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

FVGP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1440 (24 May 2023)
Division:GENERAL DIVISION
File Number: 2023/1353
Re:FVGP
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:24 May 2023
Place:Melbourne

The Tribunal sets aside the decision dated 1 March 2023 to refuse the Applicant a Bridging E (Class WE) (Subclass 050) visa. In its place, the Tribunal substitutes a decision that the discretion in s 501(1) of the Migration Act 1958 (Cth) should not be exercised to refuse the visa.
................................[SGD]........................................
Senior Member D. J. Morris
CATCHWORDS
MIGRATION – applicant is a citizen of Iran – applicant was refused bridging visa related to pending immigration decision – applicant sought review by Tribunal of refusal decision – before hearing applicant that officer of Minister’s department would not put applicant’s case before minister for possible intervention – whether there is utility in hearing – High Court decision relating to power of officers to sift matters for ministerial consideration – questions before the Tribunal – does applicant satisfy character test – if not, should discretion be exercised to refuse visa – applicant does not satisfy character test – ministerial Direction No. 99 – primary considerations – other considerations – applicant cannot be involuntarily repatriated – prospects of prolonged detention – decision under review set aside
LEGISLATION
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
Arachchi v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; DCM20 v Secretary, Department of Home Affairs [2023] HCA 10
FYBR v Minister for Home Affairs (2019) 272 FCR 454
HZCP v Minister for Immigration and Border Protection [2019] 273 FCR 121
Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48
Minister for Immigration and Border Protection vSabharwal [2018] FCAFC 160
SECONDARY MATERIALS
Migration Act 1958 – direction under s 499 – Direction No. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (made 23 January 2023/commenced 3 March 2023)
UK Visas and information – Country policy and information note: Christians and Christian converts, Iran, September 2022 (accessible); Updated 30 November 2022 (UK Government)
REASONS FOR DECISION
Senior Member D. J. Morris
24 May 2023
BACKGROUND

FVGP is a citizen of the Islamic Republic of Iran. He arrived in Australia in June 2013 as an unauthorised maritime arrival. In July 2013 he was granted a Temporary Safe Haven (Class UJ) visa, through ministerial intervention under s 195A of the Migration Act 1958 (Cth) (‘the Act’).
In July 2016 FVGP was invited by the Department of Home Affairs (‘the Department’) to apply for a Temporary Protection or a Safe Haven Enterprise visa (Class EX). In March 2017 he applied for a Temporary Protection visa (class XD).
Later in March 2017 FVGP was granted a Bridging (Class WE)(Subclass 050) visa. This is a special class of visa for a person either to prepare to leave the country or who is awaiting a migration decision.
In September 2017 FVGP was convicted at the Magistrates’ Court of Victoria of the following offences: False imprisonment (common law); Assault with weapon (three counts); Make threat to kill; and Unlawful assault. The Court placed him on a Community Corrections Order (‘CCO’) for 12 months, with a condition to perform 150 hours of community work.
In October 2017, FVGP was notified by the Department of intention to consider cancellation of his bridging visa under s 116 of the Act, because of his convictions. He was invited to make representations to the Department. In November 2017 FVGP made representations.
In December 2017 the Magistrates’ Court made a Family Violence Intervention Order (FIVO) against FVGP preventing him from committing family violence against his former partner, intentionally damaging her property, or going within 200 metres of her home.
Later in December 2017 a delegate of the Minister decided not to cancel FVGP’s bridging visa under s 116 of the Act, and advised the Applicant that consideration may be given to cancellation of his visa if new information came to the Department’s notice.
In February 2018, FVGP was charged with breaching the FIVO and with Assault. A week later he was notified of intention to cancel his bridging visa under s 116 of the Act. The visa was then cancelled, and he was taken into immigration detention.
In March 2018 a delegate of the Minister refused FVGP’s application for a Temporary Protection visa.
In May 2018 the Immigrations Assessment Authority affirmed the refusal of the Temporary Protection visa.
Two weeks later in May 2018, a further Intervention Order was issued by the Magistrates’ Court preventing him from committing family violence against his partner, damaging her property, or attending her address.
In July 2018 the Magistrates’ Court convicted FVGP of the offence of Contravene family violence intervention order and a charge of contravening the CCO was found proven. For the conviction, FVGP was sentenced to 30 days’ imprisonment.
In August 2022 the Applicant was re-notified of the s 116 decision.
On 19 September 2022, the Tribunal (differently constituted) set aside the cancellation decision and substituted a decision that the bridging visa is not cancelled.
On 26 September 2022, FVGP’s legal representatives requested ministerial intervention under ss 46A and 48B of the Act. This will be called the first ministerial intervention request.
In October 2022 FVGP applied for a Bridging (Class WE)(Subclass 050) visa in connexion with the first ministerial intervention request.
In November 2022 a delegate of the Respondent notified the Applicant of intention to consider refusal of the bridging visa application lodged in October 2022 on character grounds.
In December 2022 FVGP lodged a further application for a bridging visa. Later in December 2022 the Applicant’s legal representatives requested ministerial intervention pursuant to s 195A of the Act. That will be called the second ministerial intervention request.
In January 2023 a delegate of the Minister notified FVGP of intention to consider refusal of the bridging visa lodged on 12 December 2022, on character grounds.
On 1 March 2023 a delegate of the Minister refused to grant a Bridging (Class WE)(Subclass 050) visa under s 501(1) of the Act. The Applicant replied for review of that decision two days’ later. This is the decision which is the subject of this decision and reasons.
On 12 April 2023 a delegate of the Minister notified the Applicant that the Department had assessed his case and found it does not meet the s 195A or 197AB guidelines for referral to the Minister for consideration.
HEARING
A hearing was held on 4 and 5 May 2023. FVGP gave evidence and was cross-examined. He was represented by Ms Shannon Finegan and Ms Annabelle Ballard, both of counsel, instructed by Mr James Muirhead of the Asylum Seeker Resource Centre. The Respondent was represented by Mr Adrian Downie of The Australian Government Solicitor.
Two other witnesses gave evidence, Ms Carla Lechner, a clinical psychologist (by video as allowed under s 33A of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’)), and a friend of the Applicant, who will be called Mr AF. The Tribunal appreciates the assistance by an interpreter in the Farsi language.
The Tribunal decided, without objection from the parties and with his concurrence, of its own motion, to call the Applicant’s solicitor, Mr Muirhead, to give evidence in relation to a specific matter, and posed a small number of questions directly to Mr Muirhead. The only topic of the questions was a document which was already in evidence, so no breach of legal professional privilege was anticipated, or claimed.
The Tribunal had regard to a Statement of Facts, Issues and Contentions submitted by the Applicant (‘ASFIC’), a Statement of Facts, Issues and Contentions from the Respondent (‘RSFIC’) and a document titled Applicant’s Reply. Other documents were admitted into evidence and are listed in the annexure.
It was agreed between the parties that the eighty-fourth day in relation to these proceedings by which the Tribunal must decide the matter is 24 May 2023. If the Tribunal has not made a decision by that day, the decision under review is taken to have been affirmed by force of s 500(6L) of the Act.
QUESTIONS BEFORE THE TRIBUNAL
Section 501(1) of the Act states:
Refusal or cancellation of visa on character grounds
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
The character test is defined in s 501(6) of the Act. The Respondent submitted that the relevant subclause to which the Tribunal should have regard is s 501(g)(a)(i), which reads:
(6)For the purposes of this section, a person does not pass the character test if:
…
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; …
The Respondent submitted that the Tribunal is required to make an evaluative judgment as to whether there is more than a minimal or trivial likelihood of risk that FVGP will engage in criminal conduct in the future, citing Minister for Immigration and Border Protection vSabharwal [2018] FCAFC 160, and noting that the Tribunal is not required to be satisfied that there is a ‘significant’ risk.
The Respondent submitted that there is more than a minimal or trivial risk that the Applicant would engage in criminal conduct in the future if he were permitted to return to the community. Mr Downie submitted the fact of his very serious offending, some of which occurred in contravention of orders placed upon him to safeguard another against such offending, demonstrates a disregard for compliance with Australian laws.
