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

Hanna and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2753 (23 August 2022)
Division:GENERAL DIVISION
File Number: 2019/8096
Re:Wadhah Hanna
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date:23 August 2022
Place:Melbourne

The Tribunal affirms the decision under review.
......[sgd]..................................................................
R Cameron, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of visa – Class XB Subclass 200 Refugee Visa – applicant non-citizen born in Iraq – sexual offending against a child – contents of Direction 90 – risk of re-offending –rehabilitation and remorse – expectations of the Australian community – international non-refoulement obligations – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Sex Offenders Registration Act 2004 (Vic)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SECONDARY MATERIALS
Direction No. 90 – 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
R Cameron Senior Member
23 August 2022
INTRODUCTION

The applicant seeks a review of a decision by a delegate of the respondent made on 3 December 2019 under section 501CA(4) of the Migration Act 1958 (“the Act”), not to revoke the mandatory cancellation of his Class XB Subclass 200 Refugee Visa (“the visa”) (“Reviewable Decision”).
This case was heard over four days that were fragmented. It was relisted for earlier this year but unfortunately counsel retained by the applicant was not available and the matter had to be relisted to the month of July of this year. Counsel was not retained by the applicant for the final two days of the hearing which is also unfortunate.
THE EVIDENCE BEFORE THE TRIBUNAL
There was a vast array of documentary evidence before the Tribunal. It included the “G” documents, supplementary “G” documents and further supplementary “G” documents filed by the respondent.
The applicant also filed a significant quantity of documents including much material relating to the treatment of Christians in Iraq. This material included several videos.
The following witnesses gave viva voce evidence:
(a)The applicant;
(b)The applicant’s wife Marleen Marooki;
(c)The applicant’s brother Toma Hanna;
(d)The applicant’s sister Ahlam Hanna; and
(e)Mr Konas, his employer.
BACKGROUND FACTS
The applicant was born in September 1989 in Baghdad. He is a citizen of Iraq. He arrived in Australia on 7 February 2013 having been issued with the visa.
On 4 June 2016 he married his wife. They had a son on 3 April 2017.
On 27 April 2018 the applicant was convicted of the following offences:
(a)one charge of using a carriage service to procure a person under 16 years of age;
(b)one charge of using a carriage service to solicit child pornography.
The maximum penalty for each of those offences is 15 years imprisonment.
The applicant was sentenced to an aggregate of three years imprisonment, to be released after serving 12 months on entering into a recognizance of $1,000 to be of good behaviour for two years. Additionally, he was ordered to attend sex offender treatment for two years and was registered as a sex offender for 15 years.
On 4 June 2018 the visa was cancelled pursuant to section 501(3A) of the Act (“the mandatory cancellation”). The applicant sought revocation of the mandatory cancellation of the visa.
On 3 December 2019 a delegate of the respondent decided not to revoke the mandatory cancellation of the visa. It is from this decision that the applicant has sought review in this Tribunal.
The respondent contends and the applicant concedes[1] that:
(a)The applicant does not pass the character test because he has a “substantial criminal record” (subsections 501(6)(a) and (7)(c)) and because he was convicted of a sexually based offence involving a child (subsection 501(6)(e)(i)).
(b)Therefore, the only basis upon which the Tribunal could revoke the mandatory cancellation is if it is satisfied there is another reason why such cancellation should be revoked.
(c)In considering whether there is another reason why the mandatory cancellation should be revoked, the Tribunal must apply Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“Direction 90”).
[1] The concession is made at paragraph 9 of the Applicant's Amended Statement of Facts, Issues and Contentions dated 2 July 2021.
ISSUE FOR DETERMINATION BY THE TRIBUNAL
The issue for determination by the Tribunal is whether there is another reason why the mandatory cancellation decision should be revoked pursuant to section 501CA(4) of the Act.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 and section 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions of a delegate of the Minister under section 501CA of the Act to not revoke a mandatory visa cancellation.
