FCFF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2024] AATA 120

FCFF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 120 (6 February 2024)
Division: GENERAL DIVISION
File Number(s): 2022/7816
Re:FCFF
APPLICANT

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

DECISION

Tribunal:Senior Member Dr Linda Kirk
Date:6 February 2024
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the Reviewable Decision dated 20 September 2022 to refuse to revoke the Mandatory Visa Cancellation Decision and, in substitution, decides that the cancellation of the Applicant’s visa is revoked.
....................................[SGD]....................................
Senior Member Dr Linda Kirk

CATCHWORDS

MIGRATION – visa cancellation – mandatory cancellation under section 501(3A) of the Migration Act 1958 (Cth) – where the Applicant does not pass the character test – whether there is ‘another reason’ to revoke the cancellation – consideration of Ministerial Direction No. 99 – protection of the Australian community – links to the Australian community – the best interests of minor children in Australia – expectations of the Australian community – legal consequences of the decision – impediments to removal – decision under review set aside
LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES

Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bugmy v The Queen (2013) 248 CLR 571
CRNL and Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
DMDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1993
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR and Minister for Home Affairs (2019) 272 FCR 454 per Charlesworth J

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
Jal v Minister for Immigration and Border Protection [2016] AATA 789
Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151

Minister for Immigration v HSRN [2023] FCAFC 68
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCA 37
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 587
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Viane v The Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13
SECONDARY MATERIALS

Direction No. 99 – 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 Dr Linda Kirk
6 February 2024

FCFF (‘the Applicant’) is a 43-year-old citizen of Iraq who arrived in Australia on 20 August 2001.[1] On 10 April 2002, the Applicant was granted a Temporary Protection (Class XA) (Subclass 785) visa. In granting this visa, a delegate of the Minister (‘the Respondent’) was satisfied that the Applicant was owed protection obligations in respect of Iraq. On 19 October 2005, the Applicant was granted a Protection (Class XA) (Subclass 866) visa (‘the Protection visa’). In granting this visa, a delegate of the Respondent was also satisfied that the Applicant was owed protection obligations in respect of Iraq. The Applicant was granted a Resident Return (Class BB) (Subclass 155) visa (‘the visa’) on 17 August 2010.[2]
[1] Exhibit R1,
[2] Ibid, G8, 66.
On 22 October 2021, the Applicant was convicted by the District Court of New South Wales of Aggravated break and enter commit serious indictable offence -SI and was sentenced to a total term of two years and three months’ imprisonment.[3]
[3] Ibid, G8, 67.
On 1 November 2021, the Applicant’s visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) (‘the Mandatory Visa Cancellation Decision’) because a delegate of the Minister (‘the Respondent’) was not satisfied that the Applicant passed the character test in subsection 501(6) of the Act.[4] The Applicant was considered to have, pursuant to subsection 501(7)(c), a ‘substantial criminal record’ within the meaning of section 501(6)(c) as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution: section 501(3A)(b). At the time, the Applicant was serving a sentence of full-time imprisonment at Hunter Correctional Centre in New South Wales for an offence against a law in Australia. The Applicant was invited to make representations to the Respondent about revoking the decision to cancel his visa within 28 days of receipt of the Mandatory Visa Cancellation Decision.5F[5]
[4]Ibid, G8, 66.
[5]Ibid, G8, 69.
On 26 November 2021, within the prescribed period, the Applicant made representations seeking revocation of the Mandatory Visa Cancellation Decision.[6]
[6]Ibid, G13, 100.
On 20 September 2022, a delegate of the Respondent decided, under subsection 501CA(4) of the Act, not to revoke the Mandatory Visa Cancellation Decision (‘the Reviewable Decision’).[7]7F
[7]Ibid, G3, 14.
On 23 September 2022, the Applicant applied to the Administrative Appeals Tribunal (‘the First Tribunal’) for review of the Reviewable Decision under subsection 500(1)(ba) of the Act.8F[8]
[8]Ibid, G2, 3.
The Tribunal conducted a hearing on 8 and 9 December 2022. On 14 December 2022, the Tribunal affirmed the Reviewable Decision.[9]
[9] Remittal Bundle, RB8, 930.
On 5 April 2023, the Federal Court made orders, by consent, that the Tribunal’s decision be quashed and that the matter be remitted to the Tribunal for determination according to law.[10]
[10]Ibid, RB12, 968-969.
The matter was heard by the Tribunal as presently constituted on 5 and 6 September 2023. The Applicant attended the hearing in person and was represented by his solicitor. He was assisted by an interpreter in the Farsi and English languages.
The following persons gave oral evidence and were cross-examined at the hearing:
- the Applicant
- the Applicant’s niece, MAU
- the Applicant’s brother, HAU
On 8 November 2023, the High Court delivered its judgment in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor (‘NZYQ’)[11] by pronouncing orders.[12]
[11] [2023] HCA 37.
[12]Those orders relevantly included:
1.It is declared that, by reason of there having been and continuing to be no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future:
(a) the plaintiff’s detention was unlawful as at 30 May 2023; and
(b) the plaintiff’s continued detention is unlawful and has been since 30 May 2023.
2. A writ of habeas corpus issue requiring the defendants to release the plaintiff forthwith.
On 17 November 2023, the Tribunal directed the parties to file submissions on the application of NZYQ to the review.
On 17 November 2023, the Applicant was released from immigration detention into the community. On 19 November 2023, the Applicant was granted a Class WR (Removal Pending) Bridging R (subclass 070) visa (‘BVR’).[13]
[13]Following the High Court’s orders in NZYQ, the Applicant has been granted the following visas:
·On 17 November 2023, the Applicant was granted a Bridging (Removal Pending) (Subclass 070) visa, pursuant to reg 2.25AA(2) of the Migration Regulations 1994 (the Regulations). Upon being granted this visa, the Applicant was released from immigration detention.
·On 18 November 2023, the Applicant was granted a further Bridging (Removal Pending) (Subclass 070) visa, pursuant to s 76A(3)(a) of the Act and by operation of law. The Bridging (Removal Pending) (Subclass 070) visa granted to the Applicant on 17 November 2023 ceased to be in effect.
·On 19 November 2023, the Applicant was granted a further Bridging (Removal Pending) (Subclass 070) visa, pursuant to reg 2.25AB of the Regulations. This is the visa currently held by the Applicant. The grant of this visa had the consequence that the visa granted to him on 18 November 2023 ceased to be in effect.
On 28 November 2023, reasons for the orders made in NZYQ were published by the High Court.
On 1 December 2023 and 15 December 2023, the Respondent and the Applicant respectively filed their Supplementary Submissions with the Tribunal.
The material before the Tribunal consists of:
- Section 501 G-Documents (G1 – G25, pp. 1 – 172) filed 6 October 2022 – Exhibit R1
- Respondent’s Summons Bundle (R1 – R11, pp. 1 – 707) filed 30 November 2022– Exhibit R2
- Respondent’s Statement of Facts, Issues and Contentions dated 30 November 2022 (‘RSFIC’)
- Statement of the Applicant dated 9 August 2023 – Exhibit A1
- Applicant’s IHMS Records – Exhibit A2
- Statement of MAU dated 3 August 2023 – Exhibit A3
- DFAT Country Information Report, Iraq – Exhibit A4
- Statement of HAA dated 31 August 2023 – Exhibit A5
- Bundle of documents relating to Buvidal Injection – Exhibit A6
- Applicant’s Statement of Facts, Issues and Contentions dated 18 November 2022 (‘ASFIC’)
- Applicant’s Amended Statement of Facts, Issues and Contentions dated 9 August 2023 (‘AASFIC’)
- Respondent’s Supplementary Submissions dated 1 December 2023
- Applicant’s Supplementary Submissions dated 15 December 2023
The Tribunal has reviewed the evidence before it and refers to relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7) of the Act provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
the person has been sentenced to death; or
the person has been sentenced to imprisonment for life; or
the person has been sentenced to a term of imprisonment of 12 months or more; or
the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
the person has:
(i) been found by a court to not be fit to plead, in relation to an offence; and
(ii) the court has nonetheless found that on the evidence available the person committed the offence; and
(iii) as a result, the person has been detained in a facility or institution.
Section 501CA of the Act applies if the Minister decides under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision.
MINISTERIAL DIRECTION NO. 99
Subsection 499(1) of the Act provides:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Subsection 499(2A) of the Act provides that ‘A person or body must comply with a direction under subsection (1).’
On 23 January 2023, the Minister, for the purposes of section 499 of the Act, made a Direction titled Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The commencement date for operation of the Direction was 3 March 2023.[14]
[14] Upon its commencement, the Direction revoked the operation of “Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”.
Paragraph 5.1 sets out the objectives of the Direction. Sub-paragraphs 5.1(1) and (2) provide:
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
(2)Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
Paragraph 5.1(4) provides:
(4)The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of the Direction sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse a visa under section 501 of the Act. These principles are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) 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 [sic] 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 noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) 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 8.55(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 [sic] risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘information and evidence from independent and authoritative sources should be given appropriate weight.’
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give a ‘other’ consideration the equivalent of or greater weight than a primary consideration.[15] Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’
[15]Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account. They are:
1)protection of the Australian community from criminal or other serious conduct;
2)whether the conduct engaged in constituted family violence;
3)the strength, nature and duration of ties to Australia;
4)the best interests of minor children in Australia; and
5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
a)legal consequence of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
ISSUES FOR DETERMINATION
Before the power in subsection 501CA(4) of the Act to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by subsection 501CA(4)(a) of the Act. The issue before the Tribunal is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo,13F[16] the Full Court of the Federal Court of Australia made the following observations in relation to subsection 501CA(4):
there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view ...[17]
[16] [2018] FCAFC 151.
[17] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

