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

[2023] AATA 1931

GGJY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1931 (4 July 2023)

Division:GENERAL DIVISION

File Number(s):      2023/0965

Re:GGJY

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:4 July 2023

Place:Sydney

The correct and preferable decision is that the delegate’s decision dated 5 August 2020, not to revoke the mandatory cancellation of the Applicant’s Resident Return (subclass 155) visa, and in substitution it is decided that the mandatory cancellation of the Applicant’s visa is revoked.

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

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

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

LEGISLATION

Migration Act 1958 (Cth) s 499, 501

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

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

SECONDARY MATERIALS

Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

4 July 2023

BACKGROUND

1. I note that the Respondent’s Statement of Facts, Issues and Contentions contains a helpful factual summary of the background of this matter, much of which is replicated below.

2. The Applicant is a 36 year old citizen of Iran. She first arrived in Australia in April 2006 on a Prospective Marriage (subclass 300) visa, sponsored by her ex-husband. She was subsequently granted a Partner (subclass 820/801) visa and a Resident Return (subclass 155) visa.

3. The Applicant was convicted of the following offences:

Date of offence	Date of conviction	Offence	Sentence
29 May 2016	18 July 2016	Common Assault (DV) – T2	Good behaviour bond, 12 months under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
20 September 2017	22 February 2018	Shoplifting value  <=$2000 – T2	Fine: $1,000 Compensation: $495.60
6 October 2017	22 February 2018	Shoplifting value <=$2000 – T2	Fine: $1,000 Compensation: $139
10 July 2018	29 September 2018	Shoplifting value  >$2000 & <=$5000 – T2	Community correction order: 12 months commencing 25 September 2018 concluding 24 September 2019 Supervision by Community Corrections Service: 12 months commencing 25 September 2018 concluding 24 September 2019
6 October 2017		Shoplifting value >$2000 & <=$5000 – T2
23 August 2018	25 November 2019	Robbery armed with offensive weapon – SI (2 counts)	Imprisonment (aggregate): 3 years commencing 3 September 2018, concluding 2 September 2021 Non-parole period with conditions: 18 months commencing 3 September 2018 concluding 2 March 2020.
23 August 2018		Larceny – T2
24 August 2018		Receive property – theft = serious indictable offence <=$5000 – T2 Dishonestly obtain financial advantage etc by deception – T1	Taken into account on Form 1
11 June 2019	12 February 2020	Assault law officer (not police officer) – T2 (3 counts)	Imprisonment: 2 months commencing 2 February 2020 concluding 1 April 2020.

1. The offences of Robbery armed with offensive weapon involved physical violence where the Applicant threatened the victims with a metal bar and demanded money.

2. On 19 December 2019 the Applicant’s Resident Return (subsection 155) visa was mandatorily cancelled pursuant to section 501(3A) of the Migration Act 1958 (Cth) (the Act).

3. On 27 December 2019 the Department received a request for revocation of the cancellation decision.

4. The Applicant was released from criminal detention on 1 April 2020 and has resided in the community as an unlawful non-citizen since that date.

5. On 5 August 2020, the delegate decided not to revoke the cancellation decision pursuant to section 501CA(4). The Applicant was notified of the decision on 22 November 2022.

6. The Applicant applied for review of this decision on 24 November 2022.

7. On 12 January 2023, the Administrative Appeals Tribunal dismissed the Applicant’s review application pursuant to subsection 424A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) due to the effect of the Full Federal Court’s decision in Pearson v Minister for Home Affairs [2022] FCAFC 203, as the original decision was based on the Applicant receiving an aggregate sentence.

8. On 17 February 2023 the Migration Amendment (Aggregate Sentences) Act 2023 (Cth), which amended relevant provisions of the Act and validated the original decision to cancel the Applicant’s visa.

9. On 17 February 2023, the Applicant was notified of the validation of the original decision and the application for review of the decision was resumed.  

   LAW

10. The relevant legislation and policy is outlined below.

11. Section 501CA(4) of the Act states:

    (4) The Minister may revoke the original decision if:

    (a) the person makes representations in accordance with the invitation; and

    (b) the Minister is satisfied:

    (i) that the person passes the character test (as defined by section 501); or

    (ii) that there is another reason why the original decision should be revoked.