Section 501(3A) of the Act provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
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 an invitation from the Minister, and the Minister is satisfied that:
(i)the person passes the character test; or
(ii)there is “another reason” why the original decision should be revoked.
Under section 499(1) of the Act, the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (section 499(2A) of the Act). Currently, the applicable direction is Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“Direction 90”).
DIRECTION NUMBER 90
It is not necessary to reproduce in full sections of Direction 90. However, it is useful to refer to several of them.
Paragraph 5.2 “Principles” provides the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under section 501CA of the Act. The contents of that clause are referred to in their entirety for the full force and effect. However, several of them should be specifically referred to. It is provided that:
(a)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia;
(b)The Australian community expects that the Australian government can and should cancel noncitizens’ visas if they engaged in conduct that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community.
(c)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient in some circumstances even if the noncitizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 “Exercising discretion” provides that, informed by the principles in paragraph 5.2, account must be taken of the considerations identified in sections 8 (“Primary Considerations”) and 9 (“Other considerations”) where relevant to the decision.
Paragraph 7 “Taking the relevant considerations into account” provides that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[2]
[2] Direction 90 at 7.
Paragraph 8 “Primary considerations” mandates that in deciding whether to revoke the mandatory cancellation, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia;
(d)Expectations of the Australian community.
Paragraph 9 “Other considerations” mandates that in deciding whether to revoke the mandatory cancellation, the following are other considerations:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)links to the Australian community, including:
(iii)strength, nature and duration of ties to Australia;
(iv)impact on Australian business interests.
THE APPLICANT’S OFFENDING
Details of the applicant’s offending are contained in the Reasons for Sentence of the sentencing Judge.[3]
[3] Document G2 of the G documents. More specific details can be found in a "Statement of Material Facts" prepared by the prosecution at document G4 of the G documents. This document was in evidence before the Tribunal and its authenticity was not challenged.
The applicant used a social networking platform known as “Skout”. The applicant “matched” with another user. That other user had a profile which identified his age as being 31 years. Subsequent interactions between them confirmed the victim was an 11-year-old child. The victim then stated in “chats” with the applicant that he was 20 years old, then sent a photograph of himself with his telephone number. Subsequently the victim sent a suggestive entreaty to the applicant.
The applicant asked the victim to send a photo of his body whereupon the victim replied that he could not because his mother was in the room. The applicant suggested he take the photo in a bathroom. The victim then sent a photograph which showed his T-shirt pulled up revealing his body and clearly showing his face.
An exchange then occurred between the applicant and the victim. The victim stated in that conversation he was 12 years old. The victim then suggested subsequently that the applicant meet him in a park, and he agreed to do so. The applicant by then was well aware that the victim was 12 years of age.
The applicant then called the victim on the telephone and discussed oral sex the same time as arranging to meet in a park near the victim’s home. Upon arrival at the park, the applicant telephoned the victim informing him he was there. The victim then appeared. The applicant conceded that when the victim appeared, he appreciated that he was young. The victim then entered the front passenger door of the applicant’s car. They then drove for a few minutes before the victim asked to be returned home. The applicant returned him to where he had picked him up from. The applicant also acknowledged that the victim told him he was 12 years old when they met in person.
Another feature of the applicant’s offending was that he sent a photograph of his penis to the victim. He also requested a photo of the victim’s “ass”. The photograph that followed was classified as “Child Exploitative Material Pornographic.”
The Tribunal refers to the Reasons for Sentence of the trial judge for further details of the applicant’s offending which need not be reproduced for the purposes of these reasons.
PRELIMINARY QUESTIONS OF CONSTITUTIONAL LAW
In his Amended Statement of Facts, Issues and Contentions, the applicant raised three questions of constitutional law for consideration. At the commencement of the hearing, counsel for the applicant abandoned those grounds. Nothing more need be said about them.