The issues for determination are:
1)whether the Applicant passes the ‘character test’; and
2)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Early years in Iraq and Iran
The Applicant was born in Iraq in December 1980 and is the youngest of 14 children born to his parents’ union.[18] Both his parents died when he was aged approximately 12 months. He is unsure of the circumstances surrounding their deaths. At the time, Saddam Hussein was the President of Iraq, and the Applicant believes that his parents’ deaths may have been politically/religiously motivated. He and his family identified with the (minority) Shiite community, and at this time the Sunni dominated Iraq.[19]
[18]Exhibit R1, G18, 127.
[19]Ibid, G18, 127.
After his parents died, the Applicant and his second youngest brother lived with their paternal uncle and his wife and their children.[20] When the Applicant was about two years old, he and his relatives were forced by the Iraqi government to relocate to Iran where they resided until the Iran/Iraq war ended in 1989.[21] He did not have any documents which permitted him to live lawfully in Iran. The Applicant and his brother were emotionally and physically abused by his uncle and aunt, and they were sometimes hit with a belt.[22] He did not attend school and, as a consequence, he is illiterate. He was forced to work from when he was eight years old[23] cleaning a bakery and then in a mechanic shop.[24]
[20]Ibid, G18, 127.
[21]Ibid.
[22]Ibid, G18, 128.
[23]Ibid.
[24]Ibid, G18, 129.
The Applicant’s eldest four brothers were sent to fight in the Iran/Iraq war and did not return[25]. A further four of his siblings, including one sister, were captured, tortured and placed into an Iranian gaol after being considered by the regime to be ‘political activists’.[26] Following the war, one of the Applicant’s siblings fled to Denmark and another to France while some remained in Iran.[27]
[25]Ibid, G18, 128.
[26]Ibid.
[27]Ibid.
Travel to Australia
At the age of 17, the Applicant left Iran and flew alone to Malaysia using a fraudulent passport arranged by ‘people smugglers’.[28] He remained there for approximately 12 to 18 months, and then travelled through Indonesia on a refugee boat before attempting to travel to Australia some 18 months later. His brother and uncle provided him with some money to start this journey, and he worked for the smugglers to assist in managing the 100 refugees on board. During the journey, the boat was ‘attacked by pirates’ who took everything on board, including the clothes that the passengers were wearing.[29] During the attack, the ‘boat broke and [the passengers] were almost about to drown before the Australian Navy came to rescue’ them.[30] The Applicant was transported to Ashmore Island and then transferred to the Adelaide Immigration Transit Accommodation where he remained for nine months. His protection claims were assessed, and he was released and settled in Sydney.[31]
[28]Ibid.
[29]Ibid.
[30]Ibid.
[31]Ibid.
Employment
The Applicant worked as a renderer for a period of five years, and then in a bakery for a year or two, before working as a painter and a cleaner for a further couple of years.[32] From 2010, his work history was ‘interrupted and not continuous’ due to his increasing drug use.[33] At the time of his arrest, he was employed on a casual basis as a cleaner. He had been in receipt of Centrelink assistance for the previous seven to eight years.[34]
[32]Transcript of proceedings, 5 September 2023, 13.
[33]Exhibit R1, G18, 129.
[34] Ibid.
Marriage
The Applicant returned to Iran where he met and married his late wife, FJ, who came to Australia in 2012.[35] Their relationship broke down after the Applicant was sent to prison. His wife changed her telephone number and terminated all contact with the Applicant. She passed away when the Applicant was in immigration detention.[36]
[35]Ibid, G18, 128.
[36]Transcript of proceedings, 6 September 2023, 58.
International travel
The Applicant’s evidence is that he has travelled overseas four times. He travelled to Iran every three or four months on four occasions when he married his former wife.[37]
[37] Transcript of proceedings, 5 September 2023, 23.
Drug use
The Applicant was introduced to heroin and ice in 2008.[38] He initially smoked these drugs on a social basis, once to twice weekly. By 2010 to 2011, his use had increased to one gram of ice and half a gram of heroin daily which he was administering intravenously.[39] The Applicant told the Tribunal that he was taking this quantity of drugs daily from 2015 until he went to gaol in 2020.[40] He agreed that during this period, his ‘life mainly revolved around [his] drug use’ and he spent all his money on drugs.[41]
[38]Exhibit R1, G18, 129.
[39]Ibid.
[40] Transcript of proceedings, 5 September 2023, 23.
[41]Ibid, 24.
Criminal history in Australia
The Applicant’s National Criminal History Check dated 21 December 2021 records his criminal convictions in Australia.32F[42]
[42]Exhibit R1, G4, 32-35.
Stalk/intimidate intend fear physical harm (domestic)
On 28 November 2018, the Applicant was convicted in the Local Court of New South Wales of Stalk/intimidate intend fear physical etc harm (domestic) which he committed on 4 September 2017. The Applicant was sentenced to a two-year section 9 bond with conditions pertaining to counselling, educational development or drug and alcohol rehabilitation.[43]
[43]Exhibit R1, G4, 35.
According to the sentencing remarks of Judge Still dated 28 November 2018, the offence occurred when the Applicant and his brother, HAU, were having a heated exchange about rent in the presence of his wife and his niece, MAU.[44] HAU rented a house in Cabramatta and the Applicant and his wife had been staying there on and off. The Applicant entered the kitchen while his brother was standing in the lounge room. There was constant yelling between them. The Applicant grabbed a kitchen knife in his right hand, although the blade was pointed to the ground, and it was not used during the altercation. His brother bear-hugged the Applicant in an attempt to restrain him. The Applicant dropped the knife but said in Arabic that he would hit or hurt his brother. MAU contacted triple zero.In the version of events provided by the HAU to the police, he sustained a small laceration to his left shoulder. He also stated that when he saw the Applicant with the knife walking towards him, he was concerned for himself, but mainly his daughter, MAU.[45]
[44]Ibid, G5, 36.
[45]Remittal Bundle, RB2, 186-188.
During cross-examination the Applicant was asked whether he accepts that this is what occurred, specifically that he walked towards his brother with a knife in his hand and intended to threaten him. He stated:[46]
… I didn’t hold a knife towards my brother. I do remember I was in the kitchen cooking. I was making a salad and the knife was in my hand when we were arguing. We had an argument, but I didn’t hold a knife towards my brother.
…
So no. I swear to God I didn’t do it. I didn’t intend to threaten my brother. I was cooking.
…
So I didn’t intend to hold the knife at my brother. I was just making food and we had an argument then I left the house.
[46] Transcript of proceedings, 5 September 2023, 31.
The Applicant’s brother, HAU, and his niece, MAU, were listed as protected persons in an apprehended domestic violence order which expired in 2019.[47]
[47]Remittal Bundle, RB2, 53.
Possess prohibited drug, custody of a knife in public place, driving while disqualified
On 28 November 2018, the Applicant was convicted in the Drug Court of New South Wales of Possess prohibited drug, Custody of knife in public place – first offence, and three counts of Drive motor vehicle during disqualification period for which he received an aggregate eight-month sentence, which was suspended to allow him to take part in a Drug Court treatment program. The Applicant’s earlier offences of Goods in personal custody suspected of being stolen (not motor vehicle) and Stalk/intimidate intend fear physical etc harm (domestic) on 28 November 2017 were also called up. The Goods in personal custody offence was included in the aggregate suspended sentence, and the Applicant received a conviction with no other penalty for the Stalk/intimidate offence.
The sentencing remarks of Judge Still dated 28 November 2018 record that on 18 November 2017, a member of the public rang the police when the Applicant had passed out in his vehicle in the Merrylands McDonalds carpark with the engine still running.[48] When police roused him, the Applicant acknowledged that he had been driving while disqualified. During cross-examination, the Applicant told the Tribunal that he recalls ‘driving many other times while disqualified.’[49] In another incident, the Applicant had gone to the police to report for bail and was found to have parked across two ‘police only’ parking bays. The offence occurred after the Applicant had been bailed for the previous disqualified driving offence. Between 2 and 3 September 2018, the Applicant was observed driving and police found a small amount of ‘ice’ on him and a yellow Stanley knife with a razor blade in the driver’s side door. His Honour noted that an aggravating feature of this offending was that the Applicant was on bonds at the time, and he was therefore on conditional liberty.[50]
[48]Exhibit R1, G5, 37.
[49] Transcript of proceedings, 5 September 2023, 34.
[50]Exhibit R1, G5, 37.
In his sentencing remarks, Judge Still made the following observations about the Applicant’s criminal history and his drug use:[51]
[51]Ibid, G5, 38.
In relation to his criminal history, it is limited. It does not really start until 2014 where
we have matters of goods in custody and shoplifting and then a possess drug charge
in 2017. After that he has received a number of sentences, some of which have been
