DLZZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 7

DLZZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 7 (9 January 2023)

Division:GENERAL DIVISION

File Number:          2022/8552

Re:DLZZ

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member C. J. Furnell

Date:9 January 2023

Place:Melbourne

The Tribunal sets aside the decision under review and, in substitution for that decision, the Tribunal decides to revoke the decision to cancel the Applicant’s visa.

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

Senior Member C. J. Furnell

Catchwords

MIGRATION – mandatory cancellation of Class XD Subclass 785 Temporary Protection visa – Migration Act 1958 (Cth) s 501(3A) – Applicant does not pass character test – substantial criminal record – whether there is another reason why mandatory cancellation should be revoked – Direction 90 – primary and other considerations – Iran – where protection finding made – indefinite detention – decision under review set aside and substituted

Legislation

Acts Interpretation Act 1901 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases

Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132

BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99

BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878

Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Esber v Commonwealth of Australia (1992) 174 CLR 430

FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16

FYBR v Minister for Home Affairs (2019) 272 FCR 454

Galuak v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 798

Hughes v R [2017] HCA 20

Kayo Rerekura and Minister for Home Affairs [2019] AATA 153

Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56

LVMF and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2471

Matthews v Minister for Home Affairs [2020] FCAFC 146

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529

Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559

Pearson v Minister for Home Affairs [2022] FCAFC 203

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

PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162

PQSM v Minister for Home Affairs [2019] FCA 1540

PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050

PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14

Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409

Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90

WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463

XTLP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2357

Yemshaw v Hounslow London Borough Council [2011] UKSC 3; 1 WLR 433

Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545

Secondary Materials

Direction No 90 — 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

REASONS FOR DECISION

Senior Member C. J. Furnell

9 January 2023

1. In this proceeding, the issue is whether an October 2019 decision to cancel the applicant’s Class XD Subclass 785 Temporary Protection visa[1] (the “visa cancellation decision”) ought to be revoked.

   [1] G7, pp. 73-79. References to “G” are references to documents provided by the Respondent under s 501G of the Act, known as “G”-Documents.

2. The cancellation of the applicant’s visa was then mandatory because, under s 501(3A) of the Migration Act 1958 (the “Act”):

   (a)A delegate of the Minister was satisfied that the applicant did not pass the character test set out in s 501 of the Act because he had a substantial criminal record,[2] having been sentenced to a term of imprisonment of 12 months or more;[3] and

   (b)The applicant was then serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of an Australian State.

   [2] As defined in the Act, s 501(7).

   [3] Act, s 501(7)(c).

3. In November 2019, the applicant sought to have the visa cancellation decision revoked, making representations about revocation in response to, and in accordance with, the requisite invitation to do so.[4]

   [4] Act, s 501CA(3). See G8, pp.81-84.

4. In October 2022, a delegate of the respondent decided not to revoke the visa cancellation decision.[5]

   [5] G3, pp.12-29.

5. In order to have revoked that decision, the delegate would need to have been satisfied that the applicant passed the Act’s character test or that there was another reason why the visa cancellation decision should be revoked.[6] The delegate was not satisfied of either of those things.

   [6] Act, s 501CA(4).

6. The applicant has asked the Tribunal to review the delegate’s decision.[7]

   [7] G2, pp.3-8.

7. In conducting that review, the Tribunal performs the same function and exercises the same power as the delegate.[8]

   [8] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529 per Katzmann J [34] citing Esber v Commonwealth of Australia (1992) 174 CLR 430 at 440. See also Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [14] and [15]. There, at [51], it was said that the “AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT’s review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision.”

8. As such, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that the applicant passes the Act’s character test or that there is another reason why the visa cancellation decision should be revoked.

9. I am satisfied that there is another such reason. Before outlining my reasons for being so satisfied, however, mention should be made of the material which was before the Tribunal in this proceeding and of some aspects of the factual context.

   Material Before Tribunal

10. In undertaking its review of the October 2022 decision not to revoke the visa cancellation decision, the Tribunal is obliged to make “the correct or preferable decision”.  It must do so on the material before it.[9]

    [9] See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]–[98] (Hayne and Heydon JJ).

11. The material before the Tribunal included submissions made at and before the hearing,[10] evidence adduced at the hearing, and documentary material lodged with the Tribunal prior to the hearing.

    [10]  Reference is made to the respondent’s Statement of Facts, Issues and Contentions of 5 December 2022 (R SFIC), to the applicant’s Statement of Facts, Issues and Contentions of 21 November 2022 (A SFIC) and to the applicant’s submissions in reply of 14 December 2022 (AFS).

12. As for evidence adduced at the hearing, the Tribunal heard from the applicant, from Mr SK (a friend of the applicant), from Ms FN (the applicant’s mother) and from Mr Tim Watson-Munro (consultant psychologist).

13. As for documentary material lodged with the Tribunal, it comprised:

    (a)174 pages of copy documents given by the respondent under s 501G of the Act (the “G” documents), marked as Exhibit R1;

    (b)74 pages of a tender bundle lodged by the respondent (the “RTB” documents), marked as Exhibit R2;

    (c)23 pages of annexures to the A SFIC (the “ATB1” documents), marked as Exhibit A1;

    (d)40 pages of annexures to the AFS (the “ATB2” documents), marked as Exhibit A2.

    Aspects of Factual Context

14. In October 1996, the applicant was born in Iran.[11]

    [11] G17, p.140.

15. He had a difficult childhood. His father died when he was quite young. His mother then re-married twice, both times to men who physically abused her and the applicant.

16. In July 2013, the applicant, aged 16, in the company of his mother, arrived in Australia as an unauthorised or irregular maritime arrival,[12] after spending what must have been a somewhat perilous eight days in a boat. 

    [12] G6, p.72; G9, p.88.

17. In 2014, the applicant became a Christian and was baptised.

18. In or around 2015, the applicant commenced a relationship with his first girlfriend, called in these reasons Ms NM.[13] That relationship finally ended in February 2020.[14]

    [13] G14, p.135 (letter of November 2019 from Ms NM stating that she had been in a relationship with the applicant for around four years).

    [14] G11, p.107.

19. In July 2018, the applicant was granted the protection visa that was subsequently cancelled in October 2019.

20. In the course of considering his application for that visa, what is, for the purposes of

    
    

    s 197C(3) of the Act, a “protection finding” was made for the applicant with respect to Iran.[15] This meant that the applicant’s involuntary removal to Iran was no longer required or authorised under the Act.[16]

    [15] G24, p.174.

    [16] Act, s 197C(3): this is subject to a decision under s 197D of the Act to the effect that a protection finding would no longer be made in relation to the applicant.

21. In July 2018, the applicant was involved in an incident[17] that resulted in him being, in April 2020, convicted of an assault by kicking and sentenced to seven days of imprisonment.[18] 

    [17] RTB1, p.4.

    [18] G4, p.30.

22. On Christmas day of 2018, the applicant was involved in incidents that resulted in him being, in July 2019, sentenced to a total effective term of imprisonment of 20 months after having been convicted of:

    (a)Assault with weapon (3 months’ imprisonment, one of which was concurrent);

    (b)Intentionally cause injury (9 months’ imprisonment, three of which were concurrent);

    (c)Kidnapping (12 months’ imprisonment).[19] 

    [19] G4, pp.30-31.

23. On 26 December 2018, the applicant was arrested and placed on remand. He has been in prison or detention since then.

24. The applicant currently suffers from depression.[20]

    [20] Evidence of a consultant psychologist, Mr Watson-Munro.

    Does APPLICANT Pass the Character Test?

25. The character test is set out in s 501(6) of the Act. Under that section, a person is considered not to pass the test if any of a number of circumstances applies in relation to the person. One such circumstance is when the person has a substantial criminal record.[21] The applicant has such a record. As already mentioned, in July 2019, he was sentenced to a term of imprisonment of 12 months[22] in respect of his kidnapping conviction.[23]

    [21] Act, s 501(6)(a).

    [22] Act, s 501(7)(c).

    [23] G5, p.66. See Pearson v Minister for Home Affairs [2022] FCAFC 203 at [46]-[48].

26. Accordingly, I am not satisfied that the applicant passes the character test.

27. Given the failure to pass that test, the visa cancellation decision can only be revoked if I am satisfied that there is another reason why it should be revoked.

    Is there another reason why the cancellation decision should be revoked?