12. In exercising the power under s 501CA(4) of the Act, the Tribunal must comply with Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99).

13. On 23 January 2023 the Minister made Direction 99 pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4). The Direction came into effect on 3 March 2023.

14. Paragraph 5.2 of the Direction sets out the following principles relevant to the exercise of the discretion:

    1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

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

    4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time

    a non-citizen has spent in the Australian community, particularly in their formative years.

    6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

15. Section 6 of the Direction provides that, informed by the principles in paragraph 5.2 of the Direction, a decision-maker must take into account the considerations identified in section 8 and 9, where relevant to the decision.

16. Section 8 of the Direction provides that the five primary considerations are:

    (a)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);

    (b)Whether the conduct engaged in constituted family violence (Primary Consideration 2);

    (c)The strength, nature and duration of ties to Australia (Primary Consideration 3);

    (d)The best interests of minor children in Australia (Primary Consideration 4); and

    (e)Expectations of the Australian community (Primary Consideration 5).

17. Section 9 of the Directions provides that the four other considerations which must be taken into account where relevant are:

    (a)Legal consequences of the decision;

    (b)Extent of impediments if removed;

    (c)Impact on victims; and

    (d)Impact on Australian business interests.

    ISSUE

18. As it is accepted by both parties that the Applicant does not pass the character test as defined in section 501(7)(c) of the Act, the issue for determination is whether there is ‘another reason’ why the decision the cancel the Applicant’s visa should be revoked pursuant to section 501(CA)(4) of the Act.

    EVIDENCE OF APPLICANT

19. The Applicant affirmed two statements that were before the Tribunal, dated 4 May 2023 and 8 June 2023.

20. The Applicant said that she had not used drugs since 2018. Her evidence was that when she was first taken into custody she was held in a clinic for a week without medication, and that her withdrawals had been so serious she was unable to stand for 3 months. She said that she had seen a drug and alcohol counsellor for at least a year. When questioned about any desire to return to drug use, she said she had quit drugs without any medication and that the pain of those withdrawals, and her recognition of the damage that drugs had done to her life meant she had no desire to take drugs again.

21. When questioned about whether she continued to drink alcohol, the Applicant said that she only drank on special occasions, and only at home with her partner.

22. The Applicant gave evidence that during that time of the robbery offences, her addiction to drugs had made her easily manipulated and that she had acted unquestioningly on the words of others. She said that as a result of her experiences she had learned to consider things before taking any action. The Applicant expressed remorse for her offending and said that she had cut all ties with her previous social group and avoided people who used drugs. She said that doing so had helped her to make better decisions for herself, and for her child’s future.

23. In relation to her family violence offence, the Applicant said that at the time she was around 6 weeks pregnant, and that her ex-husband had been using drugs. He was claiming that the child was not his and wanted her to take a paternity test. She said that they had both attacked each other, first in their home and then on the street.

24. When questioned about her conduct while in prison, the Applicant said that she had often tried to avoid confrontation by staying in sight of correctional officers, but that the culture of violence in prison meant that when confrontation did occur, being seen to be scared would make her a target of further aggression. The Applicant did identify one occasion where she had been an aggressor while imprisoned. A person had made an offensive remark about her mother, who had recently died. She said that apart from that occasion, she was confident her file would show that she was typically the victim of aggression while in prison.

25. The Applicant said that since her release she has found new ways to cope with confrontation, and that her experiences have taught her to avoid confrontation. She explained that she now seeks to solve conflicts through words and more readily accepts fault. The Applicant said she wished to avoid any trouble that might put her in custody again.

26. The Applicant had indicated in her statement that she intended to seek further counselling once her visa was returned. When asked why she was not currently receiving mental health treatment, the Applicant explained that the only significant source of stress in her life was this Tribunal application. The Applicant said that as she got closer to the hearing her stress had increased, and she had since made an appointment for mental health treatment to take place shortly after the hearing of this matter.  

