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

FJXD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1721 (20 June 2023)
Division:GENERAL DIVISION
File Number: 2022/4525
Re:FJXD
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Date:20 June 2023
Place:Melbourne

The Tribunal affirms the decision made on 31 May 2022 to not revoke the mandatory cancellation of the applicant’s Subclass 200 (Class XB) Refugee visa.
....................[sgd]....................................................
Deputy President Britten-Jones
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant committed serious offences including people smuggling for which he received a seven year prison sentence – whether there is ‘another reason’ to revoke the mandatory cancellation decision – the primary considerations of the expectations and protection of the Australian community outweigh the countervailing considerations – decision affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395; [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463; [2021] FCAFC 55
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
REASONS FOR DECISION
Deputy President Britten-Jones
20 June 2023
INTRODUCTION

This is an application for review of a decision to not revoke the mandatory cancellation of the applicant’s Subclass 200 (Class XB) Refugee visa (the applicant’s visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
THE DECISION TO CANCEL THE APPLICANT’S VISA AND SUBSEQUENT PROCEDURAL HISTORY
On 20 June 2017 the applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months.
On 11 July 2017 the applicant sought revocation of the cancellation decision and made representations in support of revocation.
On 31 May 2022 a delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision). On 6 June 2022, the applicant applied to the Tribunal for review of the non-revocation decision. The Tribunal affirmed the non-revocation decision, but the Federal Court quashed the Tribunal’s decision by consent and remitted the matter to the Tribunal for reconsideration.
The Tribunal re-heard the matter on 8 and 9 May 2023.
LEGISLATIVE FRAMEWORK
Under s 501(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 paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); 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.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by sub-s (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[2]
[2] Section 501(7)(c).
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
Issues before the Tribunal
The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a “substantial criminal record” as defined under s 501(7). Therefore, the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is “another reason” why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which I am required to read, identify, understand and evaluate.[3] Deciding whether or not to be satisfied that “another reason” exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.[4]
[3] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].
[4] Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [14].
The applicant concedes that he does not pass the character test and that the only issue for the Tribunal is whether there is “another reason” to revoke the cancellation decision having regard to the principles and considerations in Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023) (Direction 99).
Direction 99
The purpose of Direction 99 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.
The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 99 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 risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. 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 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
In making a decision under s 501CA(4), the following are primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
In making a decision under s 501CA(4), other considerations must also be taken into account, including (but not limited to):
(f)legal consequences of the decision;
(g)extent of impediments if removed;
(h)impact on victims; and
(i)impact on Australian business interests.
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[5]
[5] Direction 99 [7].
BACKGROUND
The applicant was born in Iran in 1972 and is one of 10 children. He is an Iranian citizen of Mandaean religion and ethnic identity. His father was imprisoned and tortured because of his Mandaean religion. The applicant moved to the United Arab Emirates when he was 14 years old because of the danger his family faced in Iran. He stayed in the United Arab Emirates for about 11 years where he finished his secondary education and started work in his sister’s jewellery shop. He returned to Iran in 1997 and was told of the death of his father. He was conscripted into the Iranian military for two years during which he suffered serious physical injuries to his arms as a result of a bomb blast.
In 2001 the applicant and his mother fled Iran and went to Indonesia. They made one unsuccessful attempt to get to Australia by boat. On 19 December 2005, the applicant and his mother were granted visas and came to Australia in 2006. Soon after arriving, the applicant obtained employment in a business involved with supermarket trolleys. The applicant then developed his own supermarket trolley repair and manufacturing business employing up to 40 people, but in around July 2009 the applicant’s life took a turn for the worse. His health deteriorated including heart complications. He became involved in people smuggling and went to Indonesia for that purpose for about three months in the second half of 2009. He began gambling and experienced stress and insomnia. He lost his business but was able to maintain some employment.
