CTWK and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 585

CTWK and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 585 (16 May 2025)
Applicant:CTWK
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/1344

Tribunal:General Member A E Burke
Place:Melbourne
Date:16 May 2025

Decision:The Tribunal affirms the decision under review.

.................................[SGD].......................................
General Member A E Burke
Catchwords
MIGRATION – mandatory cancellation of visa – substantial criminal offending - Iraq national – Class XB, Subclass 200 Refugee visa – failure to pass character test – serious offending – whether another reason mandatory cancellation should be revoked – Ministerial Direction No. 110 applied – expectation of Australian community - best interest of minor children - ties to Australia – legal consequences of removal – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Dharma and Minister for Home Affairs [2018] AATA 2757
FYBR v Minister for Home Affairs [2019] FCAFC 185
LZGG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
Plaintiff M1 2021 v Minister for Home Affairs [2022] HCA 17
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1273
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Department of Foreign Affairs and Trade, Country Information Report: Iraq (16 January 2023)
Statement of Reasons

On 20 September 2022 a delegate of the Minister, administering the Migration Act 1958 (Cth) (‘the Minister’), cancelled CTWK's Class XB, Subclass 200 Refugee visa under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).
On 17 October 2022 CTWK provided a response to the decision requesting revocation of the decision to cancel his visa for other reasons:
3.1 I am a refugee who faces the real likelihood of being killed if I am forcibly returned to Iraq;
3.2 My wife, and daughter (18) and son (12) are residents of Australia;
3.3 My sister has recently arrived in Australia as a refugee;
3.4 I have diverse employable skills and a good work history in Australia;
3.5 My family face severe hardship without me present in Australia to financially support them;
3.6 My family will face extreme hardship culturally and will continue to be shamed;
3.7 I have a place to live when I am released from prison;
3.8 My offending was isolated and opportunistic, I will not reoffend;
3.9 In sentencing me the judge said there was nothing to indicate an apparent risk of me reoffending in this way;
3.10 I have no support in Iraq, no ability to earn money, obtain a place to live or receive necessary medical and mental health treatment;
3.11 I have PTSD from what I have witnessed in Iraq, any forcible return would result in my mental health declining;
3.12 I am a Christian man who is full of remorse and shame, I seek to live a quiet life and support my family and community; and
3.13 I am not a risk to the Australian people.
On 21 February 2025 a delegate of the Minister made a decision not to revoke the cancellation of CTWK’s visa. The delegate concluded:
127. In considering the use of my discretion, I have given the highest priority to the safety of the Australian community and the need to protect its safety.
128. I have found that the best interests of CTWK’s minor child, …, as a primary consideration, weighs in favour of revocation of the cancellation of CTWK’s visa, although this is tempered by CTWK’s domestic violence offending and the nature of his convictions.
129. I have also found that CTWK’s ties to Australia, as a primary consideration, weight strongly in favour of revocation, noting in particular his family ties and impact on his family members.
130. In addition, I have found that another factor also weighs in favour of a decision to revoke. This includes the impediments CTWK would face on return, noting his claims made relating to Australia’s non-refoulement obligations.
131. Also, I accept that the nature of CTWK claims indicates a potential for Australia’s international non-refoulement obligations to be engaged, noting he arrived in Australia on a Class XB, Subclass 200 Refugee visa, after being recognised as a refugee by the UNHCR on 27 July 2011. I find that it is open to CTWK to make an application for a Protection visa and during the processing of any such application, CTWK’s claims regarding Australia’s nonrefoulement obligations would be fully assessed.
132. However, I have also given significant weight to the very serious nature of the crimes committed which are of a sexual nature against a child and noting his unmet treatment needs in sexual offending rehabilitation and lack of victim empathy.
133. I have also considered the impact of CTWK’s continued presence in Australia on his victim. In particular, I have noted that the victim’s family had to move house due to concerns of reprisal for going to the police and the victim was too frightened to be alone which necessitated her mother ceasing employment to be with her.
134. Furthermore, I have considered that non-citizens who have engaged in sexual crimes against children raise serious character concerns such that the Australian community would expect they should not continue to hold a visa. I give this primary consideration significant weight as well towards non-revocation of the visa cancellation.
135. I am cognisant that where great harm could be inflicted on the Australian community, any risk of reoffending may be considered unacceptable.
136. Noting that CTWK has engaged in sexual crimes against a child, I am also mindful of the principle stated in the Direction that the inherent nature of this kind of conduct is so serious that even strong countervailing considerations may be insufficient in some circumstances to make a positive decision.
137. On balance, I find that the factors that weigh against revocation of the cancellation decision outweigh the factors in favour of revocation. Therefore, I am not satisfied that there is another reason why the decision to cancel CTWK’s Class XB, Subclass 200 Refugee visa should be revoked. It follows that the condition under s501CA(4)(b)(ii) of the Act is not met.
On 25 February 2025 CTWK applied to the Administrative Review Tribunal (‘the Tribunal’) under s 501 of the Act seeking review of the decision to refuse to revoke the cancellation of his visa, stating:
Inappropriate weighing and consideration of other considerations, including legal consequences of decision and extent of impediments if removed.
At the hearing of his application on 29 and 30 April 2025 CTWK was self-represented and Ms Kaylla Theocharous, appeared for the Minister. The Minister lodged a set of paginated G-Documents, summons documents from the Victorian Department of Justice and Community Safety, Victoria Police and medical records from International Health and Medical Services (IHMS). CTWK submitted numerous statements from family.
BACKGROUND
CTWZ is a 48 year old Iraq national born in Kuwait. CTWK arrived in Australia on 14 February 2013 on a Class XB, Subclass 200 Refugee visa having been recognised by the United Nations High Commissioner of Refugees (‘UNHCR’) as a Refugee on 27 July 2011. CTWK was 35 at the time he arrived with his wife and 2 children and has not left Australia since.
CTWZ attended school in Kuwait until he was around 14, the equivalent of year 8, when his family moved to Iraq during the Kuwait/Iraq war. In Iraq CTWK lived under the Saddam Hussein regime, witnessed war, siege, and general civil unrest. During this period CTWK and his family experienced poverty due to the sanctions imposed upon citizens, witnessed daily violence including killings, explosions, bombings, and insurgency.
CTWK is an Arabic speaking practicing Christian having been raised in the Chaldean Catholic Church.
From 1995, CTWK served his three-year compulsory military service in the Iraqi Army as a soldier. From 1998-2010 CTWK worked as a police officer, and he also worked at KBR Government Solutions for the U.S. Embassy at the USA controlled airports in Iraq.
In 2001 CTWK’s mother died suddenly form a cardiac arrest and in 2010 his father was murdered. CTWK witnessed ISIS members decapitating his father. CTWK has 3 sisters and a brother, all have left Iraq, he has a brother and sister in the US, a sister in Australia and another sister in Lebanon. CTWZ married in 2000 and has 2 children aged 21 and 14. In 2015 CTWZ and his wife separated.
In 2010 fearing for his safety CTWZ fled Iraq having received four bullets in an envelope being told to leave in 24 hours or he and his family would be killed. CTWZ and his family went to Turkey where they lived for 2 years prior to being granted refugee visas to Australia. In Turkey CTWZ worked in construction and other jobs to support his family.
CTWZ undertook English language courses when he arrived in Australia and prior to his incarceration CTWZ worked fulltime in numerous roles. As a warehouse packer in Dairy Country Cheese Factory from February 2014 to February 2018 and as a cleaner for Cabin Services Australia from March 2018 to February 2021.
LEGISLATION
Mandatory visa cancellation in circumstances of a substantial criminal record arises under s 501(3A) of the Act. This is one of a number of ways in which a person may fail the character test in s 501(6). A substantial criminal record is defined as including the situation where a person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
A mandatory cancellation decision may be revoked upon application where a person is found to pass the character test, or where there is another reason to revoke the decision (s 501CA(4)). A compulsory source of guidance has been issued in the form of Direction No. 110 (‘the Direction’). I will refer to the factors identified in the Direction below, and also note that considerations are to be informed by the following principles:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The 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 be denied the privilege of coming to, or 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 noncitizen poses a measureable 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 noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
ISSUES
CTWK conceded that he did not pass the character test for the purposes of s 501CA(4)(b)(i) of the Act. The Tribunal is satisfied that CTWK does not satisfy the character test under s 501 on account of his substantial criminal record as defined under s 501(7) being sentenced to a term of imprisonment of 12 months or more.
Accordingly, the issue for consideration by the Tribunal is whether the cancellation of CTWK visa should be revoked, taking into account the relevant considerations in the Direction. In essence, the Tribunal must be satisfied there is another reason why the original decision should be revoked.
EVIDENCE
CTWK’s Offending
The following table has been derived from a national criminal history check relating to CTWK, produced by the Australian Criminal Intelligence Commission on 2 August 2024:

18. COURT DATE

OFFENCE

COURT RESULT

6 June 2022
PERSONSEXUALLY PENETRATECHILD UNDER 16
3 YEARS IMPRISONMENT.

SEXUAL ACTIVITY PRESENCE

CHILD UNDER 16

1 YEAR IMPRISONMENT. 6 MONTHS
OF SENTENCE
CONCURRENT. TOTAL 3 YEARS, 6

MONTHS.

26 March 2019

CONTRAVENE COMMUNITY

CORRECTION ORDER

PROVEN

13 September 2017

CONTRAVENE COMMUNITY

CORRECTION ORDER

Proven
Convicted and
a Community Correction Order
for 12 MONTHS.
Unpaid Community Work
Perform 60 hours of
community work.
It is ordered that 60 hours
undertaken for treatment and
rehabilitation will be
treated as hours of unpaid
community work for this

Community Correction order

Breach Re 28/06/2016
PERSIST CONTRA FAMILY
VIOLENCE NTC/ORDER

MAKE THREAT TO KILL

Convicted and
a Community Correction Order
for 12 MONTHS.
Unpaid Community Work
Perform 60 hours of
community work.
It is ordered that 60 hours
undertaken for treatment and
rehabilitation will be
treated as hours of unpaid
community work for this

Community Correction order.

Breach re 28/06/2016

FAIL TO ANSWER BAIL

Convicted and
a Community Correction Order
for 12 MONTHS.
Unpaid Community Work
Perform 60 hours of
community work.
It is ordered that 60 hours
undertaken for treatment and
rehabilitation will be
treated as hours of unpaid
community work for this

Community Correction order.