PRIMARY CONSIDERATIONS
Protection of the Australian community
Paragraph 8.1(1) provides that when considering the protection of the Australian community, the Tribunal should acknowledge that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
Paragraph 8.1(2) further states:
(2) Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the applicant’s conduct
Paragraph 8.1.1 of Direction No 90 identifies a number of factors that a decision-maker must have regard to when considering the nature and seriousness of a noncitizen’s criminal offending or other conduct to date. The range of factors enumerated in that paragraph is not exclusive.
Paragraph 8.1.1(1)(a)(i) of Direction No 90 provides that without limiting the range of conduct that may be regarded as very serious, violent and/or sexual crimes are viewed very seriously by the Australian Government and the Australian community.
Paragraph 8.1.1(1)(b)(ii) of Direction No 90 also provides that without limiting the range of conduct that may be considered serious, crimes committed against vulnerable members of the community are considered by the Australian Government and the Australian community to be serious.
As already noted, the applicant was convicted of the following offences:
(a)one charge of using a carriage service to procure a person under 16 years of age;
(b)one charge of using a carriage service to solicit child pornography.
They were sexual crimes within the meaning of paragraph 8.1.1(1)(a)(i) of Direction No 90 and viewed very seriously.
Also, under paragraph 8.1.1(1)(b)(ii) they were crimes committed against a vulnerable member of the community, being a child.
In considering the nature and seriousness of the noncitizen’s criminal offending, decision-makers must have regard to the sentence imposed by the courts for the crimes. Details of the sentence have already been recounted but it included an aggregate of three years imprisonment, to be released after serving 12 months. He was registered as a sex offender for 15 years. Also, he was ordered to attend sex offender treatment for two years. It should be borne in mind that a significant sentence of imprisonment as occurred in this case for a first-time offender indicates that the offending on the part of the applicant was objectively very serious.
The Applicant has conceded the nature and seriousness of his offending within the meaning of the Direction.[4]
[4] See paragraph 7 of the Applicant's Submissions dated 14 January 2020. Also see paragraph 13 of the Applicant's Amended Statement of Facts, Issues and Contentions dated 2 July 2021.
The applicant’s offences are on their face very serious indeed. They were crimes committed against a vulnerable young boy.
The starting point of an analysis of this primary consideration is to take into account the observations made by the trial judge in her Reasons for Sentence. In several portions of those reasons, she made the observations that the applicant’s offending was, variously, “serious”, “most serious and disturbing” and “very serious and disturbing”. On another occasion she stated that the objective seriousness of his offending was “high”. The sentencing judge is in the best position to make this assessment. She had the benefit of a prosecution summary which, of course, is agreed to by the defendant in the course of the plea hearing. She heard submissions from the applicant who was represented by counsel at such hearing. This Tribunal agrees with the conclusions of the trial judge on the seriousness of the applicant’s offending.
The trial judge also highlighted several aggravating features of the applicant’s offending. Firstly, that the victim was a real child (not a covert police operative). Secondly, the victim was a child the applicant knew to be 11 or 12 years old. Thirdly, there were further attempts to arrange a second meeting with the victim when he had full knowledge of the victim’s true age. She described it as “very troubling” that the applicant did not cease contact with the victim after the first meeting. Also, she said it elevated the seriousness of his offending. This Tribunal also agrees with the trial judge’s observations concerning these matters.
The trial judge also observed that in his interview with the police the applicant minimised his offending by claiming to have ceased contact with the victim after the first meeting and determining his age. Such minimisation of his offending, she considered, reflected the need for general deterrence. Indeed, this Tribunal shares the trial judge’s concerns with respect to the applicant’s minimisation of his offending.
Indeed, throughout the hearing and in the material that was filed on his behalf, the applicant minimised the gravity of his offending. This is of concern to the Tribunal. The applicant, both in the witness box and in his statements, did not accurately explain the circumstances of his offending. He repeatedly attempted to downplay it; there was, as was submitted by the respondent, an almost deafening silence from the applicant on the circumstances of his offending. He rarely referred to the impact on his victim who, it should be emphasised, was a child.