27. When the Applicant was asked about her family, she said that she has 4 brothers and 1 sister. One of her brothers lives in Sydney, and the Applicant said that she has minimal contact with him because he is addicted to drugs. She said that her contact with him is limited to bringing him food when he is sick, but otherwise she does not speak to him.

28. Of her remaining siblings in Iran, the Applicant said that she had a close relationship with her sister, and they speak every 2-3 days, but that she speaks to two of her brothers only semi-regularly, and another not very much. Her evidence was that were she to be returned to Iran, they would not provide financial assistance. She said that she did not speak to her ex-husband’s family besides his brother, as he is her child’s guardian.

29. When questioned about her close contacts in Australia, the Applicant said that she did not see anyone very much, and she and her partner did not receive visitors. She said that she had one friend who she had met in prison and reconnected with at protests against the Iranian government. She said that this person did not use drugs and that they only spoke on the phone

30. The Applicant stated that prior to 2015, she had tried to visit Iran yearly to see her mother, but since her mother’s death she had not returned. She gave evidence that since the protests had begun in Iran, she has participated in demonstrations and made regular social media posts against the Islamic Republic. She said that, in Iran, protesting both in person and on social media had resulted in many people being executed and imprisoned. The Applicant’s evidence was that she had lived in Australia for half of her life, and she could no longer bear to wear the hijab, and that women were not free in Iran. The Applicant also stated that she had not divorced her ex-husband according to Iranian law, and because she was now in a relationship with another man, she was at risk of being stoned for adultery were she to be returned.

31. The Applicant’s gave evidence about her life since her release from prison. She said that since her release in 2020 she had begun a new life with her partner, who provided financial and emotional support. She said that with his support she has been able to go to TAFE and study beauty therapy, and that her goal is to eventually own her own business.

32. When questioned about the possible impact her removal from Australia would have on her son, S, the Applicant said that he has not been living with her for 5 years, and that she is only able to see him once a month. Her evidence was that S was very happy and excited during these visits and that she loves these visits. The Applicant said that if her visa were to be returned, she would begin the process of having S returned to her custody and had enrolled in parenting classes so she would be equipped to provide him a healthy lifestyle. She said this was especially important as S has a disability.

    EVIDENCE OF TR

33. TR stated that she is a Manager Caseworker in the Department of Communities and Justice NSW, she oversees a team of 7 caseworkers, 1 of which works directly with the Applicant’s son, S. TR affirmed her statement of 5 April 2023.

34. The witness stated that the reports she had received in relation to the Applicant and her son indicated that she is attentive to his needs, and they have a close relationship.

35. When questioned about the current care arrangements for S, the witness stated that S is under a court order placing him in the care of the New South Wales Minister for Families and Communities until he turns 18, and that his uncle provides day to day care. The witness said that while there was no current intention of changing that order, the Applicant could apply to the court for custody of S if she wished to.

36. When questioned about how the possible outcome of this hearing might affect S, the witness said that S would have difficulty understanding his mother’s removal from Australia. Her evidence was that S would not be able to comprehend the removal of his mother despite repeated explanations, and that he would experience distress if he was unable to see her anymore. The witness went on to say that this was especially so as his father had recently passed away in Iran, and the Applicant was his only remaining parent.

37. The witness said that it was important that all children have access to their mother.

    EVIDENCE OF AR

38. AR is the current partner of the Applicant. He affirmed his statement of 4 May 2023.

39. AR gave evidence that he was employed on a full-time basis and provided financial support to the Applicant. He said that they had been together for over 3 years and that he loved her ‘from the bottom of my heart’. He said that he happily provides mental and psychological support and that he helps her stay away from people who are a bad influence.

40. The witness said he would also support the Applicant’s son, and that they are waiting to apply for custody of him.

41. When questioned about the Applicant’s offending, AR gave evidence that he knew about her offences and had known her prior to those offences.

42. In relation to the Applicant’s addiction to drugs, AR said that he was aware she used to be addicted to drugs but that he had no experience of drugs himself. He said that to his knowledge the Applicant had not used drugs since commencing their relationship.