The applicant met his current partner in October 2010 and they formed a loving and strong relationship. He and his partner lived with his mother for whom they cared. The applicant began drinking heavily in 2011 following which there were various criminal convictions including for people smuggling for which he received a custodial sentence. Whilst in prison he assaulted a fellow inmate and was convicted of assault in company.
CONSIDERATION
Protection of the Australian community – 8.1 of Direction 99
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering 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. As required by paragraph 8.1(2) of Direction 99, I give consideration below to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 99
The applicant committed the offence of people smuggling in the second half of 2009. He was convicted for drink driving and driving an unregistered vehicle in May 2011. There was an incident which resulted in a conviction for destroy or damage property in June 2011 – he was intoxicated and got upset with his mother and smashed their oven. In February 2012 he was convicted for driving whilst disqualified and unregistered. He was charged for people smuggling and remanded in custody from October 2014. He pleaded not guilty but was convicted of people smuggling charges and sentenced to seven years imprisonment on 20 February 2015. Whilst in prison he assaulted a fellow inmate and was convicted of assault in company.
The most serious of these offences committed by the applicant is the people smuggling in 2009 which is an aggravated offence because it involved at least five people. The seven year sentence of imprisonment reflects the seriousness of the offending even though it is well short of the maximum penalty of 20 years imprisonment. He was the prime organiser of the smuggling operation which involved at least 12 passengers. The sentencing judge said he was motivated by greed and that his offending was shameless and callous and was directed towards vulnerable refugees. Her Honour said that he showed no remorse and was deserving of condign punishment. This offending was very serious.
A further serious offence was committed in November 2019 when he was in prison. The applicant repeatedly punched another inmate whilst a co-offender stomped on the victim’s body. The applicant said in his statement that “I hit him a number of times, which I deeply regret.”[6] I consider it was a very serious assault, but I note that the resulting physical injuries were minor. The applicant pleaded guilty and was sentenced to a term of one month’s imprisonment which was served concurrently with the longer sentence he was undergoing. It is concerning that despite having had his visa cancelled in 2017 and despite asserting in his revocation request documents that he would never offend again, he was still prepared to engage in such violent conduct whilst in prison.
[6] Remittal Bundle RB1 at [11] p.350.
The other serious offence by the applicant is the destroy or damage property committed in 2011. He was living with his mother and partner at the time. He had an argument with his mother and in a drunken rage smashed the door of the oven. This had an impact on his mother and partner who ‘cried out in distress’.[7] The police were called to ‘calm the situation down’[8] and he was arrested. He was convicted in the Fairfield Local Court and released on a 12 month good behaviour bond. He breached that bond by driving whilst disqualified and unregistered. He had in 2011 been convicted of driving whilst drunk and unregistered. These driving offences were not so serious but suggest a disregard for the law. The offending in 2011 occurred at a time when the applicant was struggling with mental health and alcohol abuse. He had lost his business and his job and it was clearly a difficult time for him.
[7] Remittal Bundle RB1 at [17] p.350.
[8] Brother’s statement RB2 at [6] p.669.
The applicant’s people smuggling involved significant planning over a long period of time and could have endangered the lives of those whose money he took. His assault involved violence and his property damage offence was destructive. The cumulative effect of his repeated offending over a significant period of time leads me to conclude that his criminal conduct has been very serious. This conduct is viewed very seriously by the Australian government and is a significant factor in terms of whether I am satisfied that there is ‘another reason’ to set aside the non-revocation decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 99
In considering the need to protect the Australian community from harm, I 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 repeated, is so serious that any risk that it may be repeated may be unacceptable.[9] As required by paragraph 8.1.2(2) of Direction 99, I also 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).
[9] Direction 99 at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[10] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[10] (2014) 225 FCR 424; [2014] FCA 673.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 99

