , the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

    (a)legal consequences of the decision;

    (b)extent of impediments if removed;

    (c)impact on Australian business interests.

    SOME INITIAL OBSERVATIONS CONCERNING THE EVIDENCE GIVEN BY THE WITNESSES AT THE HEARING OF THE APPLICATION

24. As recorded above, several witnesses gave evidence from the witness box in addition to making statements. It is appropriate at this stage of the reasons to make some initial observations about each of those witnesses. Further specific references will be made to certain parts of those witnesses’ evidence later.

25. There were some considerably detailed submissions in the Applicant’s Statement of Facts, Issues and Contentions concerning the topic of ‘Evidentiary Principles’ to be applied in making findings of fact in this application.[9] The substance of those submissions need not be reiterated for the purpose of these reasons. However, brief mention should be made concerning the question of ‘unchallenged evidence’, or competing evidence, particularly if such competing evidence was confined to documents.

    [9] A SFIC, [40] – [67].

26. The Tribunal considers that it should accept the evidence of both the applicant together with his father and sister. They were credible witnesses and in cross examination there was not any real challenge to the evidence they gave. Further details will be provided later in these reasons concerning the evidence given by them, and why the Tribunal accepts it. This is particularly in the case of the applicant.

27. The applicant’s Statement of Facts, Issues and Contentions submitted that the Tribunal should place no weight on documents containing charges or summaries of alleged offending by him.[10] The applicant in cross-examination admitted the contents of those documents that were put to him contained accurate details of his offending. Therefore, given these admissions the Tribunal is entitled to accept the contents of those documents in terms of the descriptions of the applicants offending.

    [10] A SFIC, [63] – [67].

28. The applicant gave evidence and was searchingly cross-examined. The Tribunal formed a favourable view of him as a witness for several reasons. He did not deny all aspects of his offending, or attempt to downplay it, or otherwise put some gloss on it, so as to portray the offending in a different light. It became apparent that the lengthy periods that the applicant has spent both in custody and immigration detention, away from his family, to whom he is clearly strongly attached have had a salutary effect upon him.

29. It was also apparent that the applicant’s evidence was given after having carefully reflected on the gravity of his offending, the stupidity of his acts and overall, how he has wasted many of his important formative years. The extended time that he has been separated from his family over those years have clearly had considerable impact on him.

30. Having carefully reflected on the gravity of his offending, the wasted years and the suffering that he has caused several of his victims, indicated that the applicant in deeply thinking about what he has done, has gained a strong and appropriate level of insight into his offending, its causes and the need to develop preventative strategies or tactics in the future to ensure that he does not offend again. He expressed remorse for his offending on several occasions throughout his evidence. Having had the opportunity to observe the applicant in the setting of the witness box, the Tribunal concludes that these expressions of remorse were bona fide and genuine. They were made, as noted, after deep and careful contemplation and reflection on the impact of his offending, particularly on his victims.

31. Coupled with this level of insight that the applicant has developed concerning his offending is also the realisation, as has been the case, that such offending has had for him in terms of immigration and visa consequences. The threat of deportation or removal to Iraq, a country that he left when he was 4 years of age has been hanging over his head like a proverbial “legal sword of Damocles” for just short of 5 years. That threat has caused the applicant to think very deeply about the consequences of his actions, and for that matter, any future actions. He recognises that if this application is successful, there can be little doubt, that it really will be his last chance.

32. Another feature of the applicant’s evidence that emerged, that warrants comment, was the fact that he recognises the profound hurt, stress and extreme worry that he has caused his parents and siblings. They have continued to support him despite the fact that he has repeatedly let them down by reason of his pattern of lawbreaking. The impact of the applicant’s failings on his family was particularly evident with respect to his father who has had significant challenges due to serious injuries that he sustained in a motor vehicle accident some years ago. At a time when his father needed him due to the injuries suffered, the applicant was not there to help. The time that the applicant has been in custody and immigration detention separated from his family, who dearly love him, has caused him to gain a very deep appreciation of what he has done to them. He sincerely regrets it, and it appears to this Tribunal that he has a deep-seated commitment to trying to make amends in the future.

1. The applicant’s father gave his evidence in a candid and unblemished way. In many respects his evidence was compelling. On occasion he struggled to maintain his composure. He described leaving Iraq when the applicant was four years old and moving to Syria. In both countries he and the applicant experienced firsthand dreadful conflict and its consequences. The applicant’s father wanting a better and safer life for his wife and children took steps that were ultimately successful in moving to Australia. The applicant’s problems have contributed to his father’s diagnosed mental health conditions of anxiety and depression, for which he is seeing both a psychiatrist and a psychologist. Despite all the applicant has done, his father is completely supportive of him and committed to doing anything he can to assist him rehabilitate himself and make a positive contribution to society in the future. Presently, the applicant’s father speaks with him every day and has endeavoured throughout the period that the applicant has been in custody or immigration detention to maintain contact with him to the maximum possible extent. The Tribunal has no doubt that the applicant’s father, notwithstanding the applicant’s history of offending, is and will continue to play a positive role in the applicant’s life.

2. The applicant’s older sister gave evidence and was a decent and credible witness. She explained that she has a very strong bond with her brother. Like her father, she has continued to support the applicant notwithstanding some of the appalling things that he has done, of which she was fully aware. Whilst the applicant has been in custody and immigration detention, she has endeavoured to maintain contact with him to the maximum possible extent. Presently, she speaks to him every day by phone or text message and visits him every week. The Tribunal concludes that she is a positive influence on the applicant. She is dedicated to supporting the applicant and assisting him in any way she possibly can; particularly if the applicant is released into the community.

3. Ms Matthews is a highly qualified and vastly experienced forensic psychologist. She has had lengthy experience in the criminal justice system, including prisons and youth justice centres. She clearly understood that her paramount obligation was to assist the Tribunal, which she did. Ms Matthews was carefully and searchingly cross-examined by Mr Johnson. Her evidence was not in any way diminished or otherwise limited by her responses given in cross-examination. She made appropriate concessions when called for and was in no way acting as an advocate for the applicant. The professional opinions expressed by her both from the witness box, and in her report of 29 September 2024, were given by reason of her expertise, store of knowledge and experience. They were genuinely held professional opinions, responsibly given. The Tribunal found her to be a most impressive witness and of much assistance in determining this application.

   THE APPLICANT’S OFFENDING

4. For a comparatively young man the applicant has a significant history of offending. On several of the occasions that he has been convicted of offences, he has been sentenced to serve terms in custody.[11]

   [11] See, details of the applicant’s offending are contained in a National Criminal History Check, G7, 46.

5. In terms of the applicant’s history of offending there is a matter that should be addressed at this stage of these reasons. During an exchange between the Tribunal and counsel for both the applicant and the respondent the Tribunal’s attention was drawn to several decisions of the High Court of Australia concerning the sentencing of minors for certain offences. The National Criminal History Check for the applicant contained reference to appearances that the applicant had made before the Victorian Children’s Court on three occasions. On those occasions he was released on a Youth Supervision Order. The High Court of Australia when addressing comparable legislation in both Queensland and New South Wales has held that a finding of guilt in such circumstances is not taken to be a conviction for any purpose including the purpose of considering whether to revoke the cancellation of a visa.[12]

   [12] The cases concerned are Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Thornton (2023) 409 ALR 234, [36] (Gageler and Jagot JJ); Lesianawai v Minister for Immigration, Citizenship & Multicultural Affairs [2024] HCA 6, [22], [32] – [46] (Beech-Jones J).

6. Given the effect of those decisions the Tribunal will not consider those matters as part of the applicant’s history of offending for the purposes of this application.

7. Another significant feature of the applicant’s offending is that there are a disturbing number of convictions for crimes of violence. At least two  convictions involved crimes against an emergency worker.

8. All of the applicant’s convictions, save for the last two in the Melbourne County Court on 25 January 2023 and the Kyneton Magistrates’ Court on 11 May 2021, are recorded as being in the Childrens’ Court.

9. Given the applicant’s lengthy criminal history it is appropriate to reproduce details of that history in tabular form.