28 June 2016

PERSIST CONTRA FAMILY
VIOLENCE NTC/ORDER
MAKE THREAT TO KILL

FAIL TO ANSWER BAIL

Convicted and
a Community Correction Order
for 12 MONTHS.
Unpaid Community Work
Perform 60 hours of

community work.

Following a guilty plea, Her Honour Justice Wilmot, imposed a term of 3 years 6 months years’ imprisonment, with a non-parole period of 2 years 4 months years. In her sentencing remarks, her Honour described CTWK’s offending, the background to the offending and the impact on the victim:
you have pleaded guilty to one charge of sexual penetration of a child under 16 and one charge of sexual activity in the presence of a child under 16. The offending took place on one occasion on the night of 21 January 2021 and the early hours of the following morning. Two incidents make up the rolled-up charge forming Charge 1 on the indictment. One of those incidents was in the presence of another child which is Charge 2.
You, a 43-year old man, were living in a share house and the girls were taken to your bedroom, where they were introduced to you.
You and A gave the girls whiskey and what is described in the prosecution summary as “weed”, which the four of you smoked using a bong. You and A…talked to each other in Arabic and did not involve the two complainants in any conversation. Ms Fenner (Pseudonym) began to feel unwell as a result of smoking the drug. She lay down on the floor and Ms Lennon (Pseudonym) sat on the bed. A then had penis/vagina sex with Ms Lennon. While he did this, you penetrated her mouth with your penis so she was being penetrated by two men at the same time. You ejaculated in her mouth. This is part of Charge 1 which is a rolled-up charge.
This activity was in the presence of Ms Fenner, who witnessed it and that is Charge 2. She used her phone to contact her brother asking him to pick her up as she felt uncomfortable and wanted to leave. Ms Lennon put on her clothes and walked with Ms Fenner to the front door. Ms Fenner left and met her brother a short distance away. Ms Lennon returned to your bedroom and had another bong. She then fell asleep on your bed, wearing only underwear and a jumper. When she awoke later in the morning, you were having penis/vagina sex with her. She pushed you away, collected her clothing and left. She went to the train station and caught a train to a station near her home where she was collected by her father.
Ms Lennon provided a victim impact statement in which she described the very severe impact your offending has had on her. She is suffering from post-traumatic stress disorder and anxiety. She has given up going to school and no longer sees her friends. She and her family moved house as she feared that A would find her. She cannot be alone and her mother has had to stop working to be with her. At the time of writing last September, she was waiting for a place for treatment at the Gatehouse Clinic and she had a mental health worker through the youth service known as Orygen.
This was extremely serious offending. You were many years older than the girls with an age difference of some 30 years. Although the offending occurred over a short period of one night, in effect, and was isolated and opportunistic, there are a number of aggravating features. You callously exploited two vulnerable teenage girls in a location that was unknown to them, giving them alcohol and drugs to render them even more vulnerable. You then sexually abused Ms Lennon in a crude and self-entitled way with no regard for her wishes or welfare. You and the other offender treated the girls in a despicable way by not even including them in any conversation or communication, but instead, treating them as objects. I treat those matters as aggravating factors.
The second incident, part of Charge 1, occurred when you sexually penetrated Ms Lennon when she was asleep and that is a serious aggravating factor, as the learned prosecutor described it.
In September 2021, you were assessed by the forensic psychologist, Ms Carla Ferrari, who took a detailed personal history from you. That is the source of much of what follows. You were born in Kuwait and you have reported that you had a good upbringing in your family. But because of the war there, the family had to relocate to Iraq in 1991 when you were aged 14 and you had no schooling after that. Your life in Iraq was spent in poverty due to sanctions imposed on citizens during the regime of Saddam Hussein, and you witnessed daily violence, including killings, explosions, bombings and insurgency.
In 1995, you were conscripted into the Iraqi Army for three-year military duty where you served as a soldier. You then became a police officer from 1998 to 2010. Your mother died from natural causes in 2001 when she was 42. In 2010, your father was murdered by ISIS members. He was decapitated in your presence. At that time, your government position, working at the US Embassy, in addition to or as part of your police work meant that you were under threat from ISIS. Two of your sisters were displaced by ISIS and put in tents to live. Fearing for your family, you left for Turkey and you lived there for two years before being granted a refugee visa to come to Australia.
.
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)