28. As is clear from my decision in this proceeding, I am satisfied that there is such a reason.

29. In arriving at that state of satisfaction, I have endeavoured to comply with (and am bound by s 499 of the Act to comply with) an instrument entitled “Direction No 90 — 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” (Direction 90).[24]

    [24] Direction 90 imposes requirements that are a precondition for the making of a valid decision: PQSM v Minister for Home Affairs [2019] FCA 1540 at [22] per Colvin J. “Its role is to act as a guide to the exercise of the identified powers”: BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 at [22]. As guidance, it is up to the Tribunal to determine what is relevant in the circumstances of the case: see Matthews v Minister for Home Affairs [2020] FCAFC 146 at [45].

30. Compliance with Direction 90 requires that I consider whether to revoke the visa cancellation decision “given the specific circumstances of the case”.[25] Direction 90 is not, however, “…an exhaustive universe; it refers to matters that a decision-maker must consider but does not confine what may be taken into account…”.[26]

    [25] Direction 90, cl 5.1(3).

    [26] Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104 at [45], citing Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [16]. See also BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 at [23] as to the position under Direction 90.

31. That consideration is to be undertaken informed by,[27] and in the context of a framework comprised of,[28] certain principles.

    [27] Direction 90, cl 6.

    [28] Direction 90, cl 5.2.

32. Those principles are set out in cl 5.2 of Direction 90. They are as follows:

    “5.2      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)       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.

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

    (4)       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. However, 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

    (5)       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. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.”

33. I turn now to the considerations which (to the extent that they are relevant) I am required by Direction 90 to take into account in deciding whether to revoke the visa cancellation decision.[29]

    [29] Direction 90, cls 5.2, 5.2(5) and 6.

    Considerations – Overview

34. The relevant considerations are those set out in clauses 8 and 9 of Direction 90. They are divided into primary considerations and other considerations.

35. The primary considerations are protection of the Australian community from criminal or other serious conduct; whether the conduct engaged in constituted family violence; the best interests of minor children in Australia; and expectations of the Australian community.[30] 

    [30] Direction 90, cl 8.

36. The other considerations include (but are not limited to) international non-refoulement obligations; extent of impediments if removed; impact on victims; and links to the Australian community (including strength, nature and duration of ties to Australia and impact on Australian business interests).[31]

    [31] Direction 90, cl 9(1).

37. The primary considerations are generally to be given greater weight than the other considerations;[32] and one or more primary considerations may outweigh other primary considerations.[33] 

    [32] Direction 90, cl 7(2).

    [33] Direction 90, cl 7(3).

38. While primary considerations are generally afforded more weight than the other considerations, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[34] However, in order for an “other consideration” to be afforded more weight than a primary consideration “…there must be some identified reason, in the particular circumstances, as to why it is appropriate for the particular ‘other consideration’ to be given greater weight than one or more of the three primary considerations”.[35]

    [34] Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303 at [32].

    [35] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [11].

39. In taking considerations into account, “appropriate weight” is to be given to information and evidence from independent and authoritative sources.[36] 

    Protection of the Australian community[37]

    [36] Direction 90, cl 7(1).

    [37] Direction 90, cl 8.1.

40. I turn now to the first of the primary considerations to be taken into account, the protection of the Australian community from criminal or other serious conduct. This consideration is one that requires the Tribunal to keep in mind the Australian Government’s commitment to the protection of the Australian community from harm as a result of such conduct by non-citizens, with particular regard being required to be had to the first of the framework principles previously identified (i.e. the principle about how there is a particular expectation engendered when conferring on non-citizens the privilege of entering and remaining in Australia).[38]

    [38] Direction 90, cl 8.1(1).

41. Taking this primary consideration into account requires that regard be had to two subsidiary considerations. They are, in the circumstances, the nature and seriousness of the applicant’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct.[39]

    Nature and seriousness of conduct[40]

    [39] Direction 90, cl 8.1(2).

    [40] Direction 90, cl 8.1.1.

42. As for the nature of the applicant’s conduct to date, the applicant has been convicted of four offences in respect of conduct in which he engaged on two days in 2018. As mentioned earlier, the offences were assault by kicking, assault with a weapon, intentionally causing injury and kidnapping.

1. As noted by the respondent, however, the protection of the Australian community consideration is concerned not only with criminal conduct but also with “other serious conduct” (a concept somewhat unhelpfully defined in Direction 90 to include conduct of concern that does not constitute a criminal offence[41]). In this regard, the respondent submitted that “there is evidence before the Tribunal that the applicant has otherwise been violent against his former partner and other acquaintances, even though he was not convicted for that violent behaviour”.[42]

   [41] Direction 90, cl 4(2).

   [42] R SFIC [24].

2. I am not satisfied that the applicant has “been violent against his former partner”. I accept that the applicant sent SMS messages to Ms NM that could be characterised as abusive[43] and that the act of sending an abusive text message might, in certain circumstances, be considered to constitute an act of violence.[44] Having regard to the particular messages sent by the applicant to Ms NM, however,[45] I am not satisfied that, in sending those messages, the applicant engaged in violent conduct or, indeed, in other serious conduct. On the material before me, those messages would not appear to have resulted in Ms NM being exposed to “risk of harm” or to have put her “in fear of violence”.[46] According to Ms NM, the applicant is kind and caring. She says that she has never seen him be violent towards others, with the exception of “the recent incident” (which, I infer, is a reference to the conduct which constituted his offending on Christmas day in 2018, conduct which I will describe shortly).[47]

   [43] They were so characterised by Parrish J when sentencing the applicant in July 2019: see G5, pp.36 and 61.

   [44] Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90 (Vu) at [53]-[60], where it was accepted that the concept of violence may encompass forms of non-physical harm, citing with apparent approval Yemshaw v Hounslow London Borough Council [2011] UKSC 3; 1 WLR 433 which, at [55], was said to have decided that “the term ‘domestic violence’ included not only physical violence, but also threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, might give rise to the risk of harm.”

   [45] As described at G5, pp.36-37.

   [46] Vu at [58].

   [47] G14, p.135.

3. Similarly, I am not satisfied that the applicant has been “violent against...other acquaintances”.

4. The respondent contended that the applicant engaged in violent conduct in April 2018, a contention lent support by the applicant’s evidence to the effect that he then fought with Mr SK.[48] It was noted that records “…produced under summons by the Victoria Police state that on 14 April 2018 the applicant attended at the victim’s workplace and struck the victim and another person with a weapon”.[49] 

   [48] ATB2, p.2.

   [49] R SFIC [25]. The relevant records were those found at RTB1, p.15.

5. Whether the fight acknowledged by the applicant involved violence on his part is unclear. While the police records suggest that it did, Mr SK’s evidence was that it did not. In a statement he made in November 2022, he simply refers to a “back and forth discussion”.[50] In his oral evidence, Mr SK denied that the applicant had struck him.

   [50] ATB2, p.32.

6. The assault by kicking offence occurred in July 2018. The applicant accepted that he was then involved in a fight but said that he could not recall many details of it as he was intoxicated at the time. He did not dispute (but did not necessarily accept) the description of what transpired found in a Victoria police incident summary report to which he was taken.[51] In that report, the applicant is said to have punched a person in the face, a person who was subsequently taken to the ground and kicked up to 20 times by the applicant and another or other members of a group of three males.[52] The victim would not appear to have suffered serious injury, however, needing no treatment other than an icepack to his head and gauze up his nose.

   [51] RTB1, pp.3-4.

   [52] In evidence before the Tribunal, the applicant acknowledged that he kicked the victim: ATB2, p.2.

7. The other three offences for which the applicant has been convicted occurred on Christmas day of 2018. It would seem that the applicant was then angered by the victim of this offending having commenced a relationship with Ms NM. She and the applicant had been in a relationship for about three years but by December 2018 they had been separated for around six months.

8. What transpired on Christmas day is described in July 2019 sentencing remarks of His Honour Judge Parrish of the Victorian County Court.[53]

   [53] G5.

9. Under the false pretence of going to purchase cigarettes and after locking the doors of his car, the applicant, in company, drove the victim to the applicant’s house. In the course of doing so, the applicant slapped the victim on the head and held out a kitchen knife. After arriving at the applicant’s house, he again slapped the victim in the face. After viewing photographs of the victim and Ms NM on the victim’s phone, the applicant punched and slapped the victim to the head and kicked his legs. Then, after telling the victim to stay away from Ms NM, the applicant “pressed the lit cigarette against…[the victim’s] arm, causing …[the victim] to feel immediate pain and move his arm, which caused …[the applicant] to laugh in response”.[54]

   [54] G5, p.40.

10. The assault with a weapon offending was constituted by the applicant:

    “… holding out a red-handled kitchen knife so that …[the victim] could see it, in circumstances where …[the victim] had been requested to pull his head down and had consistently refused to do such act. In the circumstances you …[the applicant], turned around from the driver’s seat, slapped …[the victim] on the head and then held out the red-handled kitchen knife, causing …[the victim] to stop struggling when he viewed the knife”.[55]

    [55] G5, p.63.