The Respondent noted that the Applicant continued to offend following a decision not to cancel his previous bridging visa, so the knowledge of the potential consequences of offending in relation to his immigration status was not sufficient to deter him from further offending. The Respondent noted incidents in immigration detention including possession of contraband and drugs which, if committed in the community, ‘could attract a criminal conviction’ (RSFIC, para 11).
The Respondent further submitted that the Applicant had sought to contextualise his conduct in detention and his criminal offending by referring to ‘pressure’ that he ‘couldn’t control’ and put to the Tribunal that this raises concerns about how FVGP might conduct himself in the community without controls and monitoring that are in place in immigration detention.
The Respondent submitted that the Applicant’s expressions that his actions towards his former partner were ‘horribly wrong’ should be given limited weight given he denied assaulting her and noted the finding in the Migration and Refugee Division of the Tribunal where the Senior Member views evidence given by FVGP as “an attempt to reduce his responsibility for his offending”.
In submissions before the Tribunal, in relation to the elements necessary to satisfy s 501(1)(d)(i) of the Act, Ms Finegan conceded that there is more than a minimal risk of FVGP re-offending. She told the Tribunal that the Applicant’s PTSD condition creates a ‘vulnerability for unstableness’. She said that if the test is a minimal or trivial likelihood of re-offending, then that is conceded to not be in the Applicant’s favour, but that, overall, the Applicant does not concede that there is a substantive risk of re-offending.
Finding on character test
The Tribunal is satisfied that, if FVGP were in the Australian community, there is more than a trivial risk that he would engage in criminal conduct, and therefore that he does not pass the character test in s 501(6) by reason of s 501(6)(d)(i).
The reasons for this finding are that the Applicant has committed several crimes against the person. The victim was at that time, or shortly before, had been his domestic partner (there was some evidence that it was, at that time, an ‘on and off’ relationship). In addition to those offences, he then contravened a FVIO that he knew was designed to protect this former partner, and did so knowingly because he pleaded guilty to that offence.
The Tribunal notes the reports of various incidents in detention, including the oral evidence by FVGP that he smashed a microwave oven, and held a shard of glass from the oven door “in a threating manner” (GD, p 116). The Tribunal also notes the Applicant’s admission that he was passing parcels which contained illicit substances to other detainees, while also noting his evidence that he was being oppressed to do this on behalf of other detainees who bullied him, and that he did not know the contents of the parcels. However, FVGP also gave evidence that he was purchasing illicit drugs in detention for his own personal use, which he knew was banned.
The convictions and the other admitted facts lead me to the conclusion that there is a risk that FVGP would engage in criminal conduct if in the community, and it is not a minimal or fanciful risk. This is sufficient for a person to fail the character test. It is not necessary in making this finding for me to decide what that level of risk is, other than to say it is not trivial.
The Tribunal notes that there was in the papers before it a charge for driving under the influence of a drug, but it was confirmed before the Tribunal that this charge has not been resolved, so apart from recording it, this matter plays no part in any Tribunal finding.
Having made this finding, the next question before the Tribunal is whether the Minister should exercise the discretion in s 501(1) of the Act to refuse to grant the bridging visa. However, before moving to the next step the Tribunal must refer to submissions made from the Respondent that there was some question about the utility of this hearing.
UTILITY OF THE HEARING
The Respondent noted that even if the Tribunal found in favour of the Applicant and set aside the refusal decision of 1 March 2023, because of the decision of an officer of the Department of 12 April 2023 not to put his case to the Minister for consideration for intervention, FVGP would not be released from immigration detention. The Respondent did not put squarely to the Tribunal that the Applicant was bringing the matter for a collateral reason.
As mentioned above, the Bridging visa E (subclass 050) is a specific visa which lets the holder stay in Australia lawfully while he or she makes arrangements to leave, finalises an immigration matter or waits for an immigration decision. The relevant ‘decision’ in this case is whether the Minister would use his statutory intervention powers under the Act to grant FVGP a protection or other class of visa.
The Tribunal notes that an office of the Minister’s Department apparently decided on 12 April 2023 that the Applicant’s case would not be put before the Minister for consideration. This was after the application to the Tribunal was lodged, but before it had been heard. Mr Downie, I think correctly, did not put to the Tribunal that the application was being brought for a collateral reason. In addition, the Tribunal’s view is that the Applicant cannot be said to have brought the matter for review for a vexatious or even a misconceived reason, such that the powers of the Tribunal under s 42B(1) of the AAT Act may be enlivened. The Tribunal cannot even say that the matter is lacking in substance, for two reasons. The first is that findings made here may be relevant to future consideration by the Department or the Minister himself, or future representations by the Applicant. The second is the recent judgment of the High Court of Australia in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; DCM20 v Secretary, Department of Home Affairs [2023] HCA 10 (‘Davis’).
The decision in Davis was published by the High Court on 12 April 2023, the very day FVGP was apparently told that an officer (acting in the nature of a delegate) acting on behalf of the Minister had decided his case did not ‘meet guidelines’ to put before the Minister for intervention. Although Davis was considering a different part of the Act, the Court (Kiefel CJ, Gageler and Gleeson JJ; Gordon J, Edelman J, Jagot J separately concurring; Steward J dissenting) in essence found that ministerial instructions to officers of the Department purporting to guide those officers in what cases should be submitted for personal decision by the Minister were beyond executive power.
The Tribunal stresses that it makes no pronouncements on the effect of this decision on the particular circumstances of FVGP, other than to note the submissions of Ms Finegan that, in the wake of the Davis decision, the Applicant is giving consideration to taking further action, either in Court action or in regard to a fresh request to the Minister.
In the light of Davis, the Tribunal is satisfied that:
(a)the right of the Applicant to seek review of the 1 March 2023 decision is not displaced; and
(b)that the application for review does not lack substance.
The Tribunal notes the co-operative approach of Mr Downie for the Minister in this regard.
A NEW MINISTERIAL DIRECTION
Section 499 of the Act provides that the Minister may make directions which a person or body must take into account when performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2) of the Act, comply with a relevant direction.
The delegate who refused FVGP’s visa on 1 March 2023 consulted Direction No. 90, made under section 499. On 23 January 2023 the Minister made a fresh direction under section 499, Direction No. 99 (hereafter referred to as ‘the Direction’). The Direction commenced on 3 March 2023 and (at clause 3 of Part 1) revokes Direction No. 90 from that date. The Tribunal must comply with the Direction in considering this matter.
The question about which Direction to apply where a reviewable decision was made when one Direction was in force (or had been revoked), and then an applicant sought review by the Tribunal and the Tribunal made its decision after a new Direction had commenced, was considered by the Full Court of the Federal Court of Australia (Dowsett, Kenny and Mortimer JJ) in Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48. The Full Court was considering a request for review of a decision of the Tribunal where the applicant submitted that a revoked Direction should still apply to him, because that was in place when he applied for review of the decision. The Tribunal Member had decided that the Direction applying at the time the Tribunal makes its decision is the one to which the Tribunal should have regard. In upholding that view, the Full Court held, at [4]-[6]:
4. The current version of the Direction is entitled “Direction No. 65”. That is the version the Tribunal applied in making its decision. The applicant’s contention is that the Tribunal should have applied the former version of the Direction, which is entitled “Direction No. 55”. In reliance on Esber v Commonwealth [1992] HCA 20; 174 CLR 430, he contends he had a right to a decision by the Tribunal on review that applied Direction No. 55 as the Direction which was in force at the time he made his application to the Tribunal in February 2013.
5. The focus of argument before this Court was on the characterisation of the Directions as either legislative or administrative in nature. In our opinion, the real issue is the application of s 7(2)(c) of the Acts Interpretation Act 1901 (Cth) and whether the applicant had acquired or accrued a right under Direction No. 55, upon which the terms of s 7(2)(c) could operate.
6. For the reasons set out below, we do not consider the applicant accrued or acquired any right under Direction No. 55, and therefore we would dismiss the application.

