GYTW and Minister for Home Affairs (Migration) - [2019] AATA 4149

GYTW and Minister for Home Affairs (Migration) [2019] AATA 4149 (9 October 2019)
Division:GENERAL DIVISION
File Number: 2019/4416
Re:GYTW
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:9 October 2019
Place:Melbourne

The Tribunal affirms the decision under review.
.....................[sgd].............................................
Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory visa cancellation – citizen of Iraq – Class XA Subclass 866 Protection visa – failure to pass good character test – multiple convictions between 2011 and 2016 – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth)
Migration Regulations 1994 (Cth)
CASES
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, 104
DGBK v Minister for Home Affairs [2019] FCA 1479
DKXY v Minister for Home Affairs [2019] FCA 495
Falzon v Minister for Immigration and Border Protection [2018] HCA 2
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
Puni v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 915
Re LCNB and Minister for Immigration and Border Protection [2015] AATA 463
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Saleh v Minister for Immigration and Border Protection [2017] AATA 367
Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303
Vargas v Minister for Home Affairs [2019] AATA 3409
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
9 October 2019
INTRODUCTION

The applicant seeks review of a decision by a delegate of the Minister for Home Affairs, made under s 501CA(4) of the Migration Act 1958 (“the Act”), not to revoke the mandatory cancellation of his Class XA Subclass 866 Protection visa (“protection visa”).
APPLICANT’S IDENTITY
Section 501K of the Act provides that the Administrative Appeals Tribunal must not publish (in electronic form or otherwise) any information that may identify a person who has applied for a protection visa, a protection-related bridging visa, or who has had a protection visa cancelled. As this matter relates to the cancellation of the applicant’s protection visa, the Tribunal will refer to him by the anonym “GYTW”. Certain details that might tend to identify GYTW have been redacted, including the identity of witnesses and the names and information of other persons who might identify him.
The initial hearing was held in Melbourne on 25 and 26 September 2019. The applicant appeared in person and was represented by Mr Kelsey-Sugg of counsel, who appeared pro bono, and was instructed by Refugee Legal. The Minister was represented by Mr Cunynghame of Sparke Helmore Lawyers.
On 7 October 2019, the Tribunal recalled GYTW to give further evidence. Due to Mr Kelsey-Sugg’s absence overseas, Mr Carolan of counsel represented GYTW on a pro bono basis.
For the reasons that follow, the Tribunal affirms the decision under review.
BACKGROUND
The factual background to this matter is as follows:
(a)GYTW is a 27-year old citizen of Iraq. He lived in Iraq until 2009 and then travelled through Dubai and Indonesia[1] before arriving in Australia by boat in early 2010.[2] He was subsequently granted a protection visa as a result of his claimed fear of harm in Iraq, which he continues to rely on:
‘The Australian government determined that I was owed protection from Iraq. My fear of returning to Iraq is as great now as it was when I first arrived here – if not greater.’[3]

‘My major concern is that I will be killed if I return to Iraq.’[4]
(b)During almost a decade in Australia, GYTW has been convicted of multiple criminal offences, the most serious of which were two counts of ‘Armed robbery’ in March 2016, for which he remains imprisoned;
(c)GYTW’s visa was mandatorily cancelled on 20 October 2017 by a delegate of the then Minister for Immigration and Border Protection.[5] He was invited to make representations to have the cancellation decision revoked, and did so within the period and in the manner specified under the Act;[6]
(d)On 17 July 2019, a delegate of the Minister decided not to revoke the visa cancellation decision;[7] and
(e)On 23 July 2019 GYTW asked the Tribunal to review the delegate’s non-revocation decision, stating:
‘…the Department of Home Affairs fell into error by failing to give proper, genuine and realistic consideration of a representation made by the applicant with regards to why the s501 mandatory cancellation of the applicant’s visa should be revoked.’[8]
[1] Exhibit R2, 407
[2] Exhibit R1, 68.
[3] Ibid, 117 [29].
[4] Ibid, 63.
[5] Ibid, 153-158
[6] Ibid, 49-65; 67-112.
[7] Ibid, 8-9.
[8] Ibid, 6.
Pursuant to s 500(6L) of the Act, the Tribunal must discharge its review function in respect of this application by 10 October 2019.
STATUTORY FRAMEWORK
A person who is not an Australia citizen, and is in the migration zone while holding a visa that is in effect, is a ‘lawful non-citizen’ (s 13(1) of the Act). Any other non-citizen in the migration zone is an ‘unlawful non-citizen’ (s 14(1) of the Act).
Section 189(1) of the Act requires that an ‘officer,’ as defined in s 5(1), ‘must’ detain a person the officer knows or reasonably suspects is an unlawful non-citizen.
Except in some circumstances, like when the Minister personally makes a decision under s 501 of the Act,[9] the officer must ensure that a detained person is made aware of the provisions of ss 195 and 196 of the Act as soon as reasonably practicable (s 194(a)). Section 195 enables a detainee to apply for a visa within a short period of time. If they do not do so within that time, they may only for a bridging visa or a protection visa. A detained person may also be granted a visa of a particular class if the Minister considers it is in the public interest to do so. For example, s 195A of the Act allows the Minister to grant a visa to a person who is in detention, whether or not the person has applied for the visa. The power must be exercised by the Minister personally (s 195A(5)). The Minister is not obliged to consider whether to exercise the power (s 195A(4)). Section 197AB allows the Minister, if the Minister thinks it is in the public interest to do so, to make a residence determination to the effect that a person reside at a specified place instead of being held in immigration detention. Again, the Minister is under no duty to make such a determination (s 197AE), and is obliged to exercise the power personally (s 197AF).
[9] Migration Act, s 193(1)(a)(iv).
Section 196(1) of the Act provides for the duration of detention, mandating that an unlawful non-citizen detained under s 189 must be kept in immigration detention until removed, deported or granted a visa. Section 196(4) provides, subject to s 196(1)(a), (b) and (c), that if a person is detained as a result of the cancellation of their visa under s 501, the detention is to continue unless a court determines that the detention is unlawful or that the person detained is not an unlawful non-citizen. Section 196(5) provides that s 196(4) applies whether or not there is a real likelihood of the person detained being removed under s 198 or s 199 in the reasonably foreseeable future and whether or not a visa decision relating to the detained person is, or may be, unlawful.
Section 198(2B) was inserted into the Act by Item 11 of Schedule 1 to the Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth) and provides that:
An officer must remove as soon as reasonably practicable an unlawful non-citizen
if:
(a) a delegate of the Minister has cancelled a visa of the non-citizen under subsection 501(3A); and
(b) since the delegate’s decision, the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and
(c) in a case where the non-citizen has been invited, in accordance with section
501CA, to make representations to the Minister about revocation of the delegate’s decision—either:
(i) the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii) the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.
Section 197C(1) of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. Section 197C(2) provides that:
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.
The purpose of introducing s 197C into the Act is contained in the Explanatory Memorandum (“EM”) to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. Clauses 1132 to 1146 of the EM relate to the application of s 197C to Australia’s non-refoulement obligations:
1132. The effect of new section 197C is to make it clear that in order to exercise the removal powers under section 198 of the Migration Act an officer is not bound to consider whether or not a person who is subject to removal engages Australia’s non-refoulement obligations before removing that person.
1133. In recent years judicial review of protection visa refusal decisions has led to a number of broad and unintended interpretations of Australia’s protection obligations under the Refugees Convention and other international treaties. There has been a trend of jurisprudence favouring an approach whereby the provisions of the Migration Act are construed in light of presumed legislative intention for the Migration Act as a whole to facilitate Australia’s compliance with its obligations under the Refugees Convention.
…
… These decisions have had significant impact on the Government’s ability to remove unlawful non-citizens from Australia under section 198 of the Migration Act.
1136. Prior to this recent jurisprudence, section 198 of the Migration Act created an obligation to remove unlawful non-citizens in the circumstances prescribed in section 198 and this duty was not constrained by reference to Australia’s international obligations…. This was because it was understood that Australia’s international obligations had already been considered during separate processes prior to removal, for example when considering the person’s application for a protection visa or when the Minister was considering the use of his or her personal powers.
1137. In general terms, the amendments in this item are intended to restore the situation to that arising prior to the jurisprudence noted above by making it clear that the removal powers are separate from, unrelated and completely independent of, any provisions in the Migration Act which might be interpreted as implementing Australia’s non-refoulement obligations.
…
1140. The amendments are intended to put it beyond doubt that the purpose of section 198 is not to respond to international protection obligations, but to provide officers with the duty to remove unlawful non-citizens from Australia in the circumstances set out in section 198 of the Migration Act.
1141. This means that the duty to remove in section 198 of the Migration Act arises irrespective of whether or not there has been an assessment, according to law or procedural fairness, of Australia’s non-refoulement obligations in respect of the non-citizen.
1142. Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in section 198 of the Migration Act. For example, Australia’s non-refoulement obligations will be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under sections 46A, 195A or 417 of the Migration Act.
…
1146. The above mechanisms enable non-refoulement obligations to be addressed before a person becomes ready for removal. At the removal stage, an officer will not be bound to check whether or not the Minister has considered exercising his or her personal powers when assessing if a person is subject to removal under section 198 of the Migration Act. If an unlawful non-citizen satisfies one of the conditions specified in section 198, the officer must remove the unlawful non-citizen as soon as reasonably practicable and it is not open to the non-citizen to challenge their removal on the basis that there has been no assessment of protection obligations according to law or procedural fairness.
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AATA”) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions of a delegate of the Minister under s 501CA not to revoke a visa cancellation.
The object of the statute of which s 501(3A) is a part, is to regulate, in the national interest, the presence in Australia of non-citizens, and the removal or deportation from Australia of non-citizens whose continuing presence is not permitted by the Act (ss 4(1) and 4(4)). As the High Court stated in Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [45]:
Section 501(3A) constitutes a legislative judgment that a class of persons identified by two features – offending and imprisonment – are not to remain in Australia. This is consistent with the object of the Migration Act, namely, to regulate the coming into and presence in Australia of non-citizens.
(Footnote omitted).
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test by virtue of having a substantial criminal record and the person is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and refers to a range of character-related matters that the Minister or their delegate may have regard to in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). Section 501(6)(a) of the Act provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and to invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision if the person whose visa has been cancelled makes representations in accordance with the invitation and the Minister is satisfied that the person passes the character test, or that there is another reason why the original decision should be revoked.
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”). Section 499(2A) mandates that a body having functions or powers under the Act, such as the Tribunal, must comply with the Direction.[10]
[10] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9] per Collier, Flick and Perry JJ. See also: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J.
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Paragraph 6.1 of the Direction sets out a number of objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
By way of general guidance, paragraph 6.2 of the Direction provides that:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) ….
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA,
The principles referred to under the General Guidance are reproduced below and constitute a framework within which decision-makers apply the considerations in Parts A, B, or C of the Direction:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