11. The kidnapping lasted for around one and a half to two hours.[56] Throughout that time, the victim “…was smacked on the head, punched and kicked”.[57]

    [56] G5, p.62.

    [57] G5, pp.62-63.

12. On the day following the kidnapping, the victim was taken to hospital where his injuries were assessed to include “…(a) bruising to his cheek, nose, head, neck, back and inner surface of the bottom lip; (b) swelling to the nose; (c) tenderness to the jaw, right ear and right thigh; and (d) a blister to the arm, insistent [sic] with a burn mark”.[58]

    [58] G5, p.63.

13. As for the seriousness of the applicant’s conduct, on his behalf it is accepted that his offending was serious,[59] an acceptance consistent with the characterisation of that offending adopted by Parrish J.[60] It was nevertheless submitted that his youth mitigated the seriousness of his offending.[61] I reject that submission. As I see it, the applicant’s youth might be of relevance when assessing moral culpability, the prospects of rehabilitation or the risk of recidivism. It is not relevant, however, when assessing the seriousness of a person’s offending in the context of an overarching consideration concerned with community protection and a requirement to keep in mind a commitment to that protection.

    [59] A SFIC [22], where the applicant’s conduct is said to be serious. In AFS [2], it is said that it “…is not contested that the Applicant’s conduct is serious”.

    [60] His Honour considered the applicant’s offending to have been serious, involving as it did a knife: G5, pp.62-63. Even more concerning to His Honour than the applicant’s use of a knife, however, was that aspect of the applicant’s conduct which involved pressing a lit cigarette against the victim’s arm. His Honour described that particular incident as the worst in the series of incidents of 25 December 2018.

    [61] A SFIC [34]; AFS [44].

14. As for the respondent, it was submitted that the applicant’s conduct was not only serious; it was very serious.[62] I accept that submission. Given the factors to which I am required to have regard in the context of this consideration, the applicant’s offending must be considered to have been very serious.

    [62] R SFIC [21].

15. I turn now to a consideration of those factors.

    Without limiting the range of conduct that may be considered very serious, the Australian Government and the Australian community view as very serious certain crimes and conduct, including violent crimes, crimes of a violent nature against women and acts of family violence[63]

    [63] Direction 90, cl 8.1.1(1)(a).

16. A finding that the applicant’s offending was very serious reflects the view which the Australian Government and the Australian community are said in Direction 90 to have. As is apparent from the description earlier of that offending, it involved crimes of violence.

    Without limiting the range of conduct that may be considered serious, the Australian government and the Australian community consider to be serious certain crimes and conduct[64]

    [64] Direction 90, cl 8.1.1(1)(b).

17. It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.

    With the exception of certain crimes and conduct (such as crimes of a violent nature against women and acts of family violence), the sentence imposed by the courts for a crime or crimes[65]

    [65] Direction 90, cl 8.1.1(1)(c).

18. The applicant has been the subject of multiple sentences of imprisonment in respect of offending that occurred in the context of two incidents (albeit that one of those incidents was prolonged).

19. While the sentences imposed in respect of his offending were less than the maximum that could have been imposed, the imposition of any term of imprisonment reflects a view that the offence concerned was serious; “…[c]ustodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s)….”,[66] noting that sentences “…involving terms of imprisonment are the last resort in the sentencing hierarchy…”.[67]

    The frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness[68]

    [66] Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409 at [34].

    [67] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].

    [68] Direction 90, cl 8.1.1(1)(d).

20. While the applicant has not offended frequently, the respondent submits that his troublesome conduct has escalated in seriousness in that his violent behaviour has become progressively worse.[69] I reject that submission.

    [69] R SFIC [27].

21. Insofar as in making this submission the respondent relies on the contention that the applicant engaged in violent conduct in April 2018, as mentioned earlier, I am not satisfied on the material before me that he did so engage in such conduct.

22. Insofar as the respondent relies simply on the applicant’s offending, as just mentioned, that occurred in the context of two incidents. The difference in seriousness between offending in two incidents is not, as I see it, properly to be characterised as reflective of a trend. 

    The cumulative effect of repeated offending[70]

    [70] Direction 90, cl 8.1.1(1)(e).

23. The cumulative effect of the applicant’s offending has likely been adverse to his victims and to the broader community. The harm caused is touched on later when discussing the nature of the harm that would be suffered were the applicant to engage in further criminal or other serious conduct. On the material before me, however, while the applicant’s offending might have had a cumulative effect, there is nothing in the material before me indicative of its having had a sustained effect on his victims.

    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending[71]

    [71] Direction 90, cl 8.1.1(1)(f).

24. It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.

    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour)[72]

    [72] Direction 90, cl 8.1.1(1)(g).

25. It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.

    Conclusion on seriousness of offending

26. Having regard to the foregoing factors and as previously stated, I accept that the applicant’s conduct reflected in the offences for which he was convicted was very serious. Nevertheless, not all very serious conduct attracts the same level of opprobrium. There are degrees of very serious conduct and, on a spectrum of very serious conduct, as I see it, the applicant’s conduct sits at the lower end. As is apparent from the assessment undertaken in hospital on the day following the kidnapping on Christmas day 2018, the injuries suffered by the victim of the applicant’s offending were not, at least physiologically, permanent. Nor were they life threatening or inflicted by a weapon. As for the kidnapping itself, it was considered by Parrish J to be “far from the worst type…”.[73]

    [73] G5, p.62.

27. Hence, I find that the applicant engaged in conduct at the lower end of the spectrum of very serious conduct.

28. I turn now to the second matter to which consideration must be given in the context of the protection of the Australian community primary consideration: the risk to the community should the applicant commit further offences or engage in other serious conduct.

    Risk to the Australian community should Applicant commit further offences or engage in other serious conduct[74]

    [74] Direction 90, cl 8.1.2.

29. In assessing risk, I am required by Direction 90 to have regard, cumulatively, to:

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

    (b)the likelihood of him doing so (taking into account available information and evidence on the risk of the non-citizen re-offending and evidence of rehabilitation achieved).[75]

    [75] Direction 90, cl 8.1.2(2).

30. As to the nature of harm to individuals should the applicant engage in further criminal or other serious conduct, based on his history of offending, individuals would be likely to suffer physical harm from being punched and kicked and, possibly, psychological harm resulting from deprivation of their liberty and the fear or threat of being violently assaulted.

31. As to the nature of harm to the Australian community should the applicant engage in further criminal or other serious conduct, again based on his history of offending, it would reflect the nature of the harm suffered by individual members of the community as a result of that conduct. Further, the community would be harmed by having to devote scarce resources to meet additional law enforcement, incarceration and healthcare costs resulting from the applicant’s conduct.

32. Relative to the harm that might flow from very serious offending (such as death and permanent, severe, physical or mental impairment), the harm that would be caused were the applicant to again engage in conduct of the type he has engaged in previously is likely to be moderate. As noted earlier, the applicant would not appear to have inflicted permanent or severe, life-threatening injuries on the victims of his offending.

33. As for the likelihood of the applicant engaging in further criminal conduct, I am not satisfied that it is likely that the applicant would engage in such conduct should he be released into the community. Moreover, I find that the risk of his doing so is low.

34. Before delving into my reasons for this finding, I mention that the mere fact that the applicant has engaged in certain conduct in the past is not probative of there being a material risk of him doing so again.[76] Hence, the fact that the applicant “has a history of offending in Australia by committing violent offences” says little as to his “ongoing” risk of doing so again.[77]

    [76] See Kayo Rerekura and Minister for Home Affairs [2019] AATA 153 at [65]: “the mere commission of offences or offending conduct in the past is not, of itself, sufficient.”

    [77] R SFIC [30.1].

35. According to Mortimer J in Splendido,[78] a “bare recitation of what a person has done in the past” is an insufficient basis for a finding as to the person’s likely future conduct. While, in some circumstances, the past may constitute a reliable guide to the future,[79] for it to do so, more than a mere outline of past conduct needs to be shown if over-valuing personality-based explanations and under-valuing situational-based explanations for conduct are to be avoided.[80]

    [78] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [77] per Mortimer J, Moshinsky J agreeing.

    [79] See, for example, Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545 at [26], where the Court was dealing with an applicant who “had an extraordinarily lengthy criminal history which was characterised by relapses into drug use, crime and periods of imprisonment. Although there were some periods of abstinence, Mr Zyambo was prepared to engage in further criminal offending even after warnings that his visa might be revoked were he to do so”.