The Court went on to state that Mr Jagroop had failed to identity any ‘rights’ that he had lost with the revocation of the old Direction and the replacement of it with a new one. Therefore, the provisions of section 7(2)(c) of the Acts Interpretation Act 1901 (Cth), which is designed to prevent a person losing a right he or she had accrued or acquired under the law when that law is amended or repealed, is not affected by a new Direction being made and the old Direction being revoked because, in essence, the Direction provides guidance for decision-makers. This includes mandatory considerations, but the ‘right’ that the person has to review is found in section 500(1)(ba) of the Act, not within the framework of a Direction from time to time in force. It is always open to an applicant to make a submission that a new Direction may be less favourable to them in their particular circumstances from the one in force when a visa was refused or cancelled, or a delegate declined to revoke a mandatory cancellation. It is open to the Tribunal to consider such a submission on its merits (provided the submission is not directly at odds with the Direction in force) because the Tribunal is not confined only to the contents of the Direction in considering whether there is ‘another reason’ to revoke the mandatory cancellation, or whether, as in FVGP’s case, the discretion to grant a visa should be exercised
The Tribunal therefore proceeds on the principles that the Tribunal is (a) not constrained to consider only the material before the original decision-maker and may take into account fresh material, and (b) should apply the law and policy in place at the time it makes its decision. The Tribunal therefore considered, and will refer to, Direction No. 99 in these reasons.
Direction No. 99
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)
The nature and seriousness of the conduct (paragraph 8.1.1)
The Tribunal is obliged by paragraph 8.1.1(1)(a) of the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence. The Respondent submitted that the group of offences of which FVGP was convicted in September 2017 constituted both serious crimes and acts of family violence.
Paragraph 8.1.1(1)(b) of the Direction lists other categories of crimes or conduct that are considered by the Australian Government or Australian community to be serious. They are causing a person to enter into a forced marriage; crimes committed against vulnerable members of the community such as the elderly and the disabled, or government representatives or officials due to the positions they hold or in the performance of their duties; any conduct that forms the basis of a finding that a non-citizen does not pass the character test that is dependent on a decision-maker’s opinion; or crimes in, or related to, immigration detention. None of the categories stipulated in paragraph 8.1.1(1)(b) is relevant to the Applicant. While there is evidence before the Tribunal and admissions by the Applicant of misconduct in detention, there were no charges emanating from that.
Paragraph 8.1.1(1)(c) says that the Tribunal must have regard to the sentence imposed by the court for a crime or crimes. An Australian Criminal Intelligence Commission National Criminal History Check dated 8 November 2022 (GD, pp 39-40) records that FVGP was found guilty of six offences in September 2017, all relating to an incident with his then domestic partner. For the three counts of Assault with weapon, he was convicted and ordered to serve a CCO for 12 months with 150 hours of unpaid community work. For the False imprisonment, Make threat to kill and Unlawful assault charges he was convicted and ordered to serve a CCO for 12 months, concurrently.
For the breach offences in July 2018, in relation to the charge of Contravening Family Violence Intervention Order, FVGP was convicted and order to serve 30 days in prison. The offence of contravening the CCO was found proven.
There was no transcript of proceedings relating to the September 2017 hearing at the Magistrates’ Court before the Tribunal, but a police summary was in evidence. The police summary records that on the particular day in question there had been a discussion in the car between the Applicant and his former domestic partner as she drove him from her house to his. She told him she did not want to keep a ring he had given her, and returned it to him. On arrival at his house, they went to his bedroom and had a short discussion. The summary then states (GD, p 56):
The accused started to question the victim about her new boyfriend. He became angry and jealous. He snatched her mobile phone and demanded the password to the device. The victim refused to tell him. He then grabbed her car keys and threw them against the wall so they were out of the reach of the victim.
The accused then grabbed the victim by both her shoulders and forced her to lie down on his bed. He took a pillow and put it on her face and the victim struggled to breath. He eased the pressure of the pillow off her face so that the victim was able to push the pillow away slightly….
The accused then started punching the victim’s face through the pillow. He lifted the pillow off and slapped her face. He then repeatedly punched the victim all over her body including both her arms, right leg and her back. The victim fell off the bed and tried to escape…
The accused took a piece of timber approximately 1 [metre] long and brought it up under the victim’s chin and held it against her throat. From behind the victim he pulled back on the timber so that the victim again struggled to breath[e] and she thought she was going to die.
During this struggle, the victim’s 12 year old daughter attempted to get in contact with her mother by ringing the victim’s mobile phone, the accused’s mobile phone and sending text messages to the accused[‘s] phone.
The accused took a blue handled knife from his dressing table and held the blade to the victim’s throat. He demanded that the victim send a text message to her daughter, saying that she would be home soon. The victim refused to do this. When the victim’s daughter called again, the accused continued to hold the knife to the victim’s throat. The victim told her daughter in Indonesian that she was busy and then the call ended.
The summary then states that the accused pretended to be dizzy and explained she had not eaten for some time and asked if they could go to a restaurant. They did so, and had a meal for about half an hour. The victim then drove FVGP back to near his house.
The victim then drove home and thence to a local police station where she reported the incident. The police summary states that the victim received (GD, p 57):
bruising, redness and swelling to her back, both arms and her right leg. She also received a cut upper lip and scratches to her right arm. Her injuries were photographed at the [suburb redacted] Police Station. The victim attended at [a medical clinic] where she was examined by a doctor and her injuries assessed and documented.
The next day FVGP was contacted by police and attended a local police station. He was placed under arrest. He was interviewed and then accompanied police to his residence. A search warrant was executed, and photographs taken. The police located a knife on the dressing table in the bedroom and seized it. A plank of wood was located on the floor and was also seized. A pillow was observed to have what appeared to be a drop of blood on it, and was also seized.
The interview resumed after the search. FVGP said he and the complainant had been in a relationship but had recently broken up. He denied any assault, stating they had a discussion, and the topic of the victim’s new boyfriend came up, but he was not angry at this. He told the police they were intimate together. He denied holding a pillow to her face, holding a plank of wood against her throat, and holding a knife to her throat. He denied that any argument had occurred. When he was shown photographs of the victim’s injuries, he told the police she bruises easily and always has bruises.
In oral evidence, FVGP was asked about what happened this day. He said: “I saw her with another man, hugging and kissing. I got upset. The next day, I met her and texted. We went to my home, and I got a certificate for a ring to make it smaller. We sat down and had sex. I said that I had seen her with a man. She denied it. Then she said, ‘I did cheat on you.’.
Ms Finegan asked the Applicant, how else did you hurt her that day? FVGP replied, “I hit her with pillows. I took a knife and told her to open her phone. She said ‘no’”. When asked what he thought about his conduct that day, the Applicant said, “No one deserves to be treated like that. I really regret what I did.”
Under cross-examination, FVGP agreed that he pleaded not guilty and ‘denied everything’. He said, “I was scared. Someone from Legal Aid told me to deny everything.” Mr Downie put to FVGP that his ex-partner gave evidence to the Court that she had been assaulted with a knife, a timber plank, and a pillow. He agreed that she gave that evidence and added, “I didn’t do that. Her version was different. I denied it until I spoke to a psychologist.”
Mr Downie asked if FVGP ‘smothered’ the victim with a pillow. He responded, ‘No’. He then put to FVGP that he held a knife to her throat. He responded, “No, I held the knife back. I am responsible for all of it. No one deserves to be threatened or assaulted or whatever.”
Mr Downie asked the Applicant what he thought was the impact of his actions. He responded, “I’m a victim as well. I can feel what happened for her. That’s why I feel shameful. I asked her to forgive me for what I did.”
When asked whether he thought anyone else might have been affected, he responded, “The kids were affected as well. They lost me, and I lost them. It was a big change in their life.”
He confirmed that his ex-partner’s two daughters were at that time aged 12 and 8.
FVGP agreed that he breached the FVIO in 2018. He said that he had seen his ex-partner with another man the day before and went to see her. He said he saw her early in the morning then had an appointment with his CCO case manager, which he kept. He arranged with his ex-partner to go to VicRoads with her to transfer the ownership of a car. On his way back from seeing the case manager, a friend called him to say the police were looking for him. FVGP said he had a supply of medication in the car, and he took “100 pills”. He said he did this because “the Department told me a few months before if I breach the law, I will go back to detention.”