There were several examples of the downplaying of the gravity of his offending throughout the applicant’s evidence. For instance, he repeatedly said that he had made a “mistake”. It was a gross mischaracterisation of his interactions with the child over two days that he knew to be a 12-year-old including seeking to arrange a further meeting and asking for photographs of his private areas. In cross examination, when asked what actually happened, the applicant did not provide an accurate description and on several occasions responded with the comment that “Satan” had taken over.
Another area of concern to the Tribunal arises with respect to the instructions given by the applicant to a treating clinical psychologist he consulted, Dr King. There are two reports in evidence from Dr King. They were also in evidence before the sentencing judge. The first report of Dr King referred to the applicant as being a low risk of future offending. That conclusion was reached based upon the applicant’s self-reporting to Dr King wherein he stated that there was no intended sexual encounter with the child. Dr King’s second report deleted the reference to the applicant as being a low risk of future offending. He did so because he was subsequently appraised of the fact that the applicant intended a sexual encounter with the child victim. In the second report, Dr King did not make an assessment of the risk of reoffending at all. This conduct or lack of candour, on the part of the applicant, is of concern because it demonstrates that he does not take responsibility for his offending and, in particular, it appears he lacks insight into his offending against a child.

The offending must be viewed very seriously on any objective arm’s-length consideration. They were sexual crimes committed against a vulnerable member of the community, namely a young boy. The crimes were procuring that young boy and obtaining a pornographic photograph from him. It should also be mentioned that the applicant sent a pornographic photograph to the victim. It cannot be contended other than that the applicant knew better. He did not contend otherwise, both before the sentencing Court and this Tribunal.
The seriousness of the Applicant’s offending is also underpinned by the sentence that was imposed by the County Court. It should be recounted that he was sentenced to a term of imprisonment for three years and was released after one year on a recognizance to be of good behaviour. He is on the sex offender’s register for a period of 15 years. Whilst the sentence imposed upon the applicant of one year’s imprisonment was considerably below the maximum sentence for his offending, nonetheless the sentence of imprisonment that was imposed upon him as a first-time offender objectively shows that it was serious. This does also demonstrate the seriousness with which the sentencing Court viewed the applicant’s offending.
There is another puzzling aspect of his offending. It occurred approximately four years after his arrival in Australia. He had worked hard in a good job, recently married and only a few months prior became a father. That he put all of this in jeopardy is difficult to comprehend.
Additionally, under paragraph 8.1.1(1)(a)(i) of Direction 90, the applicant’s offending is viewed very seriously because it a sexual crime.
Mention should also be made of paragraph 8.1.1(1)(d) of Direction 90. There was reference in the reasons for the sentence of the trial judge that the applicant’s offending was a fairly isolated incident over a limited period. Applying this paragraph of Direction 90, the Tribunal observes that there was not a trend demonstrated of increasing seriousness.
By reason of the foregoing matters, the nature and seriousness of the applicant’s criminal offending weighs very heavily against revocation of the mandatory cancellation.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction 90 relevantly provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
information and evidence on the risk of the non-citizen re-offending; and
evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In undertaking the assessment required of this primary consideration, the Tribunal must identify the nature of the harm should the applicant engage in further criminal conduct. It involves offences against children; specifically, using a carriage service to procure a person under 16 years of age and using a carriage service to solicit child pornography. They are abhorrent crimes. These crimes against children damage their lives irreparably. Nothing more need be said about them.
The task then is to look at the likelihood of the applicant engaging in further criminal conduct.
The applicant relies upon a number of grounds to contend that he is a low risk of reoffending.
He points to the fact that he will have to undertake specific treatment in relation to sexual offending against children as a condition of his release from prison after serving 12 months of the term imposed upon him. In this regard, reference was made to a letter of 26 September 2018 from the Specialised Offender Assessment and Treatment Service. That letter foreshadowed that upon his release into the community, the applicant may be referred to that service and recommendations made regarding his individual treatment needs. It is said that the Tribunal would be reasonably satisfied that such a referral and supervision would mitigate against the risk of reoffending.