subsumed in the bonds that are now the subject of breach and his only matter of
violence appears to be the matter I have already referred to for which he received a
s 9 bond in relation to his brother. So it is a very limited history.
I accept what I am told by Mr Bloomfield on his behalf that he is originally from Iraq.
I think he said he came here in the year 2000. That he has lost his family in Iraq due
to the violence in that country. That he has become addicted to ice in about 2015
and clearly that addiction corresponds with his criminal history. It is also the case
that in relation to the breach of bonds they were breaches both way of report from Community Corrections and also by way of re-offence.
The Applicant’s sentence was suspended whilst he participated in the Drug Court program.
On 31 January 2019, the Applicant appeared before Senior Judge Dive to receive a final sentence. His Honour noted that the Applicant’s participation in the Drug Court program had not been successful. According to an assessment by the Justice Health psychiatrist, the Applicant was found to be unsuitable for the program due to his medical issues. His Honour remarked:
Sadly, it was a very unsuccessful Drug Court program. [The Applicant] was overwhelmed and simply unable to do a Drug Court program. He was returned to custody within a few days of beginning the program, and an assessment by the Justice Health psychiatrist found that [the Applicant] was unsuitable for a Drug Court program because of his medical issues. His program was terminated and so the Drug Court has to impose a final sentence.[52]
…
I have been urged to consider special circumstances in this case. The issues on that
[52]Ibid, G6, 42.
[53] Exhibit R1, G6, 44.
go two ways. Firstly, [the Applicant] has been totally unsuccessful in being able to manage in the community, and engage in the recovery program here at the Drug Court; and his total sentence is a short one. I’m prepared to marginally adjust the relationship, whereby there will now be a total non-parole period of five months, and the total sentence will be eight months.[53]
During cross-examination, the Applicant told the Tribunal that the Drug Court program was unsuccessful because he continued to take heroin.[54]
[54] Transcript of proceedings, 5 September 2023, 40.
Aggravated break and enter
On 22 October 2021, the Applicant was convicted in the District Court of New South Wales of Aggravated break and enter commit serious indictable offence committed on 29-30 October 2019 (‘the 2019 offence’). He was sentenced to two years and three months’ imprisonment.
The Court relied upon an agreed statement of facts, which record that during the evening of 29 October 2019 and into the following morning, a number of persons had visited the home of a man known to deal drugs, with the purpose of using or buying drugs.[55] One of these persons, a woman who was a drug user, bought some drugs and then went to another house in Cabramatta where the Applicant and others had been consuming drugs. She told them that there was a lot of drugs and valuable items at the house where she had been, and she and another man decided to go there and rob the dealer. The male offender asked the Applicant to drive him and the woman there, in return for a ‘free puff’ of drugs. CCTV footage recorded the Applicant’s vehicle entering the victim’s street at approximately 6:40am, while the victim was in his living room with at least four other adults. The Applicant parked the vehicle outside the victim’s home, and he remained in the car while his co-offenders got out. They were armed with a small garden shovel and baseball bat, and one covered his face with an item of clothing. The co-offenders knocked on the front door, yelling for it to be opened, before smashing the living room window with the shovel. In response, the people inside the living room ran out of the house. The co-offenders entered the house and took several items, including drugs, mobile phones and a key to a Mercedes van parked in the driveway. The Applicant drove his co-offenders back and they went their separate ways. He had no knowledge of the offending undertaken by his co-offenders until he was arrested on 27 May 2020.[56]
[55]Exhibit R1, G7, 48ff.
[56]Exhibit R1, G7, 51.
In his sentencing remarks, Judge O’Brien noted that the offending was not the result of any professional planning, organisation, or execution, and accepted that it was essentially spontaneous and impulsive with the intention to steal drugs and goods.[57] The value of the stolen property was modest, and there was no evidence to establish that the shovel was used other than to gain entry to the premises. The offending was aggravated by the fact that it occurred in the home of the victim and that it was committed in company. His Honour found that each offender was equally responsible for the acts committed in the course of the joint criminal enterprise.[58] Specifically, in relation to the actions of the Applicant, His Honour noted that he had remained in the car while the co-offenders entered the victim’s property and was not aware that they would arm themselves.[59]
[57]Ibid, G7, 53.
[58]Ibid, G7, 54.
[59]Ibid.
His Honour accepted that the Applicant was genuinely remorseful, having pleaded guilty at the first opportunity. He found that the Applicant was genuinely contrite, remorseful, and had good prospects of rehabilitation, noting the employment and accommodation immediately available to him upon his release.[60] His Honour noted that the Applicant had sustained his abstinence from illicit drugs, had good insight into his offending, had undertaken drug-related courses while in custody, was genuinely contrite and had a genuine desire not to use illicit drugs in the future.[61] These factors viewed together, supported His Honour’s finding that special circumstances existed to mitigate the Applicant’s sentence and extend due leniency to him.[62] His Honour found that the Applicant’s conduct was at the lower end of objective seriousness and that his participation was minimal. He noted that the Applicant’s childhood was marred with trauma and social deprivation finding that it somewhat reduced his moral culpability.[63]
[60]Ibid, G7, 58.
[61]Ibid.
[62]Ibid, G7, 63.
[63] Exhibit R1, G7, 59. In accordance with the principles enunciated by the High Court in Bugmy v The Queen (2013) 248 CLR 571.
Remorse and responsibility for offending
The Applicant reported to Ms Alison Cullen, Forensic Psychologist, feeling ‘shame every day’ and that he continues to ruminate about ‘why I used drugs and put myself in this situation ... l’ve done bad/wrong things as a consequence of using drugs’.[64] He maintained that he has no intention of resuming drugs as ‘drugs have destroyed my life already. I’ve lost everything’.[65]
[64]Exhibit R1, G18, 132.
[65]Ibid, G18, 129.
In his statement dated 9 August 2023, the Applicant wrote:[66]
I would like to once again apologise. I am very sorry. I had a good life and I did a huge mistake. I am very regretful for my mistakes.
[66]Exhibit A1.
During his oral evidence, the Applicant told the Tribunal:[67]
I just want the Australian Government to forgive me for the mistakes that I’ve done in the past and believe what I’m saying because I’m saying it from my heart. I regret all the mistakes that I’ve done and I don’t want anyone to think that I’m playing games. I’m very sincere and God is the witness.
[67] Transcript of proceedings, 5 September 2023, 16.
Drug rehabilitation
The Applicant told the Tribunal that he has not taken drugs for the past three and a half years, and since January 2023 he has been receiving a monthly injection of Buvidal.[68]
[68]Ibid, 14; 41.
In his statement dated 9 August 2023, the Applicant explained the steps he has taken to abstain from drug use:[69]
I do not use nor won’t use any drugs. I do not think of making mistakes again. The drugs ruined my whole life and I will never ever use drugs ever again. I now take injections to help me not to take drugs and I do not even want to remember this life of drugs. I am determined to never go back on that path. I take the injection every month and I will be going to the Drug and alcohol place to keep taking the same injection once I am released. I do not think about drugs and do not think about it in any way. I forgot the drugs and this life now. I swear I will never go back to this life. If I am swearing before God, I cannot break my promise I will not do any other mistakes. I want to be good with God and people.
[69]Exhibit A1.
In his oral evidence, the Applicant was asked whether he had made inquiries about how he can be prescribed Buvidal in the community. He said that he had spoken to a doctor at the clinic at Villawood who told him that he will give him the address of the doctor who can prescribe Buvidal to him.[70]
[70] Transcript of proceedings, 5 September 2023, 14; 42.
The Applicant explained to the Tribunal why he is certain that he will not take drugs in the future:[71]
It’s impossible that I’d go back to taking drugs. The drugs caused – destroyed my life. I lost my wife and my life and my honour because of drugs. I feel shamed and embarrassed in front of my family. So drugs took everything away from me, so it’s impossible for me to go back to drugs. I don’t even want to remember me – myself taking drugs. So I don't even want to remember the idea of taking drugs.
[71]Ibid, 41.
Programs and work in gaol
The Applicant was employed in the Furniture Units at both Goulburn and Parklea Correctional Centres and in the Textile and Light Engineering Units at Hunter Correctional Centre. Overseer Officer case notes from the prisons record that the Applicant ‘was a poor worker who needed constant supervision to ensure he completed his assigned tasks.’[72]
[72]Exhibit R1, G21, 140.