FVGP said he does not have an accurate memory of what took place thereafter. He said he only remembers someone taking his car keys from him. He agreed that he later learned he had collided with another car. He told the Tribunal that the pills were all ones that had been prescribed to him: Valium, some painkillers, Panadeine Forte and others. He agreed that oxycodone had been found in a blood analysis, but said that this was a constituent of one of his prescription painkiller medications.
FVGP denied he had ever taken prescription medication in excess on any earlier occasion. He agreed that he knew if he breached the law, it would be difficult for him to stay in Australia and knew there would be significant immigration consequences if he breached the CCO and the intervention order, and said, “I made a mistake.”
In regard to FVGP using buprenorphine in detention, the Applicant said he took it because of back pain but agreed it was not prescribed. He said “I didn’t know it was breaking a rule. I knew it was banned but I didn’t get punished for it.” The Tribunal then pointed out that the incident report from the detention centre recorded he lost 10 conduct points, which he accepted.
FVGP agreed that he is being treated for an opioid dependence and said that if he is released into the community his case manager was going to send him to drug and alcohol counselling in relation to that. He said he is prescribed an opioid for his back pain but deliberately takes the lowest dosage because he does not want to become addicted. A medical card was in evidence which confirmed a prescription for Bivudal for the Applicant. (Bivudal is a brand name for depot buprenorphine, injections of which can be prescribed in the treatment of opioid dependence.)
FVGP said his friend will help him access services. He said he does not have savings, but his friend will help him obtain work and he will buy a cheap car when able to. He said he plans to engage with a counsellor, a psychologist, a men’s behaviour group and CASA – the Centre Against Sexual Assault.
He told the Tribunal that he is on prescribed medication for depression and anxiety and for a thyroid condition, and if he was prescribed different medication, he will take it.
The Tribunal must consider the sentence imposed by the Courts for crimes. The Tribunal notes that the Applicant did not accept certain aspects of the police summary which were read out to him. For instance, he said that he brandished a knife at the victim but did not hold it to her neck. He denied completely using a plank of wood. Mr Downie pointed out that the Court convicted FVGP of three counts of Assault with weapon.
Although the police summary of what took place is essentially based on what the complainant said, and there was no other material before the Tribunal, in particular neither photographs nor the medical report relating to her injuries, the Tribunal accepts that the Court was satisfied to convict FVGP of the charges made by the police. Mr Downie correctly submitted that it was FVGP’s right to enter a plea of not guilty, but equally correctly submitted that the Tribunal cannot go behind the findings of a Court in reviewing an administrative decision. Mr Downie cited HZCP v Minister for Immigration and Border Protection [2019] 273 FCR 121, where Colvin J said, at [181]:
In an administrative law context, some decision‑making powers conferred by legislation depend upon the fact of a particular criminal conviction or sentence. They require its existence and confer no power to go behind it in the course of the exercise of the power. In such cases, the conviction or sentence becomes a foundation upon which the decision‑maker must proceed (there may be others). The statutory authority reposed in the decision‑maker does not extend to questioning the very matter the existence of which enlivens the power conferred by the statute. Other statutory powers may require the fact of the conviction or sentence to be accepted and given effect in the course of the decision-making process.
In agreeing that the Tribunal cannot go behind a conviction, the Tribunal also considers that the penalty imposed by a court provides some guidance as to where a judicial officer placed particular offending, because it reflects the exercise of judicial discretion within the range of penalties provided by law for a found offence. It would have been desirable to have a transcript of sentencing remarks to get an insight into the learned Magistrate’s thinking, but it is factual that the penalty that the Court found appropriate for the March 2017 offences was a 12-month CCO with no imprisonment.
In regard to the subsequent breach of the intervention order and the linked breach of the CCO, it is also relevant that the Court took a dim view of this, by imposing a custodial sentence of 30 days.
The Direction requires the Tribunal to consider whether there has been frequent offending by the Applicant, any trend of increasing seriousness and the cumulative effect of repeated offending (Paragraph 8.1.1(1) (d) and (e)). FVGP’s offending can be conveniently divided into two days. The day in March 2023 when he assaulted his ex-partner and the day some months later when he breached the Court-imposed orders. The Tribunal does not therefore consider that there has been frequent offending or a trend of increasing seriousness. That should not be interpreted as the Tribunal expressing a view that the initial offending was not very serious. Indeed, it was reprehensible. It is also significantly adverse to the Applicant that he breached orders of the Court with two states of knowledge: he knew what he was doing was a breach of court orders, and he also knew because of written warnings that continued offending may have consequences for his immigration status (which is relevant to paragraph 8.1.1(1)(g) of the Direction).
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)
The parties have both conceded that there is some risk that FVGP might re-offend, if returned to the Australian community. The important question therefore is what is the level of risk?
The Tribunal had before it a psychological report dated 6 May 2023 by Ms Carla Lechner, clinical psychologist. Ms Lechner also gave oral evidence.
Ms Lechner undertook a two-hour examination of the Applicant. She said she diagnosed the following conditions applicable to FVGP: complex PTSD, a Major Depressive Disorder and Opioid Misuse Disorder. She told the Tribunal her diagnoses were based on her clinical examination and experience, the Applicant’s self-reports and corroborative material contained in medical notes from immigration detention.
Ms Lechner administered several psychometric tools on the Applicant. She reported that the Kessler Psychological Stress Scale (K10) which canvasses symptoms of depression and anxiety and an ability to cope experienced by the patient over the past four weeks resulted in a score of 32, which was indicative of “likely to be severely psychologically distressed”.
Ms Lechner administered the Beck Depression Inventory, a self-report questionnaire, which resulted in an “extreme” range result, which she said was consistent with his presentation and a diagnosis of clinical depression.
Ms Lechner had FVGP complete the International Trauma Questionnaire, which she reported indicates the presence of symptoms of both PTSD and Complex PTSD. She reported the Applicant’s discussion with her about sexual assaults he had experienced while serving in the Iranian army. Ms Lechner also recorded FVGP reporting to her about him being sexually assaulted in detention. The Tribunal notes that before it was an IHMS mental health screening dated 28 March 2023 in which the mental health nurse referred to an ‘alleged sexual assault last year in CI’.
In respect of risk of re-offending, Ms Lechner administered the Spousal Assault Risk Assessment Guide (SARA). In respect of SARA measures, she noted no history of assault of family members, strangers, or past violation of community supervision prior to his offending in September 2017. She noted definite evidence of two of the seven risk factors in the psychosocial adjustment domain, being recent relationship problems and recent employment problems, plus partial evidence of recent substance abuse, which she noted was now pharmacologically managed. Ms Lechner recorded no evidence of psychotic or manic symptoms, no history of being a victim of family violence as a child or adolescent and no evidence of any personality disorder.
Ms Lechner noted no history of spousal violence prior to 2017. She said there was definite evidence of violation of a ‘no contact’ order, use of weapons and a credible threat of death and severe and/or sexual assault.
Overall, Ms Lechner identified FVGP as having a “low” risk of spousal violence, but noted he would be further assisted if he receives adequate psychological support for his mental health problems.
Ms Lechner also administered the Historical Clinical Risk – Third Edition (HCR-20) tool, relating to risk of general violence re-offending. Her report goes through the various domains, and records that she then concluded:
Overall the HCR-20 indicates that [FVGP] has a low/moderate number of historical as well as a number of clinical and risk management factors. It is my view that overall, however, [FVGP] poses a “low” risk of future violent offending compared with the average violent offender, particularly as some of the items are present on account of him being in detention, for example, the absence of employment, his substance abuse problem and the lack of social support networks. Apart from the index offences of family violence, [FVGP] has no prior or subsequent history of family violence. He is not inherently violent or aggressive in nature but may be vulnerable to behavioural dysregulation on account of his parlous mental health and limited coping skills as well as a lack of supportive network. The risk level could be even further lowered through continued involvement with the opioid-replacement program, and engagement with treatment services that assist [FVGP] in working through post-trauma symptoms and improving stress and mood management skills. [FVGP] is most at risk of relapsing into self-defeating patterns of behaviour, if his mental health continues to deteriorate and he is unable to cope effectively.