The Direction requires the Tribunal to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and 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 (8.1(1)). The Tribunal must have particular regard to the principle that remaining in Australia is a privilege, given the expectation that non-citizens are law-abiding, respect important institutions and will not cause or threaten harm to individuals or the Australian community.
This primary consideration also requires the Tribunal to consider two specific elements: the nature and seriousness of a non-citizen’s conduct to date; and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct (8.1(2)(a)-(b)).
The nature and seriousness of the conduct (paragraph 8.1.1)
CTWK did not contest he had committed serious crimes and accepted that he failed the character test.
Submissions
CTWK
CTWK submitted:
·whilst he did not dispute that the nature of his offending was very serious, he believed it was mitigated by his remorse, guilty plea, sincere efforts at rehabilitation and Her Honour’s sentencing remarks assessing him as being at a low risk of reoffending.
·his offending was opportunistic, out of character and as a direct result of his significant alcohol consumption.
·he is deeply ashamed of the terrible mistakes he has made in his life.
·accepts that the out of character behaviour at the time of his offending is no excuse for the harm he has caused.
·that he accepts his guilt and does not seek to deny his terrible offending.
·he accepts that he has caused significant harm to his victims and is deeply ashamed of his actions.
Respondent
The Respondent contended that this consideration weighs very heavily against there being another reason to revoke the mandatory cancellation of CTWK’s visa, submitting the Tribunal should be mindful that in relation to the protection of the Australian community, the safety of the Australian community is the government's highest priority.
The Respondent contended that CTWK’s offending was very serious having been sentenced to a total period of imprisonment of three years and six months with a non-parole period of two years and four months for person sexually penetrate child under 16 and sexual activity presence child under 16. Additionally, the Respondent noted CTWK has a significant history of family violence having contravened a family violence order, make threat to kill, fail to answer bail and contravention of community corrections orders.
The Respondent submitted that paragraph 8.1.1(1)(c) of Direction 110 requires the Tribunal to consider the sentence of imprisonment imposed on CTWK. The Respondent referred the Tribunal to the Tribunal's comments in PNLB and Minister for Immigration and Border Protection [2018] AATA 162, that 'sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.' The Respondent submitted that the substantial custodial sentence imposed by the Court reflects the objective seriousness of CTWK’s offending.
The Respondent submitted CTWK’s sexual offences against minor children and family violence offending constituted conduct described in subparagraphs 8.1.1(1)(a)(i) to (a)(iii) and therefore should be viewed very seriously regardless of the sentence imposed.
The Respondent submitted that paragraph 8.1.1(1)(d) directs the Tribunal to consider the impact of the offending on any victims where this information is available. There is no evidence provided by the victim directly in relation to CTWK offending. However, the Respondent submitted that it is evident from the sentencing remarks that CTWK’s conduct has significantly impacted the minor victim, causing her ongoing psychological issues.
The Respondent submitted that paragraph 8.1.1(1)(e) requires the Tribunal to consider the frequency of CTWK’s offending and any trend of increasing seriousness. The Respondent submitted that CTWK’s offences have continued to be serious, with his first conviction in 2016 being for persist contravened family violence, make threat to kill and fail to answer bail, and his 2022 convictions constitute very serious offending, being for sexually penetrate child under 16 and sexual activity while child under 16 was present.
The Respondent submitted CTWK’s offending is very serious when viewed in isolation, but when viewed cumulatively was especially serious, as prescribed by paragraph 8.1.1(f) of Direction 110, The Respondent contended that, considered cumulatively, CTWK’s criminal history ought to be viewed as very serious within the context of Primary Consideration 1.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)
This part of the primary consideration requires the Tribunal to 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’ (8.1.2(1)).
Submissions
CTWK
In CTWK’s personal circumstances form in his revocation request dated 13 October 2022 he advises:
I will not reoffend. My actions have brought great cultural shame to me and my family. My crime was opportunistic and isolated. My plea of guilty indicates my remorse and acceptance of responsibility for offending.
I have a good employment history and know I can rejoin the community as contributor to society.
I have no previous convictions for sexual offending the judge in sentencing me said “there is nothing to indicate an apparent risk of reoffending in this way”. Being incarcerated has given me much time to think and being isolated here is enough of deterrence to not reoffend.
In CTWK’s statement submitted to the Tribunal on 17 April 2025 he advises:
When I attend to Australia, I love Australia too much. I felt happy and comfortable me and my family and that's another chance for us to start new life first year I start studying in ….English language and after that I start working . And a problem start in 2015 and all time I was under alcohol and that's why I have problem me and my wife and few times I attend to my home to see my kids. I thought that's legal because I love them too much and I couldn't stay away from them and that's why the breach happen they took me to court and I was convicted and I've done CCO and work for community. I've done my CCO and I've dying all my community work and after that I start work as cleaner and …..and that time I was rented house commission house and different place. In 2021 I've done my offense and I was bailed with good behavior and after that I went to jail. I got sentence 3 years and 6 months I work in the prison as manufacturer number plate and I was working on myself to be better person and I start doing programs. Whatever I can do and September 2022 my visa has been canceled and I start doing revocation in October I start working myself ok Google and I start getting visit from my kids from my wife from the priest as support me and my brother and after I finish my present time then send me back here to detention center until my case finish. I learn a lot in the prison because I have a lot of time to sit by myself between in my room and I think in what I have done because that's affect the person and the people around me in the community and I hope that if I can't turn the time around to go back and all this not I haven't done it. I learned from my mistake and I will never forgive myself because I've hurt someone innocent.
CTWK submitted:
·He has taken steps to rehabilitate himself to further reduce the likelihood of reoffending and undertaken all courses that he could avail whist in prison, including: Learning for Life, Take Stock A, Adapt, Healthy Living, Houses and Homes, Jobs and Careers, Take Stock B, Six Hour AOD and Loss program, Family, Friends and Community, Six Hour AOD and Depression program, Six Hour Managing Cravings program, Six Hour AOD and Stress Management program, Peace Education 3, Triple P parenting program, Healthy Relationships, Recalibrate, Traffic Management, Apply infection prevention and control procedures to own work activities and Prepare to work safely in the construction industry.
·All his offending has been related to his alcohol consumption and he knows he has to stop drinking; he did not want alcohol to beat him, he has taken all the courses he can to learn how to cope without turning to alcohol and has given up smoking as well.
·That he has adopted strategies to stay healthy and away from alcohol, he goes to the gym each day, he writes, he watches movies, reads and has been improving his English.
·He has been speaking regularly to the Priest whilst in Prison and detention, has reconnected with his faith and will stay connected to his church, that we all make mistakes, and we should seek forgiveness from the Lord and learn from these mistakes.
·That he knows his offending will not happen again because of the support of his family, including his sister who is now living in Australia.
·He has been regularly speaking to a psychologist to help him with strategies to not offend again.
·His mental health is ok and whilst he has seen some terrible things in the past including his father’s murder by ISIS he is now well.
·He applied to undertake a sexual offender’s course but had been advised he was not eligible and submitted a letter from Forensic Intervention Services which stated:
Forensic Intervention Services recently reviewed your case to assist decision-making about your assessment and treatment needs. We are sending you this letter to inform you of the outcome of this pathway review.
Unfortunately, you have insufficient time remaining on your sentence to complete a program and therefore you do not currently meet the eligibility criteria. for inclusion in a program with Forensic Intervention Services. We will contact you If circumstances change and you become eligible for further assessment with Forensic Intervention Services.
·He has also undertaken courses to help him deal with the stress which resulted in his marriage breakdown and has worked hard at rebuilding trust and respect with his separated partner and children, he has learned how to communicate respectfully to his separated partner and they are now best friends.
·He had demonstrated good behaviour in prison and detention, had worked in prison and stayed away from trouble.
·His family violence was also the result of alcohol abuse so he knows he cannot drink again as it causes to much pain and suffering to his family.
·His family had all given evidence that they had no fear of him, that his offending was a complete surprise and completely out of character, he is extremely remorseful, he will never reoffend again, and they will support him to stay away for alcohol consumption.
Respondent
The Respondent acknowledged that the Australian community may necessarily be expected to accept a degree of risk associated with the holding of visas by non-citizens. However, they referred the Tribunal to Senior Member Taylor’s observations in Dharma and Minister for Home Affairs, the degree of risk that may be acceptable is ‘"inversely related" to both the likelihood of reoffending and the apprehended significance of the harm that may be caused by such further offending. In this context, paragraph 8.1.2(1) of Direction 110 introduces the notion of an "unacceptable risk"’; that is, a risk that the community should not be required to tolerate regardless of other considerations. Additionally, in Tanlieu v Minister for Immigration and Border Protection, Justice Mortimer drew upon authorities related to other protective schemes to explain that, to determine an "unacceptable risk" a decision-maker must evaluate both the potential consequences of further offending and the likelihood that such consequences will manifest.
The Respondent submitted the harm that would likely be caused to the Australian community, including vulnerable members such as women and children, including physical and psychological harm, should CTWK re-offend in the manner in which he has to date, was so serious that any risk it may be repeated is unacceptable.
The Respondent submitted CTWK’s evidence indicates that causal factors behind his offending includes his alcohol use at the time of his offending.
The Respondent also noted that whilst CTWK’s evidence to the Tribunal had not gone to his past trauma his medical records indicated he had a history of torture and trauma. Noting the assessment by Carla Ferrari (Forensic Psychologist) in September 2021, included CTWK’s background of trauma, including witnessing his father being decapitated in front of him by ISIS members and being subsequently threatened. Ms Ferrari also reported that CTWK reported ongoing trauma symptoms and diagnosed him with Post-Traumatic Stress Disorder, and stated ‘since being incarcerated, [the Applicant] appears to have developed significant symptoms of depression and anxiety, likely an Adjustment Disorder with mixed anxiety and depressed mood in response to the allegations against him.’ Ms Ferrari also considered that CTWK required consistent, regular trauma-focused interventions and offence-specific treatment which is highly specialised.
The Respondent acknowledged that Judge Wilmoth had considered CTWK’s prospects for rehabilitation, were increased because of several factors including his positive work record, continued support of his family even after the breakdown of his marriage, his wide experience in the workforce and the support of his sister who resides in Melbourne along with his important ties to his children and separated partner.
The Respondent acknowledged that Judge Wilmoth considered that the Applicant had good prospects of rehabilitation. However, the Respondent submitted that the factors outlined above, excluding the presence of his elder sister, were already in place when the CTWK offended in 2021, and they had not prevented him from engaging in sexual offending against minor victims.
The Respondent acknowledges that CTWK has engaged in ongoing counselling with a mental health counsellor while in immigration detention, and was referred to Foundation House for counselling, and has engaged in mental health counselling.
The Respondent acknowledges that CTWK had engaged in various rehabilitation courses and programs and has provided evidence of various courses he has completed including ATLAS Mapping a Way Forward program (noting this program does not address sexual offending, or drug and alcohol use) 6 hours of the AOD and Loss Program (which addresses drug and alcohol use), 6 hours of the AOD and Depression Program (which addresses drug and alcohol use), 6 hours of the AOD and Stress Management Program, (which addresses drug and alcohol use), the Peace Education Programme at Hopkins Correctional Centre, the Triple P Program (which relates to positive parenting), and various vocational courses and programs.
Whilst the Respondent acknowledges CTWK evidence in relation to his rehabilitation, the Respondent submitted there was no expert evidence before the Tribunal regarding his risk of recidivism.
The Respondent acknowledges that CTWK has taken steps towards engaging in rehabilitation in relation to his mental health by engaging in ongoing counselling with Foundation Health and counselling in detention, however the Respondent submitted the outcome of these rehabilitative efforts is unclear and contended in any case, these rehabilitative efforts do not appear to address sexual offending.
Further the Respondent further submitted CWTK’s ability to abstain from committing further sexual offences has not been adequately tested in the community since his incarceration and time in detention, and that his offending is relatively recent.
The Respondent accepted CTWK’s evidence that he had applied to undertake a sexual offender’s program whilst in gaol, but he had been deemed ineligible for the program.
The Respondent submitted that CTWK evidence was:
·his offending was out of character, and it was his alcohol consumption that led him to sexually offend against 2 minor victims in 2021.
·he has abstained from alcohol use while in immigration detention and there is no evidence before the Tribunal to suggest any incidents of alcohol use in custody or detention.
·he intends to stay abstain from alcohol
The Respondent contend that the Tribunal could be satisfied on the evidence that CTWK would abstain from alcohol as:
·to date his abstinence has occurred in a controlled environment in immigration detention and has not been adequately tested in the community.
·that at family gatherings and other social or cultural events individuals will be drinking alcohol in front of him.
·his separated partner’s evidence was that previous family violence offending occurred when he consumed too much alcohol with friends and lost control.
·he gave limited evidence of strategies he had in place to deal with stress if released into the community to avoid returning to excess alcohol consumption in the futures
·his evidence was he does not intend to engage in any alcohol programs or ongoing counselling or psychology support if he is released into the Australian community.
The Respondent acknowledged that CTWK had expressed and demonstrated his remorse for his offending. The Respondent also acknowledged that CTWK’s family were aware of his sexual offending against minor victims, and all family members gave evidence that he had discussed his remorse and was regretful for his offending.
The Respondent submitted however whilst they acknowledge CTWK has expressed remorse for his offending the evidence before the Tribunal also demonstrated a lack of accountability for his actions. The Respondent submitted this was evidenced in CTWK’s inability to explain the Parole Suitability Assessment Report dated 29 August 2023 which stated CTWK:
oexpressed significantly little remorse and insight into his behaviour
ocontinued to maintain his innocence through the incidents
osuggested that he was set up by his housemates at the time and when challenged on this was unable to explain why his housemates would make these claims
oclaimed the victim regretted her behaviour and wanted to blame him
oclaimed if the victim had been assaulted by him why had it taken her over a month to report the incident
ofocused on the alleged lack of DNA evidence in the bedroom
oreferenced his Christian faith and understanding of having a young daughter as to reasons why he did not engage in the sexual offence
Additionally, the Respondent submitted CTWK’s claims of remorse and acceptance of his involvement in the offending was at odds with the IHMS records dated 18 November 2024 where CTWK reported to a Primary Health nurse that he denied involvement in the offence saying he was implicated by his friend.
The Respondent contended the Tribunal should consider the following:
·CTWK was assessed as being at a medium risk of reoffending in the Community Correction Order Assessment Report dated 13 September 2017 which recommend ongoing supervision and participation in offending behaviour programs, including the Men's Behavioural Change Programme as well as road trauma awareness to address his offending unrelated to the sexual offending.
·The Violence Risk Scale (‘VRSSV’) was utilised on 29 November 2017 to assess CTWK’s risk of violent reoffending and scored him in the moderate category of risk for violence relative to other male offenders.
·On 29 August 2023, CTWK was assessed as a medium risk of general offending and a moderate to low risk of sexual offending.
·A partially completed clinical risk assessment date 25 August 2023 referred to risk factors which may lead to CTWK’s reoffending and noted that it was ‘in question if a decline in untreated mental health, significant emotional stresses, or if his son became aware of his convictions and why he was not living “at home”, return to use of alcohol and other substances’.