While he was on remand at Goulburn Correctional Centre, the Applicant completed six sessions of the Remand Addictions Program from 2 September 2020 to 21 April 2021. On 26 April 2021, the Applicant was assaulted by fellow inmates and subsequently requested to be placed on a Special Management Area Placement order. As a result, he was unable to complete the remaining sessions.[73]
[73]Ibid, G21, 140.
Psychological assessment
In her report dated 7 October 2021, Ms Cullen, noted the impact of the Applicant’s traumatic and deprived childhood, his experiences as a refugee, and his drug abuse:[74]
Assessment of [the Applicant] reveals a significantly traumatic and deprived childhood. After losing both his parents at age one (1), and further separated from various siblings through torture and/or war, he is placed with his paternal uncle and aunt where he is emotionally and physically abused as well as deprived an education and forced to work from age eight (8) years. Additionally, he is faced with displacement and relocation between countries at formative ages, following political and religious unrest. In turn, [the Applicant] had absolutely no support systems available to him, within his community, which could have otherwise provided him a sense of safety and/or belonging.
At age 17, [the Applicant] embarks on his refugee journey which takes a total period of approximately four (4) years before he is able to settle and restart a life independently. He demonstrates a capacity to function and work over the following decade until he is introduced to methamphetamine and heroin. He reports developing a dependency on same in around 2010. His addiction is evidenced by the corresponding lack of work and associated criminality that transpires across the subsequent decade.
[74]Ibid, G18, 132-133.
In Ms Cullen’s opinion, at the time of the Applicant’s 2019 offences, he would have met the diagnostic criteria for:[75]
·Post-traumatic stress disorder;
·Severe Amphetamine-Type Stimulant Use Disorder (currently in sustained remission);
·Severe Opioid-Related Disorder (currently in sustained remission); and
·Moderate gambling disorder.
[75]Ibid, G18, 133.
Ms Cullen opined that:[76]
there is a direct nexus between [the Applicant’s] drug dependency and criminality, such that in the absence of his drug addiction he would have been less likely to become involved in the index offence.
[76]Ibid, G18, 133.
She outlined the Applicant’s reported abstinence from illicit drugs since his incarceration in May 2020, and the impact this has had on him:[77]
Since being incarcerated on 27 May 2020, [the Applicant] asserts having abstained from all illicit drugs. Given this period of time well exceeds more than 12 months, he is now considered to be in sustained remission from his substance use disorders. This is remarkable in light of the specific hardships [the Applicant] has endured while in custody (i.e., no visitors and a COVID-19 climate for the past 17 months) Accordingly, it appears that [the Applicant’s] incarceration has had a salutary effect, as evidenced by his sustained remission. This is the first time that [the Applicant] has had an opportunity to abstain from drugs without being on a replacement program. As such he reports having increased confidence and desire to sustain abstinent indefinitely.
[77]Ibid.
Risk of re-offending
A report dated 31 January 2021 prepared by a probation and parole officer[78] reported that Community Corrections had developed a Risk Mitigation Plan outlining the Applicant’s case management plan whilst he serves his parole period. The plan incorporated a referral to a community-based alcohol and/or other drug service such as the Drug and Alcohol Multicultural Education Centre, a referral to a General Practitioner for a Mental Health Care Plan, and a referral to the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors.[79] Community Corrections completed a Level of Service Inventory (Revised) (‘LSI-R’) assessment in relation to the Applicant and determined that he fell within the ‘medium risk’ of re-offence.[80] The report noted that if the Applicant ‘chooses to adequately engage with the [recommended] services and programs, his prospects upon release will be positive.’[81]
[78]Ibid, G21, 139-142.
[79]Ibid, G21, 141.
[80]Ibid, G21, 141.
[81]Ibid.
In her 7 October 2021 report, Ms Cullen reported that the Applicant’s score on the LSI-R places him in the ‘Low-Moderate Risk/Needs (i.e., approximately 31.1% chance of recidivism).’[82] She noted that the Applicant’s score ‘is heavily loaded by past (static) factors, such as those identified in his childhood and background (i.e., limited schooling/employment opportunities; poor family support; as well as prior criminality)’. She suggested that ‘areas where improvement can be made, moving forward, include companions and a return to work.’[83]
[82]Ibid, G18, 131.
[83]Ibid.
Ms Cullen referred to the protective factors which reduce the Applicant’s risk of recidivism:[84]
In addition to sustained remission, [the Applicant] presents with other protective factors that support promising prognosis, address his criminogenic needs (as identified on the LSI -R) and therefore reduce his risk of recidivism, namely: demonstrated insight into the relationship between drugs, crime and interpersonal difficulties; his insight into the need to resume working (which he has already done while in custody); a prospective job offer upon his release; favourable attitude toward help-seeking in addition to having undertaken drug-related courses while incarcerated; stable accommodation in a different geographical location, upon his release; some familial support networks; his desire to distance himself from antisocial/drug-using associates; and (genuine) contrition and shame regarding his behaviours.
[84]Ibid, G18, 133.
Applicant’s family members
The Applicant’s family members in Australia are his two brothers, FA and HAU, and his niece, MAU. He told the Tribunal that FA has cancer and is ‘very sick.’[85]
[85] Transcript of proceedings, 5 September 2023, 15.
Future plans
In his statement dated 9 August 2023, the Applicant outlined his plans following his release into the community:[86]
All what I want is to get out of detention and restart my life again. I want to go back on the right path and a normal life- to work, go home and follow my religion. If I can, I also want to study and better myself. I want to start schooling to learn how to read and write and I want to learn how to work. I used to work in bakery and in rendering. If possible, I would like to continue working in these jobs if I can find employment. I will continue working and study or reskill for another job.
I would never mix with the wrong crowd again and only mix with the right people. I want to learn how people live and how to make money the right way. I would also like to re-marry maybe one day and start a family eventually.
If I get released, I will live with my family and work wherever I can get employment. My friend [MB] has a bakery and promised me a job so I would take it if it is still available. My brother [FA] has cancer and has been in hospital. I would love to spend time with him. My wife died without seeing her and I do not want to go through the same experience with my brother without the chance to spend time with him.
[86]Exhibit A1.
The Applicant’s evidence is that when he returns to the community, he will live with his brother HAU and his wife.[87] He has an offer of employment with his brother’s friend, MB, who has a bakery and he has told him ‘[w]henever you’re out, you will start working straightaway.’[88]
[87]Transcript of proceedings, 5 September 2023, 16.
[88] Remittal Bundle, RB1, 138; Transcript of proceedings, 5 September 2023, 13.
Impediments on return to Iraq
In his statement dated 9 August 2023, the Applicant described why he cannot return to Iraq and the impediments he believes he will face:[89]
I cannot go back to my country of origin. They would not accept me in my country and I know more people here more than my country.
[89]Exhibit A1.
BVR conditions
The Applicant’s BVR has a number of conditions with which he must comply. These include:
8303 - No violent or disruptive activities
The holder must not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community.
8401 – Report as Directed
The holder must report:
(a) daily between 09:30 and 14:00
(b) by telephone to (02) 8862 6914
8513 – Notify residential address
The holder must notify Immigration of his or her residential address within 5 working days of grant.
8550 - Notify changes in personal details
The holder must notify the Minister of any changes in the holder’s personal details, including a change to any of the following contact information:
(a) the holder’s name;
(b) an address of the holder;
(c) a phone number of the holder;
(d) an email address of the holder;
(e) an online profile used by the holder;
(f) a user name of the holder;
not less than 2 working days before the change is to occur.
8551 – Obtain approval for certain occupations
(1) The holder must obtain the Minister’s approval before taking up employment in the following occupations, or occupations of a similar kind:
(a) occupations that involve the use of, or access to, chemicals of security concern;