DATE	COURT	CHARGE	SENTENCE
26-01-2023	Melbourne County Court	Recklessly cause serious injury.	20 months imprisonment.
11-05-2021	Kyneton Magistrates’ Court	Criminal damage (Intent damage/destroy).	With conviction, fined $500.00. Pay compensation $2,000.00.
9-12-2020	Geelong Childrens’ Court	Unlawful assault. Theft. Assault emergency worker on duty (2 charges). Threaten to assault emergency worker. Obstruct emergency worker on duty.	Convicted and ordered to be detained in a Youth Justice Centre for a period of 16 months. Aggregate sentence.
9-12-2020	Geelong Children’s Court	Possess controlled weapon without excuse.	Convicted and ordered to be detained in a Youth Justice Centre for a period of 16 months. Aggregate sentence.
9-12-2020	Geelong Children’s Court	Aggravated burglary-Offensive weapon.	Convicted and ordered to be detained in a Youth Justice Centre for a period of 16 months. Aggregate Sentence.
9-12-2020	Geelong Children’s Court	Breach of Youth Attendance Order. Breach re 4-12-2019. Assault with weapon. Assault by kicking. Throw missile injure/danger/damage property. Affray. Intentionally cause injury. Robbery (2 Charges). Theft-from shop (Shopsteal).	Proven. Breach of Youth Attendance Order. Order cancelled. Aggregate 8 months Youth Justice Centre. 5 months of sentence concurrent.
4-12-19	Geelong Children’s Court	Dishonestly taking and retaining stolen goods. Assault by kicking. False imprisonment (Common Law). Unlawful assault. Theft. Theft of a motor vehicle. Unlicensed driving.	On each charge: convicted and ordered to be detained in a Youth Justice Centre for a period of 8 months.
4-12-2019	Geelong Children’s Court	Home invasion (steal) -Offensive weapon.	Convicted and ordered to be detained in a Youth Justice Centre for a period of 8 months.
4-12-2019	Geelong Children’s Court	Armed robbery. Attempt to commit indictable offence. Obtain financial advantage by deception. Theft from shop (Shopsteal). Theft of bicycle. Commit indictable offence while on bail (2 Charges).	Convicted and ordered to be detained in a Youth Justice Centre for a period of 25 days. Cumulative order upon all other directions for detention presently being served.
4-12-2019	Geelong Children’s Court	Robbery. Make threat to kill. Commit indictable offence whilst on bail.	Convicted and ordered to be detained in a Youth Justice Centre for a period of 38 days.  Cumulative order upon all other directions for detention presently being served.

1. Details of most of the applicant’s offending were not in dispute. To the applicant’s credit when the contents of prosecutorial documents were shown to him and read to him in cross examination, he readily conceded that those documents accurately recorded the details of each of his offences that were the subject of such cross examination. These documents included summaries of evidence together with statements made by the respective informants as part of the preliminary briefs of evidence relied on by the prosecution. Reference should be made to the facts concerning several of his offences.

2. The most serious offence for which the applicant was sentenced in the Melbourne County Court on 25 January 2023 and received a sentence of 20 months imprisonment was for a charge of recklessly causing serious injury. The offending occurred whilst the applicant was an inmate of the Malmsbury Youth Justice Centre. It occurred on 7 June 2021.[13] He asked a Youth Justice worker for a toothbrush, toothpaste and a bottle of roll-on deodorant. Upon taking possession of the items, he removed the cap from the toothpaste and squirted it all over the common room wall and floor. The Youth Justice Worker on multiple occasions requested the applicant to clean up the mess that he had caused. He refused to do so. The applicant was described as becoming verbally aggressive towards the victim. The victim then activated a duress button or alarm seeking assistance.

   [13] See, the details of this offending which are found in a ‘Statement of Material Facts of Charges’, G22. 142.

3. The applicant then in what was described as ‘an unprovoked attack’ whilst holding the bottle of roll-on deodorant in his hand used it to strike the victim twice to the face in the left cheekbone and nose area. The entire incident was captured on closed circuit TV.

4. The victim sustained a bruised and swollen left eye which he was unable to open, a swollen nose and cuts to his top lip with blood around his nose and mouth. He was conveyed to the Bendigo Base Hospital and diagnosed with a fractured left eye socket and nose. Further, it was determined that the victim’s eyesight had been affected in the left eye. Over one month later, the victim was still experiencing double vision. Additionally, the victim required surgery to repair his fractured left eye socket and nose.

5. The applicant’s actions were unprovoked, cowardly and nothing less than wanton acts of mindless thuggery. His victim suffered appalling injuries. There is simply no excuse for such behaviour. There are likely to be long-term after-effects on his victim.

6. Other offences were committed by the applicant on 30 May 2019. Once again, the contents of a ‘Hand up Brief - Summary of Charges’ was put to the applicant in cross examination and he did not dispute its contents.[14] The applicant and a co-accused entered residential premises wearing hooded jumpers and bandannas covering their faces. They were armed with knives of approximately 20 cm in length. The applicant and his co-accused bound the victim’s hands with duct tape, covered his head with a blanket and used an electrical cord to tie? the blanket in place around his head. They then stole numerous items including phones, credit cards and car keys. Upon stealing the items, they demanded passcodes for the phone and debit cards they had stolen. To enforce those demands when asking for information of passcodes and alike, they accused the victim of lying and warned of the consequence the victim would encounter if they did not comply.

   [14] See, the Summary of Charges for details of the applicant's offending, G15, 105.

7. One of the offenders punched the victim several times to the head. At the same time another one of the offenders put a knife to the victim’s throat under the blanket saying words to the effect “[a]re you lying to me, do you know what will happen if you lye [sic] to me?”. They then stole car keys to a relatively late model Mercedes-Benz and used those keys to subsequently steal the car. The applicant drove the car whilst unlicensed. He was in company with his co-offender. Police observed the car later and attempted to intercept it. However, it was involved in a collision. The applicant and his co-accused then fled the scene after the collision. They were subsequently arrested. The applicant did make full admissions to his offending.

8. Once again, this was appalling offending on the part of the applicant for which there can be no excuse. One cannot imagine the fear that must have been experienced by the victim, of yet again, another act of wanton violence and mindless thuggery. The threats made to the victim would, more probably than not, have engendered in him a genuine fear for his life. It is plainly unacceptable.

9. Another incident which led to the applicant being convicted occurred at the Parkville Youth Justice Centre on 3 June 2019. The details are also contained in a ‘Statement Made by Informant’ which was put to the applicant in cross examination.[15] He agreed with its contents and said that it fairly summarised his actions on that day. In short, a fellow inmate of that Youth Justice Centre had been causing difficulty with other inmates. He was restrained by guards at that institution who are part of what is known as the Security and Emergency Response Team. The victim was restrained by members of that team on the ground. The applicant too had been sitting nearby on a communal couch and then without warning, whilst the victim was restrained by the guards on the ground, stood up, ran towards the victim and stomped on the victim’s head three times before other officers at the Youth Justice Centre restrained him. The incident was also recorded on closed circuit TV.

   [15] G16, 115.

10. Yet again, this incident reflected a spontaneous and violent act on the part of the applicant. Whatever the back story to the incident may have been it does not in any way justify it. Attacking the victim whilst he was restrained and, on the ground, also, in addition to it being an act of gratuitous violence and mindless thuggery indicates a significant element of cowardice. It does not reflect well on the applicant. It also reflects a pattern of behaviour which, the Tribunal put to the applicant in questioning, reflects him having a very ‘short fuse’. One also should not underestimate the potential for such actions to have had far more severe consequences. Stomping on an individual’s head, as the applicant did, posed a distinct and real risk that the victim could have suffered significant injuries. In the scheme of things, it is fortunate that the victim did not.

11. There was another act of violence that occurred at the Parkville Youth Justice Centre that was committed by the applicant on 30 October 2019. This was also recorded in a ‘Statement made by Informant’ as part of a Preliminary Brief.[16] In what once again appeared to be an unprovoked attack the applicant walked up to his victim and struck him across the left-hand side of his face with a ping-pong bat. The victim was injured and incurred a small cut on his lip.

    [16] G17, 118.

12. With respect to this act the applicant did offer an explanation, or background, to the incident with the ping-pong bat. It probably should for the sake of completeness be mentioned. The genesis of the incident occurred earlier in the day when the victim approached the applicant and requested to borrow some gym gloves for the purposes of training. The applicant agreed to lend the gloves to the victim. They went to the applicant’s room to retrieve them. The applicant gave the gloves to the victim. Upon doing so the victim told him that he would not be returning them. The applicant asked the victim why not and the victim’s response was that ‘there are 10 of us and 1 of you’. The applicant explained that the victim informed him that he was going to get his friends to ‘jump him’. He stated he was scared all day and resolved to, in effect, get them before they got him.

13. He conceded in cross-examination that hitting the victim with the ping-pong bat might well have led to an escalation of violence within the Youth Justice Centre. To his credit, he conceded he was not really thinking about that because of the tensions within the Parkville Youth Justice Centre at that time. Apparently, the victim was a member of what was known as the ‘MTS Gang’. ‘MTS’ is an abbreviation for the gang’s full name ‘Menace to Society’. The applicant explained that this gang were enforcing their will in the Parkville Youth Justice Centre every day. He further explained that, overall, they were standing over everyone who was not in their gang. As he put it ‘every day you would have to look over your shoulder’. In cross-examination he explained that he was scared. He was scared about what 15 of the gang members might do to him. On one occasion in his evidence, he stated ‘I had seen them jumping on heads’. The applicant stated that prior to this occasion he had at least once tried to protect himself by remaining in his room, for 20 days straight.