    EVIDENCE OF DR KIM DILATI

43. The witness identified herself as Dr Kim Dilati, a forensic psychologist, and author of the report dated 5 May 2023, which was before the Tribunal.

44. When questioned about Applicant’s demeanour during consultations, she said that the Applicant was open regarding her previous offending. Her evidence was that this indicated a level of insight, remorse and responsibility for the offending and a level of reliability of her psychological assessment.

45. Dr Dilati said that the Applicant did not have much insight into her behaviour at the time of her offending and that she would benefit from long term mental health support and drug and alcohol counselling. She said that the Applicant’s drug use had been relatively brief and used as a coping strategy, particularly in relation to the violent relationship the Applicant was in at the time.

46. In relation to future or ongoing mental health treatment, Dr Dilati’s evidence was that the Applicant would benefit from ongoing mental health support due to the nature of the offending, the Applicant’s mental health and previous substance abuse issues. She said that while the Applicant’s engagement with drug and alcohol counselling over 18 months was significant, it was important that the Applicant understands warning signs and how not to relapse.

1. When questioned regarding the Applicant’s assessment of risk of future violence as ‘moderate’, Dr Dilati stated that as the Applicant has both a history of violence and a lack of mental health treatment, it would be impossible to assess the Applicant as a lower risk than ‘moderate’. Her evidence was that continued mental health treatment could mitigate risk factors for future violence and provide psychoeducation and alternative coping strategies. In her opinion, continued treatment for mental health and substance use would be the biggest factor when considering potential recidivism.

2. Dr Dilati also highlighted that education and employment would empower the Applicant and lower the risk of recidivism and relapse into drug use. She acknowledged that the Applicant had been unemployed since 2009, but said that the Applicant was motivated to find full time work, and had specific goals in relation to employment, subject to the return of her visa.

3. When questioned regarding the Applicant’s attitude to mental health treatment, Dr Dilati indicated that the Applicant may not seek mental health treatment by herself but said that in her opinion this was potentially due to the Applicant’s background, cultural beliefs and poor mental health literacy, rather than the Applicant being resistant to engaging mental health services. She said that continued interaction with mental health services could help overcome potential barriers to engagement.

4. Dr Dilati’s evidence was that a larger social network would also be a protective factor against recidivism and relapse, but that victims of domestic violence commonly experience a reduced desire to socialise and develop mistrust towards other people. She said that the Applicant’s relationship with her current partner could be a protective factor so long as it did not fall into violence or psychological abuse, but encouraged the development of a larger social network as a protective and empowering factor.

   DECISION

   PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

5. In considering this primary consideration, I have had regard to paragraph 8.1 of Direction 99.

6. There are two limbs to this consideration:

   (a)the nature and seriousness of the conduct of the non-citizen; and

   (b)the risk to the Australian community should the non-citizen re-offend.

   Nature and seriousness of the offending:

7. I note the Applicant’s offending took place over a limited period of time between 2016 and 2018. The period when the most serious offending occurred was a very stressful one for the Applicant, who was also addicted to drugs at that time. Her offences are however, of themselves very serious, involving armed robbery, larceny and receiving stolen property.

8. The objective seriousness of the Applicant’s offending is reflected in the 3 year ‘aggregate’ sentence imposed by the Court, after taking into account all of the relevant circumstances.

9. It is also significant that the Applicant continued to engage in violent conduct whilst in prison, including assaulting correctional officers in June 2019, for which she was convicted and sentenced to 2 months imprisonment. Such crimes are of particular seriousness because of the violence against those in official positions during the performance of their duties.

10. The Applicant was also convicted of family violence offences in 2016 including physical violence against her then husband. I note that the Applicant gave evidence that at the time of these offences she was in an abusive relationship and that the violent behaviour was mutual.

    Risk to the Australian community should the Applicant re-offend:

11. In looking at this consideration I note the provisions of clause 8.1.2(1) of direction 99.

12. Given the seriousness of the Applicant’s offending, particularly the violent acts committed against innocent third parties, the risk to the Australian community if the Applicant were to re-offend is very serious.