The Respondent contended based on the evidence before the Tribunal, and noting CTWK’s history of very serious offending, and limited rehabilitation undertaken to date, particularly in relation to sexual offending, and his demonstrated denial of his involvement in the sexual offending against minor victims, there was a risk he would reoffend.
The Respondent contended given CTWK’s previous breach of community corrections orders and family violence intervention orders; he presented an ongoing risk of reoffending. Given the very serious risks that would result if CTWK were to engage in similar offences in which he has previously engaged, including sexual offending against minor victims and family violence offences, the Respondent submitted the risk posed to the Australian community was unacceptable.
The Respondent contended having regard to the nature and seriousness of the Applicant's offending and the risk to the Australian community if he were to reoffend, Primary Consideration 1 weighs significantly against the revocation of the Cancellation Decision.
Summary finding
The Tribunal found CTWK’s offences blatantly serious which have resulted in devastating impacts on his very young victims.
The Tribunal found CTWK to be a reliable witness, who expressed genuine remorse for his abhorrent actions, did not shy away from his guilt and acknowledged the harm he has caused others. CTWK’s evidence also demonstrated he was aware that his relationship with alcohol was unhealthy, blaming his excess consumption of alcohol as the basis for his offending.
The Tribunal found CTWK’s evidence demonstrated he had availed himself of numerous programs to address his reliance on alcohol, his behaviour towards women, managing stress, training to assist him secure work and improving his English language skills. CTWK’s evidence demonstrated he was remorseful, had sought to rehabilitate himself and put in place protective factors to ensure he did not offend again. CTWK’s evidence was he knew he needed to stay away from alcohol, and he could do this by staying healthy, going to the gym, quitting smoking, keeping busy, getting work, connecting with his faith and being with his family.
The Tribunal noted in Her Honour’s remarks that CTWK’s prospects for rehabilitation are probably good, stating:
I turn now to Ms Ferrari's findings in her report dated 17 September 2021. The report was requested to determine whether you were fit to stand trial and Ms Ferrari's opinion was that you were fit for trial. She diagnosed untreated post-traumatic stress disorder following exposure to war, your experiences in the army and police force, the brutal murder of your father and the threats to yourself and your family. On arrival in Australia, you experienced a decline in your employment status which has not changed. You have not had any treatment for post-traumatic stress disorder.
Ms Ferrari stated at paragraph 68 of her report and I quote:
'Research has repeatedly identified PTSD as a core manifestation of trauma and undoubtedly the experience of Mr Khaleel throughout his life has contributed to self-regulation issues, a key symptom of PTSD and anxiety. Symptoms can fluctuate in intensity and frequency, however, are particularly prone to exacerbation under situations of extreme stress. Emotional dysregulation can impair problem-solving and healthy information processing and can lead to an increase in negative emotions and a decrease in pro-social responses, as has been the case with Mr Khaleel'.
Your prospects for rehabilitation are increased by your remorse and shame and are dependent on several other factors as well. You have a good work record and continued to support your family even after the marriage breakdown. You have quite wide experience in the workforce and you understand that your former job will be available when you are released. You have the support of your sister, who I understand now lives in Melbourne and the important ties to your children and ex-wife.
With no previous convictions for sexual offending, the existence of these protective factors indicate good prospects for rehabilitation. Although you have several prior convictions, they all arose from the aftermath of the breakdown of your marriage and bear no relation to sexual offending. The courts imposed community orders upon you, and this has been your first time in prison. There is nothing to indicate an apparent risk of reoffending in this way.
As your prospects for rehabilitation are probably good, I take that into account in determining an appropriate sentence.
However, the Tribunal was concerned that CTWK had not accepted responsibility for his actions. Whilst the Tribunal did not doubt, CTWK was remorseful, his evidence had not actually reconciled that his actions were his doing and continued shifting blame to his alcohol consumption. The Tribunal on the evidence did not perceive that CTWK took any responsibility for the fact he was sober when he allowed two very young girls into his room and proceeded to get them drunk and stoned. The Tribunal found on the evidence that CTWK still had little insight into his offending.
The Tribunal was concerned that CTWK repeatedly stated he did not understand Australian law when he offended. Sexually assaulting anyone at any age is unacceptable. The Tribunal considered an understanding of the age of consent in Australia was not required to know having unwanted sex with a 13-year-old is abhorrent.
The Tribunal sadly was not assisted by any recent psychological assessments of CTWK’s risk of reoffending and rejects the Respondents reliance of any reports from 2017, associated with his domestic violence offending, as irrelevant to CTWK’s current risk of recidivism. The Tribunal accepted CTWK’s evidence and that of his separated partner that the difficulties they experienced in their relationship were in the past and he had been a caring and loving father without any incident from 2017.
However, the Tribunal noted with concern the mental health screening report of 18 November 2024 where CTWK denied any involvement in his offending. CTWK could not explain this statement other than to repeat his guilt pled indicated he accepted he was guilty. The Tribunal on the evidence was not convinced that CTWK had gained insight into his offending. The Tribunal also relied on the Corrections Victoria’s parole suitability assessment report of 29 August 2023 which concluded:
[CTWK] is not a suitable candidate for parole, in light of his outstanding treatment needs, lack of suitable accommodation in the community and his non-citizen status following cancellation of his visa.
...
[CTWK] has been identified as Medium risk of general re-offending and Moderate-Low risk of sexual reoffending. His identified criminogenic needs include his lack of pro-social peers, history of problematic alcohol and drug use and his deficit in meaningful and transparent familial relationships of which influence his overall pro-criminal attitudes and views towards his offending and treatment requirements.
At this time, [CTWK] has not met the criteria set out for a sexual offender's consideration for parole, with both treatment and accommodation outstanding. Whilst [CTWK]has been observed to struggle with social skills in custody, he has remained incident free throughout his incarceration
The Tribunal accepted on the evidence CTWK did have many pro-social factors available to him in the community which would assist him to not reoffend. The evidence before the Tribunal was of a loving and caring family, including his separated partner, who would do all they could to ensure CTWK stay away from alcohol and did not reoffend; he had good prospects for work and housing and had developed skills to assist him deal with stress and conflict.
Whilst the Tribunal accepted CTWK has around him a very supportive family, work, housing and his church community these factors were present when he offended and did not prevent him from committing serious offences. Additionally, CTWK’s failure to develop insight into his offending is of concern and his ability to abstain from alcohol is untested back in his community. All these factors raise a prospect whilst he may be a low risk he may be a risk of reoffending in the future.
The Tribunal considered the nature and seriousness of CTWK’s offences, weighs heavily against revoking the mandatory cancellation of the visa. CTWK’s offences are such that this factor must weigh against him.
Primary Consideration 2: Family violence committed by the non-citizen
The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence.
Submissions
CTWK
CTWK submitted:
·He understood family violence was wrong, and he had caused his wife distress in the past
·He had completed his community correction orders and the Men's Behaviour Change Program for Arabic Men
·He had missed 3 sessions of the Men's Behaviour Change Program because he was ill and had provided a medical certificate which was accepted by the magistrate
·He never threatened to kill his wife, had never physically assaulted his wife but accepted he had been verbally aggressive towards her
·He had never physically or verbally abused his children
·That when he breached his intervention order he was desperate to see his children and reconcile with his wife and was under the influence of alcohol.
·If he was a threat to his separated partner and children why had his separated partner come to the Tribunal to support him.
·that he and his separated partner had repaired their relationship and were good friends, prior to his imprisonment he had financially supported his separated partner and children and co-parented the children with his separated partner respectfully; his separated partner had been a great support to him whilst in prison and detention.
·His spoke to his separated partner regularly, they had been married for 24 years and he did hope to reconcile with her if his Visa was restored but would respect any decision she made, and they would remain good friends and be in each other lives because of their children.
·That his separated partner’s evidence had been she was not afraid of him, that it was when he had been drinking with his friends, he was a different person and would become verbally aggressive, she had seen a change in him and that he was a caring and loving father.
·That his daughter’s evidence was she loved her father dearly, was not afraid of him, that she had seen her parents relationship repair over time and they were close and respectful to each other, she had been present when her father was banging on the door and whilst not nice she was not scared.
Respondent
The Respondent contended that direction 110 firmly enshrines the Australian community's concerns with respect to offences involving domestic and family violence as acknowledged in Senior Member Puplick’s remarks in Mendoza and Minister for Immigration and Border Protection:
The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.
The Respondent submitted CTWK had been convicted of family violence offences which should be assessed by the Tribunal as serious and cumulatively. The Respondent submitted CTWK’s family violence offending against his separated partner, in the presence of his children, was documented in the available evidence from Victoria Police including:
(a) there are two previous recorded family violence incidents between the Applicant and his ex-wife, and there was an intervention order in place with full conditions;
(b) on 13 November 2015, the Applicant attended the premises and banged on the door, shouting that he still wanted to be in the relationship with his ex-wife;
(c) on 23 November 2015, the Applicant attended the residence and demanded to see his children and was within 200 metres of the premises which resulted in a breach of the conditions of the intervention order;
(d) on 7 December 2015, the Applicant attended the premises, went to the backyard and made threats to kill his ex-wife, stating that he if he saw her at the Broadmeadows Shopping Centre he would kill her, and swore at her in an abusive manner; and
(e) police were called on 7 December 2015 and arrested the Applicant, who made full admissions to breaching the intervention order but did not admit making threats to kill.
The Respondent submitted CTWK did not successfully complete the Men's Behaviour Change Program for Arabic Men and although CTWK has completed programs addressing relationships, stress management, families and appears to have engaged in formulating a plan to assist him with strategies not to commit further family violence offending, the content of those courses is not apparent, nor whether they were delivered by an appropriately qualified professional to address family violence offending.
The Respondent acknowledged that CTWK:
·in his evidence, expressed that he had learned mutual respect and the need for respectful communication in the sessions that he did attend in the Men's Behaviour Change Program and gave evidence of strategies in place to assist him not to commit further family violence offending.
·gave evidence that his family violence offending occurred in the context of his alcohol use.
However, the Respondent submitted it was concerning that CTWK’s family violence offending occurred in the presence of his children, whilst acknowledging his separated partner and daughter gave evidence that they no longer hold any fears of CTWK committing family violence offences in the future this was on the basis he had the ability to abstain from alcohol which not been adequately tested in the community.
The Respondent submitted CTWK’s contravention of a family violence intervention order and community corrections orders indicates that orders issued by the Court have not been sufficient to prevent him from reoffending in the past and accordingly contended there was a significant risk that CTWK may reoffend in the future. The Respondent submitted that the Tribunal should be particularly concerned as CTWK has expressed wishing to reconcile the relationship with his separated partner in the future and her refusal to do so may lead to future family violence against her.
The Respondent contended that CTWK’s offending constitutes family violence offending for the purposes of Direction 110 and is of a persistent nature given the breach of intervention orders in place. In the above circumstances, the Respondent contended that Primary Consideration 2 weighs strongly against revocation of the cancellation of the Applicant's visa.
Summary finding
The Tribunal finds that CTWK has committed acts of family violence as defined in the Direction. Whilst the Tribunal accepted the evidence of CTWK’s separated partner and daughter that he has never been physically abusive to any family members his offending had nevertheless caused them significant distress.
The Tribunal on the evidence does not consider CTWK’s past behaviour is indicative that he poses a threat to family members in the future, the evidence from his family was that the disputes of the past had settled down many years ago and CTWK and his separated partner were good friends who were co-parenting respectfully until his incarceration in 2022.
The Tribunal accepted the evidence of all CTWK’s female family members that they were not afraid of him, that he was a loving and caring father but when he had been drinking outside the family confides with friends, he was a different person who could be verbally abusive. The Tribunal had concerns that CTWK would continue to abstain from alcohol. However, the Tribunal did not share the Respondent’s view that his stated desire to reconcile with his separated partner posed a threat to her or their family. The Tribunal accepted CTWK’s evidence that he has learnt to show respect to his separated partner and if she did not wish to reconcile, he would respect her decision. The Tribunal found CTWK’s strongest desire was to stay a connected part of the children’s and extended family’s lives.
The Tribunal accepted CTWK’s separated partner’s evidence that she and CTWK had for serval years, after the incidents in 2015 and before his incarceration in 2022, been co-parenting in a respectful manner without further incidents of domestic violence.
As the Tribunal has found CTWK’s committed acts of family violence as defined in the Direction in 2015 it follows it must find this Primary Consideration weighs in favour of affirming the Reviewable Decision. However, the Tribunal does not concur with the Respondent that it weighs heavily against CTWK or that he presents a future risk to his family members.
Primary Consideration 3: The strength, nature and duration of ties to Australia
There are several elements to this consideration. It requires consideration of any impact of a decision on a non-citizen’s immediate family members in Australia who are citizens or have a right to permanently reside (8.3(1)).
The Tribunal must also give consideration to a non-citizen’s ties to the community more broadly, having regard to the length of residence in Australia, whether they arrived as a child and the strength, nature and duration of ties to any family or friends who are Australian citizens (8.2(a) & (b)).
Submissions
CTWK
In CTWK’s personal circumstances in his revocation request dated 13 October 2022 he advises:
Knowing that if i am sent to Iraq will bring a result in my being killed weighs very heavily on all family members especially when my sister has just arrived in Australia as a refugee.
My family members will bear the extra burden in time and money trying to support my wife and children and be constantly worried and waiting to hear the news i have been killed. My daughter aged 18 is aware of my incarceration, she is struggling to focus on her education and is depressive.
CTWK submitted:
·His immediate family all resided in Australia
·He has also had extended family and many friends in Australia
·He had contributed to Australia as a hard-working taxpayer never taking Centrelink payments
·Had contributed to the community through involved in his Church
·He had not left Australia since arriving 13 years ago and had no family in Iraq
·That his family would be devastated if his visa was cancelled, they would miss him greatly and live in constant fear of his safety; his family would also struggle without his financial and emotional support; he had a job lined up upon release and would again contribute to his family and community.
·He spoke to his family daily, providing them emotional support and advice all the time.
Respondent
The Respondent acknowledged that CTWK’s immediate family members reside in Australia including his separated partner daughter, son, sister and her family. The Respondent acknowledged CTWK has a very close relationship with his adult daughter. The Respondent also acknowledged the evidence before the Tribunal indicated CTWK had a supportive relationship with his separated partner, that she wishes for him to remain in their children's lives and he also has a close relationship with his sister who has indicated that she will provide him with support in the Australian community.
The Respondent accepts that CTWK has been in constant communication with his family and friends while he has been in prison and in immigration detention.
In all the circumstances therefore, the Respondent accepted that a non-revocation decision would have a significant impact on these family members, of an emotional, financial and practical nature (paragraph 8.3(1)).