In her oral evidence, Ms Lechner reiterated that she thought the risk of re-offending was ‘low’. She said: “He has quite a lot of insight. He is able to reflect on himself. He said, ‘I used to be an angry person’. He has had proper mental health care more recently.”
In regard to future treatment reductive of risk, Ms Lechner said the Applicant needs treatment in trauma recovery. She thought engagement with Foundation House might be productive, that he should engage with a men’s behavioural change course, and he needs continuing monitoring of psychotropic medication and opioid use.
Ms Lechner said she considered that FVGP’s opioid addiction was an ‘iatrogenic condition’ and, when pressed on that, explained she meant the immigration detention was causative of the addiction.
Under cross-examination, Ms Lechner said her conclusion that FVGP was ‘immensely remorseful’ of his offending was based on his spontaneous expressions of remorse, that he had asked his former partner for forgiveness and that he expressed to her that he felt real shame and guilt.
Mr Downie asked Ms Lechner whether, in going through his criminal history, she found any level of minimisation from the Applicant. She responded, “No, I did not. It would depend on the nature of minimisation, such as victim-blaming or denying it happened at all.” Ms Lechner said there was neither of these, but FVGP did not have a clear memory of all the offending.
Ms Lechner said she believed the Applicant’s reports to her that he has been sexually abused in detention, “two or three times” on Christmas Island. She said that being grabbed by another detainee might be interpreted as a sexual assault by the Applicant but would not necessarily have been reported.
The Tribunal asked Ms Lechner whether her opinion was that the Applicant might be vulnerable to re-offend if in a new romantic relationship. She responded, “I can’t rule that out completely, but he has gained insight. He is under much better management. He owns his levels of stress and is desirous of more counselling to ensure it doesn’t happen again.”
The Tribunal’s assessment overall is that FVGP is a low level of risk of re-offending in a general sense, and a relatively low level of risk of re-offending in relation to a domestic partner.
The Tribunal accepts Ms Lechner’s professional assessment, and particularly notes that what has conditioned a number of her conclusions is that FVGP had no record of any offending before the incidents in March 2017.
The Tribunal does not accept Ms Lechner’s opinion about FVGP’s Opioid Misuse Disorder as being ‘iatrogenic’. It explicitly rejects the view that the Applicant has become addicted to abuse of certain opioids solely because he is in immigration detention, and notes that strictly an iatrogenic condition means a medical condition that is caused by treatment for another medical condition, or by the intervention of a physician.
If it is being put that FVGP was stressed by being in detention and this stress level led to him being more vulnerable to misusing substances, then that is a different proposition. But the Tribunal cannot accept that the Opioid Misuse Disorder stemmed directly from the mere fact that he has been detained. The vast bulk of persons detained do not develop addiction or misuse drugs. It is also relevant that, in the community when faced with stress, FVGP apparently took what he said were ‘100’ prescription pills in a panic, which had serious consequences.
The Tribunal notes Ms Finegan’s submissions that FVGP has been interviewed by a representative of Foundation House, but support from that organization relies on face-to-face and residential treatment, so nothing further can progress on that front while FVGP is in immigration detention.
The Tribunal finds, that this primary consideration weighs against the Applicant, but the weight is tempered by the finding also made that he is a low risk of recidivism, noting the qualification that he will have to engage in appropriate medical treatment and counselling if returned to the community.
Family violence committed by the non-citizen (paragraph 8.2)
The Tribunal is satisfied that the group of offences of which the Applicant was convicted in September 2017 by the Magistrates’ Court all involve family violence, because they all related to conduct against his former domestic partner. This therefore engages this primary consideration.
The Tribunal is required by paragraph 8.2(3) of the Direction to consider the frequency and any trend of increasing seriousness, and the cumulative effect of repeated acts of family violence. Although the offences of which the Applicant was convicted in September 2017 are objectively very serious, they were all contained in one single incident, so I cannot conclude that there has been frequent or repeated offending.
This part of the Direction requires the Tribunal to consider the extent to which the person accepts responsibility for his family violence-related conduct, and the extent to which he understands the impact of his behaviour on the victim.
Overall, I conclude that FVGP does accept responsibility and is remorseful, although his denial of certain finer aspects of his interchanges with his ex-partner on the day do him no credit. Important in his oral evidence was his statement ‘I denied it until I spoke to a psychologist’, which supports a conclusion that, even though the police summary is heavily reliant on the victim’s description of events, that police summary is the more accurate version of events than FVGP’s somewhat patchy evidence. In regard to minor challenges he made to the contents of the police summary, as the Tribunal remarked during the hearing, whether FVGP brandished a knife at the victim or held it to her throat (as the police summary alleged) is a distinction without a significant difference. He was convicted, as Mr Downie rightly said, of three offences relating to unlawful assault. The Tribunal is satisfied that the basis of these three offences is that FVGP used a knife, a plank of wood and a pillow to assault his partner.
Ms Lechner reported that he has shown ‘immense’ remorse. I am not clear whether the level of the remorse is because of the significant consequences that flowed, especially to his personal circumstances, from this offending, but I accept that he does deeply regret his conduct.
The Respondent also submitted, for the avoidance of doubt, that the breach offences relating to the CCO, and the intervention order should not, by themselves, be characterised as family violence offences for the purposes of this part of the Direction. The Tribunal agrees with that submission.
This primary consideration weighs against the Applicant and given that his index offending is all family violence-related, relatively heavily so.
The strength, nature and duration of ties to Australia (paragraph 8.3)
The Tribunal must consider any impact of the decision on FVGP’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely.
The Tribunal must also consider the strength, duration, and nature of any family or social links generally with Australian citizens, Australian permanent residents or people who have the right to remain in Australia indefinitely.
FVGP confirmed in answers to direct questions from the Tribunal that his immediate family – his mother, one brother and one sister – all reside in Iran. His father is deceased.
Mr Downie noted that a number of friends have provided statements of support for the Applicant but that only two appear to fulfil the requirement in the Direction of having the right to remain in Australia indefinitely: Mr AJ (who provided a statement dated 7 May 2023) and Mr AF, who provided a statement also dated 7 May 2023 and gave oral evidence.
Mr AJ said he met FVGP around 2014 or 2015 through the Kurdish community in Melbourne and they often met for dinner. Mr AJ said he would be willing to assist the Applicant if he was released into the community and that he could stay with him for a short time. He said he was aware of FVGP’s previous work as a painter and regards him as a hard worker and he would be willing to help him find work if he needed it.
Mr AF said he first met FVGP in 2019 when they were both in immigration detention at Yongah Hill IDC. He said the Applicant was a quiet person who was not violent, and he chose to spend time with him when they were detained in the same centre for a period of around four years.
Mr AF said that he operates his own carpet installation business, and he would be willing to give FVGP work if he is released. He said he currently lives in a group house but spends a lot of time with his girlfriend, and would plan to move in full-time with his girlfriend and make his room available in the group house for the Applicant. He said the person who owns the group house had been very supportive and when he asked how he could repay him, he said that he should find another person to help.
Mr AF said that he has friends who are involved in painting and plumbing, and he can help FVGP find employment.
The Tribunal found Mr AF an impressive witness. He knew about FVGP’s offending, including that he had told him that he had physically assaulted his former girlfriend and he knew about the breaches of the Court-imposed orders. He knew that FVGP had been imprisoned for one month. When Mr Downie asked him, with this knowledge, whether he was still willing to support the Applicant, he responded, “I know he’s made a mistake. I’ve made mistakes, too. I have a life, but he doesn’t. There is no reason not to help.”
The Applicant made clear that he has not had contact with his former partner or her two daughters since around 2018. The Tribunal notes that FVGP came to Australia in 2013 and his first offending was in March 2017. The breach offences were in February 2018. The drug-driving offence has not been dealt with by the Courts (and may never be). There is no other offending recorded by the Applicant.
FVGP has made some positive contribution to Australia through working as a painter, first for others and then as a subcontractor until he was taken into immigration detention.
The Tribunal finds that the primary consideration weighs in favour of granting the visa, but not heavily so, mainly because the Applicant has no familial ties.
Best interests of minor children in Australia affected by the decision (paragraph 8.4)
The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.
The Tribunal must take into account various factors set out in paragraph 8.4(4) of the Direction, where relevant. These include whether the Applicant has a parental relationship with the children, the extent to which she is likely to play a positive role in the future, the impact of prior conduct on the child or children; the likely effect separation would have on the children; and whether there is another person or persons who fulfil a parental role. In addition, any known views of the child or children should be taken into account.
Ms Finegan submitted that this consideration is not relevant to FVGP’s circumstances. The Tribunal notes that there was a letter before it written some years ago by the older child of FVGP’s ex-partner expressing warm feelings about the Applicant and his role in her and her sister’s lives. However, that child would now be an adult of around 18 years, and the Applicant agreed he has not had contact with her or her younger sibling since he was taken into detention in 2018.
The Tribunal finds that this primary consideration weighs neutrally in this assessment.
Expectations of the Australian Community (paragraph 8.5)
Paragraphs 8.5(1) and (2) of the Direction state:
(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 of 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.
…
The Direction highlights specific categories of identified offences relevant to this decision are 8.5(2)(a) – acts of family violence and 8.5(2)(c) – commission of serious crimes against, inter alia, women and children. The Australian community’s expectation is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’.
A superseded version of the Direction (‘Direction No. 65’) contained generally similar wording to paragraph 8.5 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’). The Court held that it is not for a decision-maker to form a personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed’. In other words, they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may endeavour to derive by some other evaluative process.
The current Direction (and its predecessor Direction No. 90) imports the statement that the expectations of the Australian community are to be considered as a ‘norm’ acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant (a position accepted by the parties in this matter), the relative weight will be affected by circumstances in the individual case.
The Tribunal considers that the weight of the deemed expectations of the community would be against granting of the visa. Even though the index offending related to one occasion and there had been no prior offending, it was nevertheless serious offending against an intimate partner.
The Tribunal finds that this primary consideration weighs against the Applicant.
OTHER CONSIDERATIONS
Legal consequences of the decision (paragraph 9.1)
The Direction reminds decision-makers that unlawful non-citizens are liable for removal from Australia as soon as practicable in the circumstances specified in s 198 of the Act and, in the meantime, to being detained under s 189.
As set out above, the Applicant was refused a Temporary Protection visa in March 2018. The refusal of that visa was confirmed by an assessor of the Immigration Assessment Authority in May 2018. FVGP sought ministerial intervention, first, on 26 September 2022 and, secondly, on 22 December 2022. On 12 April 2023 an officer of the Department notified the Applicant that his case would not be put before the Minister.
The Applicant has raised non-refoulement claims for consideration: the existence of a Court Order from Iran convicting him of crimes against the Iranian State for speaking improperly to a member of the Islamic Revolutionary Guard Corps; the evidence of ongoing and severe ostracism of his family in Iran; evidence of his conversion to Christianity and rejection of Islam and his status as a failed asylum seeker and a westernized person.
The Court Order
A photograph of a document purporting to be a Court Order from the Iranian authorities was before the Tribunal, with an English translation. It states that it is from the Justice Office of Darreh Shahre and is addressed to the Police Commander in Badreh Shahre. It states:
It was decided that [FVGP] with the birth certificate number 14 and son of [redacted] for the crime of: while still in the Country, insulting the sanctities and officials of the Islamic Republic; acting against the national security of the Country; and being a member of groups who are enemies of the Regime; and fleeing the country, be sentenced to 11 years imprisonment. Therefore, the Court Verdict was issued in absentia. The criminal is wanted.
It is signed by a prosecutor from the General and the Revolutionary Court of Darreh Shahre.
FVGP wrote in his supplementary statement dated 8 May 2023:
In 2015, the authorities visited my family and gave the court order to my sister. My sister told me about the document but did not send it to me. Soon after, my sister and family moved house. I asked her for a copy of the court document but she said she could not find it and was worried she had lost it.
In 2021, my nephew was going through a suitcase of his documents and found the court document. He gave it to his mother (my sister) who sent it to me. On or around September 2021, I provided a copy to my lawyer; this is the copy that was attached to the submission.
The Respondent submitted (RSFIC, para 34) that the Applicant has not explained why the Court Order document had not been obtained or provided to authorities earlier and submitted that ‘in these circumstances that the Tribunal should approach the credibility of that document with caution…’ By ‘credibility’, the Tribunal takes the Respondent to mean veracity.
In his oral evidence, FVGP said he tired of what he called continuing harassment of his family and one day he had an argument with a member of the Revolutionary Guard which led into a “big argument. The next day I got paperwork that I have to go to Court. I went. Bail was granted. Ten days later, I left Iran.”
Ms Finegan noted that the Court Order is dated 25 May 2015, and asked how FVGP became aware of it. He responded, “My family told me. They were moving house and my nephew found it. My sister sent it to me in 2021.”
Under cross-examination, FVGP confirmed he was first told about it in 2015 by his sister. He said she had lost the document and couldn’t remember its contents. He said he was told in 2021 that it had been found in a suitcase by his nephew (his sister’s son) and his sister sent him a photograph of the document. He said he also sent it to his ‘case manager’ and his lawyer. He clarified in response to a direct question from the Tribunal that by ‘case manager’ he meant the person in the Department he had been dealing with.
FVGP agreed with Mr Downie that he did nothing with the document for two years from 2021 because “I had no case ongoing. I asked my lawyer to use it, I don’t know why they didn’t.” He said he sent it to his lawyer as soon as he received it.
The Tribunal asked FVGP who did he mean by his lawyer. He responded that it was Mr Muirhead. FVGP said the original document is still in Iran. He said he could possibly obtain it from his family, but would have to check.
Given that the document was in evidence and no legal privilege had been claimed, the Tribunal decided in this circumstance, given that he was present in the hearing room, to ask the Applicant’s solicitor, Mr Muirhead, if he would be prepared to give evidence and respond to specific questions posed directly to him by the Tribunal. He acquiesced.
The Tribunal notes that this was an unusual course to take, but it was faced with evidence by FVGP about when he obtained the Court Order and when he gave it to his lawyers and another, and a contention by the Respondent querying why it had not been put forward by the Applicant or on his behalf in earlier interactions with the Department.
Mr Muirhead’s evidence was that he first started providing legal assistance to FVGP in late 2021. He said that he received the Court Order document from FVGP in late September or early October 2021. He said he has represented FVGP since that time apart from one period of six months.