(b) occupations in the aviation or maritime industries;
(c) occupations at facilities that handle security-sensitive biological agents
8552 - Notify change in employment details
The holder must notify the Minister of any changes in the holder’s employment details, not less than 2 working days before the change is to occur.
8612 – Notify details of persons who reside with the holder
The holder:
(a) must, within 5 working days of the grant, notify Immigration of the full name, and date of birth, of each person who ordinarily resides with the holder at the holder’s residential address; and
(b) must notify Immigration of any change in the persons who ordinarily reside with the holder at the holder’s residential address within 2 working days after the change occurs.
8613 – Obtain approval before commencing activities with vulnerable persons
(1) The holder must obtain the Minister’s approval before commencing to perform work, or a regular organised activity, involving more than incidental contact with a minor or any other vulnerable person.
(2) Subclause (1) applies:
(a) whether the work or activity is for reward or otherwise; and
(b) whether or not a working with children or vulnerable people check (however described) is required in relation to the work.
8614 – Notify travel
(1) The holder must notify Immigration of any travel interstate or overseas by the holder at least 7 working days before undertaking the travel.
(2) If the holder does not comply with subclause (1), the holder must notify Immigration of the travel within 2 days after departing on the travel.
8620 – Abide by specified curfew
(1) The holder must, between 10pm on one day and 6am the next day or between such other times as are specified in writing by the Minister, remain at a notified address for the holder for those days.
(2) If the Minister specified other times for the purposes of subclause (1), the times must not be more than 8 hours apart.
(3) in this clause:
Notified address for a holder for a particular day or days means any of the following:
(a) the address notified by the holder under condition 8513 or 8550;
(b) an address at which the holder stays regularly because of a close personal relationship with a person at that address, and which the holder has notified to Immigration for the purposes of this paragraph;
(c) if, for the purposes of this paragraph, the holder notified Immigration of an address for that day or those days no later than 12 pm on the day before that day or the earliest day of those days (as the case may be) – that address.
8621 – Monitoring device
(1) The holder must wear a monitoring device at all times.
(2) The holder must allow an authorised officer to fit, install, repair or remove the following:
(a) the holder’s monitoring device;
(b) any related monitoring equipment for the holder’s monitoring device.
(3) The holder must take any steps specified in writing by the Minister and any other reasonable steps, to ensure that the following remain in good working order:
(a) the holder’s monitoring device;
(b) any related monitoring equipment for the holder’s monitoring device.
(4) if the holder becomes aware that either of the following is not in good working order;
(a) the holder’s monitoring device;
(b) any related monitoring equipment for the holder’s monitoring device;
The holder must notify an authorised officer of that as soon as practicable.
8622 – Must not perform work with minors
(1) If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the holder must not perform any work, or participate in any regular organised activity, involving more than incidental contact with a minor or any other vulnerable person.
(2) Subclause (1) applies:
(a) whether the work or activity is for reward or otherwise; and
(b) whether or not a working with children or vulnerable people check (however described) is required in relation to the work.
8623 – Must not approach school or childcare centre
If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the holder must not go within 200 metres of a school, childcare centre or day care centre.
8624 – Must not contact victim or victim family member
If the holder has been convicted of an offence involving violence or sexual assault, the holder must not contact, or attempt to contact, the victim of the offence or a member of the victim’s family.
The Applicant was required to sign and return to the Department a form in which he stated that he understands and acknowledges that if he fails to comply with any of the conditions, his visa may be ceased or cancelled.[90] He also was required to confirm that he understands and acknowledges that if he fails to comply with the following conditions, he may have committed an offence under section 76B, section 76C or section 76D of the Migration Act 1958 (Cth):
[90] Transcript of proceedings, 5 September 2023, 8.
- 8401
- 8513
- 8542
- 8543
- 8550
- 8552
- 8561
- 8612
- 8614
- 8615
- 8616
- 8620
- 8621
Witness evidence
Applicant’s niece, MAU
MAU provided a statement dated 3 August 2023,[91] and gave oral evidence at the hearing. During her oral evidence and in her statement, she explained that the Applicant is like a ‘second father’ to her. [92] Before he went to gaol, they lived together at her parents’ home. He provided her with advice and guided her in the ‘right direction’. She told the Tribunal that if the Applicant is not physically present in her life, she cannot maintain her relationship with him.[93] She is aware of the Applicant’s criminal history and she has observed that he is ‘embarrassed that he had fallen into this path’ and ‘he doesn’t want to continue living the life he did.’[94] She told the Tribunal that she would help the Applicant ‘in any way [she] could.’[95]
[91]Exhibit A3.
[92] Transcript of proceedings, 5 September 2023, 44.
[93]Ibid.
[94]Ibid, 45.
[95]Ibid.
Applicant’s brother, HAU
HAU provided a statement dated 31 August 2023,[96] and gave oral evidence at the hearing. He told the Tribunal that the Applicant is the only family member he has, and he really ‘cherish[es] his presence in [his] life.’[97] He said that he has ‘never’ been scared of his brother, ‘[n]ot even for a second.’ If his brother is released into the community, he will live with them and he will do ‘whatever [he] can do to help.’[98] Since the Applicant has been in gaol and immigration detention, they have stayed in touch via WhatsApp at least two to three times per week.[99]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[96]Exhibit A5.
[97] Transcript of proceedings, 5 September 2023, 48.
[98]Ibid, 49.
[99]Ibid, 50.
1)Does the Applicant pass the ‘character test’?
In the representations and material that the Applicant submitted to the Department and the Tribunal, he does not dispute the information in the National Criminal History Check report dated 21 December 2021 recording his criminal convictions and sentences. It relevantly records that on 22 October 2021, the Applicant was convicted by the District Court of New South Wales of Aggravated break and enter commit serious indictable offence -SI and was sentenced to a total term of two years and three months’ imprisonment. The Tribunal is satisfied that the Applicant has a ‘substantial criminal record’ for the purposes of section 501(3A)(a) and section 501(6) of the Act as he has been sentenced to a term of imprisonment of 12 months or more: section 501(7)(c). The Tribunal is also satisfied, for the purposes of section 501(3A)(b) of the Act, that on 1 November 2021 the Applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the state of New South Wales.
The Applicant accepts that he does not pass the character test because of section 501(7)(c).[100] The Tribunal is satisfied that the Applicant does not satisfy the character test, and accordingly it finds that section 501CA(4)(b)(i) cannot be invoked to revoke the Mandatory Visa Cancellation Decision.
[100] ASFIC, [41].
2) Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
In determining whether pursuant to section 501CA(4)(b)(ii) of the Act there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must, in accordance with paragraphs 8 and 9 of the Direction, take into account the relevant ‘primary considerations’ and ‘other considerations’. The existence or otherwise of ‘another reason’ is to be established on the balance of probabilities.
The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Federal Court of Australia in Viane v The Minister for Immigration and Border Protection:[101]
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
[101] [2018] FCAFC 116; 162 ALD 13 per Colvin J, [64].
In their joint judgment in Jagroop v Minister for Immigration and Border Protection and Another, Kenny and Mortimer JJ noted that in ‘the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under section 501’.[102]
[102](2016) 241 FCR 461, [57].
The Full Court recently described the weighing or balancing process that the Direction requires in CRNL and Minister for Immigration, Citizenship and Multicultural Affairs:[103]
It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some considerations set out in the Direction, where relevant, may weight in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.
[103][2023] FCAFC 138 at [35].