The reports of Dr King are also relied upon and in particular his observation that the applicant had a need for close clinical monitoring and assistance over a significant period, for example at least one year. Such monitoring it is said would also mitigate against the risk of reoffending. Presumably, such clinical monitoring would be in conjunction with a clinical psychologist or other suitably qualified professional experienced in the treatment of sex offenders.
The sentencing judge also found that the addendum report of Dr King, as best it could be interpreted, concluded that the applicant was not a medium to high risk of reoffending.
There was also the evidence of the applicant’s wife who agreed to support him and will no doubt keep a close watch on his activities should he be released into the community.
One should also not lose sight of the fact that the applicant’s offending was his first. He had an unblemished record prior to committing these offences.
The respondent contends that there is a high risk that the applicant will reoffend again. It is contended that the nature of the harm should the applicant engage in further criminal conduct is child exploitation via a carriage service including the grooming and procuring of children for sexual activity.
The respondent relies upon a number of sources of evidence to contend that there is a high risk of the applicant reoffending.
There are the circumstances of the offending that have already been recounted in these reasons. There was the police interview where the applicant[5]:
(a)stated that he didn’t realise the victim was underage until he saw him. Then he just left him. This was despite the fact the victim had told him he was 12 before the meeting and that following the meeting, the applicant asked the victim to send him a picture of his “ass” and attempted to arrange a second meeting;
(b)told police that he was unable to remember that part of the conversation where the victim asked, “has a kid sucked your cock before?”, or when the victim said “hey, your dick feels nice” following the meeting, or the fact that he discussed a second meeting with the victim;
(c)also told police that at the time of his offending, his wife was bearing the baby and he could not “meet with her”. Although the baby was born by the time of his offending.
[5] The following account is taken from the sentencing judge’s reasons.
There were several remarks made by the trial judge that warrant mention:
(d)she was concerned about some of the applicant’s responses in the interview with police which were admissions “up to a point”;
(e)the applicant’s counsel conceded that there had been attempts by him to minimise his involvement, in particular his contact subsequent to the first meeting and also of requesting a further photograph from the victim;
(f)the sentencing judge was concerned by the prosecutor’s submission that when the applicant attended Dr King, he nevertheless minimised his sexual offending involving the victim when talking to him. The prosecutor questioned the extent of the applicant’s rehabilitation to that date and his prospects for the future; and
(g)This was balanced to some extent by his early plea of guilty which indicates remorse for his offending.
The respondent also points to the variation between the two reports of Dr King in March and April 2018.[6] This has already been touched on earlier in these reasons. In the first report, Dr King states that he understood the meeting between the applicant and the victim was brief. He also understood that the applicant had no sexual intentions nor were there advances from him. In the April 2018 report, there was a significant variation in the instructions that he received from the applicant. He stated that further advice on the applicant’s intentions made it clear that a sexual encounter was in fact contemplated.
[6] These reports were in evidence before the Tribunal.
The point made by the respondent is of course that in preparing the initial report, Dr King was not informed accurately by the applicant of precisely what took place between him and the victim. It should be noted that this was observed by the sentencing judge at paragraph 62 of her reasons as being inconsistent with the prosecution opening before her and to which the applicant pleaded guilty. The respondent contends, with some justification, that this demonstrates the applicant’s ongoing tendency to minimise his offending and, most critically, a lack of insight into such offending.
It is also noted by the respondent that the applicant has not undergone or undertaken any treatment programs, including as recommended by Dr King. It is of concern that there is no evidence that the applicant has undertaken any programs concerning paedophilia, attraction to children and sexual offending. This is all the more disturbing given that Dr King recommended in his second report that the applicant undergo close clinical monitoring and assistance over a significant period of time as a high priority. It is also of concern given that the applicant in the course of his submissions in particular pointed to the presence of and the necessity of attending such courses or treatment as mitigating his risk of reoffending.