Mr Muirhead said when the document was received there was no active immigration pathway for the Applicant. He said he therefore did not have the Court Order translated by a professional translation service at that time but asked a Farsi-speaking colleague to read it, and was given the gist. Mr Muirhead said that he then undertook other duties for six months before returning to represent FVGP, and that therefore another lawyer handled the request for ministerial intervention. He could not say whether that lawyer considered the Court Order or why the document was not put forward in support of the Applicant’s submissions earlier.
Mr Muirhead said that, for the purposes of this hearing, a certified translation had been obtained. (The Tribunal notes that certified translation was in evidence.)
The Tribunal accepts that the evidence of Mr Muirhead corroborates the Applicant’s evidence as to when he provided the document to his legal representatives in late 2021.
In the absence of an original document, it is difficult for the Tribunal to form a conclusion about the veracity of the document. The Applicant said that he had only been sent a photograph of it on a social media application by his sister. He said he had never asked her to send it to him. One would expect FVGP might have, given that, on its face, it is an important document in regard to his claims to be owed protection, but accepts that one reason might have been surveillance and possible fears about posting such a document.
Nonetheless, the Tribunal accepts that the document has been in the possession of FVGP since around September or October 2021 and that he provided it at that time to his lawyers and, possibly, to his Department case manager. In regard to the latter, the Applicant’s evidence was that he asked for the case manager’s email address and sent the image to them. The document was not put forward by the Minister as part of the papers relevant to this case.
The Tribunal considers that this may be a document relevant to the Applicant’s claims of meriting protection by Australia, and a document that has apparently not been considered in respect of earlier claims, but can say little more than that. There is no explanation for why this document is dated two years after FVGP fled Iran. The Applicant’s evidence is that he appeared in Court in mid-2013 and fled from Iran “10 days” after the Court appearance where he said he was bailed. This document is dated in 2015.
Ongoing and severe ostracism of the Applicant’s family
The Immigration Assessment Authority undertook a detailed analysis of FVGP’s protection claims in 2018 (GD, p 182). In his entry interview in 2013, the Applicant was asked if he or any of his family had been involved with any political group or organization, or involved in any activities against the Iranian Government. FVGP responded ‘No’. He was also asked if he had ever been arrested or detained by police. FVGP said there had been an issue when a government ministry appropriated some family land and said he was arrested and detained for one day, but not gaoled. He told the interviewing officer that, after the land was confiscated, the family was ‘frequently harassed’ by police and told they should be silent about their land being confiscated and not to talk about their rights. (GD, p 185)
In 2016, FVGP made a statement that, since his father’s death when he was around 14 or 15 years of age, the authorities had systematically harassed and persecuted him and his family, deprived them of tertiary education and the right to work. He said he was prevented from studying at university after initially being admitted, on the grounds that he had not passed the ‘ideology’ test. This is consistent with his oral evidence to this hearing where the Applicant said he studied at university for two terms but was then ‘made to leave’.
The assessor accepted that FVGP had suffered discrimination on the grounds of his Kurdish nationality, but was not satisfied overall that there is a real chance FVGP would suffer serious harm solely for reasons of being a Kurd if he is returned to Iran now or in the foreseeable future.
The assessor noted that in a protection interview, FVGP had said that ‘a friend of a friend of his uncle’ told them that his father had died from a lethal injection. His father’s death certificate stated he died of a heart attack, but FVGP said he had never had a heart condition. When asked why the authorities would kill an elderly man some 30 years after the Revolution, FVGP said the family was always protesting against the government.
However, when asked if he had personally been involved in any political protests other than the dispute about the family land, FVGP said because of his father’s history they were branded as anti-revolutionary and that a file is ‘automatically’ opened, and he was no exception. He did not identify any political activism in which he or his family have been involved.
The assessor noted that FVGP said he was arrested in regard to protests about the land appropriation in 2005 or 2006 and this time was detained for three or four days and then went to gaol for a month. He said he was released when his mother signed a document agreeing to give up her remaining land. The assessor accepted that the land was appropriated around 2004 and his family house demolished in 2011 but, given that he openly discussed the 2011 arrest at his entry interview, the assessor did not accept the claim that the Applicant withheld information about his 2005 or 2006 arrest and imprisonment because he feared that the information might be shared with the Iranian Government.
The assessor did not accept the evidence about the 2004 protests because he was discharged from the Army in October 2004 after, as he told the interviewer, experiencing significant physical and sexual mistreatment, and said he was fearful of leaving the house for some months afterwards. In these circumstances, the assessor considered protests unlikely, and formed the view that it was more likely that his brother was involved in the protests and was arrested.
The Tribunal accepts the assessor’s conclusions referred to above; while it would seem that FVGP’s family, as ethnic Kurds, do face an amount of discrimination, I do not conclude it rises to the level to a ‘well-founded fear’ or a ‘real chance’ of persecution (to borrow the words used by McHugh J in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379).
Ms Finegan noted the Applicant’s evidence that his family frequently moves house and asked FVGP why this was. He said it related to rent costs, and they moved when they could no longer afford to live in the particular property.
Evidence of Applicant’s conversion to Christianity and rejection of Islam
The Applicant stated in his entry interview in 2013 that he was a Shi’a Muslim. In his protection interview he claimed he had been accused of being a non-believer and insulting the Supreme Leader as a result of his political activities and his family’s profile as being anti-regime.
In a protection interview in May 2017, FVGP stated that while he was previously a Muslim, he ‘doesn’t believe in anything’. He said that when he came to Australia, he tried to change his religion and ‘convert’ and went to a church for six to eight months and was baptised (GD, p 194).
The evidence at the hearing was different. FVGP agreed that he had been baptised into the Church of Jesus Christ of Latter-Day Saints (LDS) when he was living in Brisbane in 2013. That is supported by a baptismal certificate he provided to the Migration and Refugee Division of the Tribunal (GD, p 180).
The Respondent noted that one clinical note recorded that the Applicant was ‘agnostic’. When asked about this, FVGP said he was not sure why someone’s religion would be recorded on a clinical note. When pressed directly by the Tribunal on whether he knew what the word ‘agnostic’ means, FVGP said he did not. The Tribunal surmises that this has been recorded by the clinician possibly to distinguish the Applicant from other detainees who are adherent Muslims who undertake daily prayers. It otherwise does not seem at all relevant to the subject of the clinical note and, given that I accept the Applicant does not know what the word ‘agnostic’ means, I conclude he did not provide this information to the clinician and give this reference no weight at all.
Under cross-examination, FVGP said he attended the LDS Church both in Brisbane and when he moved to Melbourne until 2015 when his domestic partner told him that he must choose between the church and her. He said he went to the LDS Church in Heidelberg and one in a suburb near Altona, which the Tribunal concludes is Deer Park, because of earlier evidence (GD, p 175) he gave to a Tribunal hearing in September 2022.
FVGP said since being relocated from Christmas Island IDC to the Melbourne Immigration Transit Accommodation (MITA), he goes to Christian religious services each week. The Tribunal asked him directly about some beliefs of Mormonism. He said that adherents avoid coffee and tea and alcohol and spoke about the importance of Utah in the history of the LDS Church. In response to a direct question as to whether he knew who Joseph Smith is, FVGP said “he is their prophet. They don’t have sex before marriage.”
The Tribunal accepts there is factual evidence that FVGP has been baptised into the Christian church, and that this would be viewed dimly by the authorities in Iran, and that there is some evidence that he attended the LDS Church for two or so years and has recently begun attending Christian services in detention. Without disputing his evidence, it is not evident to the Tribunal that the Applicant holds strongly to any theological beliefs.
The Tribunal notes that failed asylum seekers are questioned on arrival, including as to why they claimed asylum. A returnee who divulges that he claims, or claimed, to be a Christian is likely to face further questioning and the United Kingdom country information on Iran states that a returnee can be expected to sign an undertaking renouncing his claimed Christianity (Exhibit A27, p 212). The UK document suggested that prolonged detention and potential ill-treatment might include factors such as previous adverse contact with the Iranian security services, connexions to persons of interest to the Iranian authorities or overt social media contact indicating that the individual concerned has actively promoted Christianity. In regard to the last of these, FVGP was asked under cross-examination whether he identified himself as a non-practising Muslim, and responded, “No. I became a Christian. I used to share on Facebook.”
The CIR states, at paragraph 5.29 (GD, p 544)
A well-placed source was not aware of voluntary returnees being prosecuted for criticising the Islamic Republic, converting to Christianity or proselytising while abroad on their return to Iran. As far as DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad.
Status as a failed asylum seeker and being a westernized person
The CIR states, earlier in paragraph 5.29 (GD, p 544)
Authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are travelling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, but may take longer where the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process.
And at paragraph 5.31:
DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.
The Tribunal gives the CIR significant weight and concludes that, without corroborative evidence that the Iranian Government have targeted the Applicant or his family because of contended political beliefs, whether FVGP would attract special and adverse attention if returned hinges on whether the Iranian Court Order he has provided is found to have veracity. As set out above, the Tribunal is unable to form a concluded view on that document.
Prolonged detention
It is convenient here to consider the prospects facing FVGP of prolonged detention. The Minister accepts that his circumstances engage the possibility that he will be detained for a prolonged period into the future. This is, in essence, a legal consequence of the decision before me.
The Respondent, however, submitted that the prospect of prolonged detention is not ‘absolute’ (RSFIC, para 37) because FVGP is presently not able to apply for another protection visa by operation of s 48A(1) of the Act, while noting there is no express limitation that would prevent him from lodging a further application in the future.
The Respondent also noted that FVGP’s application for the grant of a visa pursuant to s 195A(2) of the Act was ‘finalised without referral to the Minister’ on 13 April 2023 but noted the Applicant’s submissions that he considers this decision (by an officer of the Department purporting to exercise a delegated power) to be ultra vires and that FVGP has taken ‘first steps’ towards appealing that decision.
The Respondent further submitted that a possible consequence of the Tribunal affirming this decision is that the Applicant remains in prolonged detention and that consequence ought to be weighed against visa refusal, and that ‘particular weight’ should be given to this consideration, having regard to the Applicant’s subjective fears about his safety in detention and previous Tribunal findings that his mental health conditions constitute a significant additional hardship in the context of detention.
The Applicant took issue with the particular written submission of the Minister that the weight the Tribunal attaches to this consideration ought to be reduced because extended detention will be ‘very largely attributable to the Applicant’s own election to refuse to return to Iran’. The Tribunal notes that this is a factual statement by the Respondent, but equally that it is proper for the Applicant to challenge whether, in all the circumstances, FVGP can be said to have ‘elected’ to refuse to return voluntarily to Iran.
The Applicant said that he was subjected to bullying and to more than one sexual assault when in detention on Christmas Island. He said he has also been sexually assaulted on one occasion since being relocated to MITA in late 2022. Mr AF, who was a fellow detainee with FVGP in Yongah Hill and Christmas Island, was asked direct questions about whether he knew of these assaults. Mr AF said he did not know about any sexual assaults on Christmas Island but that the Applicant had told him about a more recent sexual assault incident at MITA.
The Tribunal notes that there is reference in the clinical health service notes from Christmas Island to the Applicant reporting to a clinician a sexual assault. The Tribunal concludes that it is plausible that FVGP has been sexually assaulted since being in detention, and that he did not otherwise report this to detention authorities, perhaps for fear of retribution. In regard to incidents in detention, the Tribunal takes the view that when a person has been in detention for a long period (in this case some five years), frustrations will sometimes result in incidents such as the Applicant’s admission that he damaged a microwave oven. It is a ‘lashing out’ to which the Tribunal does not give great weight, provided there is no evidence of consistent such conduct or physical violence in detention.
The Applicant’s evidence was that he was bullied into being a contraband courier in detention and into accepting parcels addressed to him which were in fact for others. He presented a piece of paper to the Tribunal which he said was a note he gave officers in the mail room at the detention centre that he was being forced to accept a parcel addressed to him but for others, and asking that the officers decide it had to be opened by them for security assessment. The Tribunal is unable to conclude whether the note is contemporaneous or not.
FVGP admitted purchasing opioids for his personal use only, and accepted he had been penalised for items found in his room at the detention centre. The Applicant accepts that he developed an opioid addiction, and Ms Lechner’s diagnosis supports this, although it is currently being managed.
The Tribunal is faced, here, with a situation where the Applicant is essentially in limbo. In 2018 the Iranian and Australian Government signed a Memorandum of Understanding on Consular Matters (‘MOU’). That MOU anticipates cases where an Iranian citizen may be involuntarily returned to Iran from Australia, but applies only to Iranians who arrived in Australia after the date of the MOU. Because FVGP arrived in Australia in 2013, the Iranian Government will not accept him if he is involuntarily repatriated. Both parties accept he will not voluntarily return to Iran. The Tribunal is not satisfied that the claims he has made, on the current evidence, rise to the level that would dislodge the previous finding that he is not owed protection by Australia, but this may change on a proper analysis of the Court Order and its veracity.
However, the Tribunal considers that the practical reality here must hinge on the risk to the community if FVGP is released into the community on some category of visa. The weight of evidence before me convinces me that his mental health would deteriorate, and might deteriorate significantly, if he was to remain in detention without a known end date. Ms Lechner’s professional opinion, which the Tribunal accepts and adopts, and over which the Respondent did not particularly cavil, is that FVGP presents a ‘low’ risk of recidivism.
The Applicant’s offending was, as I say above, reprehensible, especially as it was directed at his former domestic partner in a private setting where she was defenceless. I reject any suggestion that he did not injure her. But I also note that this was an isolated incident and there had been no pattern of prior similar conduct, or indeed any criminal conduct or even traffic infringements.
I agree with the Respondent that that family violence offending has been marked out by the Government as warranting special (and, where found, adverse) consideration. However, my overall conclusion is that FVGP presents a low risk of re-offending in the same manner (i.e. a domestic setting), and an even lower risk of re-offending in a general sense. He has in the past been a productive member of the Australian community and, with the support of friends such as Mr AF and Mr AJ, who have both offered accommodation and assistance for him to find employment, can be again. Compliance with counselling will be essential, including desirably a residential placement at Foundation House or a similar facility, and continuing engagement with, and treatment by, his health advisers.
Because of the prospect of prolonged detention in this case, the Tribunal finds that this consideration weighs very heavily in favour of granting the visa.
Extent of impediments if removed (paragraph 9.2)
The Tribunal must consider the extent of any impediments 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). The Tribunal must take into account the person’s age and health, any substantial language or cultural barriers and any social, medical, and economic support available to him in his home country.