    [80] See Hughes v R [2017] HCA 20 at [70]-[72] per Gageler J.

36. What that “more” includes is revealed by decisions in cases such as Guo Wei Rong.[81] There it was said that:

    “The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity”.  

    [81] Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 574.

37. In Splendido,[82] Mortimer J stated that:

    “The nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending”.

    [82] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [78].

38. In Hughes,[83] the High Court grappled with the application of tendency evidence in the context of an individual charged with sexual offences against minors. In that context, Nettle J (albeit in dissent) stated (at [154]) that:

    “Evidence that an accused has committed an offence is not, of itself, significantly probative of the accused having committed another offence …To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case, or about the victim of each offence, which rationally affects to some significant degree the assessment of the probability that the accused committed the offence.”

    [83] Hughes v R [2017] HCA 20.

39. Hence, facts need to be identified about the applicant’s circumstances, or about the nature and circumstances of his past conduct, that rationally support the assessment of the risk of the applicant engaging in the relevant conduct. I will endeavour to do so shortly. First, however, mention should be made of a submission made by the respondent which I reject, being a submission to the effect that any risk of re-offending would be unacceptable in the circumstances. 

40. I note that, under Direction 90, regard should be had to the Government’s view that the tolerance for risk of future harm becomes lower as the seriousness of potential harm increases, so that some “…conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable”.[84] 

    [84] Direction 90, cl 8.1.2(1).

1. In this regard and as will become apparent later, the respondent contends that the applicant has engaged in conduct of the type to which cl 8.4(2) of Direction 90 applies. In the context of conduct of that type and pursuant to one of Direction 90’s framework principles, in some circumstances, “revoking a mandatory cancellation” may not be justified despite strong countervailing considerations and the absence of any measurable risk of physical harm to the Australian community.  

2. The respondent seeks to engage that principle when having regard to the protection of the Australian community consideration, submitting that the circumstances of the applicant’s offending are such that any risk of him re-offending is unacceptable.[85]

   [85] R SFIC [29].

3. As I see it, however, the applicant’s conduct has not been of a type to which cl 8.4(2) of Direction 90 applies (for reasons outlined later when addressing the expectations of the Australian community consideration) and the circumstances of his offending and the harm that would be caused if it were to be repeated are not such as to render any risk of repetition “unacceptable”.

4. As to that latter point, I have no wish to downplay the severity of the applicant’s offending (or, indeed, to categorise the type or circumstances of offending any risk of which is “unacceptable”). While very serious, however, the applicant’s offending did not result in anyone’s death or in anyone being permanently injured. There was no intention to cause serious injury or sexual assault. In these circumstances, acceptance of the respondent’s submission would reflect an expansive view of offending of which any risk of repetition would be unacceptable. Such a view would not be consistent with a proper construction of the provisions of Direction 90. The more expansive that view, the more otiose the requirement imposed by those provisions for an assessment of the likelihood of a person engaging in certain conduct.

5. Having rejected the respondent’s submission as to risk, I turn now to a submission made by the applicant which I also reject. In particular, on behalf of the applicant, it was submitted that the applicant is not a risk to the Australian community.[86] Insofar as that submission reflects a contention that there was no risk of the applicant re-offending, I reject it. As was said by Mathews J, sitting as a Deputy President of the Tribunal, in Lam: "Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending".[87]

   [86] A SFIC [13]-[22].

   [87] Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51].

6. As mentioned before, I have found that the applicant’s risk of re-offending is low. I arrived at that finding tremulously, given the absence of any opinion evidence before the Tribunal expressly in support of it.

7. The most recent risk assessment before the Tribunal is that of Mr Watson-Munro. In December 2022, he opined that the applicant’s “risk of reoffending now is trending from Moderate to Low”.[88] I do not attribute probative value of any significance to that opinion.

   [88] ATB2, p.16.

8. As became clear in evidence before the Tribunal, the methodology employed in arriving at that opinion involved adopting as a starting point an opinion expressed in 2018 to the effect that the applicant represented a medium re-offending risk. “Positive developments”[89] in terms of risk amelioration since that 2018 assessment were then considered to arrive at the resultant opinion.

   [89] Ibid.

9. Given this methodology, the reliability of Mr Watson-Munro’s opinion depends very much on the reliability of the 2018 opinion which he adopted as a starting point. Other than to note it was prepared by a community corrections officer in Victoria, Mr Watson-Munro makes no comment on the 2018 opinion. In particular, there is in Mr Watson-Munro’s December 2022 report no identification of the basis for the 2018 opinion or of the facts on which it relied. 

10. While not made in 2018, the opinion on which Mr Watson-Munro apparently relied is before the Tribunal.[90] It is little wonder that Mr Watson-Munro did not identify the basis for that opinion or the facts on which it relied, as they are not identified in the opinion itself. The opinion is expressed in a July 2019 document. After suggesting that the applicant had expressed “minimal remorse”, it was simply noted that the applicant “has been assessed as a suitable candidate for the imposition of a community based disposition and as a medium risk of reoffending”.[91] Why and by whom the applicant had been assessed as a medium risk of reoffending is unidentified. 

    [90] RTB2, p.31.

    [91] Ibid.

11. I do not attribute probative value of any significance to this 2019 opinion. Quite apart from its conclusionary form, it was arrived at more than three years ago.

12. Lastly, also in July 2019, His Honour Judge Parrish stated that the applicant’s prospects of rehabilitation were guarded. This might be taken to suggest that the risk of the applicant re-offending is now higher than low.[92] I would disagree with any such suggestion. His Honour was speaking to a time more than three years ago. Moreover, while he expressly referred to the 2019 opinion that the applicant was a medium risk of re-offending, His Honour might simply have been using that opinion to suggest that one should be cautious before assuming that the applicant would be rehabilitated. That would be consistent with His Honour’s characterisation of the applicant’s rehabilitation prospects as being “guarded”, while not being inconsistent with a finding now by the Tribunal that the applicant’s risk of re-offending is low.

    [92] G5, p.65.

13. Discounting earlier opinions about the applicant’s risk of re-offending says little about the basis for finding that the risk is low. In order to better understand that basis, something ought to be said about the context in which the applicant’s offending occurred. Within that context lie a number of factors to which his offending might be attributed.

14. In this regard, the gist of the applicant’s submission as to context appears to be that he was suffering from untreated depression at the time of the offending in 2018,[93] depression which was exacerbated by difficulties he was then experiencing in his relationship with his first girlfriend, Ms NM. This combination of factors was said to have led to the use of cannabis and excessive alcohol consumption, impacting adversely on the applicant’s judgment and impulse control.

    [93] In his oral evidence before the Tribunal, the applicant suggested that at the relevant time he was suffering from a mental health disorder but did not realise that he needed to seek treatment for it.

15. I accept the applicant’s evidence to the effect that, up to a few months before Christmas day in 2018, he had been an occasional drinker[94] but that, in conjunction with experiencing difficulties in his relationship with Ms NM, he “kept drinking and did cannabis…I would pass out and then wake up and do it all over again”.[95]

    [94] The applicant did not claim that, while an occasional drinker, he nevertheless did not occasionally drink to excess. In this regard, I note the applicant’s evidence that his offending in July 2018 occurred when he was drunk.

    [95] ATB2, p.2.

16. According to Mr Watson-Munro, the applicant:

    “stated that at the time of his index offending, he had consumed six to seven standard beers, in addition to drinking whiskey. He also smoked cannabis and against this backdrop, acknowledged that his judgment was impaired. He reported that he commenced smoking cannabis about four months prior to the offending, in the context of escalating symptoms of depression and anxiety. These in part related to the breakdown of the relationship”.[96]

    [96] ATB2, pp.11-12. See also ATB2, p.1 (applicant’s statement that he was under the influence of alcohol and cannabis at time of the offence [being the offending in later 2018]).

17. The applicant’s resultant intoxication “compounded” the applicant’s “… immaturity, impulsivity and a lack of skills to appropriately problem-solve”.[97] In this way, his excess alcohol consumption and use of cannabis was causally connected to his offending.[98] This suggests that the risk of the applicant re-offending would be ameliorated were the applicant to abstain from drinking alcohol and using illicit substances.

    [97] ATB2, p.14.

    [98] AFS [95] (submission that applicant’s judgement was impaired by his use of drugs and alcohol).

18. In this regard, I accept as both sincere and realistically achievable the applicant’s assurance of ongoing abstinence from alcohol and illicit drugs. As for that assurance being realistic, there is nothing in the material before me that suggests that the applicant had an entrenched habit of substance abuse or misuse prior to being incarcerated or that he was being untruthful in his evidence that he has not drunk alcohol or used illicit drugs since being arrested in late December 2018.