If the applicant were to engage in further similar criminal offending, then the nature of the harm would be very serious because his people smuggling had the potential to endanger lives of vulnerable persons and because violence may have serious physical and mental consequences. Drink driving endangers the lives of other road users.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 99
The applicant contends that there is little risk of re-offending in the nature of people smuggling because there is no financial motive due to the support being offered by his de facto wife and his family. The report of Dr Guy Coffey, clinical psychologist, stated that he had a low likelihood of reoffending. A further positive indicator in this regard is that the applicant no longer drinks alcohol. Dr Cook in his psychological report of 30 July 2022 indicated that the maintenance of sobriety is a major positive factor with respect to decreasing the likelihood of reoffending. Dr Cook also stated that the applicant’s increased maturity and his history provide grounds for optimism with respect to the risk of further offending.
The applicant’s main period of offending occurred between 2009 and 2011. Dr Cook describes his offending as three phases. First, his people smuggling in 2009. Second, ‘traffic offences and a single episode destructive anger between 2010 and 2011 (in the context of depression, anxiety and substance abuse)’.[11] Third, a single episode involving aggression in 2019. It is notable that the applicant did not offend when in the community between 2011 (when he gave up alcohol) and October 2014 when he went into custody. The applicant has shown that he is capable of avoiding criminal behaviour whilst in the community if he abstains from alcohol.
[11] Remittal Bundle RB5 at p.1044.
Whilst in prison the applicant engaged in a language and computer course and in rehabilitative courses in relation to drug and alcohol abuse. I do not consider there to be a significant risk of the applicant falling into further alcohol abuse if he is released. However, the applicant’s mental health is an unresolved issue. Dr Cook noted in his report that the applicant received psychiatric treatment and medication whilst in prison and that he regularly sought mental health assistance whilst in detention. Dr Cook diagnosed him with a persistent depressive disorder, a panic disorder, an adjustment disorder with anxiety and considered he may have post-traumatic stress disorder based on past exposure to significant traumas. In his most recent statement of 18 April 2023, the applicant said that his mental health is very bad and that since he was stabbed in a serious attack in detention he has been ‘paranoid’ and does not leave his room. He feels depressed and anxious and has panic attacks. He takes anti-depressants and sleeping tablets. He is seeing a psychologist once a month and has regular contact with a general practitioner and nurses. In 2022 he received help for a few months from a person at Foundation House who helped him with his anxiety and fear and provided him with breathing exercises to use when he felt stressed and anxious. I would expect that his mental health will improve significantly if he is removed from detention and placed into a safe and stable environment with his family but it nevertheless remains a concern that his mental health issues are currently unresolved. Given that some of his past offending was associated with alcohol abuse and emotional distress,[12] he remains at risk of further offending if he does not resolve these mental issues. The applicant accepts the need for ongoing treatment and I consider that it is likely he will engage with the appropriate services if he is released.
[12] Report of Dr Cook dated 30 July 2022 at RB5 p.1044.
The applicant has developed a strong and loving relationship with his partner but it is unfortunate for him that she has returned to China because her visa expired. She wants to return to Australia and pursue her relationship with the applicant. However, this provides some uncertainty as to whether she will be able to provide support to him if he were released. Despite that uncertainty, I do take into account her intended support for him which she will undoubtedly provide if he is released and she is able to return to Australia. If released, the current plan is that the applicant will live with his mother who, though elderly, will be able to provide him with emotional support and a stable environment. The applicant has two brothers and two sisters in Sydney and therefore some further support will be available from them. His family is part of the Mandaean community and they attend church regularly. His past work ethic suggests that he would find work again and it is his intention to go back into the business related to the supermarket trolleys. These are positive factors that will provide stability and an environment in which he is less likely to reoffend.
In conclusion, I find that there remains an appreciable risk that the applicant will reoffend. That risk is low, but I consider that his past offending is so significant that even a low risk of reoffending is unacceptable. The applicant’s crimes are of a wide and serious variety. He has engaged in the very serious offending of people smuggling which involved significant planning, taking advantage of vulnerable persons and then putting their lives at risk. He has engaged in drink driving and has been fined for driving an unregistered vehicle on two occasions. He was involved in very destructive and drunken behaviour in the presence of those he loved. He then engaged in an act of violence whilst in prison. This more recent criminal act demonstrates that the applicant was not fully or adequately rehabilitated by his time in prison. In all of these circumstances I consider that the risk of the applicant engaging in criminal conduct in the future is unacceptable.
Conclusion as to protection of the Australian community – 8.1 of Direction 99
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[13] The applicant has committed serious crimes. He has engaged in some rehabilitation by addressing his alcohol and drug abuse, but his mental health, which was a contributing factor to his past offending, remains unstable. His violent attack on a fellow prison inmate indicated that he had behavioural issues and that he was not adequately rehabilitated as at November 2019, despite having been in prison since October 2014. The applicant has not demonstrated since 2019 that he has adequately addressed his issues.
[13] Direction 99 at 8.1(1).
There remains a real, albeit low, risk of re-offending and therefore, the protection of the Australian community is a factor that weighs significantly against the applicant.
Family Violence – 8.2 of Direction 99
I note from the respondent’s statement of facts, issues and contentions that, while the offence of ‘destroy or damage property’ was committed against the applicant’s mother and brother, the respondent accepts that this does not amount to family violence as defined in Direction 99 because the evidence does not establish the applicant’s behaviour caused them to be fearful. It follows that the applicant has not engaged in family violence so this factor is neutral in my determination as to whether there is another reason to set aside the non-revocation decision.
Strength, Nature and Duration of Ties to Australia – 8.3 of Direction 99
This primary consideration provides at paragraph 8.3 of Direction 99:
(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 a 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 Australia 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 the 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.