The Full Court found that the Tribunal is required to expressly make an evaluation or balancing of the competing reasons in any matter so as to justify the ultimate conclusion reached as to whether or not there is “another reason” to revoke the Mandatory Visa Cancellation Decision.[104]
[104]Ibid, [37] and [44].
In Demir v Minister for Immigration, Citizenship and Multicultural Affairs, Kennett J explained that the weighing of considerations is an evaluative task not a mathematical exercise:[105]
The metaphor of “weighing” relevant considerations should not be taken too literally. The exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger. The conclusion as to whether there is “another reason” for the purposes of s 501CA(4)(b)(ii) necessarily involves persuasion of a human decision-maker, whose thought processes cannot be reflected in lines of code, as to what is the right result in the circumstances. That persuasion flows from the decision-maker’s personal understanding as to the significance of each of the factors they are required or permitted to take into account, in the light of all the material they have considered.
PRIMARY CONSIDERATIONS
[105][2023] FCA 870 at [21].
Primary Consideration 1 – Protection of the Australian community
Paragraph 8.1 of the Direction provides that, when decision-makers are considering the protection of the Australian community, they:
(1) … should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non- citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
1) Nature and seriousness of the conduct
Paragraph 8.1.1 of the Direction provides:
(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii. crimes of a violent nature against women or children, regardless of the sentence imposed;
iii. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv.where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)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).
h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant has a lengthy criminal history consisting mainly of relatively minor drug and dishonesty offences, but which also includes violent offences. Having regard to sub-paragraph 8.1.1(1)(a)(iii) of the Direction, the Applicant’s conviction in November 2018 for Stalk/intimidate intend fear physical etc harm (domestic) is an act of family violence which is considered to be very serious by the Australian Government and Australian community.
In sentencing the Applicant for Aggravated break and enter, Judge O’Brien noted ‘… the offence for which [the Applicant] is to be sentenced today is the most serious criminal matter that he has had to deal with.’[106] The Aggravated break and enter offence was an escalation in the seriousness of the Applicant’s offending to violent offending in the company of others. His Honour noted that the Applicant became involved in the joint criminal enterprise largely by chance, he did not participate in the entering of the victim’s property, and he was not aware that his co-offenders would use weapons. The offending was nevertheless an act of violence and, in accordance with sub-paragraph 8.1.1(1)(a)(i) of the Direction, must be considered to be very serious.
[106]Exhibit R1, G7, 57.
Having regard to paragraph 8.1.1(1)(c) of the Direction, the Tribunal finds that the custodial sentences imposed on the Applicant are an objective indicator of the seriousness of his criminal offending. Until his most recent conviction for Aggravated break and enter, the Applicant mainly received fines, suspended or short sentences, reflecting the comparatively minor nature of the offending. His October 2021 conviction for Aggravated break and enter resulted in a sentence of two years and three months’ imprisonment, reflecting the considerably more serious nature of this offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved.[107]
[107] Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50]; Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 587.
Relevantly to paragraph 8.1.1(1)(d) and (e) of the Direction, the evidence before the Tribunal is that the Applicant’s offending was frequent, increasing in seriousness, and continued despite him being given non-custodial penalties by the courts. In his 28 November 2018 sentencing remarks, Judge Still observed that an aggravating feature of the Applicant’s offending was that he offended while subject to bonds and on bail and therefore on conditional liberty. After his aggregate eight-month sentence for this offending was suspended to allow him to take part in a Drug Court treatment program, the Applicant was returned to custody within a few days of beginning the program as he continued to use heroin. Less than 12 months later, on 29 to 30 October 2019, the Applicant committed his most serious offence being Aggravated break and enter. The cumulative effect of the Applicant’s offending adds to its serious nature as it has burdened the resources of law enforcement, the court system and corrective services.[108]
[108] DMDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1993 at [67].
On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant’s criminal offending is serious in nature, and this weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
2) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c) where consideration is being given to whether to refuse to grant a visa to the non-citizen- whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
a)Nature of harm to individuals or the Australian community
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to re-offend in accordance with paragraph 8.1.2(2)(a) of the Direction, the Tribunal finds that there is an obvious risk of serious harm to the community should the Applicant engage in further driving offences, violent offending or offences of domestic violence. Any future offending of a similar nature would have the potential to cause physical and/or psychological injury to the Applicant’s victims, who may include family members and other road users. In assessing whether the Applicant represents an unacceptable risk of harm to the Australian community, the Tribunal has had regard to paragraph 8.1.2(1) of the Direction, which recognises that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. As the seriousness of the harm that would be caused to individuals or the Australian community should the Applicant engage in similar criminal offending in the future is significant, the Tribunal finds that the Australian community would have a very low tolerance for any risk that he would repeat his offending behaviour.
b)Likelihood of the Applicant engaging in further criminal or other serious conduct
The Applicant contends that as a consequence of his sustained abstinence from drugs and the support of his family, his risk of re-offending is substantially reduced.[109] The Respondent’s contention is that there is insufficient evidence to demonstrate that the Applicant has comprehensively rehabilitated from his diagnosed drug use disorders, and the prospect of him returning to drug use and offending has not been sufficiently mitigated.[110]
[109] ASFIC, [57].
[110] RSFIC, [39].
Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 8.1.2(2)(b) of the Direction, the Tribunal has considered the available information and evidence before it and finds, for the reasons that follow, that the risk of the Applicant re-offending is trending from moderate to low.
The evidence before the Tribunal is that the Applicant’s drug use has been a significant contributor to his criminal offending. In Ms Cullen’s opinion, there is a ‘direct nexus between [the Applicant’s] drug dependency and criminality, such that in the absence of his drug addiction he would have been less likely to become involved in the [2019 offence].’ The evidence is that Applicant has been abstinent from drugs for a period of three and a half years. The Applicant claims that he was subjected to frequent random drug tests during his incarceration and never tested positive for drugs. Although the Applicant has not produced any evidence of negative urine tests, the Tribunal accepts his evidence that he has been abstinent from drugs since he entered custody in May 2020. In her October 2021 report, Ms Cullen stated that as the Applicant had at that time been abstinent for more than 12 months, he could be considered to be in sustained remission from his substance use disorders. As the Applicant’s period of abstinence now well exceeds the 12-month threshold, the Tribunal is satisfied that his substance use disorders remain in remission. This extended period of remission supports a finding that the likelihood of the Applicant relapsing into drug use and committing further crimes is significantly reduced. In making this finding, the Tribunal also has had regard to the evidence that for the past year the Applicant has been receiving monthly Buvidal injections and he claims that he no longer thinks about drugs. He is adamant that he will not relapse into drug-taking following his return to the community. He has a clear plan to obtain a prescription for Buvidal from a doctor whose contact details he has requested, and he intends to continue with this monthly treatment.
In assessing the Applicant’s risk of re-offending or engaging in other serious conduct, the Tribunal has given weight to the assessment made by Ms Cullen in her psychological report dated 7 October 2021, and the assessment undertaken by corrective services officers when the Applicant was in gaol. Ms Cullen reported that the Applicant’s score on the LSI-R places him in the ‘Low-Moderate Risk/Needs.’ She suggested that ‘companions and a return to work’ were areas where improvement could be made. The Community Corrections LSI-R assessment in 2021 found that the Applicant fell within the ‘medium risk’ of re-offending and noted that his prospects upon release will be positive if he adequately engages with the recommended services and programs.
Having regard to these assessments, the Tribunal has given weight to the various protective factors which should reduce the likelihood that the Applicant will commit further offences. These include the Applicant’s supportive family members, particularly his brother and niece, who are committed to do everything they can to support him when he returns to the community. The Applicant’s brother has offered him accommodation at his home, and he has an offer of employment at a bakery which he can start immediately. The stable accommodation and paid employment that await the Applicant on his return to the community are strong protective factors that should lower his risk of reoffending.
(c)whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay and the type of visa being applied for
Relevantly to paragraph 8.1.2(2)(c) of the Direction, the Tribunal finds that the fact that the Applicant will resume his status as a permanent resident of Australia should the Mandatory Visa Cancellation Decision be set aside increases the duration of the period that members of the community will be at risk should the Applicant re-offend.
On the basis of the evidence before it and taking into account the available information and evidence of the risk of the Applicant re-offending and his rehabilitation, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is trending from moderate to low. However, in the context of the potential harm to the Applicant’s victims should he engage in the same or similar criminal conduct in the future, and the fact he is seeking the reinstatement of a permanent visa, the Tribunal finds this risk to be unacceptable.
For the reasons above and applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, Primary Consideration 1 weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary consideration 2 – Family violence committed by the non-citizen
Paragraph 8.1.1(2) of the Direction prescribes that this consideration is relevant where the non-citizen has been convicted of an offence that involves family violence, and/or there is information or evidence from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence.
Paragraph 8.2 of the Direction provides:
1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
2)This consideration is relevant in circumstances where:
a)    a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)    there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
3)In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:
a)    the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)    the cumulative effect of repeated acts of family violence;
c)    rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
Paragraph 4(1)(a), (c) and (e) of the Direction define the phrase ‘family violence’ as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family […], or causes the family member to be fearful’, and includes ‘assault’, ‘stalking’ and ‘intentionally damaging or destroying property’.