The Respondent further acknowledges that CTWK has extended family and many friends who reside in Australia, noting several had provided statements of support for CTWK.
The Respondent accepts CTWK has made some limited contribution to the Australian community through his employment history and has an offer of full-time employment in the position of a factory hand if his Visa his reinstated.
The Respondent accepts CTWK is a member of his local church, volunteering there before his imprisonment church and intends to return to his church to volunteer if his Visa his reinstated.
The Respondent submitted CTWK arrived as an adult aged 35 years, and was convicted of his first offence in 2016, shortly after his arrival, three years, in Australia. Given In all these circumstances, the Respondent contended there was limited evidence before the Tribunal to demonstrate that CTWZ has made a positive contribution to the Australian community outside of remunerative work, noting that there is limited evidence regarding his involvement in his local church community.
The Respondent accepts that this Primary Consideration weighs moderately in favour of revocation. However, the Respondent contends that this is outweighed by Primary Considerations 1, 2 and 5.
Summary finding
The Tribunal notes there was no dispute that CTWK’s had significant ties to Australia; what was in contention was the weight and determinative factor to be placed on Primary Consideration 3.
The Tribunal accepts CTWK’s close-knit and very supportive family all reside in Australia and will be greatly impacted by refusal of his Visa. The Tribunal accepted the evidence from CTWK’s separated partner, daughter, sister and statements from friends that they would be devastated if he was removed to Iraq. The Tribunal notes CTWK’s immediate family have the right to stay in Australia indefinitely and several have become or are in the process of becoming Australian citizens.
The evidence before the Tribunal was clear the only connection CTWK and his extended family now have no connection to Iraq. The Tribunal also accepted the evidence indicated that removing CTWK from his immediate family would leave him without the prosocial factors he needs to abstain from alcohol and would put significant pressure on his family who will remain in Australia.
The Tribunal relied upon the statement of CTWK’s daughter
I want to begin by acknowledging that I am fully aware of the sexual offence on his record. I understand the seriousness of the matter and do not wish to minimize its impact. However, I also know my father not just as someone with a legal record, but as a human being someone who has made mistakes, accepted responsibility, and committed himself to change. Over the past years, I have seen the way he has carried the weight of that mistake, not only in the eyes of the law but also within himself and our family.
Despite everything, I know my father as a kind, gentle, and humble man. He is soft-spoken, thoughtful, and always willing to help others, even when facing challenges of his own. He has never turned his back on his responsibilities and has remained committed to growing into a better version of himself. He has shown me, time and time again, that he is more than his worst decision he is someone with heart, reflection, and the desire to do right.
From a personal standpoint, the most difficult part of this situation has been the emotional distance and absence of my father in my life. The bond between a father and daughter is one that holds deep meaning, and his absence has left a hole that can’t be filled by anyone else. I miss the simple things his guidance, his support, his presence at family gatherings, or just being able to call him when I need to talk.
I want the opportunity to continue having a relationship with him, to rebuild and strengthen our connection. I want him to be part of my life, to witness my milestones, and to be there for the moments that matter as a father should be. I also want to be there for him as a daughter to support his continued journey toward healing and becoming the best version of himself.
We cannot change the past, but we can shape the future. I truly believe that being allowed to stay in the country where his family resides would give my father the structure, support, and stability he needs to continue his progress. He is not a risk to public safety he is a man who deeply values family, redemption, and the opportunity to be better. I see in him someone who wants to give back, not just to us as his family, but to the community around him.
The Tribunal accepted CTWK’s evidence that he was incredibly grateful to live in the safety and security of Australia, had always sought out paid employment having no desire to be dependent on Centrelink payments and had been until his incarceration the main financial support for his family.
The Tribunal found that CTWK’s strength, nature and duration of ties to Australia as a primary consideration, weighs in favour of revocation of his visa cancellation as he had lived in Australia for a considerable period of time, contributed to the Australian community through his solid work history, had financially and emotionally supported his family and was involved in the Chaldean Community.
Best interests of minor children in Australia affected by the decision
The Tribunal must determine whether or not a decision not to revoke the visa cancellation is in the best interests of a child affected by the decision (8.4(1)). The interests of children should be considered individually, and a range of specific factors are identified as relevant (8.4(3)-(4)).
Submissions
CTWK
In CTWK’s personal circumstances form in his revocation request dated 13 October 2022 he advises:
Currently my son is impacted by not having me physically present. To not see him play sport or discuss his interests or play video games with him. My absence has him lonely at times
The impact on my son would be life changing. As the prospect of being returned to Iraq would almost guarantee my being killed my son will be without a father. My son will also be exposed to my recent past earlier than we desire for him to know and at such a crucial age could put him at risk of poor mental health. If removed, i am also unable to return to work and make money that will give my son the best opportunities in schooling/education going on holidays and undertaking extra curriculum activities such as sport or a hobby. I am only 45 i have many working years left. Without my financial contribution my son will miss out on a lot.
CTWK submitted:
·He had a very close relationship with his son
·That his son and daughter lived with their mother, but he was a large presence in their lives, supporting them financially, emotionally and before going to gaol saw them regularly
·Spoke to his son as much as he could when he was in prison and now speaks to him daily and has had visits from him since being in detention
·His son was missing him greatly wanting to know when he would be home
·The evidence from his separated partner and daughter demonstrated he was a loving and caring father who played a positive role in his son’s life
·His son was at an age when he needed his father to help him develop into a good young man.
Respondent
The respondent acknowledges that CTWK has one minor son who resides in Australia and one adult daughter. The Respondent acknowledged that CTWK and his family members gave evidence that he has a very close relationship with his children. The Respondent accepted the evidence that CTWK has daily contact with his son, discusses his son's life with him and provides support, additionally his son has been visiting in immigration detention most recently for CTWK’s birthday.
The respondent acknowledges that the applicant has asserted that he may not be able to financially support his son if he is removed to Iraq.
The Respondent acknowledges that CTWK’s separated partner has provided a letter of support in which she requests he be allowed to remain in Australia as ‘it is a very important matter that will affect our children, especially on their psychological state…,’ and that her children love and support their father and that the presence of their father is a great deal of support to them and their future.
The Respondent acknowledges that although CTWK is separated from his partner, the evidence indicated they now have an "amicable" relationship and co-parent, noting that CTWK stated ‘after my incarceration my wife and I went through difficult times however she has always supported me having contact with the children.’
The Respondent acknowledges CTWK has asserted he would not be able to financially support his son if removed to Iraq and his written statement included ‘if I am unable to remain in Australia she will be tasked with supporting our children on her own with the added pressure of caring for her parents (Australian citizens) as they age.’
The Respondent accepts that a revocation outcome would be in the best interests of CTWK’s minor son and considered that the nature of the relationship between him and his minor son is a parental one. The Respondent accepts that separation from CTWK would have a detrimental effect on the Applicant's minor son.
However, the Respondent submitted that there has been a long period of absence where CTWK has been incarcerated and in immigration detention and he has been able to maintain contact with his son via electronic and other means, and this could continue if he were to return to Iraq (paragraph 8.4(4)(d)). Further the Respondent submitted that there is another person who already fulfils a parental role in relation to CTWK’s minor son, namely his mother (paragraph 8.4(4)(e)).
The Respondent accepts CTWK’s evidence that he wishes to continue to play a role in his child's life. However, the Respondent submitted that there is some doubt as to whether CTWK is likely to play a positive parental role in the future, particularly as he has committed family violence offending in the presence of his children and has been subject to a family violence intervention order.
In all of the above circumstances, the Respondent accepts that Primary Consideration 4 weighs in favour of CTWK, however, contended that this Primary Consideration is outweighed by Primary Considerations 1, 2 and 5.
Summary finding
The Tribunal notes there was no dispute it would be in the best interest of CTWK’s minor child for the cancellation of his visa to be revoked; what was in contention was the weight and determinative factor to be placed on Primary Consideration 4.
The Tribunal finds CTWK is the biological father of his son who is under 18 years, and he has been actively involved in his life since birth. The Tribunal found the evidence clearly demonstrated CTWK has continued to play a significant positive parental role in his minor son’s life. The evidence indicated CTWK spoke regularly to his son whilst in prison, while also shielding him from the fact he was in gaol for serious sexual offences and has had daily phone calls and numerous in person visits with his son while he is in detention. Whilst the children have their mother who fulfils a parental role the Tribunal concurs with CTWK a son also needs his father.
The Tribunal relied upon the statement of CTWK’s separated partner:
Although our marriage ended years ago, I am writing this letter in support of CTWK and his application to return and live permanently in Australia.
CTWK and I share children together, and regardless of the changes in our relationship, he has always remained a significant and supportive presence in their lives. He has consistently shown care, emotional warmth, and a desire to maintain a strong bond with his children, something I respect deeply as their mother. His absence has created a noticeable gap in our children’s emotional lives, and I believe having their father present again would positively impact their wellbeing and future.
CTWK is a calm, down-to-earth person. While we may have had our differences as a couple, I never questioned his intentions as a father. He is patient, thoughtful, and truly cares about being there for his children. The kids look up to him and miss the connection they had with him, the kind of connection that can't be replaced, even with the most supportive environment around them.
I am aware of CTWK’s past legal situation. While I do not excuse or overlook any mistakes, I also believe in the importance of personal growth, second chances, and the role that family can play in someone’s rehabilitation and healing. CTWK has always expressed his desire to take responsibility for his life and to be better, especially for his children.
I respectfully ask that you consider the role he plays as a father, the emotional impact his absence has had on our children, and the stability and support his return would provide. No matter what our past may be, I believe he deserves the opportunity to be here, close to his family, and continue playing a meaningful part in his children's lives.
The Tribunal found on the evidence that if CTWK’s visa was revoked and he was returned to Iraq he would have no ongoing parental role in his son’s life and would not be a role model in his son’s transition to adulthood. The Tribunal did not concur with the Respondent that it was in doubt that CTWK would play a positive role in his son’s life finding the evidence clearly demonstrated CTWK has and continues to play just a positive role in his children’s lives. Additionally, the Tribunal did not accept that CTWK would be able to maintain contact with his son via electronic and other means if he were to return to Iraq.
The Tribunal accepted CTWK’s assertion he would lose contact with his minor son and have no further part in his life if he were to be returned to Iraq. Accordingly, the Tribunal found this consideration weighs in favour of revocation of the cancellation.
Primary Consideration 5: Expectations of the Australian community
This consideration expresses that where a non-citizen has breached the expectation that they must obey the law or engage in serious conduct in breach of the expectation, that they not be allowed to remain in Australia (8.5(1)). The Direction also provides that non-revocation may be appropriate due to the particular nature of character concerns that arise, including from acts of family violence, and commission of crimes against government representatives or officials, regardless of whether there is a measurable risk of physical harm to the Australian community (8.5(2)-(3)). The Tribunal is not to conduct an independent assessment of what might constitute community expectations in a particular case (8.5(4)).
The Direction highlights specific categories of identified offences: 8.5(2)(a) - acts of family violence; 8.5(2)(c) - commission of serious crimes against, inter alia, women and children, and serious crimes of a violent or sexual nature; 8.5(2)(d) - commission of crimes against government representatives due to the positions they hold, or in the performance of their duties.
Submissions
CTWK
CTWK submitted he understood many people in Australia would think he had no right to stay but many others would think he deserved a second chance as he had learned and was truly sorry for all the harm he had caused.
Respondent
The Respondent submitted the expectations of the Australian community are to be applied normatively. Paragraph 8.5(4) provides 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'. Accordingly, the expectations of the Australian community are to be determined by reference to Direction 110 itself, and not an independent assessment conducted by the Tribunal.
The Respondent submitted the Tribunal is required by virtue of paragraph 8.5(4) of Direction 110, 'not to infer the expectation of the Australian community ”in the particular case”, which necessarily excludes consideration of the applicant's personal circumstances' for the purposes of this Primary Consideration.
The Respondent submitted Paragraph 8.4(4) is to be understood as directing the decision-maker not to be able to infer what the expectations of the Australian community would be "in the particular case" (that is, with the knowledge of the delegate about CTWK’s personal circumstances), but to proceed on the basis that the views of the Australian Government set out in paragraph 8.4(1)(3) are the relevant norm described as the expectations of the Australian community.
The Respondent contended that CTWK’s offending comprises offending falling within the specified kind of conduct raising serious character concerns, including sexual offending against minor children and family violence offences (paragraph 8.5(2)(a) and 8.5(2)(c) of the Direction).
The Respondent contended that the Australian community would expect CTWK’s visa to remain cancelled, given his offending has involved family violence and sexual offences against children, resulting in a sentence of imprisonment.
The Respondent contended Primary Consideration 5 weighs heavily against CTWK.
Summary finding
The Tribunal concurs with the Respondent that this consideration is a normative statement of the expectation of the Australian community that non-citizens who are not law abiding should not expect to hold a visa. Additionally, the Tribunal concurs that acts of family violence, serious violence against women and minor children are identified as raising the kinds of character concerns that enliven the consideration, regardless of whether there is a measurable future risk of harm.
When considering this factor, the Tribunal notes the matter of LZGG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 107 where the Member observed:
In considering the harm and potential risk to the Australian community if the Applicant were to reoffend in the future, the Tribunal is mindful of the nature and seriousness of his offending and the vulnerability of his victim. However, this is mitigated by his remorse, guilty plea, sincere efforts at rehabilitation and assessment as being at low risk of reoffending.
When balancing the seriousness of the offence and the risk of reoffending, the Tribunal has decided that medium weight in favour of non-revocation is to be given to this Primary Consideration.
And the matter of FYBR:
64.As Mortimer J said in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [127], the visa cancellation and refusal powers conferred by s 501 of the Act involves the evaluation of "competing and conflicting interests as between an individual who may be excluded from Australia and the interests of the Australian community". The relative weight to be ascribed to each consideration bearing on the exercise of the discretion is a question in respect of which reasonable minds may differ. The Direction generally requires the decision-maker to give relatively more weight to some considerations than to others so as to achieve like results in like cases, so far as that may be done without imposing impermissible fetters on the discretion conferred on the decision-maker. The expectations of the Australian community is one such consideration.
…
73. Before proceeding further it must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do. The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker's own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl 11.3 of the Direction. The clause implicitly recognises that the decision-maker's assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
74. I have accepted the Minister's submission that cl 11.3 is intended to give effect to the principle that the Minister may make a statement of the government's views about the expectations of the Australian community, which statement may be acted on by the person conferred with the power in a particular case, as recognised in Uelese. In my view, the task of the decision-maker is to identify what is the "government's view" about community expectations in the particular case, to "have due regard" to that view and to "generally" afford that view more weight than other non-primary considerations in accordance with cl 8(4). The phrase "may be appropriate" does not permit the decision-maker to equate the expectations of the Australian community (as expressed in cl 11.3) with the decision-maker's own view as to the preferable outcome in the ultimate exercise of the discretion. To construe cl 11.3 in that way would be to ignore the fact that the clause is intended to express a consideration that is capable of being given more weight relative to "other considerations" in the exercise of the discretion, as cl 8(4) of the Direction generally requires. The primary judge was correct to say that importing into cl 11.3 all countervailing factors bearing on the ultimate decision would render cl 8(4) of the Direction unworkable.
75. Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen's conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
76.The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government's assessment of community expectations is "generally" to be afforded greater weight than the "other considerations" listed non-exhaustively in cl 12. The word "generally" contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors arising for consideration under cl 12. There may be cases in which it is not appropriate to give the community expectations discerned under cl 11.3 any weight at all.
77. In my view, the degrees of tolerance referred to in cl 6.3(5) and cl 6.3(7) are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion. They are factors that may be taken into account in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen's character concerns or offences.
…
100. To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations: non-citizens will obey Australian laws when in Australia; it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere; in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.
101. Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.” This limited expression of “community expectations” by the Government is, one would expect, quite uncontroversial which is an attractive feature given the heterogeneity of views in this area.
102. It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances. Nevertheless, an adverse character assessment is necessarily against a visa applicant, to some degree or other; no one will be awarded a visa because they are of bad character.
103.The community expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of "what would the community expect in this case?" It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in-between the community expectation will not express or require one or the other. That is a matter for the decision-maker.