13. In this regard, I note the remarks of the sentencing judge in 2019 who said that the Applicant had ‘developed an increasing level of insight into her offending (…) and an awareness of her own responsibility’. However, this must be weighed against the fact that the Applicant continued to engage in violent behaviour whilst in custody, although I note that in her evidence she referred to the culture of violence within the prison system, and that she felt obliged to protect herself.

14. The evidence of Dr Dilati as outlined in her report dated 26 April 2023, and in her oral evidence to the Tribunal, assessed the Applicant’s risk of re-offending as ‘moderate’. Dr Dilati referred to the Applicant’s history of drug use, mental health issues and the trauma the Applicant had suffered. Dr Dilati believed that although there were some protective factors, which may mitigate the risk of the Applicant re-offending. It was not possible to rate the risk of re-offending below the moderate level due to the above factors and the Applicant’s ‘history of violence’.

15. It is relevant that the Applicant has been living in the community since April 2020, and there is no evidence of her re-offending. In fact, her evidence, which was supported by the evidence of her partner, Mr AB, was that they lived a quiet, peaceful and harmonious life together, and were very much focused on the welfare of the Applicant’s son, S, and creating positive circumstances which may allow S to live with them in the future.

16. I accept the Applicant’s evidence that she has engaged in drug and alcohol counselling, and that she has sought to address the issues which were instrumental in her offending.

17. I believe that her genuine love and desire to care for her son is a protective factor against future offending. I also accept that she is very sincere in her determination not to relapse into substance abuse. The fact that she is in a loving relationship will clearly be an important support going forward.

18. The Applicant gave evidence that she avoids all of her former contacts from the period when she was using drugs, including her brother.

19. Dr Dilati referred to the fact that it will be important for the Applicant to develop new social networks beyond her son and her partner, and that the Applicant also needs to develop skills which will enable her to work and develop a sense of independence and self-esteem. Overall, there is still much work for the Applicant to do in order to ensure that she is in a positive and supportive environment which will continue to ensure that the Applicant is at the least risk of re-offending.

20. Overall, given the seriousness of the Applicant’s offending and the risk of re-offending I give this consideration heavy weight in favour of non-revocation of the delegates decision.

    PRIMARY CONSIDERATION 2 – FAMILY VIOLENCE:

21. As outlined above, the Applicant’s first offence involved family violence against her then-husband. The Applicant gave evidence that the parties assaulted each other. A fight broke out inside their residence and moved outside onto the street. I note the Applicant was not convicted of any offence and that there is no evidence of any further act of family violence.

22. It is relevant that the Applicant was in an abusive relationship at the time, had recently been sexually assaulted, and that her husband had been questioning the paternity of their child, even though she had not been a relationship with anyone else.

23. Although all family violence must be taken seriously, the circumstances in which the offending occurred are clearly relevant.  The evidence was that the Applicant’s domestic violence occurred in the context of a verbal and physical fight between the Applicant and her former husband, which had clearly escalated over time. The Applicant and her then partner had been in a violent and abusive relationship for some time.

24. In all of the circumstances I give this consideration low- to moderate weight in favour of non-revocation.

    PRIMARY CONSIDERATION 3 – THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

25. The Applicant has lived in Australia for most of her adult life. She is in a stable relationship with her partner, AB, who gave evidence to the Tribunal of his love and respect for the Applicant. This relationship is clearly important to her.

26. Of primary importance however, the Applicant’s son, S, who is now 14 years old and is an Australian citizen. S has been under the care of the New South Wales Minister for Families and Communities since 11 July 2018 and will remain in the care of the Minister until he reaches the age of 18.

27. S currently lives with his paternal Uncle, and the Applicant has regular supervised contact with him for 2 or 3 hours on a monthly basis.

28. It is clear from the evidence that the Applicant is an important person in S’s life, especially as her former husband appears to have returned to Iran and, according to evidence before the Tribunal, has recently died.

29. Although the Applicant’s relationship with S appears to be the major connection with Australia, given her history, it is in my opinion of great importance. She is the child’s mother and I accept the evidence of both the Applicant and Ms Redfern that she genuinely loves S and each is very significant in the life of the other. It is highly unlikely S would be able to leave Australia.