14. The applicant did however agree that his actions in striking the victim with the ping-pong bat was an aggressive action. He also agreed in response to a question in cross-examination that he took the action in striking the victim with the ping-pong bat to deal with a threat that he perceived was coming to him.

15. At a certain level, the Tribunal can understand what might have motivated the applicant to strike the victim with the ping-pong bat as he did on that day. Youth Justice Centres, including Parkville, are challenging places. Ms Matthews the forensic psychologist who gave evidence at the hearing of the application, and is vastly experienced with these institutions, reiterated this point several times. It is also well-known that in institutions such as this, relatively organised gangs can and do stand over other inmates, engage in wanton acts of violence and assert their authority in many ways. To this extent, whilst it may not justify the applicant’s recourse to violence with the ping-pong bat it does give it some context and is understandable. Nonetheless, it is unfortunate that the applicant did not think more carefully and not react in the spontaneous way he did. It is yet again an example of a loss of temper, self-control or the ‘short fuse’ reaction.

16. The applicant was also taken to a Statement made by Informant concerning offences that took place on 28 April 2020.[17] The applicant did not dispute the contents of the statement. He readily conceded that in company with others he attended a hotel in Corio. However, he stated that he was taking prescription drugs on that occasion and was blacking out. Apart from what he recounts, he was unable to remember what happened. He conceded that he remembered arriving at the hotel room, getting into a fight and being arrested. He later pleaded guilty to all the charges prior to any trial.

    [17]G18, 120.

17. The circumstances were that the applicant in company with others kicked the door of a hotel room open and dragged a victim outside. A scuffle ensued and the victim was assaulted. The victim endeavoured to break free to make good and escape and was stabbed in the rib area with an edged weapon, apparently by the applicant. The applicant then removed a bag that the victim had strapped to him. It contained various cards and other personal items. The victim was subsequently transferred to Geelong Hospital and treated for stab wounds to his right rib area. The injuries were described as a ‘haemopneumpthorax [sic] to the right rib and lung area, a small laceration to his liver and soreness to his head’. Video footage of the incident was recovered by the police.

18. These events were dreadful acts of violence, they could have had far more serious consequences. The gravity of the applicant’s offending can only be amplified by the fact that he was armed with a knife, profoundly affected by drugs and clearly prepared to use the knife wantonly to enforce his demands. It is once again, a mindless and indefensible act of violence and mindless thuggery. There is one other matter that reference should be made to arising from the acts of that day. Apparently, the people that he was associating with when these acts were committed were thoroughly undesirable people who it appears were part of some street gang organised to some level. The applicant did concede that by this time he was associating with people who got into trouble. There seems little doubt that these associations did lead the applicant down a very bad pathway. Not that in any way it lessens the seriousness of his offending or diminishes his responsibility for such offending.

1. Another incident occurred at the Malmsbury Youth Justice Centre 8 June 2020 which involved acts of violence on the part of the applicant.[18] There was an incident in the kitchen involving the applicant. Youth Justice Workers intervened and instructed the applicant to leave. The applicant shouted profanities at a female Youth Justice worker and proceeded to walk towards her aggressively. She was forced to retreat backwards in fear of what she perceived the applicant was likely to do to her. He then pushed his victim, who was a female, backwards with enough force causing her to lose her footing and stumble backwards into another inmate who fortunately broke her fall. It was considered had the inmate not been present where he was, more likely than not, she would have stumbled into an oven or benchtop area, most likely sustaining some injuries. Another Youth Justice Worker entered the kitchen and attempted to restrain the applicant. These attempts at restraint were unsuccessful as the applicant broke free. When he had done so he punched the victim in the head area three times. Subsequently, it took three Youth Justice staff members to restrain the applicant.

   [18] G19, 129.

2. The applicant was sentenced for this offending. In cross-examination once again, he readily accepted that the description contained in the Statement made by the Informant was accurate.[19] He also accepted it was a particularly serious incident with respect to the female member of staff.

   [19]Ibid.

3. Little more can be said about this incident as the facts speak for themselves. They were spontaneous acts of violence against Youth Justice Workers going about their business in the ordinary manner. They are entitled to discharge their duties in a safe environment free of any random attacks as occurred in this instance. One is also minded to comment that the applicant’s actions on this occasion represent, yet again, a propensity on his part to have little regard for persons in authority lawfully discharging their duties. It does not reflect well on him.

4. Brief mention should be made of other offending committed by the applicant at the Malmsbury Youth Justice Centre on two occasions early in the month of August 2020. On one occasion on 2 August 2020, the applicant used appalling language to make threats to a female member of staff. The language will not be repeated. The applicant agreed in cross-examination that he used the words revealed in the Statement made by the Informant.[20] Also recorded in that statement was an incident that occurred on 10 August 2020 where the applicant once again made appalling threats to another Youth Justice Worker at the Malmsbury Youth Justice Centre.

   [20]G20, 135.

5. Apart from the fact that the threats made were simply appalling, and they were made to Youth Justice Workers at Malmsbury Youth Justice Centre who are categorised as ‘emergency workers’ for the purposes of classifying the type of offences committed, they yet again, demonstrate a propensity on the applicant’s part to show a callous disregard for authority and at times of chronic disobedience of the law. It was clearly evident from the cross-examination of him that the applicant knew better. He also conceded in cross examination neither of the individuals who were the recipients of these threats had in any way threatened him. There was no real explanation offered for such outrageous behaviour.

   PARAGRAPH 8.1 OF DIRECTION 110 – PROTECTION OF THE AUSTRALIAN COMMUNITY

6. Paragraph 8.1(1) of Direction 110 provides that when considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government.[21] To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principal that entering or remaining in Australia is a privilege that 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.

   [21] In closing submissions, counsel for the respondent emphasised this part of paragraph 8.1(1) of Direction No 110.

7. Paragraph 8.1(2) of Direction 110 provides that decision-makers should also give consideration to:

   (a)the nature and seriousness of the non-citizen’s conduct to date; and

   (b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

   Paragraph 8.1.1 of Direction 110 – The nature and seriousness of the applicant’s conduct

8. Paragraph 8.1.1(1) of Direction 110 mandates that in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to several factors, amongst others, including the following:

   (a)without limiting the range of conduct that may be considered very serious, amongst other things, the types of crimes or conduct viewed very seriously by the Australian Government and the Australian community include:

   (i)violent and/or sexual crimes;

   (ii)crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed; and

   (iii)acts of family violence, regardless of whether there is a conviction for an offence or sentence imposed;

   (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

   (ii)… crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

   (c)with the exception of crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) the sentence imposed by the courts for a crime or crimes;

   (d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;

   (e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness.

   (f)the cumulative effect of repeated offending.

9. Quite sensibly, the applicant has conceded that his previous offending was objectively serious. This in all circumstances is an appropriate concession to have been made by him. Considerable detail concerning his offending has been outlined earlier in these reasons.

10. The applicant has also conceded that several of the incidents for which he was convicted involved acts of physical violence. Once again, details of those offences have been articulated above. By reason of those offences, to which he readily admitted in the witness box, being offences involving physical violence it is offending that is classified or categorised as ‘very seriously within the meaning of paragraph 8.1.1(1)(a) of Direction 110.

11. The incidents at the Malmsbury Youth Justice Centre on 8 June 2020 and 2 August 2020 involved crimes of a violent nature against female Youth Justice Workers at that Centre. Whilst it is fair to say they were not the most serious acts of violence, they were nonetheless crimes of a violent nature directed against woman going about their business, in their day-to-day employment. Therefore, the Tribunal concludes that these offences are also appropriately classified or categorised “very seriously” within the meaning of paragraph 8.1.1(1)(a)(ii) of Direction 110.

12. For the sake of completeness reference should also be made to paragraph 8.1.1(1)(b)(ii) of Direction 110 which provides that crimes committed against government representatives or officials due to the position they hold, or in the performance of their duties are considered by the Australian Government and the Australian community to be serious. Several offences were committed against members of staff at both the Parkville and Malmsbury Youth Justice Centre. The most serious offence against a Youth Justice Worker occurred on 7 June 2021 when the applicant struck a worker with the roll-on deodorant bottle to the face. The injuries suffered by that worker have already been described. The Tribunal considers that such Youth Justice Worker was a government representative or an official, as he and or she each were clearly employed by the State of Victoria discharging a function as a correctional officer. Each worker was also performing their duties at the time of the incident. Once again, this conduct apart from being totally unacceptable is objectively serious, if not very serious.

13. Paragraph 8.1.1(1)(c) of Direction 110 requires the Tribunal to consider the sentences imposed by the courts concerned for the crimes committed by the applicant. These sentences have already been described in the table above. They need not be repeated. However, the two most recent cast ideal sentences imposed upon the applicant are significant namely an aggregate 16-month detention in a Youth Justice Centre imposed on 9 December 2020 and 20 months imprisonment on 25 January 2023 at the County Court in Melbourne.