Having regard to paragraphs 4(1) and 8.2(2)(a) of the Direction, the Tribunal finds that the Applicant’s November 2018 conviction for Stalk/intimidate intend fear physical etc harm (domestic) is ‘family violence’ as defined by the Direction, as it was perpetrated against his brother, HAU, in the presence of his niece, MAU, and involved threatening conduct.
Having regard to the factors in paragraph 8.2(3) of the Direction, the Applicant has not committed any further family violence offences since September 2017, and there is no evidence that he has engaged in family violence on any other occasion. Relevantly to paragraphs 8.2(3)(a) and (b), the Applicant’s family violence towards his brother was an isolated incident. Relevant to paragraph 8.2(3)(c), the Applicant claims that he did not hold a knife towards his brother, nor did he intend to threaten him. Whereas he had a knife in his hand during their argument, this was because he was making a salad. This indicates that despite having been convicted of a family violence offence, the Applicant has not accepted full responsibility for his conduct, and he does not fully appreciate the impact of his conduct on HAU, nor on MAU who witnessed the incident and called the police.
For the reasons stated above and having applied the guidance in paragraph 8.2 of the Direction, the Tribunal finds that Primary Consideration 2 weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 3 – The strength, nature and duration of ties to Australia
Paragraph 8.3 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) The length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
Having regard to paragraph 8.3(3) of the Direction, the Tribunal notes that the Applicant has strong ties with members of his immediate family who are Australian citizens or permanent residents and reside in Australia, namely his two brothers, FA and HAU, and his niece, MAU. Guided by paragraph 8.3(1) of the Direction, the Tribunal has considered the impact of a decision not to revoke the Mandatory Visa Cancellation Decision on these family members. MAU’s evidence is that the Applicant is like a ‘second father’ to her and he has often given her guidance and advice. HAU cherishes the presence of the Applicant in his life. In a statement dated 1 December 2022, FA stated that he will help the Applicant find work and to stay sober.[111] The Tribunal finds that if the Mandatory Visa Cancellation Decision is not revoked, the Applicant will be able to maintain and indeed strengthen his relationship with HAU, FA and MAU because, for reasons outlined in paragraph [140] below, he will continue to reside in the community on a BVR.
[111] Remittal Bundle, RB7, 929.
Relevantly to paragraph 8.3(4)(a)(iii) of the Direction, the evidence before the Tribunal is that the Applicant has resided in Australia since August 2001, being a period of more than 22 years. He arrived here as an adult aged 21, and therefore he was not resident in Australia during his formative years. Consistently with the guidance in the Direction, the Tribunal has given considerable weight to the significant period of time the Applicant has lived in Australia, including years when the Applicant worked and socialised in the Australian community.
Relevantly to paragraph 8.3(4)(a)(ii) of the Direction, the Applicant has made a positive, albeit limited, contribution to the Australian economy during his residency in Australia, including as a renderer, a cleaner and working in a bakery.
For the stated reasons and having applied the guidance in paragraph 8.3 of the Direction, the Tribunal finds that Primary Consideration 3 weighs in favour of revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 4 – Best interests of minor children in Australia affected by the decision
Paragraph 8.4(1) of the Direction requires decision-makers to determine whether revocation is in the best interests of the child. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made: paragraph 8.4(2).
The Applicant does not claim that there are any minor aged children who may be affected by revocation of the Mandatory Visa Cancellation Decision.[112] The Tribunal finds that this Primary consideration is not relevant and gives it no weight.
[112] ASFIC, [50].
Primary Consideration 5 – Expectations of the Australian Community
Paragraph 8.5 of the Direction relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) 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
(b) …
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature …;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties
(e)…
(f) ...
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable (sic) risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The effect of paragraph 8.5 is that it imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. This consideration does not involve an inquiry into what the Australian community does or does not expect, because this is normatively expressed in the terms of the consideration: paragraph 8.5(4). Rather, the relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed community expectation’ of refusal of a visa ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[113] As a normative expression, this consideration indicates the likelihood that community expectations will in most cases lead to refusal of a visa, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.[114]
[113]FYBR and Minister for Home Affairs (2019) 272 FCR 454 per Charlesworth J [77].
[114]Minister for Immigration v HSRN [2023] FCAFC 68.
Relevantly to the expectations of the Australian community as stated in paragraph 8.4, particularly paragraph 8.4(2)(c), and in accordance with principles 5.2(2)-(5) of the Direction, the Applicant’s offending has included violent offences and family violence. Given the seriousness and nature of this offending, the Australian community would expect that the Applicant should no longer have the privilege of holding a visa to remain permanently in Australia.
The Applicant has resided in Australia as a permanent resident for a period of more than 22 years. Accordingly, the factors in principle 5.2(4) of the Direction, particularly the length of time the Applicant has been in Australia, support a finding that there would be higher level of tolerance by the Australian community for his criminal conduct than there would be for a non-citizen who has not lived in the community for an extended period of time.
Having had regard to the factors in paragraph 8.4 of the Direction in relation to the expectations of the Australian community, giving them appropriate weight, and taking into account the nature, seriousness and impact of the Applicant's criminal offending, and the duration of his residency in Australia, the Tribunal finds that Primary Consideration 5 weighs against revocation of the Mandatory Visa Cancellation Decision.
OTHER CONSIDERATIONS
Paragraph 9 of the Direction sets out the ‘Other considerations to be taken into account in making a decision under section 501(1) as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
While the Primary considerations carry particular weight, the Direction provides at paragraph 9 that ‘Other considerations’ must be taken into account by the decision-maker where relevant. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection (‘Suleiman’):[115]
Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[115](2018) 74 AAR 545, [23].
In FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[116] Wigney J held that this analysis ‘tends to overcomplicate or over intellectualise the issue’. His Honour held that the use of the word ‘generally’ in clause 8(4) of Direction 79 (the same wording is used in section 7(2) of the Direction) ‘recognises that there may well be cases where the circumstances are such that one or more “other considerations” may be deserving of more weight than one or more primary considerations’.[117] His Honour also held that the formulation identified in Suleiman ‘is at least potentially problematic because it tends to suggest that a decision-maker cannot give greater weight to one or more of the “other considerations” in any given case unless they consider that the case is somewhat unusual or out of the ordinary’.[118]
[116][2021] FCA 775 [22].
[117] Ibid, [23].
[118] Ibid.
The ‘other’ considerations relevant to the Applicant’s circumstances are considered in the following paragraphs.
a)Legal consequence of the decision
Paragraph 9.1 of the Direction provides:
1)Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
2)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
3)International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
The Direction contains specific provisions relevant to non-citizens in relation to whom a protection finding has been made (paragraph 9.1.1) and to non-citizens in relation to whom no protection finding has been made (paragraph 9.1.2). A protection finding has been made in relation to the Applicant, and therefore paragraph 9.1.1 is relevant to his circumstances.
Paragraph 9.1.1 provides:
9.1.1 Non-citizens covered by a protection finding
(1)Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
(2)Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3)Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
Section 197C provides:
197C Relevance of Australia’s non‑refoulement obligations to removal of unlawful non‑citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
(3) Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non‑citizen to a country if:
(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.
…
Paragraph 9.1.1(2) of the Direction and section 197C(3) of the Act make clear that section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made. The Respondent accepts that the Applicant has been found to engage Australia’s non-refoulement obligations, in circumstances where, in granting the Applicant the Protection visa on 19 October 2005, a delegate of the Respondent made a positive protection finding within the meaning of section 197C(5)(a) of the Act.[119] Accordingly, the Applicant cannot be removed to Iraq in breach of Australia’s non-refoulement obligations, even if an adverse visa decision under section 501CA is made, and he can only be removed to a third country.
[119] RSFIC, [69]; Exhibit R1, G34-G35, 261-266.
On 17 November 2023, the Applicant was released from immigration detention into the community as a consequence of the High Court decision in NZYQ. On 19 November 2023, the Applicant was granted the BVR. The Respondent concedes that there is no real prospect of the Applicant’s removal to a third country being practicable in the reasonably foreseeable future.[120]
[120] Respondent’s Supplementary Submissions dated 1 December 2023, [6.3].