30. The Applicant’s relationship with her partner AB is an important factor in her life, but I note that Mr AB does not have a right to remain continuing residence in Australia.

31. I give this consideration heavy weight in favour of revocation of the cancellation.

    PRIMARY CONSIDERATION 4 – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

32. In weighing this consideration, I take into account that Applicant’s parenting of S at the time he lived with her was found by the relevant authorities to be inconsistent and at times, neglectful. The Applicant was affected by drugs and at times clearly not able to provide a safe environment for S or meet the child’s educational and emotional needs.

33. Ms Redfern gave evidence to the effect that the Applicant is currently attentive to S’ needs and that they have a close relationship.

34. She said that S would not understand his mother’s absence if she were to be removed from Australia, even though he has a caseworker who would try to explain the situation to him. Ms Redfern said it would be very distressing to S if he thought that his mother would not visit him anymore, particularly as she is his only parent in Australia and would definitely not understand why she didn’t come to see him.

35. I give this consideration very heavy weight in favour of revocation of the cancellation decision.

    PRIMARY CONSIDERATION 5 – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

36. Direction 99 sets out the expectations of the Australian community. Broadly, these encapsulate the findings of the Federal Court in FYBR v Minister for Home Affairs FCAFC 185, where the Full Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are set out in direction at paragraph 8.5.

37. In determining the weight to be given to this consideration, I take into account the Applicant’s history of offending, the trauma that she has suffered and her efforts at rehabilitation. The fears she expressed if she were to be returned to Iran are also of some relevance.

38. I also give significant weight to the important role she plays in the life of her son, S, who was said by Ms Redfern to be a child with moderate disability and to be very attached to his mother.

39. Overall, I give this consideration lower to moderate weight in favour of non-revocation of the delegate’s decision.

    OTHER CONSIDERATIONS:

    Legal consequences of the decision

40. There is no finding that the Applicant is owed protection. But I note the evidence she has given in relation to her fears were she to be returned to Iran. Those fears include a commitment not to wear the hijab, not being properly divorced from her husband for the purposes of sharia law and presenting very much as a ‘western style’ woman.

41. A considerable amount of material was filed with the Tribunal in relation to the Iranian regime and the risks that the Applicant might face if returned to Iran. The Applicant is able to apply for a protection visa at some time in the future.

42. In all the circumstances of this case it is not necessary for the Tribunal to reach a conclusion as to the claims for future protection made by the Applicant.[1]

    [1] Plaintiff M1 v Minister for Home Affairs [2022] HCA 17.

43. I give this consideration neutral weight.

    Extend of impediments to removal

44. The Applicant is 36 years old and came to Australia in 2006 when she was 18 years old. Most of her adult life has been spent in Australia.

45. The Applicant is fluent is Farsi, the language of Iran and is familiar with Iranian culture. She has 4 siblings in Iran and gave evidence that she has a close and ongoing relationship with her sister, with whom she communicates on a regular basis. She also speaks, perhaps more irregularly, with two of her brothers. She has no relationship with another brother in Iran.

46. The Applicant receives ongoing treatment for diabetes, but it is likely that treatment for this condition would be available in Iran.

47. I accept that the Applicant’s mental health is likely to deteriorate significantly if she were to be removed, and particularly if she were to lose contact with her son.

48. On the basis of the evidence filed with the Tribunal, I find that the Applicant would be unlikely to receive ongoing mental health treatment at a similar level to that available to her in Australia.

49. I accept the Applicant’s evidence as to her fears of persecution if she were to be returned to Iran, although it has not been possible within the context of this hearing to reach a determination as to whether those fears are well-founded.

50. Overall, particularly given the Applicant’s connection to S, I find this consideration weighs heavily in favour of revocation.

    CONCLUSION

51. In weighing all of the relevant considerations in this case, I am of the view that the evidence weighs in favour of revocation of the delegates decision. 

I certify that the preceding 100 (one-hundred) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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

Associate

Dated: 4 July 2023

Date(s) of hearing:	19 & 20 June 2023
Solicitors for the Applicant:	Stephanie Blaker & Hannah Gray
Solicitors for the Respondent:	Hee-Jung Kim