14. Both the applicant and the respondent largely agree that sentencing someone to a term of imprisonment or detention falls at the upper end of the sentencing hierarchy,[22] or is ‘the last resort in the sentencing hierarchy’. It was also acknowledged by the applicant that typically the imposition of custodial sentences is reserved for more serious offending or recidivist offenders. However, it should be noted that the sentence naturally reflects several considerations that a sentencing court should take into account in the sentencing process.[23]

    [22] Sentencing Act 1991 (Vic) Part 3 - Sentences.

    [23] Sentencing Act 1991 (Vic), s 5.

15. The applicant contends that the Tribunal should consider the maximum sentences that a court can impose for the crimes committed by the applicant. For instance, home invasion for which the applicant was sentenced on 4 December 2019 has a maximum penalty of 25 years as does aggravated burglary for which the applicant was sentenced on 9 December 2020. Recklessly causing serious injury for which the applicant was sentenced on 25 January 2023 carries a maximum penalty of 15 years. Therefore, it is contended that the applicant’s actual sentences fall towards the relatively lower end of the full range of available sentences open to a court to be imposed, in terms of both duration and possibly the type of sentence.

16. Whilst there is some force in this contention advanced by the applicant the Tribunal cannot agree completely with the thrust of it. To deprive a subject of their liberty is an extremely serious step for a court of competent jurisdiction to take. It has long been held in the Common Law system that liberty of the subject is paramount. It is also a relatively drastic step to take to imprison a comparatively young man for a significant time span for his offending. It is also significant given the history of the applicant both with respect to his mental health conditions, comparative vulnerability as a young man and given his history in several respects. The last sentence of 20 months imprisonment is significant. Overall and therefore, the Tribunal considers that these sentences imposed do reflect the very serious nature of his offending.

17. Applying paragraph 8.1.1(1)(d) of Direction 110 the Tribunal is required to consider the impact of the applicant’s offending on any victims where information in this regard is available. The applicant contends that there is little admissible evidence concerning the impact of the applicant’s offending on any of his victims. Whilst the admissible evidence is comparatively limited there is nonetheless, some evidence which the Tribunal, for the reasons given earlier, concludes it is able to take into account with respect to this paragraph of the Direction.

18. There is some evidence of the impact on the victim of the applicant’s crime of recklessly causing serious injury on 7 June 2021. The Youth Justice Worker concerned unquestionably suffered serious injuries. A fractured eye socket and nose together with some defects of vision, at least for some time,[24] which all together would inevitably have a significant impact on that victim. Apart from the pain and suffering which follows such an injury there would be the significant time off work and a period of continuing medical attention and rehabilitation. It would have been a thoroughly unpleasant experience for the victim concerned. Whilst it does involve some degree of speculation, it seems more probable than not that the victim may also have suffered some psychological injury as a result.

    [24] G22, 144.

19. The incident in Corio on 28 April 2020 in which a victim was stabbed in the right rib and lung area has been detailed earlier in these reasons. The fact that the victim was hospitalised is demonstrable evidence of the impact upon him. Whilst one assumes that the victim made a full recovery, it is a traumatic experience for anyone to have to go through.

20. The Tribunal also considers that reference should be made to the applicant’s offending on 30 May 2019. It will be recalled that the applicant bound the victim’s hands with duct tape, covered his head with a blanket, used an electrical cord to tie the blanket in place around the victim’s head. There was a threat to kill made. No one should have to undergo that experience. It seems more probable than not, that at the very least, in the short-term the victim would have been highly traumatised by the experience. One can only speculate as to whether there were any lasting after-effects of the experience.

21. Collectively, in terms of the impact of the applicant’s offending on his victims, as it has been described above, insofar as it is known to the Tribunal it must be categorised as significant for the reasons articulated. The applicant did concede, notwithstanding the challenges to the evidence available to the Tribunal, that his offending would no doubt have been generally negative, and very negative the persons who directly suffered as a result of the violence he committed. Specific reference was made to the offending of 28 April 2020 and 7 June 2021 as causing significant impacts on his victims.[25] The Tribunal agrees.

    [25]A SFIC, [78].

22. Paragraph 8.1.1(1)(e) of Direction 110 requires the Tribunal to consider the frequency of the applicant’s offending and whether there was any trend of increasing seriousness. The frequency of the applicant’s offending has been outlined earlier in these reasons in the section entitled ‘The Applicant’s Offending’ and need not be repeated. It clearly was, as has been conceded by the applicant, evidently frequent in the years between 2018 to 2021.[26]

    [26] Ibid [79].

23. The Applicant has not been convicted of any offence since the one he committed at the Malmsbury Youth Justice Centre on 7 June 2021. He contends that the nature of the charges during his period of offending from 2018 to 2021 did not increase in severity. The Tribunal cannot agree. The seriousness of his violent offending did increase to clearly the offences occurred on 7 June 2021. It was a vicious and unprovoked attack. It followed the earlier crimes of violence committed by the applicant on 28 April 2020 and 30 May 2019. There was a discernible increase in severity both in terms of the acts of violence and the injuries inflicted upon his victims. The last two occasions it will be recalled involved a stabbing and the fracture of the victim’s eye socket and nose.

24. The Tribunal does acknowledge that the applicant has not offended since June 2021 which is a step in the right direction.

25. The next matter that the Tribunal is required to have regard to under paragraph 8.1.1(1)(f) of Direction 110 is the cumulative effect of repeated offending. The respondent did not direct the Tribunal to any matters that would enable it to reach a conclusion as to the cumulative effect of the applicant’s repeated offending. The applicant contended that it is difficult to know what evidence may or may not be considered to demonstrate any cumulative effect of the applicant’s repeated offending.

26. On the material available to the Tribunal some rather broad conclusions can be reached about this matter. It is apparent that there has been some level of diversion of police, court, custodial, ambulance and healthcare resources due to his offending. Beyond identifying these matters there seems to the Tribunal little more that can be addressed concerning this paragraph of Direction 110.

27. Paragraph 8.1.1(1)(g) of Direction 110 requires the Tribunal as decision-maker to consider whether the applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending. There is no evidence to enable the Tribunal to reach a conclusion that the applicant has in any way provided false or misleading information within the meaning of this paragraph of the Direction.

28. The only other matter to consider is that in paragraph 8.1.1(1)(h) of Direction 110 which requires the Tribunal to determine whether the applicant has reoffended since being formally warned, or otherwise being made aware, in writing, about the consequences of further offending in terms of his migration status. Once again, there is no evidence to enable the Tribunal to reach a conclusion that the applicant has offended after a warning within the meaning of this paragraph of the Direction.

29. Having considered the factors identified in paragraph 8.1.1 of Direction 110 referred to above the Tribunal is then tasked with having to assess the relative weight to place on this primary consideration. The Tribunal has concluded that the applicant’s offending was very serious. Although the offending took place in the context of his comparative youth and untreated PTSD, the Tribunal considers that significant weight must be placed upon it against revocation of the mandatory cancellation of the visa.

    Paragraph 8.1.2 of Direction 110 – The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

30. Paragraph 8.1.2(1) of Direction 110 provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

31. Paragraph 8.1.2(2) of Direction 110 provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to cumulatively:

    (a)  the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    (b)  the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    i.information and evidence on the risk of the non-citizen re-offending; and

    ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

32. Should the applicant reoffend, it seems more probable than not, that such offending would encompass some level of violent behaviour similar to those offences of violence that he has committed in the past, details of which have been recounted earlier in these reasons. In such circumstances, there would almost inevitably be, as he concedes, significant harm to the community and to individuals within the community in such an event.[27]

    [27] Ibid [85].

1. Insofar as past behaviour as a guide to future behaviour, which is not always the case, were the applicant to engage in violent offending in the future his victims would almost invariably suffer some level of physical and psychological injury. The likelihood of the applicant reoffending is to a significant degree linked to his ability to recognise the need to maintain an appropriate regime of treatment of his mental health condition principally PTSD, and to remain totally abstinent from alcohol and drugs.

2. The Tribunal now turns to the question of the likelihood of the applicant engaging in further criminal or other serious conduct. The Tribunal considers that on all the evidence before it the applicant is unlikely to reoffend. There are several reasons for this.

3. There is the evidence of the applicant himself which has been touched on already in these reasons. The Tribunal is satisfied that the applicant has gained an appropriate level of insight into both his offending and the reasons for it. In other words, he has come to terms with his offending and recognises that it was wrong that he has let himself, his family and the broader Australian community down. Another powerful motivating factor that emerged from his evidence that would strongly weigh against him offending is the fact that he recognises that if he is released into the community and he were to reoffend he would almost certainly be deported. As he stated on several occasions in his evidence it really is his last chance.