The immediate family members of the applicant in Sydney are his mother, his two sisters and his two brothers. One of his brothers is very unwell. The evidence establishes that they are all very supportive of him and that they would be devastated if he is not returned to the community. In particular, the applicant’s mother is elderly and in poor health and in need of support, which the applicant intends giving if he is released. It would assist the family if the applicant could be released so that he could contribute to the care of his mother and his brother. The applicant also has a significant number of aunts, uncles, cousins, nieces and nephews in Australia. The applicant gave evidence that he used to spend time with his brother and his two sons who are now both over 18 years old. The brother, in his witness statement,[14] said that he and his children have suffered emotionally since the applicant was imprisoned. One of the applicant’s sisters has four children (one of whom is now an adult) and she said in her letter of support[15] that she needs the applicant because she is separated from her husband and because she wants him to be involved with her children as they grow up.
[14] Remittal Bundle RB2 at [8] p.670.
[15] Remittal Bundle RB1 at p.246.
The applicant’s partner is not in Australia and therefore cannot be taken into consideration under paragraph 8.3 of Direction 99. However, the other considerations to be taken into account under Direction 99 are not exhaustive so I will deal with the applicant’s partner later in these reasons.
The applicant came to Australia in 2006 and developed links to the Australia community, in particular the Mandaean community and church which he attended and contributed to. I take into account numerous letters of support from Mandaean community leaders. He also contributed to the Australian community by working and eventually having his own business which employed about 40 people. He deserves credit for setting up this business and for supporting his mother particularly when they first arrived in Australia. This represents a significant contribution to the Australian community, but less weight is given to this factor because the applicant first offended in 2009 and engaged in further offending in the community in 2011. Overall, the applicant has spent eight years in the Australian community and has contributed positively to the Australian community for a significant part of that time.
This is a factor that weighs in favour of revoking the cancellation decision and should be given moderate weight.
Best interests of minor children – 8.4 of Direction 99
I must determine whether non-revocation of the cancellation of the applicant’s visa is, or is not, in the best interests of a child affected by the decision. The following factors that I must consider where relevant to this application include:[16]
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[16] Direction 99 at 8.4(4).
The applicant’s sister has three children who are under the age of 18. The sister said in a letter of support[17] that her children need her brother’s support and that she wants her brother to be in her and their lives particularly because she is a single mother. The applicant said that before prison he spent time with the children on the weekends, although I note that these children were very young at that stage. The applicant said that he speaks to his sister on the phone every second day and often with her children. I accept that the applicant has a loving relationship with his sister’s children and that if released he would play an important role given that she is separated from her husband.
[17] Remittal Bundle RB1 at p.246.
I conclude that it is in the best interests of the three minor children of the applicant’s sister for the cancellation decision to be revoked but I give less weight to this consideration because the relationship is non-parental and because the applicant has been outside of the community for almost nine years and has therefore had limited meaningful contact with these children.
This is a factor that weighs in favour of revoking the cancellation decision but I do not give it significant weight because the children are being cared for by their mother and because he has been absent for much of their lives.
Expectations of the Australian community – 8.5 of Direction 99
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 remain in Australia.[18] The applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. His criminal conduct was very serious and, for the reasons set out earlier in these reasons, I consider that there is an unacceptable risk of further re-offending by the applicant. I note that his offending of people smuggling is of the kind set out in paragraph 8.5(2)(e) of Direction 99 and consequently I find that the Australian community expects that the Australian government should cancel the applicant’s visa. I conclude that the expectations of the Australian community is a factor that weighs against the applicant and I give it significant weight in all the circumstances.
[18] Direction 99 at 8.5(1).
Other Considerations
In deciding whether there is ‘another reason’ to revoke the cancellation of the applicant’s visa, I must also take into account the ‘other considerations’ listed in Direction 99, but these are not exhaustive.[19] I must consider and understand the representations received from the applicant.[20] It is very apparent from the evidence that the applicant’s partner has a strong and loving relationship with the applicant and that she would be devastated if he were not released from detention. She said in her written statement of 9 December 2015: 'If I could not see him at all, it would change my life enormously. I feel like a widow. My dad passed away last year. If I lost [the applicant] as well, there would be no men in my family’.
[19] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
[20] See above at [11].
The applicant’s partner has also developed a relationship with and provided support to the applicant’s mother. She said that: ‘His mum treats me like I am her biological daughter and I am part of his family’. She gave oral evidence by video from China that if the applicant were released she would take steps available to her to return to Australia so that they could continue their relationship together. She came to Australia in 2010 and stayed for 13 years until she reluctantly returned to China.
I take into account as an ‘other’ consideration the relationship that she and the applicant formed and the detrimental impact on her if the applicant is not released from detention.
Legal Consequences of Decision – 9.1 of Direction 99
This other consideration provides at paragraph 9.1 of Direction 99:
(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(l) 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 noncitizen.
(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 applicant has articulated the prospect of Australia breaching its non-refoulement obligations as a reason for revoking the cancellation decision. This is in addition to, and distinct from, his underlying claimed fear of harm if removed to Iran.
I note that the risks of harm that the applicant will face if removed are relevant to non-refoulement obligations and the extent of impediments if removed.
The applicant has not applied for a protection visa, but it is open to him to do so. Consequently, the applicant is not the subject of a protection finding (as defined in s 197C) and paragraph 9.1.2 of Direction 99 is relevant:
9.1.2 Non-citizens not covered by a protection finding
(1)Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2)However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person's representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3)Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or nonrevocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non citizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.