Paragraph 7(1)(b) of the Direction provides that in cases relating to the mandatory cancellation of a visa, a decision-maker ‘…must take into account the considerations in Part C …’ The following primary considerations at paragraph 13(2) of the Direction must be applied in determining whether to revoke a mandatory visa cancellation:
a.    Protection of the Australian community from criminal or other serious     conduct;
b.    The best interests of minor children in Australia; and
c.    Expectations of the Australian community.
Paragraph 14(1) of the Direction requires that other considerations must be taken into account in deciding whether to revoke the mandatory cancellation, which include but are not limited to:
a.    International non-refoulement obligations;
b.    Strength, nature and duration of ties;
c.    Impact on Australian business interests;
d.    Impact on victims;
e.    Extent of impediments if removed.
Paragraph 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Paragraph 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’
Paragraph 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Paragraph 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57] and [78], in relation to previous ministerial directions:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
DOES GYTW PASS THE CHARACTER TEST?
On 4 March 2016 GYTW received a total effective sentence of four years and six months imprisonment.[11] Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, he does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the mandatory cancellation of his visa.
[11] Exhibit R1, 33.
ISSUE TO BE RESOLVED
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the mandatory cancellation of the applicant’s visa should be revoked. The task of identifying ‘another reason’ was recently elaborated upon by the Full Court of the Australian Federal Court in Viane:[12]
‘There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.’
[12] Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13 per Colvin J at [64].
EVIDENCE BEFORE THE TRIBUNAL
The following materials were taken into evidence:
(a)“G-Documents” numbering 222 pages;[13]
(b)Supplementary G-Documents numbering 558 pages;[14]
(c)Statutory Declaration of the applicant dated 25 September 2019;[15]
(d)A Risk Assessment and Report by Consultant Forensic and Clinical Psychologist, Dr Astrid Birgden dated 16 September 2019, commissioned by GYTW’s legal representatives;[16] and
(e)GYTW’s outgoing and incoming passenger cards relating to his overseas travel in 2011, 2013, and 2014.[17]
[13] Exhibit R1;
[14] Exhibit R2
[15] Exhibit A1. The document was lodged with the Tribunal on 20 September 2019 and was signed by GYTW prior to his evidence in chief on the first day of the hearing.
[16] Exhibit A2.
[17] Exhibit T1.
The following witnesses gave oral evidence at the hearing:
(a)GYTW;
(b)GYTW’s cousin;
(c)the wife of GYTW’s cousin; and
(d)Dr Birgden (by telephone).
Convictions
On 21 June 2011, GYTW was convicted in the Norseman Magistrates’ Court in Western Australia for: Unauthorised driving while holding a Probationary Motor Vehicle Licence; Reckless driving (155 km/h); and Fail to display P Plates, for which he was fined $1600 and had his licence disqualified for six months.[18]
[18] Exhibit R2, 451.
GYTW’s National Police Certificate[19] discloses the following convictions:
(a)17 February 2014: Unlawful assault; Criminal damage (intent damage/destroy); five counts of Drive whilst disqualified; State false name or address; two counts of State false name; Fail to answer bail; and Use unregistered motor vehicle – highway. GYTW was sentenced to a 15-month community correction order (“CCO”) and was ordered to perform 120 hours of unpaid community work;
(b)23 June 2014: Breach re 17/02/2014. GYTW was found to have contravened his February 2014 CCO;
(c)17 July 2014: Recklessly cause serious injury, for which GYTW was sentenced to a two-year CCO, and ordered to perform 200 hours of unpaid community work;
(d)10 December 2015: Use controlled weapon without excuse and Behave in riotous manner in public place, for which GYTW was convicted and fined an aggregate of $1,500.00;
(e)4 March 2016: Two counts of Armed Robbery, for which GYTW was sentenced to three years imprisonment on each count, with two years of the second count to be served concurrently. The court also found GYTW had breached his 17 July 2014 CCO and he was resentenced to six months imprisonment for the earlier Recklessly cause serious injury conviction. His total effective sentence was four and a half years, with a non-parole period of three years;
(f)20 April 2016: Theft; Possess methylamphetamine (commonly known as ice); two counts of Contravene a conduct condition of Bail Granted; Commit indictable offence whilst on bail; four counts of Unlicensed driving; Drive whilst disqualified; two counts of Fail to answer Bail Granted; Careless driving of a motor vehicle; Enter place likely cause breach of peace. GYTW was sentenced to an aggregate of five months imprisonment. He was also found to have breached the CCO imposed on 23 June 2014 and was resentenced on those charges to an aggregate of two months’ imprisonment; and
(g)4 May 2016: Fail to answer Bail granted. GYTW was convicted and fined $500.00 with $117.00 statutory costs.
[19] Exhibit R1, 30-32.
Sentencing Remarks
The Tribunal has considered the 2016 sentencing remarks from the County Court of Victoria (“2016 sentencing remarks”),[20] which are discussed later in these reasons.
[20] Ibid, 33-43.
Medical Evidence
The Tribunal notes three psychological reports in evidence that were all commissioned by GYTW’s legal representatives:
(a)A report by forensic psychologist Dr Michelle Wauchope dated 7 July 2014,[21] to whom GYTW was referred by his legal representatives ahead of an appearance at the Melbourne County Court on the Recklessly cause serious injury charge. Dr Wauchope did not give evidence at the hearing;
(b)A report by forensic psychologist Mr David Ball dated 11 February 2016,[22] to whom GYTW was referred by his legal representatives ahead of an appearance at the Melbourne County Court on the Armed Robbery charges. Mr Ball did not give evidence at the hearing; and
(c)A report by consultant forensic psychologist Dr Astrid Birgden dated 16 September 2019,[23] to whom GYTW was referred by Refugee Legal ahead of the current hearing. Dr Birgden gave oral evidence at the hearing and was cross-examined.
[21] Ibid, 128-138.
[22] Ibid, 139-144
[23] Exhibit A2.
GYTW’s evidence
In his oral evidence GYTW recounted his early life in Iraq and the circumstances of his arrival in Australia almost a decade ago. He discussed the challenges of being raised as a Sunni Muslim, initially within a predominantly Shia province in Iraq. He claims to have attended school to Year 11 and then worked as a labourer at an American military base, where his father also worked. GYTW said his family was persecuted by ‘Shia extremists,’[24] because of their ‘faith and …connection to the US.’[25] He claims his family relocated to Basra, which had a much larger Sunni population.
[24] Exhibit R1, 113 [2].
[25] Ibid.
GYTW said that in Basra his family and the broader Sunni community continued to be ‘targeted by Shia militia.’ He subsequently left Iraq with his parent’s assistance and travelled alone to Australia, arriving here just prior to his 18^th birthday. GYTW said his family also subsequently left Iraq and has since lived in Dubai, with the exception of an older brother who lives in Turkey. GYTW could not recall when his family commenced living in Dubai. It was put to him that given frequent conversations with his family since arriving in Australia, he should have a better sense of their movements. GYTW said his parents left Iraq in about 2011 for Dubai, but remained citizens of Iraq. He did not know their current visa status in Dubai. It was put to GYTW that Dr Wauchope recorded him telling her in July 2014 that his parents were still living in Iraq at that time,[26] to which GYTW responded:
‘It could have been my mistake. I didn’t tell her everything in my life.’
[26] Ibid, 129 [2]-[3].
GYTW had previously stated in written submissions that he has three uncles and two cousins of Iraqi nationality, but had not completed the section of the form relating to their country of residence.[27] Moreover, he contended that he had ‘no contacts [in Iraq] anymore.’[28] When asked about these uncles and cousins during the hearing, GYTW confirmed they lived in Iraq, but claimed he does not communicate with them. He stated that he speaks to his parents in Dubai less frequently than in the past, approximately once a month. He claims that he does not communicate with his siblings at all. When asked if he could live with his parents in Dubai, GYTW said he could not because he had renounced his religion, changed his name and was bisexual. He said his parents were ashamed of him as a consequence and were unwilling to put their residence in Dubai at risk by meeting him there. GYTW stated in relation to other relocation options: ‘I can live anywhere for a month or two, but people will find out about me.’ When asked by the Tribunal about his three international departures from Australia since 2010,[29] GYTW claimed he had travelled to Syria on each occasion to spend time with his parents. GYTW was subsequently recalled to give further evidence about this issue on 7 October 2010, following receipt of his outgoing and incoming passenger travel cards, which contradicted his claims about only travelling to Syria. This issue is explored later in these reasons.
[27] Ibid, 60.
[28] Ibid, 117.
[29] Ibid, 44.
GYTW was questioned about inconsistencies in his evidence regarding aspects of his family history. He was referred to Dr Wauchope’s report in which she records: ‘he maintains that his family is different to most because his mother has a lot of say in what goes on with their family…’ GYTW agreed he had told Dr Wauchope that he came from a ‘stable, loving, interested and present parents who he was securely attached to.’[30] He also agreed with the description recorded by Dr Wauchope that his father was a ‘soft person’ and a ‘really good father,’ who ‘can’t do anything’ without GYTW’s mother, and the family was ‘given the choice about religion and whether they wanted to pray…’ It was put to GYTW that this conflicted with the report of forensic psychologist Mr Ball some 18 months later, who records GYTW as describing his family as ‘dysfunctional,’ and GYTW’s father as being ‘often violent towards family members and particularly his mother.’[31] GYTW responded: ‘I never said that.’ When asked to explain why Mr Ball would include such a specific reference, GYTW responded: ‘I can’t explain it – I did not say that.’
[30] Ibid, 133.
[31] Ibid, 142 [ Family of Origin].
GYTW was asked about inconsistencies in the evidence regarding his family’s religious observance. Specifically:
(a)GYTW states in his 2018 Statutory Declaration that his family are ‘strict Sunni Muslims’.’[32] As a consequence, he claimed: ‘My family are upset at me because I no longer follow Islam…Psychologically this had a huge effect on me.’[33]
(b)Dr Wauchope’s 2014 report, however, records GYTW as telling her his parents were ‘not devout or strict practicing Muslims,’[34] and they ‘were given the choice about religion and whether they wanted to pray 5 times a day or not.’[35]
(c)The Tribunal notes that at GYTW’s 2016 trial on armed robbery charges, her Honour accepted that GYTW had ‘reconnected with his religion’[36] as a positive factor relevant to his rehabilitative prospects. GYTW’s evidence now is that he has actively turned away from his religion since arriving in Australia and this constitutes a risk factor preventing his repatriation to Iraq. In an August 2018 Statutory Declaration, approximately two-and-a-half years after his 2016 trial, GYTW stated that the submission to the court about reconnecting with his religion was not true:
‘I am aware that when I was sentenced in 2016, my lawyer said that I had reconnected with my religion. This is incorrect...’[37]
[32] Ibid, 113 [2]; 114[10].
[33] Ibid, 116 [20]-[21].
[34] Ibid, 129 [3].
[35] Ibid, 130 [4].
[36] Ibid, 39 [37].
[37] Ibid, 117 [32].
Mr Kelsey-Sugg also confirmed during the hearing that the reference to GYTW reconnecting with his religion had been ‘erroneously made’ at the 2016 trial.
When pressed about the inconsistencies in evidence relating to his family’s religious observance, GYTW explained his family in Iraq was ‘a little bit open compared to other families’ when it came to religion, but insisted that openness was ‘within limits.’ He said his mother still wore a hijab, but his parents did not force the children to pray five times a day, or to fast when hungry.
GYTW elaborated upon his early years in Australia, stating that he spoke ‘zero English’ on arrival. He stayed on Christmas Island for approximately three months before being released from immigration detention and given a protection visa. He originally lived in Queensland and quickly learned to speak English, but found it difficult to get a job. He also tried to find work in Sydney and Perth before eventually moving to Melbourne. He arrived in Melbourne in approximately mid-2011 and lived with his cousin and ‘other Iraqi guys’ in a share-house. He was closest to his cousin, who he has known his entire life (because GYTW’s mother and his cousin’s mother are sisters). GYTW said by this time he had a driver’s licence and security licence. He transferred his security licence to Victoria and started working in night clubs.
GYTW said he experienced a ‘personal transformation’ following his arrival in Australia, during which he turned his back on Islam and felt free to express his bisexuality. He changed his Arabic name because he wanted to distance himself from its religious connotations.[38] It was put to GYTW that there was no mention in any of the three reports prepared by the psychologists he had been referred to by his lawyers about bisexuality. GYTW said he didn’t think his bisexuality was a relevant issue to raise with Dr Wauchope, stating: ‘I didn’t mention everything in my life.’ He also did not raise his bisexuality with Mr Ball, because he was ‘scared…in jail…[and]…didn’t want others to hear it.’ GYTW claimed he has had multiple sexual relationships with men since arriving in Australia. He reiterated on a number of occasions that by turning against his religion, changing his Arabic name, and having sexual relations with men, such conduct would be perceived with ‘great shame’ in the Muslim community, which caused problems for him in Australia and prevented his return to Iraq.[39]
[38] Ibid, 114 [10].
[39] Ibid, 114 [13].
GYTW recounted an incident in Australia in 2011, which he claimed has deeply affected him. He said that he was with a friend from Perth and they met two girls. GYTW said he took the four of them for a drive, during which they were ambushed at a remote place by five people, one of whom had an axe. GYTW said he was almost struck by the axe but somehow managed to drive away with the intention of immediately reporting the incident to police. He claimed that on arrival at the police station, one of the girls alleged GYTW had tried to rape her, following which GYTW claimed:
‘The police stripped me naked and started terrorising me, calling me an Arab rapist and a Muslim dog. I was naked in front of all of them.’
GYTW said detectives arrived from Melbourne later that day and ‘did a DNA test.’ He claims no charges were laid and he was released the following morning. When questioned by the Tribunal about the relevance of the purported DNA test and the apparent speed with which it had been completed, GYTW’s responses did not clarify the circumstances of his purported arrest and release. GYTW said he later submitted a Victims of Crime application due to being treated so badly by police, ‘but nothing happened.’ No corroborating evidence of the Victims of Crime application was available to the Tribunal.
In relation to his drug addiction, GYTW claimed to have been introduced to illicit drugs while working in night clubs. He said drug dealers offered him drugs ‘to make me one of their friends.’ He said he started taking drugs ‘at the end of 2011.’ When asked by Mr Kelsey-Sugg what drugs he took, GYTW responded: ‘Ice, Marijuana and alcohol.’ When asked how often, GYTW responded ‘about every weekend,’ stating that he took drugs at work and socially.
During cross-examination, GYTW was referred to the report of Forensic Psychologist Dr Michelle Wauchope dated 7 July 2014,[40] in which a different history of his drug-taking and alcohol consumption was noted. Dr Wauchope recorded that GYTW:
(a)began drinking at 16 years of age, once a month or so, and his drinking increased to around 3-4 times a week once he turned 18 and he would get ‘very drunk’;
(b)‘began consuming ice for the first time in March 2013, and he was consuming this most days until he stopped in July 2013;’
(c)had tried cocaine around three times while clubbing.
[40] Ibid, 128-138.
GYTW recalled meeting Dr Wauchope at the request of his then legal representatives, but claimed he could ‘not really’ remember talking to her about his drug history. Despite not recalling their conversation, GYTW nevertheless disagreed with Dr Wauchope’s record of his alcohol history, claiming he had only told her that he tried alcohol at 16 and, after moving to Melbourne, ‘sometime after work we drink.’ He remembered telling Dr Wauchope that he had tried cannabis for the first time in 2013, but disagreed that she had accurately recorded his drug history:
‘That’s not when I started or stopped. That’s what every drug user says. I did say to her that I stopped, but I’m a drug user. You relapse again and again and again until you stop.’
During re-examination, GYTW said he told Dr Wauchope that in relation to his alcohol use, he had trialled it at 16, but when he came to Australia he had more to drink. In relation to cannabis, he claimed to have told Dr Wauchope that it became a frequent habit in 2013. GYTW said that Dr Wauchope’s reference to him starting to use ice for the first time in March 2013 and stopping in July 2013 may have been ‘a misunderstanding’, but was incorrect. He said there had been no interpreter during their consultation.