4. Coupled with this insight into his offending the Tribunal considers the applicant has gained, it is also apparent both from his evidence that of his father and his sister together with Ms Matthews that he has developed a level of maturity in more recent years. That level of maturity has enabled him to reflect more seriously on his offending, the nature of the offending and how to develop strategies or tactics to ensure that he won’t reoffend in the future.

5. It also emerged from the applicant’s evidence that he has a heightened state of awareness of several factors that contributed towards his offending. Firstly, of course there are his drug and alcohol issues. Secondly, there was the question of his PTSD and the need for ongoing treatment and professional attention. Finally, there was a recognition on the applicant’s part of a need to control his temper or is it was described on several occasions in his evidence the ‘short fuse’. He has a heightened awareness of the need for anger management.

6. With respect to his PTSD there was evidence both from the applicant, Ms Matthews in the witness box and documents from several other mental health professionals concerning the treatment that the applicant has undergone for his PTSD. It should be borne in mind that the applicant was only diagnosed with PTSD in 2019. It is not surprising that he suffers from this mental health condition. His father, his older sister and, he himself gave quite compelling evidence about the significant traumas he was exposed to both as a young child in Iraq and subsequently in Syria. That condition remained untreated for some significant time and so is highly likely to have been a contributing factor to his offending. He has been prescribed medication which appears to have benefited him. He has from time to time whilst in custody sought assistance from professionals. The applicant stated in his evidence that this professional assistance has been of much value to him.[28] The applicant has stated that it is his intention to continue consulting mental health professionals for the appropriate range of treatment if he is released into the community.

   [28] See also, reference made to a report of 23 February 2021 from Dr Pearce a Consultant Psychiatrist and Ms Payne a Senior Mental Health Clinician (G33, 248) and a letter from Michael Bilyk of 28 September 2020 (G34, 249).

7. Coupled with the applicant’s awareness of the need to seek appropriate treatment and support for his mental health conditions there is also the question of his drug and alcohol use.

8. The applicant gave evidence that he has taken steps whilst in custody to seek assistance concerning these issues. There were in evidence reports from Ms Jolley the applicant’s treating counsellor from ‘Foundation House’ of 28 September 2020 and 9 March 2021 concerning the counselling he has undertaken with her.[29] He has undergone quite a few sessions with Ms Jolley that appear to have been beneficial for him. Ms Jolley’s reports expressed a positive conclusion concerning the applicant’s endeavours to address his mental health and other problems. She attested to the fact that he has developed insight into those problems and the importance of engaging with professionals to manage these difficulties.

   [29]G32, 242-247.

9. Another report was in evidence from Michael Bilyk a psychologist dated 28 September 2020 which has been briefly touched on above.[30] The applicant had consultations with him in the years 2019 and 2020. Whilst the contents of that report speaks for itself, and did not underestimate the challenges that the applicant faces, it did express the opinion that the applicant had continued to engage in approaches aimed at improving his self-management and improving his overall behaviour.

   [30] G34, 249.

10. Reference should also be made to the fact that at least whilst the applicant was an inmate of the Malmsbury Youth Justice Centre, he completed 5 VET units of competency satisfactorily.[31] His teacher in a report dated 26 February 2021 observed that the applicant displayed a high level of maturity on the unit and in the classes where he was a well-respected role model to his peers. The teacher also described him as very polite, respectful and productive. Additionally, she stated he had formed strong professional relationships with his teachers and other stakeholders. This development is consistent with the observations of the Tribunal made of him when in the witness box.

    [31] G35, 250.

11. In terms of risk of future offending, another matter that clearly arises which was the subject of much evidence at the hearing of the application before the Tribunal was the question of peer group influences or associations. Such associations revolved around the Geelong area. The applicant went to two secondary schools in that area. After his parents moved to Deer Park the applicant still tended to frequent the Geelong area with a particularly unsatisfactory group of young people. It is fair to say that the applicant now recognises that he should no longer have anything to do with those people. He has been in custody or immigration detention for quite some years now and has had no further dealings with them. It is his desire, if released into the community, to return to Deer Park and live with his parents. He has a heightened sense of awareness from, both his own self-reflection, the advice given to him by his family and other professionals that he has consulted whilst in custody or immigration detention, that it is vital in the future to ensure that there is no resumption of contact with these people.

12. The role of the applicant’s family should not be underestimated when assessing the risk of the likelihood of the applicant reoffending. The applicant recognises that he has profoundly let his family down and seeks to make amends. His family despite the significant challenges that the applicant’s circumstances have caused them, have continued to support him. He is clearly very grateful for the support and understands that it is incumbent upon him not to reoffend and calls them any future distress.

13. On the question of family support, in the event that the applicant is released into the community, the applicant’s father has through various community connections been able to obtain opportunities for him to gain secure employment. One is as an apprentice mechanic with a family friend Mr Alhage[32] and other possibilities are to work in a body shop or as an apprentice carpenter. Secure employment if the applicant applies himself to it would mean the likelihood of the applicant straying back into offending would be correspondingly reduced.

    [32] See e.g., a letter from Mr Alhage confirming the offer of employment to the applicant (G37, 253).

14. Another positive factor pointed to by both the applicant, his father and older sister should be mentioned. That is a cultural question. The evidence was that the applicant has become a strict adherent to his religion during his time in custody in immigration detention. It appears to have had a very positive influence on him. He has also been in contact with a religious leader who has given him beneficial spiritual guidance. He has been invited by that religious leader to attend a mosque in Coburg. Additionally, his elder sister in her evidence stated that she has arranged for the applicant, if he wishes to also attend at a mosque in Altona North where he would be most welcome. It seems that this religious influence is likely to have a very positive effect on him and in particular, provide him with a code of values to follow which would make it less likely that he would offend in the future.

15. A matter that is also relevant to the assessment of the likelihood of the applicant engaging in further criminal or other serious conduct, is as is apparent from the earlier analysis of these reasons, the question of the applicant’s use and abuse of alcohol and drugs. This was canvassed at some length throughout the hearing of the application. What has emerged is that since the applicant has been serving his most recent term of imprisonment and subsequent immigration detention, he has not returned a positive test for drugs. His evidence was that he has ceased taking drugs and alcohol and has remained abstinent for a long time. This evidence was not subject to any challenge. The Tribunal accepts this evidence.

16. On this note, it was touched on during the hearing of the application, that drugs are readily available in any custodial environment. If the applicant were inclined to yield to the temptation and relapse, there were adequate opportunities to do so. It is to his credit that he has not relapsed and a further indicator that he has a strong desire to remain abstinent in the future. This is particularly so if he is released into the community.

17. The Tribunal considers that the most important information and evidence on the risk of the applicant reoffending that was before it came from Ms Matthews. The Tribunal’s observations on her qualities as a witness are referred to and repeated. Her report of 29 September 2024 is referred to in its entirety. In the witness box she adopted the contents of the report and both in evidence in chief and in cross examination provided further observations with respect to the conclusions she expressed in such report.

18. Ms Matthews expressed the opinion that the applicant’s offending to date was related to his youth (which the Tribunal observes is to some extent self-evident) and in particular, peer influences and contexts in which peer pressure and adolescent need to test adult boundaries had played significant roles.

19. Both in her report and in the witness box Ms Matthews referred to the fact that in her view the applicant had, ‘reached the pinnacle of youth offending’.[33] She explained that the pattern of youth offending engaged in by the applicant was not uncommon. It often occurs in the context of an adolescent wanting to be part of a social group separating from the family and creating a separate identity as she explained, ‘it is what adolescence is all about’. She reiterated that she expected that the applicant’s offending would either stop or reduce significantly in frequency and intensity, ultimately coming to a stop. Also given the emotional impact of the revocation of the visa on both the applicant and his family, she expressed the opinion that it is highly unlikely that the applicant would offend again.

    [33] JTB, 21.

20. The question of the applicant’s adolescence and its role or contribution to his offending was touched on during Ms Matthews’ cross examination. It was put to her that the applicant had engaged in violent offending when not provoked. Ms Matthews to her credit readily acknowledged that was the case. However, she stated that it is necessary to look at one’s adolescence and the social structure that he was living in at the time. She explained that behavioural problems with young people in general are not uncommon, as was the case with the applicant in this matter. Adolescents often want to be in with the ‘in crowd’ and often they are not the people that right-thinking people would consider desirable to associate with. However, as is generally the case adolescence grow up and stop doing such things.

21. In her evidence both in chief and in cross examination the question of the applicant’s PTSD was touched on. Ms Matthews stated that the applicant has tried very hard to moderate his behaviour and his temper. She emphasised the need for him to be self-aware of what both his body and emotions were doing. It one stage in cross examination she did suggest several therapies which would then effort the applicant to further reduce the risk of his offending by reason of his PTSD. Her evidence on this topic was particularly powerful.