The respondent submits that the Tribunal is entitled to and should defer consideration of non-refoulement obligations because it is open to the applicant to apply for a protection visa. The applicant has said that he would apply for a protection visa if he is not successful with this application.
The applicant says that there is sufficient evidence for the Tribunal to make a finding that non-refoulement obligations are owed.
The decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs (Plaintiff M1/2021)[21] addressed the issue of decision-makers’ approach to non-refoulement:
[21] It is in that context that the specific issue in this case is to be addressed — whether a decision-maker considering revocation under s 501CA(4) is required to determine whether non-refoulement obligations are owed to the former visa holder where the person makes representations which raise a potential breach of those obligations but the person remains free to apply for a protection visa. As has been stated, the dispute between the parties was not if, but how, such representations should be considered by the decision-maker.
Decision-makers’ approach to representations
[22] Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason“ why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
… [24] Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. …
Decision-makers’ approach to non-refoulement
… [29] Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error — they are not part of Australia’s domestic law.
[30] Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.
(Footnotes removed)
[21] [2022] HCA 17.
It follows that I am required to read, identify, understand and evaluate the representations made by the applicant. Those representations included a claim of non-refoulement under domestic law. The High Court said that such a claim may be considered by the decision-maker, but that one available outcome is to defer assessment of whether the applicant is owed those non-refoulement obligations.[22] The High Court’s statement is now embodied in paragraph 9.1.2(2) of Direction 99 which says that where it is open to an applicant to make a protection visa application:
a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person.
[22] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [30].
I intend to defer assessment of non-refoulement obligations because it is open to the applicant to apply for a protection visa. That does not mean that I ignore the representations made by the applicant. Plaintiff M1/2021 makes it clear that a decision-maker must not do that,[23] but ‘one available outcome’ is the deferral of the substantive assessment of such a claim.[24]
[23] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [23].
[24] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [105].
The applicant has claimed that he will be at risk of harm if returned to Iran at [81] and [82] of his statement of facts, issues and contentions. The respondent accepts, and I agree, that for the reasons found by the delegate of the Minister, there is a likelihood that the applicant faces a real risk of harm in Iran due to his religion and his mental and physical health issues.[25] Further, I accept the submissions made at [81] and [82] of the applicant’s statement of facts, issues and contentions regarding the treatment of Mandaeans in Iran.
[25] Remittal Bundle RB1 pp.12 to 37, in particular at [122], [143] and [144].
In considering the weight to be given to my finding of a risk of harm in Iran, I find that based on the current country information, the applicant would not be accepted by Iran as an involuntary returnee and that therefore he would not be returned to Iran. I am mindful, as required by paragraph 9.1(1) of Direction 99, that the applicant, as an unlawful citizen, would be liable to removal from Australia but this only applies where it would be ‘reasonably practicable’ to do so. Removal to Iran is not reasonably practicable for the applicant under the current policy of Iran. It follows that the consequence of a decision refusing this application would be further detention whilst the applicant makes his proposed application for a protection visa. Consequently, I would give little weight to my risk of harm finding but instead give significant weight to the prospect of further detention.
I note that if the visa cancellation is not revoked, the applicant may remain in detention whilst any protection visa application is considered or while the Minister considers the possibility of re-settlement or the exercise of a personal discretion in favour of the applicant. There is no evidence before me suggesting that re-settlement or the exercise of a personal discretion would be considered. Ongoing detention would adversely impact the mental health of the applicant. The various mental health disorders diagnosed by Dr Cook will deteriorate if he is not released from detention. The applicant gave evidence that he was stabbed whilst in detention and he fears it may happen again. He is now terrified to leave his cell. He is not coping well at all in detention. In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Kenny and Mortimer JJ considered the impact of further detention which is apposite to the applicant:[26]
“… The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end.”
[26] [2021] FCAFC 55 at [132].