19. The respondent submitted, however, that, insofar as his offending was causally connected to alcohol and marijuana use, the applicant had not undertaken adequate rehabilitation.[99]

    [99] R SFIC [30].

20. I reject that submission.

21. As I see it, complete abstinence for a period of around four years from using a product in respect of which there was no initial entrenched habit represents adequate rehabilitation, especially when:

    (a)considered in the light of rehabilitation programs undertaken by the applicant since being incarcerated; and

    (b)there are various protective factors likely to discourage him from again doing things that might return him to the position he now finds himself in.

22. As for programs, I note the applicant’s completion of:

    (a)A Youth Substance Use and Emotional Management Program in January 2019;[100]

    (b)A Life Skills Program (Healthy Mind Module) in May 2019;[101]

    (c)An Individual Treatment Program (Violent Offenders Treatment Program and Anger management) in May to July 2020;[102]

    (d)An Anger Management 101 online class in November 2022;[103]

    (e)A Drug & Alcohol Abuse 101 online class in October 2022;[104] and

    (f)A number of SMART recovery sessions in October 2022.[105]

    [100] G19, p.145.

    [101] G20, p.146.

    [102] G21, p.147.

    [103] ATB1, p.21.

    [104] ATB1, p.22.

    [105] ATB1, pp.11-17.

23. As for protective factors likely to discourage the applicant from again doing things that might return him to the position that he now finds himself in, I elaborate on those later. For present purposes, however, I note that they are said to include the applicant’s detoxification (consequent upon his abstinence from alcohol and drugs), his having undertaken the programs just mentioned and his having matured.[106] 

    [106] ATB2, p.16.

24. As for the applicant suffering from untreated depression at the time of the offending in 2018, on the material before me, I am not satisfied that he did.

25. The applicant clearly thinks he was suffering from depression when he offended in 2018.[107] This he attributes to the violence he saw and endured from his step-fathers[108] and to his relationship with Ms NM breaking down.[109] He says that he “…did not have a normal childhood due to my traumatic experiences and I believe it contributed negatively towards my mental health which made my relationship break down feel worse and had me cope with alcohol and drugs”.[110]

    [107] In his oral evidence, the applicant suggested that in 2018 he was suffering from a mental health disorder but did not realise that he needed to seek treatment for it.

    [108] ATB2, p.1.

    [109] The Applicant stated “my mental health started declining because of my relationship”: ATB2, p.2.

    [110] Ibid.

26. I note that in his December 2022 report, Mr Watson-Munro spoke of the applicant having “reported” escalating symptoms of depression, “acknowledged longstanding symptoms of depression…”,[111] having “… acknowledged escalating depression and anxiety …”[112] and “described longstanding symptoms referable to his exposure to domestic violence whilst in Iran”.[113]

    [111] ATB2, p.12.

    [112] ATB2, p.15.

    [113] ATB2, p.12.

27. Mr Watson-Munro simply refers to what the applicant acknowledged, reported and described. Mr Watson-Munro does not refer to the applicant as having been diagnosed as suffering from depression or any other mental health disorder in 2018 (and I could not locate in the material before me any such diagnosis). Mr Watson-Munro understandably disclaimed any capacity to make such a diagnosis now, around four years later.

28. That the applicant has not been diagnosed as suffering from any mental health disorder at the time of his offending is not a new difficulty. In the document containing the July 2019 risk assessment opinion referred to earlier, it was said that “…this service respectfully does not endorse a mental health condition”. While the applicant was said to have “admitted to feeling depressed” while in custody, it was noted that the applicant had “reported no diagnosis of a mental health condition and could not identify a connection between his mental health and offending”.[114]

    [114] RTB2, p.31.

29. As I am not satisfied that the applicant was suffering from depression or any other mental health disorder at the time of his offending, I am not satisfied that his offending was attributable, at least in part, to the applicant suffering from such a disorder. Hence, I do not consider that his risk of re-offending is (in any direct sense) ameliorated by the fact (if it be a fact) that the applicant has been attending sessions with a psychologist since his offending, while in detention.[115]

    [115] ATB2, p.5 and AFS [39]. In oral evidence, the applicant stated that he had four or five sessions with a psychologist while in detention and had three to four sessions with a psychologist in Sydney. According to Mr Watson-Munro, however, that applicant “has not however as yet had consistent, detailed one-to-one psychotherapy”: see ATB2, p.15.

30. In his oral evidence, Mr Watson-Munro diagnosed the applicant as currently suffering from depression.[116]

    [116] In his December 2022 report, Mr Watson-Munro noted that the applicant had “described a spectrum of symptoms reflective of ongoing depression and anxiety”: see ATB2, p.13.

31. A mental health disorder would seem likely to impair the applicant’s capacity to respond appropriately to otherwise stressful situations once free in the community and, hence, insofar as it has any impact on the applicant’s risk of re-offending, that impact is likely to be negative. If and to the extent that there is such negative impact on that risk, however, it is prone to amelioration by treatment of the disorder. In this regard, the applicant has stated that he will continue to see a psychologist once released into the community[117] and he has already located the address in Melbourne where, once released, he says he will attend weekly counselling sessions.[118]

    [117] ATB2, p.2.

    [118] The address is in North Melbourne for weekly SMART treatment involving, according to the applicant, an instructor who assists those seeking to stay away from drugs and alcohol and address mental health issues.

32. The applicant submits that he is remorseful for his offending[119] and has developed insight into it.[120] A person sincerely remorseful for certain conduct and who has insight into the reasons for that conduct is less likely to repeat that conduct and more likely to take steps to address those reasons. 

    [119] A SFIC [23]. See ATB2, pp.1-2 where the applicant states that he is extremely remorseful for actions on 25 December 2018 and very remorseful for his offending in July 2018.

    [120] A SFIC [32].

33. I accept that the applicant is sincere in his remorse for having engaged in his offending conduct. I do so despite the respondent’s challenge to that sincerity.

34. The respondent referred to what was said to be the applicant’s late plea of guilty to the offences committed on 25 December 2018[121] and to an assessment made in July 2019 to the effect that, while the applicant had shown some insight into his offending behaviour, he had little remorse for the victim.[122] Others who know the applicant, however, have testified to his remorse. In a statement made in 2019, a pastor at a Farsi Baptist Church said, in relation to the applicant, that he was “sure he has strong remorse”.[123] In a November 2022 statement, a Mr MA said the applicant sincerely regrets his big mistake.[124] That the applicant is remorseful is also attested to in statements made by Mr AY[125] and Mr SK.[126]

    [121] R SFIC [30.4].

    [122] RTB2, p.30; G5, p.60.

    [123] G16, p.139.

    [124] ATB2, p.28: Mr MA said he had known the applicant “for more than 7 years”.

    [125] ATB2, p.27.

    [126] ATB2, p.32.

35. It is clear that the applicant regrets his offending, especially because of the position it has put him in and the impact it has had on his mother (a matter to which I will return). That regret is coupled with insight, evident in:

    (a)the applicant’s abstinence from alcohol and illicit drugs since being placed on remand at the end of 2018 (despite, according to the applicant, their availability in detention);

    (b)the applicant’s evidence to the effect that he has chosen to associate in detention only with others who, like himself, abstain from illicit drugs and alcohol;

    (c)the applicant’s response to a question put to him about how he would react were he to form a relationship with a girl who then left him for another man (noting that the victim of the offending in late 2018 was said by the applicant to be seeing Ms NM, the applicant’s then ex-girlfriend albeit someone who the applicant said he then still loved[127]). If that were to occur the applicant said he knows what he would do; it would be “easy- say goodbye to them and leave them to have their own life”.

    [127] G5, p.44.

36. According to His Honour Judge Parrish, the applicant’s offending in December 2018 was demonstrative or reflective of his immaturity.[128] He was then aged 22. In the following four years, spent in no doubt difficult circumstances, he will have matured. Hence, the characterisation mentioned earlier of the applicant having matured as a protective factor.

    [128] G5, pp.64 and 66.

37. Some support for an assessment of the applicant’s risk of re-offending as low is found in his evidence to the effect that he had been unaware that his offending might affect his visa and that, now he is aware of the potential consequences should he re-offend, he definitely will not do so.

38. Further support for that assessment is found in the applicant’s concern that he be able to support his mother, financially and emotionally. The applicant is the only member of the mother’s family in Australia. As outlined later, she suffers from depression. When giving evidence before the Tribunal she was clearly distraught. I accept as valid Mr Watson-Munro’s opinion to the effect that the applicant’s concern for his mother has reinforced his motivation to be and remain free in the community and galvanised his resolve not to re-offend.[129]

    [129] ATB2, pp.12 and 15.