Dealing first with the language and cultural barriers, these would be minimal. Farsi is FVGP’s first language and, while he is relatively fluent in English, he occasionally reverted to Farsi during his evidence, as required. He was born in 1984 and came to Australia in 2013 aged 29. His formative years and schooling were in Iran, and he told the Tribunal that he completed his high school diploma and then did two terms at University before leaving, he said, because of his ‘political family’. He then worked as a labourer. There are no particular cultural barriers that the Tribunal identifies from the material before it.
The ASFIC submitted that FVGP has several health issues and that, in Iran, significant social stigma attaches to mental illness which discourages people from seeking treatment, stating ‘it is clear that the Applicant would not be able to access the same level of mental health treatment as he would in the Australian community’. While this submission may be factually correct, the Direction requires the Tribunal to assess impediments a person would face in the context of what is generally available to other citizens of Iran, not against a yardstick of what might be available in Australia.
Nonetheless, given that FVGP has diagnosed mental health conditions, the following extracts from the CIR are relevant (GD, p 489):
Need for mental health services in Iran is significant. An April 2018 study by the Ministry of Health and Medical Education found that nearly one-quarter of adults suffer from some form of mental illness, with women more likely to be affected than men…DFAT heard anecdotally that the deteriorating economic situation has contributed to a rise in mental illness, drug addiction and suicide.
The availability of mental health services has improved, including in rural areas, but ongoing social stigma attached to mental illness discourages people from seeking, or persisting with, professional treatment. A local source told DFAT that private mental health services are available, particularly in Tehran, but are prohibitive financially for the average person. A small number of NGOs work in the field of mental health, but these outfits are generally under-resourced.
The Tribunal identifies that, as a person with both mental health conditions and an addiction which is under pharmacological management, FVGP is in a category of persons who would be particularly vulnerable if repatriated. It is reasonably foreseeable that his opioid addiction could become florid if he was returned and lacked access to support services.
The Respondent submitted that the practical reality is that the Applicant will not be involuntarily returned to Iran by the Australian Government and Mr Downie rightly noted there has been no suggestion from FVGP since he arrived in Australia of any desire to return. As mentioned above, the March 2018 MOU includes agreement by Iran to facilitate the return of Iranians from Australia, but that only applies to Iranian citizens who arrived in this country after March 2018.
The Respondent submitted (RSFIC, para 41):
However, on the facts of this case, there is a negligible possibility that the applicant will be removed to Iran, which he accepts. In those circumstances, while the applicant might face some meaningful impediments if he were to be removed to Iran in connection with his ongoing mental health conditions and substance use disorder, the Minister submits that this consideration should be given minimal (if any) weight against refusal in [the] light of the extremely low likelihood he will ever be removed there.
The Tribunal accepts that there is no indication from FVGP that he would return to Iran voluntarily, a position he reiterated in his oral evidence, and that the Iranian Government in such circumstances will not accept an involuntary repatriation, given the Applicant is outside the terms of the MOU. Nonetheless, the Tribunal cannot speculate on whether this circumstance might change, so therefore will make a finding in relation to this consideration as is contemplated by paragraph 7 of Part 2 of the Direction.
The Tribunal finds that this consideration weighs in favour of the grant of the visa, in all the circumstances, but not heavily so.
Impact on victims (paragraph 9.3)
The Direction requires the Tribunal to consider the impact of the s 501 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 Applicant has been accorded procedural fairness.
The Tribunal interprets this part of the Direction as meaning some evidence of the impact on a victim of a non-citizen’s offending on a member of the Australian community in a case where the victim has knowledge of the migration implications for the non-citizen.
In this case, FVGP said he has had no contact with the victim of his offending, his former domestic partner, since 2018. There is also no evidence that he has had any contact with the family of the victim, her two daughters. There is no other person that the Tribunal identifies as within the category of persons encompassed by this particular consideration.
The Tribunal finds that this consideration weighs neutrally.
Impact on Australian business interests (paragraph 9.4)
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501 of the Act would significantly compromise the delivery of a major project or important service in Australia.
In Arachchi v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311, Rangiah J, at [68] reminded decision-makers that any impact on Australia’s business interests must be considered, not just business interests of a particular scale or importance.
FVGP worked as a painter from around 2015 until 2018, at first for others and then as a subcontractor. The Tribunal notes a general shortage of tradesmen and there was no evidence before it that the Applicant was not a productive member of the Australian community and fulfilled his tax obligations. However, the Tribunal does not consider that there will be any impact on Australian business interests if the Applicant’s visa is refused.
The Tribunal finds this consideration weighs neutrally.
SUMMATION
Part 2 of the Direction informs the Tribunal how to exercise the discretion. The Tribunal must take into account the considerations where relevant to the decision. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations. Further, paragraph 9 of the Direction requires that the Tribunal take into account relevant other considerations, but the Tribunal is not limited only to the stipulated other considerations. Any other matter relevant to the circumstances of a person and to the functions of the Act can be taken into account.
In this case the Tribunal has identified four primary considerations that are relevant: the protection of the Australian community; whether the conduct engaged in constituted family violence; the strength, nature and duration of ties to Australia, and; and the expectations of the Australian community. The first primary consideration of protection of the Australian community weighs against FVGP but the weight is tempered by the Tribunal’s finding that he is of low risk of re-offending. The second primary consideration relating to family violence weighs against him. The third primary consideration relating to ties with Australia weighs slightly in favour of granting the visa. The fourth primary consideration relating to the best interests of minor children in Australia weighs neutrally. The fifth primary consideration relating to the community expectations weighs against the grant.
In regard to the other considerations, that relating to legal consequences of the decision weighs heavily in favour of granting the visa, because of the prospect of prolonged detention. The consideration relating to the extent of impediments if removed conditionally weighs in favour of granting the visa, in the event FVGP did return voluntarily to Iran. The other considerations relating to impact on victims and Australian business interests both weigh neutrally.
The Tribunal finds that in the particular circumstances of this case that the decision to refuse the visa should be set aside and that the discretion to grant the visa should be exercised. The offending against his former partner was completely unjustified. The Respondent rightly reminded the hearing of consistent Court authority that an administrative decision-maker cannot look behind a conviction found by a Court. But the Tribunal should also take account of the penalty imposed by the learned Magistrate in relation to that conviction, or those convictions. The Magistrate had the advantage (which the Tribunal does not have) of hearing from the victim and hearing submissions from the police and FVGP’s lawyer. The penalty imposed was a CCO for 12 months. The subsequent penalty for his breach of the intervention order was 30 days in prison. As a consequence of these convictions, the Applicant has now been detained since 2018 and has been moved around three detention centres. There has been objective detriment to his mental health, which is accepted by both parties before the Tribunal. There is, on the evidence which I accept, a low risk of him re-offending.
In all these circumstances, the Tribunal finds that the legal consequences of the decision (i.e. the Applicant remaining in detention without any known end date) are determinative, and that the discretion should be exercised to grant the visa.
The Tribunal notes the Respondent’s submission that, if the Tribunal sets aside the decision, the consequence will not immediately lead to the release of the Applicant from detention, because the visa was linked to a protection visa application which an officer of the Department has now declined to put to the Minister. However, these reasons may be relevant to future decisions that are made by the Department or representations that the Applicant has flagged he intends to make.
DECISION
The Tribunal sets aside the decision dated 1 March 2023 to refuse the Applicant a Bridging (Class WE)(Subclass 050) visa. In its place, the Tribunal substitutes a decision that the discretion in s 501(1) of the Act should not be exercised to refuse the visa.