GYTW agreed with Mr Kelsey-Sugg that his life in Australia had been heavily influenced by ice. As a result of a criminal offence in June 2012, during which he claims to have been affected by ice, he was subsequently convicted of Recklessly cause serious injury. GYTW agrees he bit off the earlobe of a man he was involved in a fight with (“ear-biting incident”). When asked by Mr Kelsey-Sugg to elaborate, GYTW said girls ‘and guys’ had been coming over to the house he shared with his cousin and other Iraqi men. He described one of the share house occupants as ‘a Shia’ who objected to GYTW’s non-observance of religion, Western ways, and bisexual relationships. GYTW said he moved out of the share house, but during a subsequent encounter a fight ensued, at which he claimed the victim ‘had 10 Iraqi Shia with him.’ GYTW claims he told the men to leave him alone and that he did not want to fight, but the victim initiated the fight. GYTW said police contacted him a few days after the incident, characterising their approach as follows:
‘They said ‘so you want to be a gangster;’ the usual Police stuff. I tried to explain but the Police don’t understand that.’
GYTW agreed that he had been placed on a CCO after this incident, claiming he did not understand what the order meant or what the consequences would be if he did not comply. He submits that he now understands the importance of complying with such orders. GYTW said that as a result of his conviction from the ear-biting incident, his security licence was withdrawn, which effectively ended his employment in that industry. He claimed to have started using more drugs as a consequence, stating his use of ice became a daily habit for an approximately two-year period from the middle of 2013 until approximately June or July 2015, just prior to his imprisonment.
GYTW agreed with Mr Cunynghame’s proposition that he had not told the truth when first interviewed by police about the ear-biting incident, by denying his involvement. He agreed this was because of concerns about his work as a security guard and his immigration status. During re-examination, GYTW submitted that although he had initially denied involvement in the ear-biting incident, he had subsequently pleaded guilty on the second day of the trial.[41] When asked by Mr Cunynghame to elaborate on his concerns about the consequences of this conviction, GYTW said he was concerned about being able to gain Australian Citizenship and an armed guard licence in the future. After this incident he could not get an armed guard licence.
[41] Exhibit R2, 473.
GYTW agreed with Mr Cunynghame that after the ear-biting incident, he received bail, but then committed multiple driving offences.[42] When asked why, GYTW claimed: ‘I wasn’t thinking straight – I was on drugs.’ When asked whether he recalled being intercepted by police, GYTW responded: ‘too many times.’ GYTW recalled providing false names to police. When asked why, he responded: ‘So I didn’t get in trouble.’ When asked whether his convictions in February 2014 for Criminal damage (intent damage / destroy) and Unlawful assault related to his attendance at his ex-girlfriend’s house and damaging her car, GYTW responded:
‘I recall having an argument with [former partner]. She made up this story. I didn’t do nothing to her or her car.’
[42] Exhibit R1, 32, convictions in February 2014.
The Tribunal considered that GYTW was attempting to deny guilt for his convictions of Criminal damage (intent damage / destroy) and Unlawful assault in February 2014, and directed him to the entries relating to these convictions in his National Police Certificate. The Tribunal reminded GYTW he could not impugn his criminal convictions.
GYTW was referred by Mr Cunynghame to his offences in December 2015 for Use controlled weapon without excuse and Behave in a riotous manner in public place, which he recalled as occurring at a Melbourne café. GYTW explained he was eating at the cafe with his cousin when he saw ‘a big number of boys coming with baseball bats.’ He claimed to fear for his life and ran to the kitchen to get a knife. He said the assailants started smashing his cousin’s car and he used the knife to scare them off, claiming he: ‘got charged for defending myself.’ When it was put to GYTW that Police believed this incident related to a drug debt, GYTW stated: ‘They are drug dealers and they created problems for me….They used drugs to control my life.’ He insisted, however, that the attack was linked to Shia-Sunni enmity and disapproval of GYTW’s lifestyle in Australia.[43] When asked if he owed a drug debt to these men, GYTW replied: ‘No.’
[43] Exhibit R1, 116[19].
GYTW agreed that he had been convicted of possess methylamphetamine in April 2016 and initially denied to police that the drugs were his. He also agreed he had been convicted of ‘Enter place likely to cause breach of peace.’ GYTW explained that police had asked him to leave a bank and he left. But the police then tried to move him on in front of the bank, which he refused to do, resulting in his arrest. When asked if he had abused police, GYTW responded: ‘I did not.’ When referred to the police account of the incident, which recorded GYTW as stating to police ‘I’m not fucking leaving,’[44] GYTW agreed he had used those words, but only outside the bank. When asked to whom he had directed the remark, GYTW stated: ‘To the officer when he directed me to keep walking.’ GYTW agreed he had been on a CCO at the time of this offence.
[44] Exhibit R2, 82.
GYTW was asked by Mr Kelsey-Sugg about the two armed robberies he committed in June 2015, agreeing that the 2016 sentencing remarks fairly set out the factual circumstances of the armed robbery committed on 20 June 2015. When asked by Mr Kelsey-Sugg if he considered her Honour’s description of the armed robbery on 22 June 2015 was also accurate,[45] GYTW replied ‘not all of it.’ The Tribunal was unwilling to hear further submissions by GYTW that might be considered to impugn the court’s findings.[46] This issue is dealt with later in these reasons. During cross-examination, GYTW agreed he was on a CCO at the time of these armed robberies, which had been committed late at night against people the court described as members of the community who were ‘alone and vulnerable.’[47] He agreed that he had waved a meat cleaver around at the second armed robbery and threatened to kill the console attendant. GYTW agreed he had been given bail after these robberies, but three days later had failed to comply with his bail conditions, which caused him to be remanded in custody.
[45] Exhibit R1, 35 [10].
[46] Minister for Immigration and Multicultural Affairs v SRT (1999) FCA 1197 (“SRT”).
[47] Exhibit R1, 37 [18].
GYTW was referred by Mr Cunynghame to records stating that his previous compliance with orders of the court and rehabilitation had been very poor. This included completing only two hours of 140 hours of unpaid community work,[48] and frequently breaching the supervision and community work requirements of his CCO.[49] When asked why, GYTW responded: ‘I was on drugs.’ When asked about his court-ordered rehabilitation program, GYTW explained:
‘I had a couple of sessions to try and help me, but it didn’t work at that time…It did help, but not enough to stop using drugs.’
[48] Exhibit R2, 433,
[49] Ibid, 431.
GYTW said he was deeply ensnared in drug addiction at the time of his armed robberies and felt ‘lost,’ with no money and no job:
‘…I had no money and I knew I couldn’t ask others for money…I just needed to pay for my addiction.’[50]
[50] Exhibit R1, 116 [23].
GYTW submits that he ‘needed more help at that time’ to stop using ice and move on with his life. GYTW submitted that if it were not for drugs, he never would have committed any offences. He claimed to now be a ‘normal person’ and no longer on ice. He claimed to now feel deeply embarrassed and remorseful about his offending. GYTW said he had matured during four years in prison and had learned the importance of remaining abstinent from drugs. He stated: ‘Before I was a stupid kid,’ but now appreciated what Australia had done for him and wanted to live a productive and law-abiding life if released. GYTW claimed to have been abstinent from drugs in prison, despite claiming they were readily available ‘for free.’ He said people in prison were willing to give him drugs ‘for free’ to ensnare him in dependency, but he had resisted the offers and had passed all of the drug tests administered to him.
It was put to GYTW towards the end of the first hearing day that he had not referred except in passing to his victims. GYTW said he had been a victim himself in his life and knew how they felt. If allowed to remain in Australia, he wanted to approach the victims at an appropriate time in the future, ‘give them flowers and say sorry.’
GYTW said he kept busy in prison by working in his unit. He claimed to look after 50 prisoners, kept their living area clean and made sure everyone got their meals. He had previously worked in the prison timber factory, but during his first week he accidently cut off part of the little finger on his left hand. He had subsequently submitted a compensation claim and was hopeful of receiving a payout. In that event, he planned to apply for a truck licence on release, ‘buy a truck and get to work.’ When asked what his plan would be if he did not receive a compensation payout, GYTW said he would do any work.
In terms of rehabilitation, GYTW said he had undertaken courses relevant to his violent offending and how to avoid drugs and alcohol. He said the ‘Moderate Violence Course’ was one of the best courses he had ever done, which went ‘went through everything in [his] life.’ The drug and alcohol course enabled him to relate the teachings to his own experiences of addiction and how best to deal with relapse. He claimed to have also undertaken a ‘Courageous Communication’ course on how to ‘deal with bad situations,’ an English course, a ‘White Card’ and forklift courses.