39. If released into the community, the applicant should have good prospects of leading a pro-social life. He has friends who have indicated a preparedness to support him.[130] He will have accommodation with his mother. As indicated earlier, he already knows where and from whom he will obtain counselling. He intends to take up an offer of full-time employment as a painter made by the person who employed him for around 40 hours per week for almost all of 2018.[131] In this regard, a person fully employed is less likely to offend. Quite apart from its psychological benefits, employment reduces both financial pressures and the time available to transgress.

    [130] ATB2, p.27 (Mr AY); ATB2, p.28 (Mr MA) and ATB2, p.32 (Mr SK).

    [131] ATB2, p.35. The painting job is not the only offer of employment available to the applicant: see ATB2, p.28.

40. True it is, as contended by the respondent, that the applicant had accommodation with his mother and was fully employed when he offended in 2018 and that, as such, these factors ought not be considered to be likely, of themselves, to prevent the applicant from doing what they failed to prevent him from doing in 2018. Nevertheless, even if they do not serve to ensure that the risk of re-offending will not crystallise, having accommodation and full-time employment are factors which ameliorate that risk.  Moreover, they are not the only factors ameliorating risk in the context.

1. One last element of the context is worthy of mention. The applicant has no entrenched habit of engaging in offending conduct. His record reveals, in essence, two problematic incidents six months apart, a record consistent with a characterisation of his offending conduct as aberrant. It is not a record suggestive of a lifestyle dependent on, or reflective of, an ingrained habit of offending.

2. A conclusion that the applicant’s offending was aberrant is consistent with several of the references contained in material before the Tribunal. In 2019, Ms NM stated that, other than in relation to the recent incident (which I infer to be a reference to the applicant’s offending on Christmas day in 2018), she had never seen him be violent to others in the period she had known him since 2015.[132] Similar statements were made by Mr SK[133] and by a Mr AY.[134]

   [132] G14, p.135.

   [133] G15, p.136.

   [134] ATB2, p.27.

3. A conclusion that the applicant’s offending was aberrant is also reflected in the absence in the material before me of any suggestion of the applicant’s involvement in any incidents of a violent or adverse nature while in prison or detention.[135]

   [135] ATB2, p.3.

   Conclusion

4. I find that the protection of the Australian community consideration weighs against finding that there is another reason for revocation of the visa cancellation decision, to a moderate extent.

5. As a non-citizen who has been allowed to enter and remain in Australia, the applicant’s offending reflects a failure to have met the expectation of him that he be law-abiding and not cause or threaten harm to individuals or the Australian community.

6. The attribution of moderate weight to the consideration is in recognition of the very serious nature of the applicant’s offending, the moderate level of harm likely to flow should the applicant re-offend and the risk of him re-offending being low.

   FAMILY VIOLENCE

7. The second of the primary considerations concerns family violence.

8. As things transpired, neither party submitted that this consideration was of relevance in this proceeding and, on the material before me, I am not satisfied that it is of relevance.[136]

   [136] Initially, the respondent had contended that the applicant had engaged in family violence in two respects: R SFIC [24]-[25]. First it was suggested that he had been violent to Mr SK who, it was said, was the applicant’s mother’s partner. Such a relationship was, however, denied by both Mr SK and the applicant’s mother. Second, it was suggested that the applicant had been violent to Ms NM by sending her certain text messages. Quite apart from the issue of whether transmission of the relevant texts constituted violence, there was little before the Tribunal suggestive of the relationship the applicant had with Ms NM extending beyond simply boyfriend and girlfriend.

   THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

9. The third primary consideration which I am required by Direction 90 to take into account where relevant is the best interests of minor children in Australia.

10. Neither party submitted that this consideration was of relevance in this proceeding and, on the material before me, I am not satisfied that it is of relevance.

    Expectations of the Australian community[137]

    [137] Direction 90, cl 8.4.

11. The expectations of the Australian community consideration constitutes the fourth and last of the primary considerations.

12. On behalf of the applicant, it appeared to have been implicitly accepted that this consideration would weigh against finding that there was another reason to revoke the visa cancellation decision. In that context, it was submitted that the consideration “should be given limited weight against revocation because the risk of reoffending is not unacceptable, and the Applicant would be facing indefinite detention if his cancellation is not revoked”.[138] Mention was also made on the applicant’s behalf to the fact that he has been in Australia since he was 16 years old and his only family resides in Australia.[139]

    [138] AFS [76].

    [139] A SFIC [38].

13. The respondent, on the other hand, submitted that this consideration weighs heavily against revocation of the visa cancellation decision.[140]

    [140] R SFIC [50].

14. As understood by the Tribunal, the respondent’s submission appeared to be based on a contention that two community expectations provided for in cl 8.4 of Direction 90 apply in the circumstances.

15. Stepping back from that contention for a moment, it is worth noting that the enquiry which the expectations of the Australian community consideration engenders does not concern what the Australian community expects in fact but, rather, concerns what the Government deems the community’s expectations to be. Decision makers, including the Tribunal, are required to proceed on the basis of the Government’s views as to those expectations, as expressed in the relevant provisions of Direction 90 and without independently assessing community expectations.[141] The content of any such deemed expectation is, accordingly, to be discerned by construing the relevant provisions of Direction 90.[142]

    [141] Direction 90, cl 8.4(4).

    [142] FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [68].

16. A construction of cl 8.4 of Direction 90 gives rise to at least two potentially relevant community expectations. As already noted, the respondent contends that both apply in the circumstances.

17. The first is derived from cl 8.4(2) of Direction 90. It provides that:

    “In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

    (a)  Acts of family violence; or

    …

    (c)   commission of serious crimes against women…; in this context, ‘serious crimes’ include crimes of a violent…nature…”.

18. The respondent contends that the first sentence of cl 8.4(2) applies in the circumstances, even if the rest of the clause is inapplicable. That is, the respondent contends that the applicant’s offending involving violence is such that the Australian community would expect that the applicant should not be granted or continue to hold a visa.

19. I do not accept that construction of cl 8.4(2). The first sentence of the clause does not operate independently of the rest of the clause. The latter part of cl 8.4(2) particularises the circumstances in which the Australian community expectation identified in the first part of the clause arises. Hence, and for instance, mandatory cancellation of a visa so that a person would not continue to hold a visa would be expected where the offences are of a such a nature as to raise serious character concerns through, say, acts of family violence or the commission of crimes of a violent nature against women.

20. The approach found in cl 8.4(2) to particularising the expectation that arises by reason of the inherent nature of certain offending or conduct is reflected in the principles found in Direction 90, which both inform and comprise the framework within which considerations (such as the expectations of the Australian community consideration) are to be taken into account. 

21. As identified earlier, one such principle provides that:

    “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. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community”.[143]

    [143] Direction 90, cl 5.2(5).

22. As expressed, the words of that principle reflect a clear intention that conduct mentioned in cl 8.4(2) be considered to be of such a nature that even strong countervailing factors “may be” insufficient to justify, amongst other things, revocation of a mandatory cancellation decision. That intention is expressed in the principle and given effect in cl 8.4(2).

23. On the respondent’s construction of cl 8.4(2), the expectation provided for in it may apply simply to any offending involving violence except, say, when the violence concerned is family violence. In the case of family violence (and the other sub-categories of violence specified in the clause), not only would there be a need for violence but also serious character concerns would need to be raised through that violence in order for the expectation found in cl 8.4(2) to apply. Hence, on the respondent’s construction, the community expectation provided for in cl 8.4(2) would be less likely to arise when the violence engaged in is of a type specified in the clause (such as family violence). Such a construction of the clause is one unlikely to be considered to achieve a purpose or object of Direction 90.[144]

    [144] See Acts Interpretation Act 1901, s 15AA.

24. If, as I have found, the expectation found in cl 8.4(2) of Direction 90 does not apply in the circumstances, this leaves the expectation provided for in cl 8.4(1) of the Direction. In that latter clause, it is said that the Australian community expects non-citizens to obey Australian laws while in Australia and that, where a non-citizen has engaged in serious conduct in breach of this expectation or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow them to enter or remain in Australia.

25. In breach of the expectation that he, as a non-citizen, obey Australian laws, the applicant’s offending saw him engage in what constitutes serious conduct for the purposes of Direction 90.[145] Indeed, the Australian community is taken to view conduct of the type in which the applicant engaged as not only serious but very serious.[146] Hence, as a “norm”, the Australian community is taken to expect that the applicant not be allowed to remain in Australia. Whether that expectation applies in the circumstances, therefore, depends on whether the “norm” is displaced.