22. Another aspect of Ms Matthews’ evidence should briefly be mentioned. Several incidents of aggression on the part of the applicant in immigration detention were referred to in cross examination. She was asked whether she had taken these incidents into account when making her assessment of the risk of the applicant reoffending. She stated that she had. In providing her answers she also stressed that one should not underestimate how challenging custodial environments can be, whether in prison or immigration detention. She described them as being very testing environments to be in. She further explained that it is not like being on the street, it is very difficult.

23. The Tribunal considers that there was nothing in the cross examination of Ms Matthews that would lead it not to accept her report or the opinions expressed in it as further amplified in the witness box. Therefore, the Tribunal accepts her opinion that it is highly unlikely that the applicant will offend again.

24. The Tribunal now must determine what relative weight to place on this primary consideration. Having explained that it considers it highly unlikely that the applicant will offend again, nonetheless, it cannot be said that there is no risk. The Tribunal did not understand Ms Matthews for instance suggesting such a proposition. In the circumstances the Tribunal concludes that it is appropriate to place very moderate weight against revocation of the mandatory cancellation of the visa with respect to this primary consideration.

    Primary consideration 8.2 of Direction 110 - Family violence committed by the non-citizen

25. Both parties agree that there is no evidence of the applicant having committed any acts of family violence. Therefore, the Tribunal will place no weight on this primary consideration.

    Primary consideration 8.3 of Direction 110 - The strength, nature and duration of ties to Australia

26. Paragraph 8.3 of Direction 110 provides as follows:

    1)Decision makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

    2)Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen as to the Australian community. In doing so 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 non-citizen began offending soon after arriving in Australia; and

    ii.more weight should be given to the 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.

27. This primary consideration does have some elements to it that are problematic insofar as the applicant is concerned. He arrived here, as noted earlier, in 2016 and his offending, insofar as relevant to this application occurred approximately three years later in 2019. Guided by paragraph 8.3 (2)(a)(i) less weight should be given where the noncitizen began offending soon after arriving in Australia. Concomitantly, more weight should be given to the time the non-citizen has spent contributing positively to the Australian community. Regrettably, there has been little positive contribution by the applicant to the Australian community. Due to his problems with the law, he has had virtually no time undertaking gainful employment or otherwise making a positive contribution.

28. The applicant has a range of immediate family members present in Australia who are Australian citizens or Australian permanent residents. Several of them have already been mentioned. There is his father, his mother, his older sister and a younger sister who is a minor.[34] They are either Australian citizens or have a right to permanently reside here. The respondent accepts that if the visa is not revoked it will adversely affect them both in emotional and practical ways.

    [34] The question of his younger sister will be separately addressed when a consideration is undertaken as required by paragraph 8.4 ‘Best interests of minor children in Australia affected by the decision’ of Direction 110.

29. To some extent the adverse impact of the applicant’s removal from Australia on his father has already been touched on. This arises because of the serious accident that he was involved in in September 2019. He has been unable to work since that time and has undergone continuous medical treatment for a variety of conditions. Presently, he regularly consults both a psychiatrist and a psychologist for several mental health conditions. Those conditions are being exacerbated by the continuing uncertainty about his son’s future. Details of those conditions were given both in his father’s several statutory declarations and witness statements, from the witness box and summarised in the Applicant’s Statement of Facts, Issues and Contentions at paragraph 123. They need not be reproduced for the purposes of these reasons. They have been read and considered by the Tribunal. His father’s sole source of income is the disability support pension. The family is clearly financially stressed.

30. The applicant’s father submitted that permitting the applicant to remain in Australia would have a significant beneficial impact on him and the entire family. There are several dimensions to these benefits. If the applicant is released into the community, he could provide physical and emotional support for his father. He stated in his evidence that he needs all the help he can get. The physical support includes various tasks to be performed in the family home or around it. Further, it is anticipated that if the applicant can obtain and hold down meaningful employment, he will be able to make a financial contribution to the household which is presently under some pressure. The applicant’s father explained that due to his infirmities for some years he has had to resort to assistance from near family and friends to undertake tasks around the household including the garden.

31. Having had the opportunity to observe the applicant’s father in the witness box it is also readily apparent that if the applicant is removed from Australia, it will have a devastating emotional impact on him. When the prospect of it was touched on during his evidence he broke down. It is quite an understandable reaction from a vulnerable man.  If that were to occur, it seems more probable than not that his father will never be able to see him again. There are several reasons why there is unlikely to be any future contact between the applicant and his father in the event that the applicant is removed from Australia. Firstly, the applicant’s father due to his illness and infirmities is unlikely to be able to withstand the demands of lengthy overseas travel. Additionally, whilst he is a permanent resident of Australia, he does not presently have citizenship of any country as he is a stateless Palestinian. It appears that it would be very difficult for him to visit Iraq because of this fact. One must recall, that indeed, it was the reason that he left Iraq in the first place then Syria due to his statelessness and for that matter being generally ostracised from Iraqi society by reason of being Palestinian. In cross-examination the applicant’s father stated he had genuine concerns about his safety if he were to return to Iraq. He said as a Sunni Muslim and Palestinian there is a real risk that he might get killed. The same risks would also be faced by the applicant in the event that he were returned to Iraq.

1. Reference was made in the evidence before the Tribunal of some cultural considerations which it was submitted, and the Tribunal agrees should be taken into account when applying this primary consideration. It was contended that the applicant as the only son of the family has a unique role to play in its life. As the eldest son he has a special obligation to follow in the footsteps of his father and provide a pivotal leading role in the family. The applicant’s father expressed the desire that if the applicant is released into the Australian community, he would fulfil such role.

2. The applicant’s mother and sister in various ways stressed that the applicant’s incarceration and subsequent immigration detention over several years had severely impacted them. Were he to be removed from Australia it would have even more devastating consequences in the longer term in particular. In various ways on their behalf, it was emphasised that in effect a permanent absence of the only son from the family, would continue to place them under significant mental and financial strain.

3. There was some fairly compelling evidence given by the applicant’s sister from the witness box concerning the effect of the applicant’s incarceration and immigration detention on her family. She stated that during the last four years it has been very difficult for her parents, sister and herself to live a normal life. She described it as being a very emotional reaction which made it very hard for the family to live normally. The continuing state of uncertainty was extremely unsettling for them. This is quite understandable.

4. Overall, when one takes into account the evidence before the Tribunal concerning this primary consideration very heavy weight must accrue in favour of revocation of the mandatory cancellation of the visa.

   Primary consideration 8.4 of Direction 110 - Best interests of minor children in Australia affected by the decision

5. Paragraph 8.4(1) of Direction 110 provides that decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.

6. Paragraph 8.4(2) of Direction 110 provides that this consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or not revoke the mandatory cancellation of the visa, is expected to be made.

7. Under paragraph 8.4(3) of Direction 110 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.

8. Paragraph 8.4(4) of Direction 110 provides that 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 in the non-citizen. Less weight should generally be given where the relationship is nonparental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether any existing Court order restricts contact);

   b)    the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

   c)    the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

   d)    the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

   e)    whether there are other persons who already fulfil a parental role in relation to the child;

   f)     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

   g)    evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way whether physically, sexually or mentally;

   h)    evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

9. There is one minor child affected by the decision. That is the applicant’s younger sister born on 1 April 2012.

10. It was contended in the material, which was not seriously challenged, that prior to the applicant being imprisoned and subsequently placed in immigration detention he had a close, active, and positive relationship with his younger sister. She herself made a brief statement in which she recounted her fondness and affection for him. The Tribunal has no reason to doubt this. Her view, which the Tribunal should take into account is clearly that she does not wish him to be removed from Australia. This is perfectly understandable.

11. There must be some doubt given the applicant’s history of offending when he tended to associate with a peer group in the Geelong area, his subsequent imprisonment and then immigration detention as to how close the relationship between them must be. However, it seems more probable than not that if the applicant is released into the community that the bond in relationship between them is likely to be restored fairly quickly. This would also be facilitated by the integral role that his parents and older sister would take in this situation.

12. There was evidence that the applicant has endeavoured to maintain contact whilst in custody and immigration detention by phone and the ‘Zoom’ platform. In the event that the applicant were to return to Iraq, it is not precisely certain whether such contact could be continued, or the relationship maintained in the same way.

13. The Tribunal is quite prepared to accept that the separation from his younger sister if the applicant were returned to Iraq would have a significant detrimental effect on her.

14. The respondent submits that this primary consideration is only deserving of moderate weight. On the other hand, the applicant contends that given the detrimental impact on his younger sister significant weight should be given in favour of revocation of the visa.