If released, GYTW said he would live with his cousin, who he had previously resided with since 2011. His cousin’s wife and their two children would reside in the same home. His cousin was an Uber Driver and his wife was unemployed because she looked after the couple’s two children. His cousin had offered to provide accommodation and financial support until GYTW could look after himself.
GYTW said he had broken up with a long-term girlfriend in early 2019, a relationship he described as turbulent and characterised by frequent conflict. He claimed to have ended the relationship because his former girlfriend’s father was putting constant pressure on her to marry. Due to his extended imprisonment, GYTW said he did not think it was fair she kept waiting for him. Notwithstanding his criminal damage conviction following an incident at the home of this former girlfriend, GYTW claimed they were still on good terms and she remains supportive of him. When asked why no statement had been provided by his former girlfriend for the present hearing, GYTW said he had ‘told her to move on…I don’t want to confuse her life.’
GYTW said that since breaking up with his former girlfriend, he had formed a relationship with a new girlfriend. He submits that his new girlfriend visits him in prison and is willing to provide him with practical support if released. The Tribunal noted there was no written statement from the new girlfriend GYTW referred to. She was not called as a witness, nor did she attend the hearing. The submission about what support she may be able to provide to GYTW upon release had also not previously been made in the material lodged for this matter. The Tribunal held that pursuant to the two-day rule in sections 500(6H) and 500(6J) of the Act, regard could not be had for oral submissions that had not been set out in a written document and given to the Tribunal and the Respondent on or before close of business 20 September 2019.
In relation to his cousin’s eldest child, who was aged three, GYTW said they shared a very close relationship, despite her being born while he was imprisoned. He said the child’s parents brought the child to visit him in prison on a number of occasions. His cousin’s youngest child was only eight weeks old at the time of the hearing and GYTW said they had never met. GYTW said he wanted to be involved in the eldest child’s upbringing, aspiring to ‘help her have a good future and show her how to do the right things in life.’
In relation to possible repatriation to Iraq, GYTW said he could never return there. He had left Iraq because he was Sunni and irrespective of where he went, people would find out about his Sunni origins and the life he had led in Australia, for which he would face death:
‘I’m bisexual and I’m not practicing my religion. I would be killed…My family doesn’t live in Iraq any more. They can’t help me…They have disowned me, but they still talk to me.’
It was put to GYTW that he seemed to have few personal connections in Australia, with only his cousin and his cousin’s wife lodging supportive statements. GYTW explained that he had received considerable assistance after arriving in Australia, but those assisting him had ‘moved away’ as a result of his drug addiction and crimes. He was too embarrassed to reconnect with them until he was ‘a good person again.’ In response to questions about his contribution to Australia, GYTW referred to limited employment prior to losing his security licence. When given an opportunity to elaborate on any other contributions like volunteering, GYTW said he has not undertaken any volunteer work.
GYTW recalled to give evidence – 7 October 2019
During the pre-hearing phase of this matter, GYTW’s legal representatives submitted that ‘at no time has the Applicant returned to Iraq,’ and his movement record ‘only provides flight details into and out of Australia, not the final port of arrival or departure.’[51] It was further submitted that as a ‘person to whom Australia owes protection obligations,’ GYTW cannot be returned to Iraq.[52]
[51] Ibid, 1 [1].
[52] Applicant’s Further Facts and Contentions of Law, dated 20 September 2019.
At the hearing on 25 September 2019, the Tribunal asked GYTW about three episodes of international travel he has taken since arriving in Australia: for approximately two months in 2011; for approximately one month in 2013; and for approximately three weeks in 2014.[53] GYTW claimed that on each occasion he flew to Syria to meet his parents. The exchange between GYTW and the Tribunal regarding his international travel follows:
[53] Exhibit R1, 44.
‘Senior Member: There’s an issue I’d like to explore that’s not clear to me, the papers before me show at page 44, if you go to page 44, that you have departed and returned to Australia on three subsequent occasions since 2010, for approximately 2 months in 2011, for approximately 1 month in 2013 and for approximately 3 weeks in 2014. Where did you go for 2 months…in 2011?
GYTW: Syria.
Senior Member: Pardon?
GYTW: Syria.
Senior Member: To Syria?
GYTW: Yes.
Senior Member: where did you go in Syria?
GYTW: Sham.
Senior Member: Ok – You went to Sham, and for what purpose?
GYTW: Meet up with my family.
Senior Member: Which family members?
GYTW: Mum and Dad.
Senior Member: And in 2013?
GYTW: Same, all of them.
Senior Member: Syria as well?
GYTW: Yes, all of them.
Senior Member: And then 2014.
GYTW: Yes.
Senior Member: So all of those visits were to Syria to meet up with your mother and father?
GYTW: Yes.’
The Tribunal asked the respondent during the hearing to seek instructions about the availability of GYTW’s outgoing and incoming international travel cards (“travel cards”), which was not objected to by Mr Kelsey-Sugg. The respondent subsequently lodged the requested travel cards on 3 October 2019, which state that the country GYTW spent most time in during his 2013 and 2014 travel was ‘Iraq.’ These cards state that the purpose of travel was ‘Visiting friends or relatives.’ The Tribunal directed that a further hearing be held on Monday 7 October 2019, so that GYTW could respond to what appeared to be contradictory evidence about the destinations of his international travel.
At the hearing on 7 October 2019, Mr Carolan objected to GYTW being recalled and to the travel cards being taken into evidence. He said the relevant law was reflected at page eight of Jagroop v Minister for Immigration and Border Protection (Jagroop),[54] and that the present matter did not give rise to circumstances in which the respondent may be permitted to re-open the case. Mr Carolan said that pursuant to s 39(1) of the AATA, the Tribunal was obliged to ensure that every party to a proceeding was given a reasonable opportunity to present their case, and the respondent had already been afforded such an opportunity at the earlier hearing. Mr Carolan also referred to s 500(6K) of the Act, which the Tribunal did not consider was apposite in this matter.
[54] [2014] FCAFC 123.
The Tribunal dismissed Mr Carolan’s objection because:
(a)the present matter is distinguished from Jagroop in that it is a decision of the Tribunal, not one of the parties to recall GYTW. The Tribunal elected to do so after requesting and receiving information that appeared to contradict GYTW’s earlier evidence;
(b)the Tribunal’s request for the travel cards at the earlier hearing had not been objected to by counsel for GYTW;
(c)pursuant to s 33(1)(c) of the AATA, the Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate;
(d)procedural fairness required the Tribunal to put potentially adverse information to GYTW for a response;
(e)the information contained in the travel cards is within GYTW’s personal knowledge and is probative to the Tribunal’s consideration of whether there is another reason why the mandatory cancellation of GYTW’s visa should be revoked; and
(f)GYTW’s legal representative had been put on notice about the existence of the travel cards, receiving copies of them from the respondent four days earlier.
After dealing with Mr Carolan’s objections and prior to hearing from GYTW, the Tribunal adjourned proceedings to enable Mr Carolan to consult with his client. After resuming, the Tribunal informed GYTW that pursuant to s 62(4) of the AATA, the requirement to answer questions in relation to the travel cards did not apply if doing so might tend to incriminate him. GYTW stated that he understood his rights in this regard.
The Tribunal noted that the information in the travel cards appeared to contradict GYTW’s earlier oral evidence about only travelling to Syria to meet his parents. The travel cards record, however, that GYTW travelled to Iraq during his 2013 and 2014 international travel. The following information is recorded on these travel cards:
2011 Travel
(a)In an outgoing passenger card dated 29 October 2011, it states that the country the passenger would spend most time in while abroad was ‘Dubai,’ and the main reason for overseas travel was ‘Holiday;’ and
(b)In an incoming passenger card dated 22 December 2011 (Arabic version), it states at ‘C’ that the country the passenger spent most time in while abroad was ‘Syria.’
2013 Travel
(a)In an outgoing passenger card dated 17 July 2013, it states that the country the passenger would spend most time in while abroad was ‘Iraq’ and the main reason for overseas travel was ‘Visiting friends or relatives;’ and
(b)In an incoming passenger card dated 13 August 2013, it states that the country the passenger had spent most time in while abroad was ‘Iraq.’
2014 Travel
(a)In an outgoing passenger card dated 7 March 2014, it states that the country the passenger would spend most of time in while abroad was ‘Iraq’ and the main reason for overseas travel was ‘Visiting friends or relatives;’ and
(b)In an incoming passenger card dated 1 April 2014, it states that the country the passenger had spent most time in while abroad was ‘Iraq.’
GYTW evidence 2013 travel cards