The Tribunal finds that a legal consequence of a decision to revoke the Mandatory Visa Cancellation Decision is that the Applicant’s visa status will change to that of the holder of the Resident Return (Class BB) (Subclass 155) visa he held prior to its cancellation. It follows that if the Mandatory Visa Cancellation Decision is revoked and the Applicant’s visa is reinstated, he will become the holder of a permanent visa. If the Tribunal affirms the Mandatory Visa Cancellation Decision, the legal consequence of its decision is that the Applicant will remain in the community on the BVR, a temporary non-substantive visa. In comparison to the Resident Return visa, the BVR is subject to the strict conditions which are detailed in paragraph [81] above.
The Tribunal finds that the legal consequence of a decision to not revoke the Mandatory Visa Cancellation will be that the Applicant will remain for the foreseeable future on the BVR which will limit his ability to fully re-integrate into the community. Condition 8624 requires that a visa holder who has been convicted of an offence involving violence must not contact, or attempt to contact, the victim of the offence or a member of the victim’s family. If the Applicant remains on the BVR and subject to this condition, he will not be permitted to have contact with his brother, HAU, nor his niece, MAU. It follows that he will not be able to reside with HAU and his wife as intended and unable to have any contact with MAU. However, if the Mandatory Visa Cancellation Decision is revoked, the Applicant’s Resident Return (Class BB) (Subclass 155) visa will be reinstated and there will be no restrictions on him living with and maintaining close contact with HAU and MAU. The Tribunal finds that this legal consequence weighs in favour of the revocation of the Mandatory Visa Cancellation Decision.
The Tribunal finds that Other consideration a) weighs in favour of the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
b) Extent of impediments if removed
Paragraph 9.2 of the Direction provides:
1)    Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)    the non-citizen's age and health;[121]
b)    whether there are substantial language or cultural barriers; and
c)    any social, medical and/or economic support available to them in that country
[121] The word “health” in paragraph 9.2(1) of the Direction is understood to mean any aspect of a person’s physical wellbeing and includes “the overall state of a person’s fitness and condition, including underlying health issues and ongoing effects of any past injury: Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126 at [12].
The Applicant cannot lawfully be removed to Iraq as he is subject to a protection finding recognised when he was granted the Protection visa on 19 October 2005.
On the basis of the evidence before it, the Tribunal finds that Other consideration b) should be given neutral weight.
c)Impact on victims
The Direction states in paragraph 9.3(1):
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The Applicant contends that this consideration should weigh in favour of revocation of the Mandatory Visa Cancellation Decision as the victim of the November 2018 conviction for Stalk/intimidate intend fear physical etc harm (domestic) was HAU, who will be impacted by the decision.[122] The Applicant contends that this consideration is not limited only to impacts upon ‘victims as victims’ and relies on PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[123] where the applicant contended that the Tribunal erred in failing to have proper regard to the testimony of his ex-wife, in which she stated that she forgave him and her life would be made easier if he was allowed to live in Australia. Kerr J observed:[124]
… properly construed cl 14.4 of Direction No 79 operates in recognition that an offender’s victim is to be given appropriate agency in the decision-making process. That means a victim’s interest in respect of the impact of such a decision must be taken into account by the decision-maker consistently with the usual position that a relevant consideration may weigh either in favour of, or against, whether or not to revoke the mandatory cancellation of a visa.
[122] Transcript of proceedings, 6 September 2023, 72.
[123][2021] FCA 1235.
[124]Ibid, [9].
The Respondent contends that there is other Federal Court authority which supports the Tribunal giving neutral weight to this consideration.[125] In Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[126] Perram J observed that where family members are also the victim of the applicant’s crimes, the mandatory considerations relating to victims and ties to the Australian community have the potential to overlap. His Honour stated:[127]
I do not accept this argument because whichever way one looks at it, the fact that [the applicant’s] wife desired for him to remain in Australia was taken into account by the Tribunal. Where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously…
The only way to outflank that problem would be to submit that there was some aspect of the wife’s evidence as a victim which was different from her evidence as a spouse. Such evidence might be readily enough imagined. For example, in her evidence [the applicant’s] wife could have addressed the fact that [the applicant] had been convicted of common assault following an attempt to throttle her early on the morning of 17 December 2007. She could have said that despite that assault she forgave him and was not concerned that he might assault her again. It may well be that evidence of that kind would have engaged cl 14.4(1) independently of cl 14.2.(1)(b).
[125]Transcript of proceedings, 6 September 2023, 86.
[126][2020] FCA 646.
[127]Ibid, [26] and [27].
This issue was considered by the Full Federal Court in its recent decision in Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[128] Logan, Rangiah and Goodman JJ observed:[129]
The primary judge also considered that only impacts on a victim “as a victim” may be taken into account under para 9.3(1). Her Honour seems to have meant that only impacts on the victim in their condition or status as a victim may be considered. That would seem to include distress caused to a victim as a result of the offender being allowed to remain in Australia, but exclude, for example, impacts on a victim as a mother distressed by the emotional consequences for her children that would result from the removal of their father from Australia.
Such a construction is inconsistent with the language of para 9.3(1). That language merely refers to “victims”, not to “victims as victims”. It does not draw any distinction between beneficial or adverse impacts upon a victim from whatever decision is made. It does not distinguish between direct and indirect impacts. The language of the provision does not exclude consideration of impacts on a victim, as, for example, a spouse and mother who would be caused emotional distress or financial loss by the offender being removed from Australia.
[128][2023] FCAFC 116.
[129]Ibid, [142]-[143].
Following the Federal Court authorities above, the Tribunal has considered both the beneficial and adverse impacts on HAU of a decision to revoke or not revoke the Mandatory Visa Cancellation Decision. The evidence before the Tribunal is that HAU would be adversely affected if the Applicant were not to remain in Australia as he only family member he has in Australia and he cherishes his presence in his life. As outlined above at paragraph [140], if the Mandatory Visa Cancellation Decision is not revoked, the Applicant will remain in the community on the BVR, and if it is revoked the Applicant’s Resident Return (Class BB) (Subclass 155) visa will be reinstated and he will remain in the community. The difference between the BVR and the Resident Return Visa is the onerous conditions which attach to the BVR, including condition Condition 8624 which requires that a visa holder who has been convicted of an offence involving violence must not contact, or attempt to contact, the victim of the offence or a member of the victim’s family. If the Applicant remains on the BVR and subject to this condition, he will not be permitted to have contact with his brother, HAU. This will impact adversely on HAU who wishes to maintain his close relationship with the Applicant.
The Tribunal therefore finds that the Other consideration c) weighs in favour of the revocation of the Mandatory Visa Cancellation Decision.
d)Impact on Australian business interests
Paragraph 9.4(1) of the Direction provides:
(1) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant does not claim that any Australian business interests would be affected by his removal to Iraq.[130] Accordingly, the Tribunal has given this consideration neutral weight.
[130] ASFIC, [92]-[93].
CONCLUSION
In summary, the Tribunal finds that Primary Consideration 1 weighs against revocation of the Mandatory Visa Cancellation Decision. The Applicant’s criminal offending is serious, particularly as it includes violent offending and family violence. The moderate to low risk of him committing future criminal offences coupled with the nature and seriousness of the harm this would cause to his future victims and the community is such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 weighs against the revocation of the Mandatory Visa Cancellation Decision because despite the Applicant having been convicted of a family violence offence, he has not accepted full responsibility for his conduct, and does not fully appreciate the impact of his conduct his victims.
Primary Consideration 3 weighs in favour of revocation of the Mandatory Visa Cancellation Decision as the Applicant has lived in Australia for more than 22 years and he has close family ties to immediate family members in Australia who are Australian citizens or Australian permanent residents.
Primary Consideration 5 weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that the Applicant’s serious offending should cause him to forfeit the privilege of remaining permanently in Australia, and this is not outweighed by the duration of his residency in this country.
In regard to the relevant Other considerations, the legal consequence of a decision not to revoke the cancellation, is that the Applicant will remain on the BVR subject to strict conditions, and this weighs in favour of revocation of the Mandatory Visa Cancellation Decision. The impact on victims of a decision not to revoke the cancellation, is that the Applicant will remain on the BVR subject to strict conditions, which will impact adversely on HAU, the victim of his domestic violence offending.
The Tribunal is satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked and decides that the Reviewable Decision should be set aside.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the Reviewable Decision dated 20 September 2022 to refuse to revoke the Mandatory Visa Cancellation Decision and, in substitution, decides that the cancellation of the Applicant’s visa is revoked.

I certify that the preceding 159 (one hundred and fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk

...................................[SGD].....................................
Associate
Dated: 6 February 2024

Date(s) of hearing:

5 and 6 September 2023

Solicitors for the Applicant:

M. Lewis, Crossover Law Group

Solicitors for the Respondent:

C. Burke, Sparke Helmore Lawyers

Date(s) of hearing:	5 and 6 September 2023
Solicitors for the Applicant:	M. Lewis, Crossover Law Group
Solicitors for the Respondent:	C. Burke, Sparke Helmore Lawyers