The Tribunal having found CTWK’s offending to be very serious and considers he presents a low risk of reoffending determines a finding proportionate to the nature and circumstances of his offending is that this consideration weighs heavily against revocation.
The Tribunal found given the very serious nature of the CTWK’s convictions being, the sexually penetrate of a child under 16, sexual activity in presence of child under 16 and family violence considered that the Australian community would expect CTWK's visa to remain cancelled simply because of the nature of the offences.
Accordingly, the Tribunal found this Primary Consideration weighs strongly in favour of affirming the Reviewable Decision.
OTHER CONSIDERATIONS
In making a decision under ss 501(1), 501(2) or 501CA(4) of the Act, 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):
·Legal consequences of the decision;
·Extent of impediments if removed; and
·Impact on Australian business interests.
Legal consequences of the decision
The Direction reminds decision-makers to be mindful that unlawful non-citizens are liable for removal from Australia as soon as reasonably practicable pursuant to s 198 of the Act, noting that s 197C(1) provides that, for the purposes of s 198, it is irrelevant that Australia has non-refoulement obligations in respect of an unlawful non-citizen.
Submissions
CTWK
In CTWK’s personal circumstances form in his revocation request dated 13 October 2022 he advises:
My very real concerns and fears were well documented in my visa application and are recognised by the UNHCR as to be protected from forcible return to a country where I would face threats to my life or freedom'. The influence of ISIS since we fled is similar if not more significant in wanting to kill men like me; Christian, former police officer, worked on a USA controlled airport. I fled because I received 4 bullets in an envelope and told i was to go in 24 hours or i and my family would be killed. I truly believe i will be killed if forcibly returned.
CTWK submitted if his visa was cancelled and he was forcibly returned to Iraq, he would be arrested; tortured; imprisoned and killed.
Respondent
The Respondent submitted Paragraph 9.1(1) of Direction 110 provides that decision-makers should be mindful that unlawful citizens are, in accordance with s 198 of the Act, liable for removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, liable for detention under s 189, noting that for the purposes of s 198 it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful citizen.
The Respondent submitted Paragraph 9.1.2(2) of Direction 110 provides that, where it is open to a non-citizen to apply for a protection visa, it is not necessary to consider non-refoulement issues in the same level of detail as those type of issues are considered in a protection visa application, and the decision-maker is not required to determine whether non-refoulement obligations are engaged in respect of the Applicant. This guidance is consistent with the decision of the High Court in Plaintiff M1 2021 v Minister for Home Affairs, in which the High Court confirmed that the Tribunal is not required to make an assessment of Australia's non-refoulement obligations if an Applicant in a s 501CA(4) matter remains capable of seeking a protection visa, although the Tribunal is required to 'read, identify, understand and evaluate' these claims.
The Respondent submitted CTWK has raised claims that Australia's international non-refoulement obligations are engaged with respect to him and submitted that the Tribunal should 'read, identify, understand and evaluate these claims,' as noted in Plaintiff M1.
The Respondent submitted CTWK has raised a number of claims in relation to a risk of harm that he would face if returned to Iraq, that he:
·is a refugee who faces a real likelihood of being killed if returned to Iraq;
·faces a risk of harm in Iraq as he is of Chaldean Christian faith;
·is diagnosed with Post-Traumatic Stress Disorder from acts witnessed in Iraq and any return to Iraq would result in his mental health declining; and
·was previously targeted due to his role as a former Iraqi police officer who had also worked at US controlled airports.
The Respondent submitted CTWK has previously stated ‘the influence of ISIS since we fled is similar if not more significant in wanting to kill men like me; Christian, former police officer, worked on a USA controlled airport. I fled because I received 4 bullets in an envelope and told I was to go in 24 hours or I and my family would be killed. I truly believe I will be killed if forcibly returned.’
The Respondent acknowledges that CTWK has provided a UNHCR Refugee Certificate confirming he has been recognised as a refugee by the United Nations High Commissioner for Refugees.
The Respondent submitted CTWK is not presently the subject of a protection finding, and that he has not made an application for a protection visa and therefore it is open to him to make an application for a protection visa. The Respondent submitted CTWK evidence was he was aware he should seek to make an application for a protection visa and had already sought advice about how to proceed with such an application.
The Respondent submitted subsection 197C(3) of the Migration Act provides that, except in the limited circumstances specified in paragraph 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. Further, if CTWK were to make a valid application for a protection visa, he would not be liable to be removed to Iraq while this protection visa application was being determined: paragraph 9.1.2(3) of Direction 110.
The Respondent submitted in circumstances where it is open to CTWK to make a protection visa application and where he is not presently subject of a protection finding, as set out in paragraph 9.1.2(2) of Direction 110, it is not necessary for the Tribunal, at the section 501CA stage, to consider non-refoulement issues in the same level of detail as they are considered in a protection visa application. Those claims would be conclusively assessed as part of the assessment of any protection visa application before consideration is given to any character or security concerns associated with CTWK.
In this case, the Respondent contended that the appropriate course for the Tribunal is to defer an assessment of whether CTWK’s claims engage Australia's non-refoulement obligations. The Respondent submitted that this is consistent with the High Court's decision in Plaintiff M1 v Minister for Home Affairs [2022] HCA 17, which found that:
(a) such an approach was open to the decision-maker including the Tribunal; and
(b) by adopting such an approach, the decision-maker would not fail to exercise the jurisdiction conferred by s 501CA.
In circumstances where deferral is open to the Tribunal on the authority of Plaintiff M1, and where the claims involved in this case necessarily involve an assessment of Australia's international obligations and of the particular circumstances of CTWK in relation to those obligations, the Respondent submitted that it would be the most appropriate for the Tribunal to defer consideration of his non-refoulement claims to any protection visa application process during which the Applicant's claims can be comprehensively assessed.
The Respondent acknowledges that, if the Tribunal elects to defer the assessment of whether CTWK’s non-refoulement obligations, it was nevertheless necessary for the Tribunal to consider and take into account the alleged facts underpinning CTWK’s claims in respect of non-refoulement obligations.
The Respondent submitted it would be appropriate for the factual matters relied upon by CTWK to be considered in the context of impediments he would face if returned to Iraq.
The Respondent submitted Paragraph 9.1.2(3) of Direction 110 also provides that a non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which any non-refoulement obligation is found to exist. For example, consideration may be given to removal to another country, or the Minister may consider exercising their personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising their personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Accordingly, if the Tribunal were to find that non-refoulement obligations exist in respect of CTWK but decide not to revoke the cancellation decision, this would not necessarily result in the Applicant's removal to Iraq.
The Respondent contended that if the Tribunal decides to consider CTWK’s claims as to non-refoulement, that they should be afforded limited weight. Nevertheless, the Respondent submitted that the preferred approach is for the Tribunal to defer any assessment in respect of Australia's non-refoulement obligations in circumstances where it is open to CTWK to apply for a protection visa and for his non-refoulement claims to be considered through that process which is specifically designed for considering such claims.
Summary finding
The obvious legal consequence of a revocation decision is that CTWK’s visa, cancelled in this matter, would be restored. The possible legal consequences of a non-revocation decision, whilst never straight forward, is that CTWK would be removed under s 198 of the Act and forcibly returned to Iraq.
CTWK has raised legitimate concerns about his fear of persecution if he were to be forcibly returned to Iraq. The Tribunal accepts on a preliminary consideration that current country information indicates that CTWK may face persecution as a member of the Chaldean Christian faith. Additionally, the Tribunal considers CTWK’s claims he would face adversity, because of his former role as an Iraqi police officer and security guard at the US controlled airports, to be credible.
Whilst CTWK has raised genuine fears for his safety, if he were to be returned to Iraq, these claims have not been tested to ascertain whether Australia's non-refoulement obligations are engaged. The Tribunal notes CTWK is not covered by a protection finding and considers on the evidence it is open to him to apply for such a visa.
The Tribunal accepts the Respondent’s contention that Direction 110 provides that the Tribunal must consideration any claims CTWK has made to the harms he may experience if forcibly returned to Iraq but may defer a decision about non-refoulement obligations to be undertaken via a protection visa application. The Tribunal however as guided by the determination in Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1273 at [34]– [41] is required to assess the probability of the potential legal consequences it had identified occurring:
The Tribunal identified the consequences of a decision not to revoke the cancellation decision (namely, possible removal and exclusion of the applicant from Australia) and decided to give those consequences neutral (no) weight because, “they are the consequences intended by the Parliament”. The statement in such absolute terms was inaccurate: such consequences are only intended by Parliament if the Tribunal decides not to revoke the cancellation decision. The Tribunal’s reasoning attributes to Parliament an intention or preference for the making of a decision adverse to an applicant such that those consequences will ensue. Since the Tribunal is conferred with wide discretion to determine whether it is satisfied there is “another reason” whether the cancellation decision should be revoked, no such intention or preference is discernible from s 501CA(4) of the Act.
The Tribunal’s approach of attributing neutral (no) weight to the legal consequences of a decision not to revoke the cancellation on the basis that Parliament intended such consequences reflects a misconstruction of s 501CA(4) of the Act.
I will proceed to consider the Tribunal’s second reason for attributing neutral (no) weight to the legal consequences of a decision not to revoke the cancellation decision, namely that the applicant’s removal and exclusion from Australia were merely possible, and not inevitable, consequences of such a decision.
A decision by the Tribunal not to revoke the cancellation decision would require that the applicant be removed from Australia as soon as reasonably practical (ss 196(6) and 198 of the Act) and he would be precluded from returning to Australia (s 503(1)). However, if he applied for a Protection visa, he would remain in immigration detention pending determination of his application (s 196(1)). And if a Protection visa were granted, he would not be removed and excluded from returning to Australia. In that sense, the Tribunal was correct to reason that the applicant’s ultimate removal and exclusion from Australia were possible, rather than inevitable, legal consequences of its decision.
In Taulahi, the Full Court explained at [84] that the decision-maker’s obligation is to take into account, “the direct and immediate statutorily prescribed consequences of the decision in contemplation”. In my opinion, that description encompasses the statutory consequences that the applicant is liable to removal from Australia as soon as reasonably practicable and precluded from returning to Australia, as well as detention. The possibility that the applicant might be able to obtain a Protection visa and might not ultimately be removed and excluded from Australia was a matter for the Tribunal when considering the weight to be attributed to the liability of the applicant to removal and preclusion from Australia. However, the Tribunal was required to consider the legal consequence that the applicant was immediately made liable to detention, removal from Australia and preclusion from returning.
The Tribunal considered that no weight should be given to the potential for the applicant’s ultimate removal and exclusion from Australia because they were possible but not certain consequences. However, the Tribunal failed to take into account the direct and immediate legal consequences of an adverse decision. The possibility that the applicant might make an application for a Protection visa and might not ultimately be removed or excluded from Australia, did not relieve the Tribunal from its obligation to take into account the immediate and direct statutory consequences. The Tribunal’s failure to comply with that requirement amounted to a jurisdictional error.
In addition, the Tribunal’s finding that no weight should be given to the statutory consequences of removal and exclusion from Australia because they were possible but not certain consequences was made in a context where the Tribunal had expressly declined to consider the merits of the applicant’s claims that he should not be placed in an position where he could be removed to India because he would face harm there. In Plaintiff M1/2021, it was held at [30] that a decision-maker is entitled to defer consideration of whether the applicant was owed non-refoulement obligations on the basis that it was open to the applicant to apply for a Protection visa. The plurality observed at [39] that, “it nevertheless may be necessary...to take account of the alleged facts underpinning that claim where those facts are relied upon...in support of there being ‘another reason’”. The plurality made no suggestion that a decision-maker is relieved from their obligation to take into account the legal consequences of the decision under consideration where they decide to defer such consideration.
By taking the approach of deferring the entirety of the applicant’s claim that he was owed non-refoulement obligations, the Tribunal disabled itself from assessing the probability of the potential legal consequences it had identified occurring. In those circumstances, the Tribunal’s attribution of neutral weight, or no weight, to the possibility of the applicant being removed and excluded from Australia effectively treated as certain the mere possibility that the applicant would succeed in obtaining a Protection visa. In my respectful opinion, the Tribunal’s approach, “lacks an evident and intelligible justification”: cf Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [76].
A non-revocation decision would result in CTWK remaining in detention until removed or granted a visa. The Tribunal notes CTWK could be released on a Bridging Visa R (‘BVR’) which would require him to comply with conditions. As a BVR holder he would fall within the definition of ‘removal pathway non-citizen’ under ss 5(1) and 199B of the Act, which would require him to comply with a removal pathway direction from the Minister. Failure to act in accordance with a removal pathway direction under section 199C of the Act constitutes an offence under section 199E and may lead to mandatory imprisonment. Additionally, section 76AAA of the Act provides that a BVR can cease if a foreign country grants the holder permission to enter. Pursuant to section76AAA(2), the Minister must notify the BVR holder that this section applies to them. It is conceivable, therefore that at some future stage, CTWK could be removed to a third country such as Nauru, if they agreed to take him. Whilst the Tribunal has deferred a finding that non-refoulement obligations exist in respect of CTWK it notes a real degree of uncertainty arises about what outcomes might emerge for CTWK over time.
For these reasons, the Tribunal found this other consideration weights in favour of revocation.
Extent of impediments if removed
The Tribunal must consider the extent of impediments a non-citizen may face if removed to their country of origin, in ‘establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country’ (9.2(1)). Specific factors to take into account are their age, health, any ‘substantial language or cultural barriers’, and any social, medical or economic help available.
Submissions
CTWK
CTWK submitted:
·if returned to Iraq he would be killed
·He had many serious health issues which required ongoing treatment
·His mental health was currently ok, and he did not required medication
·He had no family left in Iraq
·Iraq was a dangerous, backward country which lacked basic amenities we took for granted in Australia
·He would suffer as Iraq did not have good medical or mental health services
·if he tried to find work or seek health care his presence would be alerted to the authorities.
·As a Christian he would be excluded socially, culturally and religiously preventing him from finding work and accessing services.
·He would never see his family again; his children would grow up without a father
·Things had not improved in Iraq they had got worse
Respondent
The Respondent submitted Paragraph 9.2(1) of Direction 110 requires the Tribunal to consider, if relevant the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account factors including the non-citizen's age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available to them in that country.