When asked by Mr Cunynghame whether the passport number on his outgoing passenger card dated 17 July 2013 was his, GYTW stated: ‘I don’t know my passport number.’ When asked whether he agreed the birthday and signature on this card was his, GYTW responded: ‘Yes’ to both questions. When asked if he had completed this form, GYTW responded: ‘I can’t remember.’ When asked if the handwriting on the card looked like his handwriting, GYTW stated: ‘On the left side yes.’ He did not agree that the word ‘Iraq,’ which was written on the right hand side underneath the question ‘Country where you will spend most time abroad’ was in his handwriting or that he had travelled to Iraq.
When asked by Mr Cunynghame whether the name, address and signature on the incoming passenger card dated 13 August 2013 were his, GYTW responded ‘Yes’ to all three questions. When asked if the phone number and email address listed on the card was his, GYTW responded: ‘I can’t remember.’ When asked again if the email address on the form was his, GYTW responded: ‘I have no email address.’ When asked if the emergency contact listed on the card was his former long-term girlfriend, GYTW responded: ‘Yes.’ When asked if the phone number listed was his former girlfriend’s GYTW responded: ‘I can’t remember.’ GYTW agreed that the date of birth on this card was his date of birth. When asked if the handwriting on the card was his handwriting, GYTW said it was his handwriting except for the word ‘Iraq,’ which was written underneath the question ‘Country where you will spend most time abroad.’ He claimed this was not his handwriting and he had not travelled to Iraq on that occasion. When it was put to GYTW on a number of occasions that the word ‘Iraq’ written on the left and right hand sides of the card looked the same, he disagreed, claiming there were significant differences.
GYTW evidence 2014 travel cards
When asked by Mr Cunynghame about an outgoing passenger card dated 7 March 2014, GYTW agreed the name, date of birth and signature on this card was his. He agreed that all of the handwriting was his, except for the word ‘Iraq,’ which was written in response to the question about ‘Country where you will spend most time abroad.’ When asked if he recalled completing the card, GYTW responded: ‘I can’t remember.’
When asked by Mr Cunynghame about the incoming passenger card dated 1 April 2014, GYTW agreed the name and date of birth on the card was his, the passport number was the same as on the previous documents , the nationality (Iraqi) was his, and the reference to ‘Security’ correctly referred to his occupation at that time. He disagreed, however, that the signature was his or that the reference to him having spent most time abroad in Iraq was correct.
When asked by Mr Cunynghame if he had ever returned to Iraq since arriving in Australia approximately 10 years ago, GYTW insisted: ‘I did not return to Iraq.’
In response to questions from Mr Carolan, GYTW said the card in Arabic was in his native language, with which he was most comfortable. GYTW said he had arrived in Australia with no ability to speak English and although he had subsequently learned how to do so, his written skills were not as competent as his speaking skills. He insisted that the word ‘Iraq’ on each of the cards referring to where he had spent most time abroad was not his and the card dated 1 April 2014, in which the word ‘Dummy’ appeared in the signature block had not been completed by him at all. In relation to the outgoing passenger card dated 7 March 2014 GYTW agreed with Mr Carolan that it was not possible to get off the flight in question in Iraq. When asked by Mr Carolan if the travel card dated 29 October 2011 was all in his handwriting, GYTW responded: ‘That’s my writing.’ When asked if the travel card in Arabic dated 22 December 2011 was in his handwriting, GYTW responded: ‘Yes that’s mine.’ When asked if there was anything in his earlier evidence to the Tribunal that he wished to change in light of the travel cards, GYTW responded: ‘No.’
When asked by the Tribunal whether anyone had travelled with him on any of his overseas trips, GYTW stated that his cousin, who he had lived with since 2011 and who gave evidence at the previous hearing, had travelled overseas with him. GYTW said he had subsequently travelled overseas alone in 2013 and 2014. When asked if anyone had completed the information in the travel cards for him, GYTW stated: ‘I can’t remember.’
Mr Carolan submitted that the travel card dated 1 April 2014 was of ‘limited assistance’ because it was unsigned. Of the remaining cards, GYTW stood by the 2011 travel card completed in Arabic, but in circumstances where English was not GYTW’s first language, the Tribunal should not rely on the references` to ‘Iraq’ in the disputed cards. Mr Carolan said it was not possible to arrive in Iraq directly off a flight from Australia, which is what is recorded on the cards dated 17 July 2013 and 7 March 2014. Mr Carolan reiterated that GYTW continued to dispute the handwriting in relation to three of the cards referring to ‘Iraq’ as the country in which GYTW spent most time in while abroad, and there was insufficient time in the three days prior to the expiration of the 84^th day in this matter to resolve the issue by seeking an expert hand-writing opinion.
Evidence of GYTW’s cousin
GYTW’s cousin said he was a ‘rideshare driver’ and earned a variable income each week. It could be $400-$500 one week and $800-$900 on other weeks. He paid tax every three months, spent $325 a week on rent, and had a range of other expenses such as food, childcare, electricity, telephone, and internet. After expenses, he claimed to routinely have $200-$300 weekly for discretionary spending.
The witness said he had known GYTW all his life because their mothers were sisters. He considered GYTW his only direct family in Australia, and had lived with him after being released from immigration detention in 2011. They had only lived apart since 2011 for ‘maybe a couple of weeks’ and since GYTW’s imprisonment He said the Iraqi community disagreed with GYTW living a ‘Western life’ by drinking alcohol, taking drugs, and not going to the mosque. He said anyone living such a life would be ‘hated and targeted.’
GYTW’s cousin said he had lived with and maintained close contact with GYTW during his drug addiction and tried to get him to stop, but GYTW had not listened to his advice. When asked where GYTW’s parents lived, the witness responded: ‘I’m not sure.’ When asked what family GYTW has left in Iraq, the witness responded: ‘I’m not sure.’ When asked where GYTW’s brothers live now, the witness responded: ‘I’m not sure.’ When asked how he could have so little knowledge of GYTW’s family given their mothers were sisters and the extremely close association he had with GYTW, the witness insisted he never talked to GYTW about his family since they commenced living with each other in Australia. The witness claimed to be unable to remember if GYTW had travelled overseas, including to visit his parents. When again asked by Mr Kelsey-Sugg during re-examination about any overseas travel taken by GYTW during the time they lived together, the witness responded: ‘I can’t remember.’
When asked by Mr Cunynghame when GYTW had first started using drugs, the witness said it was in 2012. The witness submitted GYTW was a different person when on drugs and he was ‘pretty sure’ GYTW would ‘never go back to drugs.’ That was because GYTW had learned his lesson in prison and now wanted to get a job in construction and live a ‘normal life in the community.’
When asked about GYTW’s criminal history, the witness said he was aware GYTW had a ‘fight with someone’ and had gone ‘inside a store trying to get money.’ When Mr Cunynghame mentioned the name of the victim involved in the ear-biting incident, the witness said he thought this was the person GYTW had fought with. When pressed about anything more specific he knew about this fight, the witness stated: ‘I remember it was about religion…about him doing security in a place that had alcohol.’ When it was put to the witness that the victim in the ear-biting incident had lived with both him and GYTW in a share-house, the witness conceded that was the case.
When asked if there were any other offences committed by GYTW, the witness responded: ‘That’s all I remember.’ When referred to another violent incident at a café in August 2014, the witness stated:
‘I remember it now. I was with him…we went to have dinner…a group of people attacked us and we were a victim in that matter.’
The witness said he had visited GYTW many times in prison and had taken his wife and eldest child ‘a few times as well.’ When asked by Mr Cunynghame how often he had taken the child to see GYTW, the witness responded: ‘She has seen him three or four times.’ If GYTW is released into the Australian community, the witness said he and his wife would provide GYTW with accommodation and financial support ‘until he can afford to rent.’
Evidence of GYTW’s cousin’s wife
The witness said she came from a Shia Muslim background and married GYTW’s cousin, who was a Sunni. This had caused her to be disowned by her family and the Shia community. She has two small children aged three years and eight weeks, and struggled to look after them without family support. Her eldest child attended childcare twice a week. In response to questions about assistance from Australian friends, she claimed that she and her husband had no other friends, just each other. The witness said she did not work and her husband was an Uber driver who earned ‘around $1000 per week.’ The family’s rental accommodation cost $330 per week and, after all their bills were paid, her husband gave her $500 a week for her personal discretionary spending.
The witness said she had known GYTW since 2011, at which time GYTW and her husband were living together. She said GYTW was a good person when not on drugs, but was frequently angry when on drugs. She had seen positive changes in him since his imprisonment and he was now ‘more calm, himself, and studying.’ If released, GYTW could live with them and they were willing to support him, including ‘financially until he gets on his feet.’ She expected GYTW would get a job in construction if released and live close to her and her husband once he was able to afford his own place.
She described GYTW as having a good relationship with her eldest child and they had visited him in prison ‘twice a month at least.’ GYTW had drawn a picture for the child and took the child to the playground. The witness considered that GYTW would be ‘really helpful’ with her children if released, by taking them to childcare or looking after them if she had an appointment. The witness considered it was in her eldest child’s best interests if GYTW was allowed to remain in Australia.