    [145] Noting that the concept of “serious conduct” is simply defined in Direction 90 inclusively so as to include certain non-criminal conduct: cl 4(2).

    [146] Noting that crimes of violence are said to be regarded as very serious by the Australian Government and the Australian community: Direction 90, cl 8.1.1(a).

26. I do not consider the “norm” to be displaced in the circumstances. For it to have been displaced, much would be required to distinguish the applicant’s circumstances from those which might reasonably be expected to be encompassed within the “norm”. While everyone’s circumstances are to an extent unique, I am not satisfied that the applicant’s circumstances are such as to warrant a conclusion that the community’s normal expectation is inapplicable to him.

27. In the result, the Australian community is to be taken to expect that the applicant not be allowed to remain in Australia. As noted earlier, however, under the Act, the applicant’s removal from Australia is neither authorised nor required. Accordingly, the Australian community is being taken to expect something which the law does not currently require or authorise. This renders the result of application of the expectation unclear. Nevertheless, what is clear is that revoking the visa cancellation decision and thereby releasing the applicant into the community would be inconsistent with the expectation.

28. Hence, and as implicitly accepted by the applicant, the expectations of the Australian community consideration weighs against revocation of the visa cancellation decision. The extent to which it does so, however, depends on what is appropriate in “the particular circumstances”.[147]

    [147] FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [101]-[102], addressing the instrument which Direction 90 replaced.

29. Of particular significance in assessing the weight to be attributed to this consideration is the very serious nature of the applicant’s offending, set against:

    (a)His offending being at the low end of the spectrum of very serious offending;

    (b)The relatively moderate harm caused by that offending;

    (c)The relatively moderate harm likely to be caused were the applicant to re-offend;

    (d)His offending being essentially comprised of two incidents over a period of six months; and

    (e)The low risk of him re-offending.

30. In assessing the weight to be attributed to this consideration, the applicant submitted that the prospect of indefinite detention was a circumstance of relevance. I disagree. That prospect will be addressed shortly, in the context of what is, for the purposes of Direction 90, an “other consideration”. Taking into account issues addressed in the context of Direction 90’s other considerations when dealing with a primary consideration would interfere with the operation of that provision of Direction 90 (referred to at [37] above) directed to “the manner in which a decision-maker should “generally” weigh up primary considerations against other considerations”.[148] 

    [148] PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050 at [85]-[86], reversed on different grounds in PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14.

    Conclusion

31. The consideration concerning the expectations of the Australian community weighs against me being satisfied that there is another reason to revoke the visa cancellation decision. I attribute moderate weight to this consideration.

    OTHER CONSIDERATIONS[149]

    [149] Direction 90, cl 9.

32. The considerations which I am required by Direction 90 to take into account are, as mentioned earlier, divided into primary and other considerations.

33. The other considerations are defined to include but not be limited to a consideration of international non-refoulement obligations; extent of impediments if removed; impact on victims; and links to the Australian community, including strength, nature and duration of the applicant’s ties to Australia and the impact on Australian business interests.[150] 

    [150] Direction 90, cl 9(1).

    International Non-refoulement obligations

34. As noted earlier, the applicant’s involuntary removal to Iran is no longer required or authorised under the Act,[151] given that a “protection finding” was made for the applicant with respect to Iran.[152]

    [151] Act, s 197C(3): this is subject to a decision under s 197D of the Act to the effect that a protection finding would no longer be made in relation to the applicant.

    [152] G24, p.174.

35. Hence, insofar as Australia’s non-refoulement obligations find expression in domestic law, a decision to affirm the non-revocation decision will not result in a breach of those obligations.

36. Given this, both the respondent[153] and the applicant[154] submit, and I accept, that this consideration weighs neutrally.

    [153] R SFIC [55].

    [154] AFS [77].

    EXTENT OF IMPEDIMENTS IF REMOVED

37. If relevant, Direction 90 requires that consideration be given to the extent of any impediments that the applicant may face, if removed from Australia to Iran, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of Iran), taking into account his age and health, whether there are substantial language or cultural barriers, and any social, medical and/or economic support available to him in Iran.

38. As the applicant’s involuntary removal to Iran is no longer required or authorised under the Act, again, both the respondent[155] and the applicant[156] submit, and I accept, that this consideration weighs neutrally.

    [155] R SFIC [61].

    [156] ASF [78].

    IMPACT ON VICTIMS

39. If relevant, Direction 90 requires that consideration be given to the impact of a decision to revoke the decision to cancel the applicant’s visa, or a decision to not revoke it,[157] on members of the Australian community, including victims of his criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the applicant has been afforded procedural fairness.

    [157] In cl 9.3 of Direction 90, the concept employed is of a “s 501CA decision”. That section in fact only provides for one decision, a decision to revoke a visa cancellation decision. In its terms, it does not encompass a decision to not revoke a visa cancellation decision. Nevertheless, that would seem to be the intent underlying use of the concept, especially in the context of cl 9.4.2 of Direction 90 where the reference to a decision under s 501CA is clearly intended to encompass a decision not to revoke a visa cancellation decision but cf CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 at [23], where the analogous provision in the predecessor of Direction 90 was construed in a way that directed consideration only to a decision to revoke a visa cancellation decision.

40. Neither party contended, and nor was it apparent on the material before me, that this consideration was of relevance in this proceeding.

    Links to the Australian community, including strength, nature and duration of the Applicant’s ties to Australia and the impact on Australian business interests[158]

    [158] Direction 90, cls 9.4, 9.4.1 and 9.4.2.

41. In the circumstances, Direction 90 requires that this “other consideration” be addressed by reference to two subsidiary considerations.

42. The first concerns the strength, nature and duration of ties to Australia. The second concerns the impact on Australian business interests.

    Strength, nature and duration of ties[159]

    [159] Direction 90, cl 9.4.1.

43. As to this first subsidiary consideration, in the circumstances, it requires that regard be had to:

    (a)Any impact of a decision to revoke or not revoke the visa cancellation decision on those of the applicant’s immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.[160]

    (b)The strength, duration and nature of any ties that the applicant has to the Australian community, having regard to how long he has resided in Australia and the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.[161]

    [160] Direction 90, cl 9.4.1(1).

    [161] Direction 90, cl 9.4.1(2).

44. As for the impact of a decision to revoke or not revoke the visa cancellation decision on those of the applicant’s immediate family members in Australia, it is clear that a decision not to revoke the visa cancellation decision would have a significant, adverse effect on the applicant’s only family member, his mother.[162]

    [162] AFS [85]. In a 2021 submission, it was stated that the applicant’s mother would stay in Australia indefinitely: G11, p.113.

45. Prior to his incarceration, the applicant supported his mother financially and emotionally. According to the applicant he was then the “only financial provider” in their house.[163] Since his incarceration, the mother has had to take on full time employment because the applicant is unable to financially support her.[164]

    [163] ATB2, p.1.

    [164] ATB2, p.24.

46. The applicant’s mother suffers from moderate to severe depression,[165] for which she currently takes medication.[166] Because the applicant’s ongoing detention would be severely distressing to the applicant’s mother, I infer that her mental health condition is likely to worsen were the applicant to remain in detention. She is said by the pastor of her church to miss her son greatly,[167] in a context where the applicant is her only child and, as she sees it, “all we have is each other”[168] and the only person in her life is the applicant.[169]

    [165] G13, p.132 (referral letter of Dr Khorshidian of 21 November 2019). In a 2021 submission, reference was made to the applicant’s mother also having been diagnosed as suffering from PTSD and severe anxiety: G11, p.113.

    [166] ATB2, p.24.

    [167] G16, p.137.

    [168] ATB2, p.24.

    [169] Ibid.

1. As for the strength, duration and nature of any ties that the applicant has to the Australian community, on behalf of the applicant it is submitted that he has “strong ties to Australia, having resided here since he was 16 years old. These include his mother, close friends, his church community and his employment”.[170] I accept that submission.

   [170] A SFIC [13].

2. In support of the applicant’s submission, it is said[171] that:

   (a)He has maintained steady employment. I accept that this is the case, despite limited evidence concerning his employment history. That evidence does, however, disclose that, while free in the community, he was able to financially support his mother[172] and he worked as a painter for around 40 hours per week for most of 2018[173] and as a welder’s assistant in 2015.[174]

   (b)He is a part of the Farsi Baptist Church community. While his mother would seem to be part of this particular community, there is little before the Tribunal to suggest that the applicant is also embedded in that community,[175] albeit that, as submitted by the pastor of the church, the applicant might well be sincere in his desire to serve the church and the Iranian community.[176]

   (c)He has formed close friendships in Australia. I accept that this is the case. There are statements before the Tribunal from three friends. Each state a preparedness to support the applicant when free in the community. Mr AY speaks of providing a car and assistance in obtaining employment.[177] Both Mr MA[178] and Mr SK[179] speak of assistance in obtaining employment and providing financial support.