I consider that further detention will be seriously detrimental to the health and wellbeing of the applicant and I give this factor very significant weight in terms of whether the cancellation decision should be revoked.
Extent of impediments if removed – 9.2 of Direction 99
Direction 99 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to Iran in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
The applicant is a 50 year old man who has physical and mental health issues. This includes high cholesterol, high blood pressure, chronic pain, tinnitus and the numerous mental health disorders diagnosed by Dr Cook. He is awaiting surgery arising from being attacked in detention in November 2022. These health issues would create a significant impediment if he were removed to Iran where he would likely not receive adequate treatment and may face active discrimination due to his disabilities.
There are very significant cultural barriers due to the applicant’s Mandaean religion and ethnic identity which, as set out earlier in these reasons, place him at real risk of harm in Iran. Consequently, he would be less likely to have adequate access to social, medical and economic support if he were returned to Iran.
The extent of these impediments are very significant but I give them less weight because it is unlikely that the applicant will be removed to Iran because of their policy of not accepting involuntary returnees.
Impact on victims – 9.3 of Direction 99
There was no evidence of impact on victims within the meaning of the Direction. This factor is neutral.
Impact on Australian business interests – 9.4 of Direction 99
There was no evidence of impact on Australian business interests within the meaning of the Direction. This factor is neutral.
CONCLUSION AS TO WHETHER TO REVOKE THE CANCELLATION OF THE VISA
I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is ‘another reason’ to revoke the cancellation decision.
The primary considerations of the protection and expectations of the Australian community weigh in favour of not revoking the cancellation decision. The applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. His criminal conduct was very serious and there is an unacceptable risk of further re-offending by the applicant. The Australian community expects that the government should cancel the applicant’s visa because he has engaged in people smuggling. The seriousness of that offending is reflected in the 7 year prison sentence. Further, he has engaged in other serious criminal activity including violence and destructive behaviour.
The countervailing primary considerations are ties to Australia and the best interests of three of his sister’s children. The applicant did not grow up in Australia. He arrived when he was about 37 years old. He was in the Australian community from 2006 to 2014. He set up a successful business but he also engaged in serious criminal activity. He has had limited meaningful contact with his sister’s children because he has spent the last nine years outside of the community either in prison or detention. His mother and four of his siblings who live in Australia would be negatively impacted but I note that the applicant has no children of his own.
The other considerations are the prospect of indefinite detention and the extent of impediments if removed. His partner is currently in China, but she would be devastated if he were not released from detention. He will not be removed to Iran because of their policy to not accept involuntary returnees so the most likely consequence of a refusal decision is further detention while he applies for a protection visa. I consider the prospect of indefinite detention as the most significant of these countervailing considerations.
In conclusion, I find that these countervailing considerations are outweighed by the protection and expectations of the Australian community. The nature of his offending, in particular the people smuggling, is so serious that even a low risk of reoffending is unacceptable. Staying in Australia is a privilege conferred on non-citizens in the expectation that they are law abiding and will respect Australia’s law enforcement framework. The applicant has abused that privilege. The Australian community would expect that the applicant’s visa is cancelled and I consider that to be the correct or preferable decision.
DECISION
I am not satisfied that there is another reason to revoke the cancellation decision. The decision under review is affirmed.

I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

...........................[sgd].............................................
Associate
Dated: 20 June 2023

Dates of hearing: 8 and 9 May 2023

Date final submissions received: 9 May 2023

Counsel for the Applicant: Benedict Coxon

Solicitors for the Applicant: Asylum Seeker Resource Centre

Counsel for the Respondent: Laura Mills

Solicitors for the Respondent: Australian Government Solicitor

[2023] AATA 1721

20 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Dates of hearing:	8 and 9 May 2023
Date final submissions received:	9 May 2023
Counsel for the Applicant:	Benedict Coxon
Solicitors for the Applicant:	Asylum Seeker Resource Centre
Counsel for the Respondent:	Laura Mills
Solicitors for the Respondent:	Australian Government Solicitor