When asked about her knowledge of GYTW’s intimate personal relationships, the witness referred to a previous long-term relationship that had since broken up, and also referred to GYTW’s bisexuality.
TRIBUNAL CONSIDERATION OF THE ORAL EVIDENCE
At times GYTW’s submissions came across as unpersuasive or implausible. Notwithstanding GYTW’s responses, several unresolved inconsistencies give rise to concerns about the reliability of his overall evidence. These include his family circumstances and drug history, the destinations of his international travel, the false submission to the court in 2016 about reconnecting with his religion, and the denial of some convictions. A number of these inconsistencies are addressed below.
Family and personal history
Dr Wauchope records GYTW as telling her that his mother played a dominant role in their family and his father was a ‘really good father,’ but a ‘soft person’ who ‘can’t do anything’ without GYTW’s mother. Dr Wauchope also records GYTW as telling her that his parents were ‘stable, loving, interested and present,’ and that he was ‘securely attached’[55] to them. In a report by forensic psychologist Mr Ball some 18 months later, however, GYTW is noted to have described his family as ‘dysfunctional.’ Far from being ‘soft’ and deferential to GYTW’s mother, GYTW’s father is described in Mr Ball’s report as ‘often violent towards family members and particularly [GYTW’s] mother.’[56] GYTW denies telling Mr Ball that, but is unable to explain why Mr Ball would include such a specific reference in his report if it had not originated from GYTW. GYTW’s denials are a persistent feature of his evidence. He denies that Dr Wauchope correctly recorded his drug and alcohol history. He denies the conduct for which he was convicted following an incident at his former girlfriend’s house. He denies initiating the ear-biting incident, contrary to the findings of the court. He claims that police mistreated him following a purported rape allegation, without any corroboration. He claims his convictions following the café incident were merely for defending himself, and that ‘not all of’ her Honour’s description of the armed robbery on 22 June 2015 were accurate.
[55] Exhibit R1, 133.
[56] Ibid, 142 [Family of Origin].
Dr Wauchope records GYTW as telling her that his parents were ‘not devout or strict practicing Muslims,’[57] and family members ‘were given the choice about religion and whether they wanted to pray 5 times a day or not.’[58] Yet in his 2018 Statutory Declaration, GYTW contends his family are ‘strict Sunni Muslims’’[59] who were upset that he no longer followed Islam, and that ‘Psychologically this had a huge effect on me.’[60] GYTW’s elaborated at the hearing that his family were only a ‘little bit open compared to other families,’ insisting their openness was ‘within limits.’ The Tribunal was not satisfied that GYTW’s explanations adequately reconciled these inconsistencies in his evidence.
[57] Ibid, 129 [3].
[58] Ibid, 130 [4].
[59] Ibid, 113 [2]; 114[10].
[60] Ibid, 116 [20]-[21].
International travel
The Tribunal does not accept GYTW’s claims that he only travelled to Syria during his international departures in 2011, 2013 and 2014. His claims are directly contradicted by information in his departure and arrival cards at the Australian border, much of which he agrees was completed by him. The Tribunal has disregarded the travel card dated 1 April 2014, which is not signed by GYTW. But in the absence of credible evidence to the contrary, the Tribunal prefers the information in the remaining travel cards as a more accurate and contemporaneous record of GYTW’s travel than his current claims.
The Tribunal notes in the outgoing passenger card dated 29 October 2011, GYTW stated he would get off that flight in Dubai and intended to spend most of his time while abroad in Dubai. That intention is inconsistent with his current evidence that his parents refused to meet him in Dubai because of fears their association with GYTW might jeopardise their ability to remain resident in Dubai, and he was consequently forced to meet his parents on three occasions in Syria.
The Tribunal does not accept that the reference to Iraq on the travel cards is an anomaly, or that a person or persons unknown to GYTW wrote ‘Iraq’ as the country he intended to spend most time in, or had spent most time in while abroad, without any reference to GYTW. The Tribunal found GYTW’s explanations implausible and bordering on fanciful, particularly in circumstances where he agrees much of the information on these cards was entered by him, and the signatures on the cards dated 29 October 2011, 22 December 2011, 17 July 2013, 13 August 2013, and 7 March 2014 were his. In relation to the incoming travel card on 13 August 2013, the Tribunal does not accept GYTW’s evidence that there is a ‘big difference’ between the way the word ‘Iraq’ is written on the left hand side of the card, compared to the way ‘Iraq’ is written on the right hand side of the same card. The two words appear remarkably similar and appear consistent with how the word ‘Iraq’ is written on the left hand side of the travel card dated 17 July 2013 and the left hand side of the travel card dated 7 March 2014. That is particularly so in relation to a distinctive loop that is readily apparent at the base of the letter ‘Q’ in each of these words.
Contrary to GYTW’s implausible explanations, the Tribunal considers the 2013 travel cards and 7 March 2014 travel card support a finding that GYTW did travel to Iraq in 2013 and 2014 to visit family and friends. The Tribunal has no reason to doubt the truthfulness of these cards, which constitute a contemporaneous record of GYTW’s travel, which he was required by law to complete truthfully.[61] There is no apparent reason why GYTW would have provided an untruthful declaration to authorities at the border in 2013 and 2014. The difference now is the difficulty arising for GYTW in explaining his previous travel to Iraq, in circumstances where he held a protection visa at the time of this travel that had been granted because of his claimed fear of serious harm or death if returned to Iraq. There is also no apparent reason why, if GYTW’s evidence is to be believed about preferring the Arabic version of the travel card he completed in 2011, that he did not also seek Arabic versions of the cards in 2013 and 2014. The Tribunal notes that by this time, GYTW’s evidence is that he spoke English quite well and was working fulltime in the security industry, having gained the necessary qualifications and completing the necessary licensing requirements. In any event, GYTW does not submit that he inadvertently entered the words ‘Iraq’ on the disputed travel cards as a consequence of any English language difficulties, but that someone else did so falsely and without his knowledge. The Tribunal considers that submission implausible.
[61] S 102 of the Act.
Reconnecting with religion in 2016
In relation to the erroneous submission made to the court in 2016 that GYTW had reconnected with his religion, the Tribunal notes GYTW was legally represented at that trial and an interpreter was present. The court accepted he had reconnected with his religion as a protective factors linked to his rehabilitative prospects. Other protective factors referred to by the court were GYTW’s remorse, abstinence from drugs while imprisoned, and intention to undertake further rehabilitation programs on release.[62] The Tribunal considers the submission about reconnecting with his religion could only have originated from GYTW and was erroneously (but unknowingly) conveyed to the court by his lawyer. No other credible explanation has been offered as to how a very specific submission of this nature was conveyed to the court without it originating from GYTW. In the context of his 2016 trial, GYTW asserted a re-connection with his religion as a compelling protective factor mitigating his future risk of recidivism, but in the current proceeding he relies on repudiation of his religion as a compelling impediment preventing his repatriation to Iraq. GYTW cannot have it both ways.
[62] Exhibit R1, 39 [37].
Convictions
GYTW’s submission that he has been improperly convicted of some criminal offences gives rise to concerns about his insight and credibility. The Tribunal prefers her Honour’s sentencing remarks about the circumstances of the armed robbery committed on 22 June 2015 and rejects GYTW’s oral evidence that her Honour’s findings were not completely accurate. The Tribunal also does not accept that GYTW was convicted in February 2014 of Criminal damage (intent damage / destroy) and Unlawful assault, based on false testimony from his former partner. The Tribunal similarly does not accept his evidence that the victim of the ear-biting incident, accompanied by ‘10 Iraqi Shia’ initiated their confrontation, or that GYTW was convicted of offences following the café incident just for defending himself:
(a)Ear-biting incident: The Tribunal prefers the sentencing judge’s remarks about the factual circumstances of the ear-biting incident[63] to GYTW’s oral evidence. In accepting GYTW’s plea of guilty, her Honour found that GYTW had followed the victim, GYTW initiated the meeting at which the fight occurred, GYTW had three people with him, GYTW held the victim in a bear hug; and GYTW bit the victim’s right earlobe off.
(b)Café Incident: The Tribunal does not accept GYTW’s claims that his convictions in December 2015 for Use controlled weapon without excuse and Behave in a riotous manner in public place arose solely from defending himself. If GYTW had a lawful excuse like self-defence, it was open to him to make such pleadings in court. He was nevertheless found guilty of these offences. The Tribunal notes a police record in evidence about this incident, stating:
‘Drug debt the likely motive…A number of offenders were involved in a large and violent affray…several males possessed knives whilst several members also were in possession of baseball bats. Both groups made attempts to attack each other with their various implements[64]
(c)When this police record was put to GYTW, he stated: ‘They are drug dealers and they created problems for me….They used drugs to control my life.’ He insisted, however, that he did not owe a drug debt to these men and the attack was linked to Shia-Sunni enmity resulting from GYTW’s lifestyle in Australia, which was he said was considered offensive to the Muslim faith.[65]
[63] Ibid, 470 [2]-[3].
[64] Ibid, 26.
[65] Exhibit R1, 116[19].
Drug history