   (d)His one family member, his mother, resides in Australia. Again, I accept that this is the case.

   [171] A SFIC [45]-[49].

   [172] ATB2, p.28; ATB2, p.32.

   [173] ATB2, p.35.

   [174] G15, p.136.

   [175] G16, p.138 (2019 letter from the pastor of the church identifying the applicant’s mother as an important member of their community).

   [176] Ibid.

   [177] ATB2, p.27.

   [178] ATB2, p.28.

   [179] ATB2, p.32.

3. In the material before me, it would appear that the applicant has developed a number of interests while in Australia, such as attending gyms and car meets and going camping. I note also his interest in music.[180]

   Impact on Australian business interests[181]

   [180] The applicant speaks of a plan to set up a music studio (ATB2, p.5) and there is reference in submissions made on his behalf to his being part of a band (AFS [79]).

   [181] Direction 90, cl 9.4.2.

4. As to the second subsidiary consideration, in the circumstances, it requires that consideration be given to the impact on Australian business interests of not allowing the applicant to remain in Australia.

5. Neither party contended and nor was it apparent on the material before me that this subsidiary consideration was of relevance in this proceeding.

   Conclusion

6. I find that this consideration concerning ties to the Australian community weighs in favour of me being satisfied that there is another reason to revoke the visa cancellation decision and that it does so to a significant extent.

   PROLONGED DETENTION

7. The Tribunal must consider the legal consequences of its decision.[182]

   [182] Galuak v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 798 [55]: “…administrative decision makers who exercise powers to refuse or cancel visas on character grounds under s 501 of the Act must first consider the legal consequences that arise from their doing so”.

8. Those legal consequences are to be assessed in a context where:

   (a)The applicant is not an Australian citizen;

   (b)As a result of the decision to cancel the applicant’s protection visa, the applicant will be unable to apply for another protection visa[183] (unless the respondent exercises a personal right to allow the applicant to do so[184]) or any other visa[185] (other than a Bridging R (Class WR) visa[186]); and

   (c)The applicant’s removal under the Act from Australia to Iran will neither be required nor authorised except in certain limited circumstances, none of which are presently applicable.[187]

   [183] Act, s 48A(1B).

   [184] Act, s 48B.

   [185] Act, s 501E.

   [186] Act, s 501E(2)(b) and Migration Regulations 1994, reg 2.12AA.

   [187] Act, s 197C(3).

9. As a person who is not an Australian citizen but who is in Australia without a visa, the applicant is an “unlawful non-citizen”. The result is that officers of the respondent are obliged to detain the applicant.[188]

   [188] Act, ss 189 and 196.

10. Hence, unless the visa cancellation decision is revoked, the applicant’s detention will continue until:

    (a)A court finally determines his detention to be unlawful;[189]

    (b)Another country is found that is willing to receive him;

    (c)He is invited to apply for a Bridging R (Class WR) visa;

    (d)The respondent grants him another visa in exercise of a personal power;[190]

    (e)The respondent makes a residence determination[191] in exercise of a personal power;[192]

    (f)The respondent comes to be satisfied that the applicant is no longer a person in respect of whom a “protection finding” would be made;[193] or

    (g)The applicant asks to be removed.[194]

    [189] Act, s 196.

    [190] Act, s 195A.

    [191] Act, s 197AB.

    [192] Act, s 197AF.

    [193] Act, ss 197C(3)(c)(ii), 197D(2) and 197D(6).

    [194] Act, s 197C(3)(c)(iii).

11. None of these reasons for ending the applicant’s detention currently apply. Moreover, on the material before me and absent the applicant asking for removal, I am not satisfied that any of these reasons are likely to come to apply soon, within any particular period or at any particular time.[195] Given this, like the applicant in BNGP,[196] the applicant faces the “prospect of immigration detention for an indefinite period”,[197] that is, without a currently known end point.[198]

    [195] See a similar conclusion arrived at in LVMF and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2471 at [149].

    [196] BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878 (BNGP).

    [197] See BNGP at [43]. See also WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463 at [153], which suggests a characterisation of such detention as indefinite.

    [198] LVMF and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2471 at [161].

12. As was recently said by the Tribunal in XTLP,[199] “[i]ndefinite detention is not to be taken lightly. It is certainly a bleak prospect which cannot be easily dismissed in a compassionate society which values human rights”. His capacity to liaise with third parties would be constrained, as would his capacity to implement plans he might have had for his future. In detention, the applicant would continue to be denied freedom of movement. He would not be at liberty. As such, he would be denied “one of the most basic human rights and fundamental freedoms known to the common law”.[200]

    [199] XTLP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2357 at [109].

    [200] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463

    at [123].

13. Moreover, I find that the prospect and actuality of indefinite detention is likely to be materially adverse given the applicant’s particular circumstances.

14. First, the applicant is a young man. Ongoing detention covering what are, arguably, likely to be his most productive and fruitful years would severely impair the applicant’s capacity to ever build a life for himself. 

15. Second, I find that ongoing detention will have a deleterious effect on the applicant’s mental health.[201]

    [201] I note that the impact on the applicant’s mother’s mental health of his detention is addressed elsewhere.

16. Limited support for that finding is reflected in the applicant’s description of the effect detention has on him. He says that detention has a “vastly detrimental” effect on his mental health, with his depression getting worse by the day.[202] He says he is only still alive because of the hope that he will be given another chance and be released into the community.

    [202] ATB2, p.5.

17. More significantly, according to Mr Watson-Munro, the applicant is psychologically troubled.[203] While he gave “no indications of major psychiatric disturbance”, he did describe a spectrum of symptoms reflective of ongoing depression.[204] Indeed, at the hearing, Mr Watson-Munro was content to diagnose the applicant as suffering from depression, a condition which Mr Watson-Munro opined would likely deteriorate if the applicant were to remain in detention.

    [203] ATB2, p.7.

    [204] ATB2, p.13.

    Conclusion as to Prolonged Detention

18. This “other” consideration concerning detention weighs in favour of me being satisfied that there is another reason to revoke the visa cancellation decision. It does so to a significant extent, given that the consequences for the applicant of non-revocation of that decision are likely to be materially adverse.

    CONCLUSION AS TO OTHER REASON FOR REVOCATION

19. In considering whether there is another reason for revocation of the decision to cancel the applicant’s visa, my conclusions in relation to the various considerations to which I have had regard (including those to which Direction 90 requires that I have regard) do not point in a uniform direction.

20. In particular, in the circumstances of this matter, and ignoring those considerations which I have found not to be relevant or to weigh neutrally:

    (a)weighing in favour of a conclusion that there is not another reason for revocation of the visa cancellation decision are two of the primary considerations, being the considerations concerning protection of the Australian community from criminal or other serious conduct and expectations of the Australian community (each to a moderate extent).

    (b)weighing in favour of a conclusion that there is another reason for revocation of the visa cancellation decision are other considerations concerning links to the Australian community and prolonged detention (each to a significant extent).

21. Overall, I am satisfied that there is another reason to revoke the visa cancellation decision. In this regard, the general position under Direction 90, which has the primary considerations being given greater weight than the other considerations, is displaced in those circumstances of this proceeding that led to the attribution of significant weight to each of the two “other” considerations while only moderate weight to the two relevant primary considerations. Reference is made, in particular, to the matters identified when deciding to attribute only moderate weight to the expectations of the Australian community consideration (see paragraph [151]) and to the issues arising from the applicant’s ongoing detention for the applicant’s mother (see paragraphs [166]-[168]) and for him (see paragraphs [180]-[185]).

    Decision 

22. As I stated at the beginning of these reasons, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that the applicant passes the relevant character test or that there is another reason why the decision to cancel his visa should be revoked.

23. I am not satisfied that the applicant passes the character test.

24. I am, however, satisfied that that there is another reason why the decision to cancel his visa should be revoked.

25. Hence, the Tribunal sets aside the October 2022 decision and, in substitution, decides to revoke the visa cancellation decision.

I certify that the preceding 193 (one hundred and ninety-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell.

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

Associate

Dated: 9 January 2023

Dates of hearing:	19 and 20 December 2022
Advocate for the Applicant:	Taraneh Arianfar
Advocate for the Respondent:	Jake Kyranis
Solicitors for the Respondent:	Sparke Helmore Lawyers