Mention has already been made of the tendency on the part of the applicant to minimise his offending. This is also relevant in terms of assessing the risk to the Australian community should the applicant commit further offences or the risk of reoffending. In several statements that were lodged with the Tribunal, the applicant had significantly minimised the nature of his offending. In one statement, he said the charges arose after he asked for a lewd photo. In another part of the same statement, he stated that he didn’t harm the victim in any way. In recent statements, there was no mention of the victim, only the impact of his offending on him and his family.
Further evidence of the applicant’s minimisation of the nature and scope of his offending also emerged during the course of the hearing before the Tribunal from evidence given by other witnesses. By way of example, the applicant’s wife stated that she didn’t find out about the applicant’s offending until 8 December 2017. However, the evidence revealed that the police executed a search warrant against the applicant in September of that year. It appears the applicant did not tell his wife what had occurred until approximately three months after his arrest and the police search of his home.
His former employer, Mr Konas, gave evidence that the applicant told him that the offending occurred in the context of family issues with his wife. He further stated the applicant told him he thought he was arranging to meet a 26-year-old woman. When he realised it was a child, he took the child home in his car. This narrative is different to the actual facts and circumstances surrounding the applicant’s offending.
The applicant’s brother gave evidence that he was told that the applicant’s offending consisted of asking a child for an explicit photograph. The applicant’s offending consisted of a much broader factual matrix which has been recounted earlier in these reasons. It is apparent that the applicant has withheld from his brother significant portions of the real facts.
Tellingly, the applicant did not express any remorse for his offending against a child or for the impact it would have had upon a child. He has largely failed to identify what he had done to the child and acknowledge that it was predatory in nature.
Specific questions were put to the applicant in cross examination concerning the risks of him reoffending. They included the matters referred to above including the concerns of the trial judge, some of the responses he gave police when questioned, the inconsistencies in his instructions to Dr King, and the question of whether or not he had gained an insight into his offending. His responses were most unsatisfactory. On each occasion, he did not provide a direct answer. Instead, he repeated what was submitted by the respondent to be a well-rehearsed storyline that he wants to be a better person. For example, as noted, when asked why he gave different instructions to Dr King compared with his evidence before the Tribunal, he responded that he was working to be a better person. When it was put to him in cross examination that he had failed to engage in courses for sex offending as had been recommended by Dr King, for instance, he stated that he promised in front of God and Jesus that he would be a better person. As mentioned earlier, on occasions he also responded from time to time, by saying that “Satan” had taken over.
The Tribunal is concerned that given the responses to carefully put questions in cross examination, the applicant does not appear to have a complete insight into his offending, particularly its nature and seriousness. He has a consistent propensity to downplay the nature and seriousness of his offending.
Whilst the Tribunal accepts the trial judge's categorisation of the risk of offending expressed in Dr King's report is not moderate to high, it cannot be said that there is no risk. It must be reiterated that the trial judge expressed concerns about the applicant's rehabilitation prospects. She considered that the applicant needs to be closely monitored and assisted over a significant period. She opined that effective treatment or counselling is only possible if the applicant engages in such with full disclosure of his offending behaviour. The applicant has shown a tendency to downplay or avoid the consequences and seriousness of his offending (or as the trial judge described it he has “minimised” his offending.) He certainly did so when in the witness box.
The Tribunal has noted earlier that it is concerned that the applicant does not appear to have a complete insight into his offending. According to the language used in paragraph 8.1.2 of Direction 90, the nature of the harm to a child were such offending to be repeated by the applicant is very serious indeed. There has been considerable emphasis on sexual abuse of minors in recent times in Australia. It is apparent that lives can be irretrievably altered, if not ruined by such offending. As a result, the range of damage to young lives that can have lasting, if not permanent, effect is considerable and should not be underestimated. The present risk to the Australian community if the applicant were to engage in further criminal conduct of the kind that he has is simply unacceptable. It is, to adopt the language of paragraph 8.1.2 of Direction 90, conduct that, if it were to be repeated, so serious that any risk it may be repeated is simply unacceptable.