212.

213. I certify that the preceding 211 (Two-hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

...........................[sgd].............................................
Associate
Dated: 24 May 2023

Date of hearing:

11 and 12 May 2023

Applicant:

FVGP

Co-Counsel for the Applicant

Solicitors for the Applicant

Ms Shannon Finegan and Ms Annabelle Ballard

Asylum Seeker Resource Centre

Advocate for the Respondent:

Mr Adrian Downie

Solicitors for the Respondent:

The Australian Government Solicitor

ANNEXURE

Description of Evidence Exhibit Number

G Documents R1

Supplementary G Documents R2

Letter to Ms Carla Lechner, clinical psychologist, dated 14 April 2023 R3

Curriculum vitae of Ms Carla Lechner R4

Pre-detention health record dated 8 November 2017 A1

Outcome notification of request for Ministerial request dated 12 April 2023 A2

Statement of the Applicant 17 March 2023 A3

Statement of the Applicant 17 April 2023 A4

Statement of complainant 7 February 2018 A5

Document in Persian dated 25 May 2015, translated by

A-Z Language Services dated 17 March 2023, with Court Order that Applicant is wanted for insulting officials of the Islamic Republic.
A6

Amnesty Report, “The impact of indefinite detention: the

case to change Australia’s mandatory detention regime” dated 29 June 2005
A7

M. von Wethern et al, “The impact of immigration

detention on mental health: a systematic review” (2018)

18 British Medical Journal 382.
A8

Essex, R. et al, “Psychological Distress in Australian

Onshore and Offshore Immigration Detention Centres

from 2014-2018” (2022) Journal of Immigrant and

Minority Health.
A9

Compilation of Freedom of Information Requests

a. Ministerial Intervention (FA 21/03/01281) 145

b. Minister Intervention (FA 21/05/00505)

c. Protection visa grants (FA 21/04/01042)

d. Removals (FA 19/12/01189-R1)

e. Return and resettlement (FA 21/05/01176)

f. Refugees detained (FA 20/01/00587)

g. Cancellations (FA 21/06/00244)
A10

Statement of the Applicant dated 8 May 2023; A11

Report written by Ms Carla Lechner, clinical psychologist, dated 5 May 2023; A12

IHMS clinical records

i. Medication review dated 10 April 2023;

ii. Nurse consultation dated 30 March 2023;

iii. Mental health screening 28 March 2023;

iv. GP consultation dated 22 March 2023;

v. Mental health consultation dated 17 March 2023;
A13

IHMS special needs health assessment dated 5 April 2023 A14

Buvidal patient alert card; A15

Support statement of AF dated 7 May 2023; A16

Support statement of AJ dated 7 May 2023; A17

Support statement of MJ dated 8 May 2023; A18

Support statement of IZ dated 8 May 2023; A19

Screenshots of Applicant’s attempts to engage programs in 2023; A20

DadsWA workshop certificate issued 28 May 2019; A21

DadsWA workshop certificate issued 14 April 2019; A22

Food handling course certificate issued September 2018; A23

Applicant’s handwritten note to detention security in 2019; A24

NAB Teletransfer request form dated 13 June 2018; A25

Statement of RS dated 9 November 2017 A26

Compilation of recent country information on Iran dated 5 May 2023; A27

[2023] AATA 1440

24 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Remedies

Date of hearing:	11 and 12 May 2023
Applicant:	FVGP
Co-Counsel for the Applicant Solicitors for the Applicant	Ms Shannon Finegan and Ms Annabelle Ballard Asylum Seeker Resource Centre
Advocate for the Respondent:	Mr Adrian Downie
Solicitors for the Respondent:	The Australian Government Solicitor

Description of Evidence	Exhibit Number
G Documents	R1
Supplementary G Documents	R2
Letter to Ms Carla Lechner, clinical psychologist, dated 14 April 2023	R3
Curriculum vitae of Ms Carla Lechner	R4
Pre-detention health record dated 8 November 2017	A1
Outcome notification of request for Ministerial request dated 12 April 2023	A2
Statement of the Applicant 17 March 2023	A3
Statement of the Applicant 17 April 2023	A4
Statement of complainant 7 February 2018	A5
Document in Persian dated 25 May 2015, translated by A-Z Language Services dated 17 March 2023, with Court Order that Applicant is wanted for insulting officials of the Islamic Republic.	A6
Amnesty Report, “The impact of indefinite detention: the case to change Australia’s mandatory detention regime” dated 29 June 2005	A7
M. von Wethern et al, “The impact of immigration detention on mental health: a systematic review” (2018) 18 British Medical Journal 382.	A8
Essex, R. et al, “Psychological Distress in Australian Onshore and Offshore Immigration Detention Centres from 2014-2018” (2022) Journal of Immigrant and Minority Health.	A9
Compilation of Freedom of Information Requests a. Ministerial Intervention (FA 21/03/01281) 145 b. Minister Intervention (FA 21/05/00505) c. Protection visa grants (FA 21/04/01042) d. Removals (FA 19/12/01189-R1) e. Return and resettlement (FA 21/05/01176) f. Refugees detained (FA 20/01/00587) g. Cancellations (FA 21/06/00244)	A10
Statement of the Applicant dated 8 May 2023;	A11
Report written by Ms Carla Lechner, clinical psychologist, dated 5 May 2023;	A12
IHMS clinical records i. Medication review dated 10 April 2023; ii. Nurse consultation dated 30 March 2023; iii. Mental health screening 28 March 2023; iv. GP consultation dated 22 March 2023; v. Mental health consultation dated 17 March 2023;	A13
IHMS special needs health assessment dated 5 April 2023	A14
Buvidal patient alert card;	A15
Support statement of AF dated 7 May 2023;	A16
Support statement of AJ dated 7 May 2023;	A17
Support statement of MJ dated 8 May 2023;	A18
Support statement of IZ dated 8 May 2023;	A19
Screenshots of Applicant’s attempts to engage programs in 2023;	A20
DadsWA workshop certificate issued 28 May 2019;	A21
DadsWA workshop certificate issued 14 April 2019;	A22
Food handling course certificate issued September 2018;	A23
Applicant’s handwritten note to detention security in 2019;	A24
NAB Teletransfer request form dated 13 June 2018;	A25
Statement of RS dated 9 November 2017	A26
Compilation of recent country information on Iran dated 5 May 2023;	A27