Bromwich J held in Afu v Minister for Home Affairs [2018] FCA 1311 at [85]:
‘The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 reproduced above. The Tribunal was required to give effect to those norms...’
The norm inherent in this primary consideration is reflected at paragraph 6.3(3) of the Direction, which states that non-citizens who commit serious crimes, including those of a violent nature, ‘should generally’ expect to forfeit the privilege of staying in Australia. But use of words like ‘may’ and ‘generally’ convey discretion. Paragraph 6.1(3) of the Direction requires decision-makers to consider the specific circumstances of each case. Paragraph 6.3(5) of the Direction states that a higher level of tolerance may be afforded to those who have ‘lived in the Australian community for most of their life, or from a very young age.’ Paragraph 6.3(7) of the Direction refers to the length of time ‘a non-citizen has been making a positive contribution to the Australian community’ as a principle to be taken into account when applying relevant considerations.
Senior Member Tavoularis of this Tribunal has recently reflected on the requirements of this primary consideration as follows:
“For the purposes of ascertaining the level of attributable weight to this Primary Consideration C, the essential question, to my mind, is whether the Australian community would expect that a non-citizen with the Applicant’s history of offending should not retain the privilege of holding a visa to remain in Australia, notwithstanding his contributions (if any) to the Australian community, the amount of time he has lived in Australia, and the impact (if any) of his removal upon his immediate family in Australia.”[95]
(footnotes omitted)
[95] Vargas v Minister for Home Affairs [2019] AATA 3409.
In FYBR v Minister for Home Affairs [2019] FCA 500, Perry J stated at [42] that the primary consideration Expectations of the Australian community, as it related in that matter to a visa refusal decision, required a relatively narrow approach to determine the community’s expectations, which weighed in favour of refusal in most cases:
‘…is a statement of the Government’s view…for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases.’
Griffith J adopted a broader approach in DKXY v Minister for Home Affairs [2019] FCA 495, at [23]; [31]; and [34], in holding that the Government’s views must be given due regard, as must all of the other circumstances relevant to a particular case:
‘…the ambiguity of the relevant reasoning in YNQY lends itself to either a broad or narrow approach. The AAT did not take the view that the primary consideration concerning expectations of the Australian community inevitably weighed against revocation. Rather, as the AAT expressly acknowledged at [33] of its reasons for decision, consideration had to be given to the broad range of the applicant’s circumstances when considering the expectations of the Australian community. The AAT then proceeded to implement that broad approach by reference to the totality of the applicant’s circumstances...’
Griffith J’s reasoning, which the Tribunal respectfully adopts, appropriately reflects the potential inherent in paragraph 8(3) of the Direction, that: ‘Both primary and other considerations may weigh in favour of, or against...whether or not to revoke a mandatory cancellation of a visa (emphasis added).’ The Tribunal has previously concluded that the ‘broad middle ground of our society,’[96] informed of the specific circumstances of a case, may consider an applicant should be permitted to hold a visa, or that this primary consideration has neutral effect.[97] On other occasions, the Tribunal has concluded the community would expect the non-citizen not to hold a visa.[98]
[96] LCNB and Minister for Immigration and Border Protection [2015] AATA 463, at [77]-[81].
[97] ZNBG and Minister for Home Affairs [2019] AATA 1872 at [125].
[98] Umi v Minister for Home Affairs [2019] AATA 2316.
The Australian community would be sympathetic about GYTW’s early life in Iraq, separation from his family, and difficulties in adjusting to life in Australia. The community would also have regard for the circumstances under which GYTW was granted a protection visa. Balanced against that, the community would note GYTW’s offending began very soon after his arrival in Australia and has continued throughout his stay. The community would consider GYTW has repeatedly breached their trust. The community would be concerned particularly concerned about the very serious nature of GYTW’s offending, particularly multiple violent offences of increasing seriousness since 2014. Given the unacceptable nature of the future risk GYTW poses, the community would expect GYTW should not hold a visa. This primary consideration weighs very strongly against revoking his mandatory visa cancellation.
OTHER CONSIDERATIONS
Tribunal consideration: International non-refoulement obligations
Paragraph 14.1 of the Direction provides:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision- makers should follow the tests enunciated in the Act.
(2)       The existence of a non-refoulement obligation does not preclude non-  revocation of the mandatory cancellation of a non-citizen’s visa. This is   because Australia will not remove a non-citizen, as a consequence of the   cancellation of their visa, to the country in respect of which the non-  refoulement obligation exists.
(3)       Claims which may give rise to international non-refoulement obligations   can be raised by the non-citizen in a request to revoke under s501CA the   mandatory cancellation of their visa, or can be clear from the facts of the   case (such as where the non-citizen held a protection visa that was   mandatorily cancelled).
(4)       Where a non-citizen makes claims which may give rise to international non-  refoulement obligations and that non-citizen would be able to make a valid             application for another visa if the mandatory cancellation is not revoked, it   is unnecessary to determine whether non-refoulement obligations are owed   to the non-citizen for the purposes of determining whether the cancellation   of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12 A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
The Tribunal has considered the submissions made in the G-documents, the oral submissions of the parties, the Applicant’s Statement of Facts, Issues and Contentions dated 30 August 2019 (at [26]-[30]), in the Further Facts and Contentions of Law dated 20 September 2019 relating to non-refoulement, and the submissions on non-refoulement in the Respondent’s Statement of Facts, Issues and Contentions dated 9 September 2019.
GYTW was assessed in 2010 as a person whose circumstances engage Australia’s non-refoulement obligations.[99] He states his major concern is that he will be killed if returned to Iraq:[100]
‘In denouncing my religious beliefs this would most likely result in my death.’[101]
‘…my family who live in Dubai will not be able to assist me and if anything I will most likely bring shame to my family and family name. This is due to me not following their religious beliefs and my sexual preferences (homo sexual).[102]
[99] Ibid, 25 [55].
[100] Ibid, 63.
[101] Ibid, 64.
[102] Ibid, 65.
GYTW explained during the present hearing that his sexual preference is bisexual. The current DFAT Country Information Report – Iraq, dated 9 October 2018, states the following regarding LGBTI groups:[103]
‘The Penal Code does not prohibit same-sex relations and the courts do not defer to Islamic law on the issue. No legislation explicitly protects lesbian, gay, bisexual, transgender and intersex (LGBTI) people from discrimination. Local and international groups report that violence against people on the grounds of their sexual orientation or gender expression occurs, sometimes at the hands of state actors, and can include kidnapping and murder. NGOs and activists working on behalf of the LGBTI community may attract similar violence.
Local and international groups report that societal discrimination against LGBTI is pervasive and many individuals consequently do not publicly identify. LGBTI individuals that do identify publicly often face abuse and violence form within their families and communities. They may be denied services including health care. LGBTI individuals often do not report abuse for fear of further victimisation or acts of discrimination or violence as a result of admitting their sexuality or gender orientation.
Men perceived to be gay, or to display non-masculine behaviour may be subject to discrimination and violence. On 4 July 2017, assailants stabbed Karar Nushi, an actor, model and student, to death in Baghdad because of his perceived femininity. He had been reportedly receiving death threats for months.
The government does little to protect the LGBTI community, and officials have prosecuted people participating in same-sex sexual activity for public indecency or prostitution. The US State Department reported in 2017 that Iraq lacked legislation or criminal justice mechanisms to prosecute crimes motivated by bias against the LGBTI community. The government established an LGBTI taskforce in 2012 but disbanded it in 2014.
DFAT assesses that people who are LGBTI face a high risk of official and societal discrimination and violence on the basis of their sexual orientation and gender identity. DFAT assesses that an individual is unlikely to be able to live an open life as LGBTI in Iraq.’
[103] at [3.71-3.75].
In relation to religion, the Iraqi constitution makes Islam the official religion of the state.[104] Regulations founded on Islamic law prohibit individuals from converting from the Muslim faith.[105] Under Iraq’s Personal Status Law (1959), if one parent is Muslim, the child must be Muslim, which prevents children from choosing their own religion as adults.[106]
[104] Ibid, 3.18.
[105] Ibid, 3.19.
[106] Ibid, 3.20.
In relation to Sunni-Shia friction in Iraq, DFAT reports that:
‘After the removal of Saddam Hussein and the (Sunni-dominated) Ba’ath Party from government, many Sunnis felt marginalised. This was exacerbated by the perception among the majority Shi’a population that the Sunni community was associated with ISIL, and by the government’s inability to assist Sunnis attempting to flee ISIL. While the government has worked hard to protect civilians in the fight against ISIL, it has at times failed to respond firmly to acts of retribution against Sunnis by the Iraqi Security Forces (ISF) or the PMF. These factors have intensified tensions between Sunni and Shi’a communities in Iraq.
Sunnis, including IDPs, continue to report that PMF groups harass them, accuse them of supporting ISIL and physically harm them. Sunnis report similar behaviour towards them, although to a lesser extent, by the ISF in some areas. The US State Department and international human rights groups report government-aligned forces targeting Sunni males trying to flee ISIL-controlled areas, and preventing Sunnis from leaving and entering government-controlled areas. PMF-linked militia groups have looted and destroyed Sunni-owned properties following the expulsion of ISIL and, in some areas, prevented displaced Sunnis from returning to their homes. Outside ISIL-controlled areas, Sunnis have faced harassment and discrimination in the form of more intrusive inspections at checkpoints, and the provision of poorer quality services in Sunni areas.
DFAT assesses that, outside areas recently controlled by ISIL, Sunnis face a low risk of societal violence on the basis of their religion. DFAT assesses that Sunnis face a moderate risk of official and societal discrimination in areas where they are a minority. The risk of discrimination varies according to an individual’s local influence and connections.’[107]
[107] Ibid, 3.35-3.37
In relation to any Ministerial discretion or alternative management options that may be available if GYTW’s application before the Tribunal is unsuccessful, Mr Cunynghame confirmed that no exercise of Ministerial discretion or alternative management options are currently being considered.
Tribunal findings: International non-refoulement obligations
DFAT country information reports are authoritative, unbiased sources of information. Given the recent nature of the report referred to above, a person returned to Iraq who has renounced their Muslim faith or identifies as bisexual, is likely to have a well-founded fear of persecution and as such would be owed protection obligations.
The legal consequence of GYTW’s visa cancellation not being revoked is that he would be removed from Australia as soon as reasonably practicable. Given GYTW has been assessed as a person whose circumstances engage Australia’s non-refoulement obligations, he cannot be returned to Iraq unless it becomes reasonably practicable to do so, or he chose to return voluntarily, or was granted another visa like a bridging visa, or can be removed to a safe third country. In the meantime, he would remain in detention in Australia. There is no evidence that it is reasonably practicable to remove GYTW to Iraq, or that he intends returning voluntarily, or that removal to a third country is in prospect, or that any Ministerial management option or exercise of discretion is being contemplated.
The Tribunal has previously found that GYTW travelled to Iraq in 2013 and 2014, despite holding a protection visa at that time based on his claimed fear of serious harm if returned to Iraq. The Tribunal accepts Mr Carolan’s submission, however, that even if GYTW had done so for brief periods since arriving in Australia, the potential risks to GYTW of a permanent return to Iraq exceed those arising from the relatively brief visits in 2013 and 2014. On balance, the Tribunal finds this consideration weighs strongly in favour of revoking the mandatory cancellation of GYTW’s visa.
Tribunal consideration: Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
… Reflecting the principles at 6.3, decision-makers must have regard to:
a)        How long the non-citizen has resided in Australia, including whether the non‑citizen has arrived as a young child, noting that:
i.          less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.         More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)        The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
In his 2017 Personal Circumstances Form, GYTW submits he has made a contribution to Australia through employment as a security guard.[108] The Tribunal notes that as a result of his criminal offending, however, GYTW is no longer permitted to hold a security guard licence. When given the opportunity to highlight other contributions he may have made, for example through volunteer work, GYTW made no submissions.
[108] Ibid, 62.
The only corroboration in the available evidence for GYTW’s claims about the strength of his ties to Australia, is from his cousin and his cousin’s wife. The Tribunal notes that GYTW previously lived with the same cousin since 2011, during which his most serious criminal offending occurred. The Tribunal also notes his cousin was present during some incidents following which GYTW was charged and convicted of certain offences.
In terms of his previous long-term girlfriend, GYTW submits they broke up in early 2019[109] but remain on good terms and he can count on her support if released. There is no evidence from his former girlfriend to that effect since their breakup.
[109] Ibid, 160.
GYTW’s evidence in the current proceeding is that he has a new girlfriend who is an Australian citizen and if released, he would ‘try to make our relationship work.’[110] Mr Kelsey-Sugg referred to this as a ‘stable romantic relationship, albeit a recent one.’ There is no evidence before the Tribunal from GYTW’s current girlfriend about the strength of their relationship.
[110] Exhibit A1, 1 [6].
Tribunal findings: Strength, nature and duration of ties
GYTW arrived in Australia only a short time before his 18^th birthday and has lived here for almost a decade. His offending began soon after arrival and culminated in his 2016 convictions for armed robbery, for which he remains imprisoned. It is a compelling feature of GYTW’s circumstances that he has been either on some form of conditional liberty or imprisoned for the majority of his time in Australia. Less weight is placed on this consideration as a result of GYTW’s offending having commenced soon after arriving in Australia.
The Tribunal accepts that GYTW has made some contribution to the Australian community through employment as a security guard, but lost the right to hold a security guard licence due to his criminal convictions. He has also completed a small number of rehabilitative courses since mid-2017 while imprisoned. That constitutes a sparse positive contribution during his time in Australia, on which little weight can be placed.