15. When one takes into account all of the evidence before it the Tribunal considers that significant weight should attach to this primary consideration in favour of revocation of the cancellation of the visa. There are several reasons for this. Namely, the applicant’s family circumstances, having fled from Iraq to Syria and arrival to Australia as refugees placing them in a slightly different setting. The family bond which exists between them, and the cultural connections derived from that lead to a conclusion that if the applicant was removed it would significantly affect not only his younger sister but the family as a whole, which would also impact on the younger sister. There are both financial and emotional considerations. If the applicant returns to his family, it seems more likely than not that he will make a positive emotional and financial contribution to the family unit of which his younger sister is part. Particularly, given the significant health problems that his father is experiencing there is a distinct and real necessity for the applicant to fill the breach. Collectively, these reasons lead to significant weight attaching to this primary consideration.

    Primary consideration 8.5 of Direction 110 - Expectations of the Australian Community

16. Paragraph 8.5(1) of Direction 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non-citizen to enter or remain in Australia.

17. It is also provided in paragraph 8.5(2) of Direction 110 that in addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, if they raise serious character concerns through conduct, in Australia or elsewhere of the following kind, amongst others:

    a)   acts of family violence; or

    c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

18. Paragraph 8.5(3) of Direction 110 provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

19. It is also provided in paragraph 8.5(4) of Direction 110 that this consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

20. In applying this primary consideration, it is instructive to refer to several passages from the decision in FYBR v Minister for Home Affairs which is frequently referred to in cases before this Tribunal and the courts.[35] Several passages from that decision explain that, as is apparent from an examination of a paragraph of the earlier Ministerial Direction, Direction 99, which expressed similar language, to the extent it contains a statement of the expectations of the Australian community, the clause is ‘deeming’.[36] As Charlesworth J also explained, the clause imputes or ascribes to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[37] These expectations are established and are to be applied as norms.

    [35] (2019) 272 FCR 454.

    [36] Ibid [67].

    [37] Ibid.

21. As Mortimer J (as she then was) in YNQY v Minister for Immigration and Border Protection[38] observed, in substance, this consideration is adverse to any applicant where they have failed the character test and have been convicted of serious crimes.

    [38] [2017] FCA 1466, 27-8 [76].

22. The expectations of the Australian community should be determined by reference to the provisions of Direction 99 itself, not by an independent assessment conducted by the Tribunal. The weight to be applied in undertaking the balancing exercise prescribed by Direction 99 is ultimately a matter for determination by the decision-maker, in this case the Tribunal, taking into account all relevant individual factors including countervailing factors from the person’s specific circumstances.[39]

    [39] Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396, 19 [97].

23. Not unsurprisingly the applicant and the respondent take significantly different views as to the weight that the Tribunal should apply to this primary consideration in direction 110.

24. The respondent submits, relying upon the applicant’s frequent and violent offending that this primary consideration weighs strongly against revocation of the visa cancellation.

25. The applicant contends that the normative consideration of the expectations of the Australian community should be given relatively limited weight in the light of several countervailing considerations that he identifies. The Tribunal agrees that the task that is cast upon it by this primary consideration, when properly construed, having taken into account the countervailing considerations, is to determine the relative weight to be given to community expectations.[40]

    [40] DWBG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3 [59].

26. The countervailing considerations relied upon by the applicant to contend that relatively limited weight should be given to this primary consideration (which have been canvassed in various parts earlier in these reasons) are as follows:

    (a)He has lived in Australia since he was 14 years old;

    (b)He committed the relevant offences as a child whilst dealing with undiagnosed, untreated PTSD and when he was drug affected;

    (c)When committing such offences, he was also associating with a peer group who encouraged or perhaps led him to such criminal behaviour;

    (d)He is no longer drug affected, has had significant time to reflect on his past conduct and take therapeutic steps to address his PTSD;

    (e)He is no longer in contact or associates with the peer group with whom he engaged in criminal behaviour previously;

    (f)He has not further offended since 2021;

    (g)He has served all punishments deemed appropriate for his offending;

    (h)He has family here in Australia to whom he is closely emotionally connected;

    (i)The impediments to be faced by him were he  be removed from Australia;

    (j)He has significant motivation, supports (including a loving and caring family) and plans in place to avoid reoffending;

    (k)The impact on his family should he be removed;

    (l)The interests of his younger sister, who is still a child and how she would be affected by the cancellation decision.

27. In addition to those countervailing considerations that have been advanced by the applicant, the Tribunal, as will be apparent from a consideration of the earlier parts of these reasons also considers that there are other relevant countervailing considerations that also affect the relative weight to be given to community expectations identified in paragraph 8.5 of Direction 110. Those additional countervailing considerations are:

    (a)The very significant insight into his offending that the applicant has gained during his period of reflection both whilst incarcerated and in immigration detention;

    (b)The genuine remorse and regret that the applicant has for his offending;

    (c)The deep appreciation that the applicant now has for the necessity to seek and maintain appropriate treatment for his PTSD;

    (d)The cultural and religious factors that assume a significant function in his life and daily code of values;

    (e)The concept of a second chance.

28. The Tribunal considers that the relative weight to give community expectations in this case, whilst against revocation of the mandatory cancellation of the visa, is such that it should in all the circumstances be limited. Clearly, there are a significant number of countervailing considerations which when taken into account reduce the relative weight to be attached to this primary consideration. Above all else, it seems that the applicant, whose life prior to his arrival in Australia had been a difficult one, wherein he was exposed to war, killing and sectarian based violence that no young person should be exposed to, whilst clearly experiencing the effects of untreated PTSD and trying to adjust to a completely different society, took a wrong turn in life. Whilst not excusing his offending it places it in some context.

    Paragraph 9.1 of Direction 110 – Legal consequences of the decision under section 501 or 501CA

29. Paragraph 9.1 of Direction 110 provides that decision-makers should be mindful that an unlawful non-citizen is, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. It should be noted that at (2) 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.

30. Under paragraph 9.1.2(1) Non-citizens not covered by a protection finding’, it is explained that claims which may give rise to international ‘non-refoulement obligations’ can also be raised by a noncitizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.

31. At the outset it should be recorded that the applicant has not lodged an application for a protection visa although it is open to him to do so.

32. The respondent submitted that the Tribunal should defer assessment of the applicant’s non-refoulement claims. In short it contends that the Tribunal need not reach a final determination on what it describes as a ‘difficult issue’,[41] given that it is open to him to make a protection visa application.

    [41] R SFIC, 18 [76].

33. The applicant urges the Tribunal not to defer consideration of his non-refoulement claims for several reasons. They need not be articulated in any great detail. They include that were deferral to take place the applicant could languish in immigration detention for many years to come, only to be refused a protection visa on several grounds.

34. The grounds pointed to by the applicant include that he would almost certainly not succeed in being granted a protection visa because since July 2015 there have been no instances where such a visa was granted to a person who had previously had a section 501(3A) cancellation that had not been revoked. This was highlighted in several decisions of the Federal Court of Australia.

35. Secondly, the applicant also contended that by reason of the operation of section 36(2C) of the Act, the applicant would likely be refused a protection visa because he had been convicted of a particularly serious crime within the meaning of the Act.[42] Those offences being an aggravated burglary and recklessly causing serious injury. Those crimes satisfy the definition of a serious Australian offence under section 5(1) of the Act. The Tribunal agrees with these submissions.

    [42] A SFIC, 60.

36. Finally, it was submitted that deferral also left open the prospect of a practical result being removal without consideration of his non-refoulement claims.

37. Therefore, for all these reasons the applicant contends that it would not be rational, reasonable or preferable to defer consideration, in circumstances where the Tribunal has had a long history and proven capacity to undertake such a consideration.

38. The Tribunal accepts the contentions of the applicant. In addition to the three grounds articulated in the previous paragraphs the Tribunal is also persuaded by the fact that it in any event following the decision of the High Court of Australia in Plaintiff M21/2021 v Minister for Home Affairs,[43] the Tribunal is required to read, identify, understand and evaluate representations made by an applicant concerning claims of international non-refoulement obligations.[44] Given that this task is incumbent upon the Tribunal it will not defer consideration of the question and must do its best on the material that is before it.

    [43] [2022] HCA 17.

    [44] Ibid [24].

39. The applicant contends that he is owed non-refoulement obligations within the meaning of section 5(1) of the Act because there is a risk of harm as contemplated due to his religion as a Sunni Muslim and also due to his Palestinian ethnicity.

40. With respect to the applicant’s Palestinian ethnicity this is recorded on his birth certificate.[45]

    [45] G40, 258.

41. Notwithstanding that the applicant was born in Iraq and that since approximately 2003 the United States has led military action in that country, Palestinians have been marginalised if not excluded from society in a variety of ways. According to the DFAT report this is apparently due to their perceived affiliation with the former regime of Saddam Hussein. The Shi’a majority areas have generally marginalised, expelled or harassed of them under a program of significant sectarian discrimination. This discrimination against Palestinians reached an even higher point in December 2017 when a law was passed classifying Palestinians as foreigners. The effect of this law was also to strip them of a variety of rights previously enjoyed. Amongst other things, they are now required frequently to apply for residency permits to remain in the country. Employment opportunities are far more restricted. There has also been the loss of rights to free healthcare and education. There are frequently limitations on freedom of movement. Consequently, many Palestinians have left the country.