The Respondent submitted CTWK is currently 48 years of age and has various physical health conditions and has been diagnosed with untreated Post-Traumatic Stress Disorder.
The Respondent submitted CTWK has asserted:
·he would be killed if he returned to Iraq
·‘I have no support in Iraq, no ability to earn money, obtain a place to live or receive necessary medical and mental health treatment’
·he would not be able to access healthcare or support for his PTSD.
·if he were not killed, he would be excluded socially, culturally and religiously in a way that would prevent his seeking employment
·accessing healthcare would likely alert the authorities to his presence in the country if not already known
The Respondent submitted the DFAT country information report for Iraq states that Article 14 of the Constitution guarantees that Iraqis are equal before the law without discrimination and Article 125 guarantees the administrative, political, cultural and educational rights of the various nationalities (specifically mentioning Chaldeans), although states that nevertheless, certain groups do experience discrimination on racial/ethnic grounds and state protection is often inadequate. The Respondent submitted, however, that Chaldeans are a recognised religious group and registered with the government.
The Respondent submitted the DFAT country information indicates that the overall quality and availability of healthcare in Iraq is low, and mental health services are inadequate. The Respondent accepted CTWK may experience issues in accessing mental health treatment in Iraq. The Respondent generally accepts the low quality of health resources in Iraq act as an impediment to CTWK’s return to Iraq.
The Respondent contended CTWK would not face any language and cultural barriers if returned to Iraq, given that he communicates in Arabic and moved to Iraq from Kuwait in 1991, at 14 years of age and accordingly spent some of his formative years there. The Respondent accepted CTWK is likely to face some degree of practical, financial and emotional hardship if returned to Iraq, however submitted that he would have access to social, medical and economic supports on the same basis as available to other Iraqi citizens. The Respondent submitted CTWK has some work experience in Australia, which would have provided him with some transferrable skills which may assist him to gain employment in Iraq.
The Respondent submitted CTWK’s assertion that he would face harm, including death, if returned to Iraq, was unclear as it was unclear how he would be identified as a former Iraqi police officer who has also worked on USA controlled airports in Iraq and from whom he would face any retribution or attack.
Overall, the Respondent accepts that this Other Consideration weighs in favour of CTWK.
Summary finding
The Tribunal found that whilst CTWK would not face any language or cultural barriers if returned to Iraq it accepted on the evidence, he would face numerous impediments transitioning if forced to return to Iraq.
CTWK does not enjoy good health and has numerous diagnosed medical and psychological issues which he would struggle to get treatment for in Iraq. In arriving at this finding the Tribunal relied on the DFAT County information.
CTWK no longer has any family or friends in Iraq and would struggle to secure housing and work. CTWK’s separated partner and sister testified they would never return to Iraq and therefore it is highly likely CTWK would never see his family members again. Whilst CTWK’s daughter stated it would be her desire to see Iraq and visit her father if he was forced to return, the Tribunal shared CTWK’s view this was a fantasy not grounded in reality.
The Tribunal finds that CTWK would face significant financial and emotional hardship in addition to significant health issues if he were to have his visa revoked, as the evidence indicated he would have no support network in Iraq.
Overall, given the many difficulties CTWK would face if returned to Iraq, the Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of CTWK’s visa.
Impact on Australian business interests (paragraph 9.3)
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501CA would significantly compromise the delivery of a major project or important service in Australia.
The Tribunal does not consider that there would be any significant compromise of a major project or important service in Australia if CTWK’s visa remains cancelled or is restored. The Tribunal finds that this Other Consideration is therefore not engaged.
CONCLUSION
Consistent with the Direction, the Tribunal has given weight of various degrees to the primary and other considerations. In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations. However, as held in Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461, ‘the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501’.
As the Tribunal has found CTWK does not pass the character test it has carefully considered all the evidence before it and weighed up the relevant considerations as guided by the Direction in considering whether there is another reason why the cancellation of his visa should be revoked.
CTWK contended he has shown great remorse, served his sentence without incident, learnt skills to ensure he stayed away from alcohol so he never offends again, would face certain death if returned to Iraq and would never see his family again. CTWK and his family all acknowledged he had caused harm to incident victims but he has shown great remorse and deserves a second chance.
The Respondent contended that:
·Primary Considerations 1, 2 and 5 weigh strongly against the Tribunal being satisfied that there is another reason why the Cancellation Decision should be revoked because of the very serious nature of CTWK’s sexual offending against minor children and family violence offending, the unacceptable risks he would reoffend and the expectations of the Australian community that the Australian government should cancel a non-citizen's visa if they have engaged in family violence;
·Primary Considerations 3 and 4 weigh in CTWK’s favour in considering whether there is another reason why the cancellation decision should be revoked; and
·to the extent that Primary Considerations 3 and 4 and any of the other considerations are found to weigh in CTWK’s favour, they are outweighed by Primary Considerations 1 and 5.
Of the Primary Considerations the Tribunal found:
·Whilst CTWK has been found to be a Medium risk of general re-offending and Moderate-Low risk of sexual reoffending, his offending was of such a nature that it must be considered serious. The Tribunal therefore considered that protection of the Australian community weighs heavily in favour of not exercising discretion to revoke the cancellation of his visa;
·The evidence before the Tribunal demonstrated CTWK had been convicted of family violence and found that this consideration weighs in favour of not exercising discretion to revoke the cancellation of his visa;
·The strength, nature and duration of ties to the Australian community, and the best interests of minor children in Australia affected by the decision both weigh strongly in favour of discretion being exercised to revoke the cancellation of his visa. CTWK has lived in Australia for many years, his extended family all reside here and his minor child would be adversely impacted by the loss of contact with CTWK if he was forced to return to Iraq.
·The Australian community would expect someone who had committed sexual offences against minors and family violence not to be granted a visa and found this factor weighs in favour of not exercising discretion to revoke the cancellation of his visa.
Of the other considerations, the Tribunal determined:
·That legal consequences were engaged and weighed in favour of discretion being exercised to revoke the cancellation of his visa;
·That the extent of impediments if removed, was engaged, and weighed in favour of discretion being exercised to revoke the cancellation of his visa, finding that CTWK’s health issues and lack of support networks in Iraq were of considerable impediment to his return; and
·The Tribunal considered all the other factors were neutral.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of CTWK’s visa should be revoked. That is because the three relevant primary considerations favouring non revocation considerably outweigh the combined weight to be given to the countervailing primary and other considerations. As a general principle, the Direction establishes that on this basis his visa should be cancelled.
DECISION
Pursuant to s 105 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the reviewable decision.

I certify that the preceding 180 (one hundred and eighty) paragraphs are a true copy of the reasons for the decision herein of General Member A. E. Burke

.................................[SGD].......................................
Associate
Dated: 16 May 2025

Dates of hearing: 29 and 30 April 2025

Applicant:
Self-Represented

Solicitors for the Respondent:
Kaylla Theocharous
Clayton Utz

Dates of hearing:	29 and 30 April 2025
Applicant:	Self-Represented
Solicitors for the Respondent:	Kaylla Theocharous Clayton Utz