It should be noted that the applicant referred to a letter from a clinician at the Specialised Offender Assessment and Treatment Service dated 26 September 2018.[7] In that letter, the author advised the applicant that he was not recommended for Specialised Offender Assessment and Treatment. Nothing in that letter indicates that the applicant is a low risk of reoffending. The letter recommended several programs that may be of benefit to him. It is of concern to the Tribunal that the applicant has failed to engage in any meaningful treatment. He did not present a clear plan of action to assist him in avoiding offending in the future. At best, from his evidence, his plan is to go to community corrections and see what they put in place for him in terms of treatment and courses should he be released into the community. Once again, it is also of concern to the Tribunal that the letter from the clinician at the Specialised Offender Assessment and Treatment Service of 26 September 2018 did not say that he did not need to do particular courses. In his evidence, the applicant asserted to the contrary. It should also be noted that there was no evidence before the Tribunal as to what conditions the applicant would be subjected to as a registered sex offender in terms of courses or treatment that he might undertake if he were released into the community.
[7] Document A12 in the applicant's bundle.
Another matter that also should be recorded concerns the evidence given before the Tribunal about where the applicant would live in the event that he is released into the community. The evidence on this topic shifted considerably. The applicant’s wife stated that if he were released, he would reside with her and his son. His brother stated that they would arrange accommodation for him. He made no mention of the applicant living with his wife and son until probed on the topic in cross examination. The applicant’s sister did not mention his wife and son at all. Her evidence was that the applicant would live with her or his brother or alternatively they would find accommodation for him. The applicant also said that he could stay in a house with a friend called “Faiez”. There was no evidence or statement from Faiez or any indication where such accommodation might be.
The Tribunal acknowledges the evidence of the applicant’s wife and as noted earlier that she has agreed to support him and in effect keep an eye upon him. However, it should be observed that her presence (and that of his son) prior to the applicant’s offending did not operate as a protective factor to stop him from engaging in such offending. It also acknowledges the evidence from his wife that she would offer him all support he needs to re-establish himself with a normal life should he be released. However, this evidence is also viewed with some level of doubt by the Tribunal because of the evidence given by other witnesses during the hearing about where the applicant would stay in the event he was released. It was contrary to that of the wife’s evidence.
Overall, the Tribunal concludes that the applicant’s risk of reoffending is moderate to high. The risk can be regarded as substantial because of the potential for great harm to result. As noted, such a risk of future harm by the applicant is simply unacceptable.
For these reasons, the Tribunal concludes that this consideration weighs very heavily in favour of non-revocation of the cancellation of the visa.
Family violence: paragraph 8.2 of Direction 90.
Both parties agree that there is no evidence to indicate that this consideration is relevant to this application.
Best interests of minor children in Australia affected by the decision: paragraph 8.3 of Direction No 90.
Paragraph 8.3(4) prescribes a range of factors that must be taken into account by a decision-maker in considering the best interests of minor children.
The applicant has one son, a boy born in April 2017.
The applicant contends that there is a high probability that a permanent separation of him from his son will be a catastrophic event for both of them.
The respondent accepts as a general proposition that a child’s best interests will be served if the child is able to be with one or both of their parents unless there is evidence to the contrary.
It is common ground that the applicant committed his offending in July 2017, when his son was three months old, and was arrested and bailed in September 2017, when the child was five months old. The applicant has not seen his son in person since April 2018 when he was taken into custody.

The applicant’s relationship with his wife broke down at the time he was arrested. The trial judge recorded in her reasons that the applicant accepted that his relationship with his wife was over.
The applicant was taken into custody on 12 April 2018. Prior to his imprisonment, the sentencing judge noted (and the applicant confirmed from the witness box):
(h)Child Protection Services became involved with the family and for some time, the applicant could only see his son in a supervised setting;
(i)from late February 2018, the applicant was unable to live in his former home and could only see his son one or two times a fortnight for short visits and under supervision;
(j)the applicant was homeless following his offending, living in his car or his brother’s house.