The Tribunal does not accept the submission that GYTW ‘has developed and maintained significant ties to the Australian community.’[111] The evidence discloses that his community ties are limited and extend predominantly to his cousin, his cousin’s wife and their two infant children. The Tribunal accepts they would be saddened if GYTW was not permitted to remain in Australia. The Tribunal makes no finding in relation to the previous or current girlfriends GYTW refers to, given the absence of any corroborating evidence from these women about the nature of their relationship with GYTW.
[111] Applicant’s Statement of Facts, Issues and Contentions dated 30 August 2019, 10 [33].
Taking the evidence at its highest, this consideration weighs in favour of revoking the cancellation of GYTW’s visa, but does so only slightly.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Neither GYTW nor his legal representatives raised any claims, nor does the evidence disclose that this is a relevant consideration in this matter.
Impact on victims
Paragraph 14.4(1), of the Direction states:
Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Tribunal notes the material in evidence from victims about the effects of GYTW’s offending on their lives. But there is no evidence about the impact of a decision in this matter on victims and the Tribunal finds this consideration has no effect.
Tribunal consideration: Extent of impediments if removed
Paragraph 14.5(1) of the Direction states that:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)        The non-citizen’s age and health;
b)        Whether there are substantial language or cultural barriers; and
c)        Any social, medical and/or economic support available to them in that country.
GYTW is currently 27 years of age. The Tribunal accepts Dr Birgden’s evidence that GYTW presented during their September 2019 consultation with no mental health concerns, exhibited normal mood, had ceased medication for anxiety and depression in 2017, and now manages his moods through healthy lifestyle-exercise, good diet and sleep.[112]
[112] Exhibit A2, 3 [45]-[48].
Mr Kelsey-Sugg submitted that the ‘single, greatest impediment’ to GYTW’s return to Iraq is a ‘real risk of persecution and significant harm,’ which would be inconsistent with Australia’s non-refoulement obligations.
There are no apparent language barriers, but there are now significant cultural barriers resulting from GYTW’s decision to turn away from his religion, to change his Arabic name, to live a Western lifestyle, and to identify as bisexual.
Accurate official labour market date for Iraq is not available, but the 2016 UNDP Human Development Report estimated an unemployment rate of 16.9 percent, with youth unemployment at 35.1 per cent.[113] Poverty rates are high[114] and OCHA’s March 2018 Humanitarian Response Plan estimated that 1.9 million people need food security assistance, and 5.4 million people lack water, sanitation and hygiene.[115]
[113] at [2.25].
[114] Ibid, 2.16.
[115] Ibid, 2.21.
GYTW’s evidence is that his parents and several siblings live in Dubai, while another sibling lives in Turkey. He has three uncles and two cousins who live in Iraq, who he claims not to communicate with and therefore `has ‘no family or supports in Iraq.’[116]
[116] Exhibit A2, 64.
Tribunal findings: Extent of impediments if removed
The Tribunal finds that:
(a)there is no language or health barrier to GYTW’s repatriation;
(b)GYTW would experience significant cultural impediments arising from his decision to turn away from his religion, live a Western lifestyle, and identify openly as bisexual. He would consequently be at risk of serious harm and the Tribunal acknowledges he has been recognised as a person who is owed protection, and cannot currently be returned to Iraq. A further significant impediment is that GYTW is therefore likely to be detained for a lengthy period of time in Australia if his application is unsuccessful;
(c)it would be highly unlikely that GYTW would receive any practical or emotional support if returned to Iraq and would therefore be confronted with considerable challenges in re-establishing himself, including finding stable accommodation and work; and
(d)removal from Australia would separate GYTW from his cousin in Australia, who, notwithstanding the Tribunal’s concerns about the reliability of the cousin’s evidence, has been GYTW’s strongest source of practical and emotional support for the last eight years.
This consideration weighs strongly in favour of revocation.
Other Considerations
No additional considerations were advanced by the parties and I have not identified any additional ‘other considerations’ relevant to the specific circumstances of the applicant’s case as provided for at paragraph 14(1) of the Direction.
CONCLUSION
GYTW’s offending is objectively very serious and has caused serious harm to members of the Australian community. The physical or psychological harm arising from any similar violent offending is so serious that any likelihood of repetition is considered unacceptable.
The Australian community would be sympathetic to the circumstances of GYTW’s early life, the difficulties he encountered following arrival in Australia, and the basis on which he was granted a protection visa. His limited contribution through work would be noted, as would the rehabilitative steps he has taken. Balanced against that, however, the community would note GYTW’s offending began soon after arriving in Australia and encompasses multiple violent offences that have increased in seriousness. They would consider GYTW has not taken full advantage of the court’s lenient treatment or the rehabilitative opportunities afforded to him. The serious nature of his armed robbery offences in particular, and the unacceptable nature of the future risk he poses, is such that the community would expect GYTW should not hold a visa.
GYTW’s ties to Australia are very limited and extend predominantly to his cousin, his cousin’s wife, and the couple’s two infant children. Based entirely on GYTW’s aspiration to play a more prominent future role in the lives of his cousin’s two infant children, the Tribunal finds it is in the children’s best interests that GYTW’s visa cancellation is revoked. But for the reasons previously adduced, only slightly so.
Notwithstanding the Tribunal’s concerns about GYTW’s travel to Iraq in 2013 and 2014, GYTW’s specific circumstances engage Australia’s non-refoulement obligations, which weighs strongly in favour of revoking his visa cancellation. There are also considerable impediments confronting GYTW were he to be returned to Iraq, which also weigh strongly in his favour.
Having weighed all of the considerations individually and cumulatively, the Tribunal finds there is not another reason of sufficient weight or significance to enliven the statutory power to revoke the cancellation of GYTW’s visa. That is because the primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ weigh very strongly against revocation. These outweigh the primary consideration ‘Best interests of minor children in Australia,’ which weighs slightly in favour of revocation, and the other considerations of ‘Australia’s non-refoulement obligations,’ which weighs very strongly in favour of revocation, the ‘Strength, nature and duration of ties’ which weighs slightly in favour of revocation, and the ‘Extent of Impediments if removed,’ which weighs strongly in favour of revocation.
The Tribunal expresses its thanks to Mr Kelsey-Sugg and Mr Carolan for their assistance in acting for the applicant on a pro bono basis.
DECISION
The Tribunal affirms the decision under review.

203.

I certify that the preceding 202 (two hundred and two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

…………[sgd]……………….
Associate
Dated: 9 October 2019

Date of hearing: 25 & 26 September and 7 October 2019

Advocates for the Applicant: Mr David Kelsey-Sugg
Mr David Carolan

Solicitors for the Applicant:

Advocate for the Respondent:

Refugee Legal

Mr Adam Cunynghame

Solicitors for the Respondent:

Sparke Helmore

Date of hearing:	25 & 26 September and 7 October 2019
Advocates for the Applicant:	Mr David Kelsey-Sugg Mr David Carolan
Solicitors for the Applicant: Advocate for the Respondent:	Refugee Legal Mr Adam Cunynghame
Solicitors for the Respondent:	Sparke Helmore