1. DFAT has also provided an assessment that Palestinians suspected of being Sunni Islamist militants face a risk of arbitrary detention and forced disappearance and torture by security forces and Shi’a militant groups.[46]

   [46] A SFIC, 53 quoting Department of Foreign Affairs and Trade, Country Information Report Iraq (16 January 2023), 15 [3,17].

2. A non-refoulement obligation is also said to arise by reason of him being a young Sunni male.

3. The Tribunal’s attention was directed to the DFAT 2023 report for Iraq. There were several relevant matters in that report which assume importance in this matter. Some years ago, between 2014 and 2017 there had been reported 78 cases of enforced “disappearances”. Such abuses were also accompanied by other acts such as arbitrary arrest, detention ill-treatment and extrajudicial killings. There have been allegations of torture directed towards Sunni Arabs.

4. An estimated 250,000 Sunni Arabs are alleged to be internally displaced. Further, Iraq is said to have one of the highest numbers of missing persons of any country in the world the victims come from a variety of occupations and socio-economic groups. There is a suggestion that many thousands of mostly Sunni men and boys disappeared. The DFAT report also cited as an authority the United States Department of State it is also referred to reports of arbitrary or unlawful detention involving Sunni Arabs.

5. There was also in the material reference to a United Kingdom Home Office Country Policy and Information note relating to Sunni Arabs which also confirmed that they were subjected to arbitrary arrest, detention, forced disappearance, torture and other degrading treatment on account of their alleged affiliation. It also highlighted that there were reports of Sunni Muslims experiencing discrimination in regard to various types of employment.

6. Another reference in the material to a United Nations Assistance Mission for Iraq made reference to detention, torture and ill-treatment as being reasonably common. The forms of torture were quite appalling.

7. Doing the best it can, the Tribunal concludes that there must be a risk of being identified as both a Sunni Muslim and a Palestinian and in-turn will likely be indefinitely detained and possibly tortured.

8. The Tribunal also considers that this question should be viewed with a degree of realism. The applicant has not lived in Iraq since he was 4 years of age. He has spent the last eight of his considerable formative years, in Australia. Were he returned to Iraq he will clearly stand out as someone unusual, most likely to the locals as a foreigner and thereby attract attention and probable scrutiny. Whilst this to some extent overlaps with the matters that the Tribunal is required to consider under paragraph 9.2 of Direction 110 being ‘Extent of impediments if removed’, it cannot be divorced from the realities he will face were he to be removed.

9. In these circumstances, the Tribunal concludes that an international non-refoulement obligation arises in favour of the applicant and by reason of same, very heavy weight must attach to this other consideration with respect to the legal consequences of the decision in favour of revocation of the mandatory cancellation of the visa.

   Paragraph 9.2 of Direction 110 – Extent of impediments if removed

10. Paragraph 9.2(1) of Direction 110 provides that decision-makers must consider 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.

11. The respondent acknowledges that this consideration weighs in favour of revocation of the mandatory cancellation of the visa. It properly concedes that the Tribunal must take into account the applicant is a young man of 22 years of age who suffers several health conditions, specifically PTSD. It acknowledges that the DFAT country information report reveals that whilst there are mental health services available in Iraq, they are described as inadequate. The evidence before the Tribunal, although limited, indicates that there are only two dedicated psychiatric hospitals in the country. Additionally, there is apparently a societal stigma concerning mental illness. This does not bode well for the applicant. Were the applicant to return to Iraq it seems that there would be negligible prospects of him receiving any, or any proper treatment of his diagnosed PTSD condition.

12. Whilst the applicant still speaks Arabic and would clearly be able to communicate whilst there the Tribunal does acknowledge that there are other obvious cultural barriers and distinctions that would mean that a return to Iraq would not be easy for him. It has already been observed that the applicant, who has not lived in Iraq since the age of four, would stand out. Almost certainly he would be identified or seen as a “westerner” or someone who has come from an affluent nation and more likely than not be a target for standover tactics or demands, if not random attacks. As he said when he was in the witness box, he wouldn’t know the first thing about Iraq. He cannot imagine what it would be like to be there. He suggested that it would be devastating to him and ultimately destroy him.

13. It seems highly unlikely that the applicant would be able to obtain paid employment in Iraq. The DFAT 2023 country report records that in recent years its economy has contracted sharply.[47] Unemployment is high and labour force per dissipation amongst the lowest in the world. It should be borne in mind that of course the applicant did not complete secondary school, he does not have a qualification, trade or vacation. He is comparatively unskilled.

    [47] Ibid, 8 [2.7].

14. Another matter that is relevant is that the applicant has no relatives, social connections or other support networks that he would be able to call upon if he returns to Iraq. He would be on his own.

15. It seems more probable than not that if the applicant were returned to Iraq, he would have a miserable existence and face considerable uncertainty at a number of different levels.

16. For all these reasons the Tribunal accepts the contention of the applicant that this other consideration weighs heavily in favour of revocation of the mandatory cancellation of the visa.

    Paragraph 9.3 of Direction 110 – Impact on Australian business interests

17. This paragraph of Direction 110 states that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA of the Act would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

18. There was no evidence before the Tribunal that related to this other consideration. Therefore, no weight will be attached to it.

    CONCLUSION

19. The Tribunal considers that this matter is very finely balanced.

20. The Tribunal has attached relatively significant weight against revocation of the mandatory cancellation of the visa under paragraph 8.1.1 of Direction 110 – The nature and seriousness of the conduct.

21. Very moderate weight against revocation of the mandatory cancellation of the visa has been attached to the primary consideration articulated in paragraph 8.1.2 of Direction 110 – The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

22. Given that no acts of family violence were committed by the applicant the Tribunal has attached no weight to the primary consideration articulated in paragraph 8.2 of Direction 110 - Family violence committed by the non-citizen.

23. The Tribunal has attached very heavy weight in favour of revocation of the mandatory cancellation of the visa under paragraph 8.3 of Direction 110 - The strength, nature and duration of ties to Australia.

24. The Tribunal has attached relatively significant weight in favour of revocation of the mandatory cancellation visa under paragraph 8.4 of Direction 110 - Best interests of minor children in Australia affected by the decision.

25. The Tribunal has attached relatively limited weight against revocation of the mandatory cancellation of the visa under paragraph 8.5 of Direction 110 - Expectations of the Australian Community.

26. The Tribunal has attached very heavy weight to the other consideration in paragraph 9.1 of Direction 110 - Legal consequences of decision under section 501 or 501CA.

27. The Tribunal has found that the other consideration in paragraph 9.2 of Direction 110 - Extent of impediments if removed, weighs heavily in favour of revocation of the mandatory cancellation of the visa.

28. No weight is attached by the Tribunal to the other consideration in paragraph 9.3 of Direction 110 – Impact on Australian business interests.

29. When the collective weight attached to each of the primary considerations and other considerations in favour of revocation of the mandatory cancellation of the visa contained in paragraphs 8.3, 8.4, 9.1 and 9.2 of Direction 110 is compared against the relative weight attached to the primary considerations in paragraphs 8.1.1, 8.1.2 and 8.5 of Direction 110 the Tribunal finds that such weight in favour of revocation of the mandatory cancellation of the visa prevails.

30. The Tribunal is persuaded that the low risk of the applicant reoffending, his strong family connections to Australia (being the only connections he has with any family anywhere), coupled with the best interests of his younger sister warrant giving him a second chance. Some allowance ought to be given for the fact that most of his offending occurred during his adolescent years. This together with the Tribunal’s findings concerning non-refoulement obligations and the extent of impediments if he were to return to Iraq have collectively swung the balance finely in his favour.

31. Finally, the Tribunal wishes to place on record that these findings should not be seen to be a criticism of the Delegate who made the reviewable decision. It should be recalled that the delegate did not have the benefit of witnesses giving extensive oral evidence. There were also quite detailed Statements of Facts, Issues and Contentions drafted to a very high standard. The delegate also did not have the benefit of the extensive and impressive expert evidence of Ms Matthews. It is to be hoped that her conclusions that the applicant is highly unlikely to reoffend prove to be the case.

I certify that the preceding 194 (one hundred and ninety-four) paragraphs are a true copy of the reasons for the decision herein of R Cameron, General Member.

......................[SGD]...........................

Associate

Dated: 13 November 2024

Date(s) of hearing:	31 October and 1 November 2024
Solicitors for the Applicant:	WLW Lawyers
Counsel for the Applicant:	Mr Bryn Overend
Solicitors for the Respondent:	Mills Oakley
Counsel for the Respondent:	Mr Greg Johnson