The applicant did not have any contact with his son whilst he was imprisoned. He last saw his son, as noted earlier, in person prior to going to prison in April 2018.
When he was in detention in Melbourne, his wife visited him occasionally. She did not bring her son. The applicant said that there were two reasons for this. Firstly, he did not know the Department of Human Services had closed its file. Secondly, he did not want his son to visit him in a detention centre as he considered the environment was not suitable for a young child.
Once he was taken to a detention centre, the applicant started speaking to his son and wife by video calls as often as he possibly could, usually daily. If he is unable to make a video call, he usually messages. This contact has continued to this day. He also conducts those video calls with his wife. His relationship with his wife has been restored considerably. On her evidence, she is now prepared to have him back and live with him and her son again. She said that she would offer him all the support he needs to get back to a normal life if he is released into the community. This evidence from his wife is viewed by the Tribunal with some level of scepticism because of the other evidence of a somewhat ambiguous nature that was provided by other witnesses, including the applicant, about where he would live in the event that he was released into the community.
The evidence from both the applicant and his wife is that a relationship has developed between him and his son as a result of the video contact that they have been able to maintain whilst he has been in immigration detention. The son who is now 5 years old apparently frequently asks about his father.
Nonetheless, it has to be recognised that when considering the factor contained in paragraph 8.3(4)(a) of Direction 90, there have been extremely long periods of absence and limited meaningful contact. Therefore, following the language of this clause, less weight generally will be given to the relationship as it is, between the applicant and his son.
It is difficult to assess the extent to which the applicant is likely to play a positive parental role in the future if he is released into the community. The applicant in the witness box expressed a strong desire to do the right thing by his son in every respect as a parent, both as a provider and a father figure. Both he and his wife in their evidence in the witness box expressed a desire for them to be able to resume life as a happy and cohesive family unit. This objective is of course totally dependent upon the applicant not reoffending.
The impact of the applicant’s prior offending on his son has been significant. Much of it has already been addressed. It has led to the breakdown of the family unit. His wife explained that not long after the applicant left the matrimonial home, which followed his arrest and bail, he had limited contact with his son. As mentioned previously, subsequent to his imprisonment there has been no in person contact since April 2018. Another direct consequence of the applicant’s offending on his son is that his wife was unable to continue paying rent on the former matrimonial home and she had to vacate it out of economic necessity. This has now led to her living with her parents in one room that she shares with her son. These accommodation arrangements are clearly challenging if not highly stressful for her. It is a very difficult environment for a 5-year-old lad to grow up in.
As for the applicant’s likely future conduct, it all depends upon him not reoffending. His wife has said she is prepared to give him one last chance. Were the applicant to reoffend, there is no doubt that the marriage would finally be over and once again the disruption to the son’s life would be significant. Most of the last 4½ years he has been without a father; to be deprived of him again would obviously leave a significant gap in his life by reason of the absence of a father or father figure.
If the applicant is not returned to the community, the likely effect that any separation would have on his son is likely to be the same as it is now. There would continue to be a significant gap in the child’s life. Contact could continue to be maintained by video calls as it has been whilst the applicant has been in immigration detention. There is no reason to believe that video contact could not be continued from Iraq. The Tribunal acknowledges that the applicant’s wife said in her evidence that the impact on her son if her husband is not returned to the community would be big. She stated that he would have a lot of things missing in his life as a result. It is apparent that video contact would not likely be the same as physical contact on a day to day basis. The applicant would more likely than not perform a positive parental role if he were physically present in the child’s life.
There was no evidence before the Tribunal that there are any other persons who already fulfil the role of a father figure in relation to the applicant’s son. Clearly, his mother has had to battle with the absence of her husband. She gave evidence that she works full-time as an educator at a childcare centre whilst at the same time, to her credit, studying for a diploma in that field. She clearly relies on much assistance from her extended family to be able to balance the demands of both work and as a parent to her son. This is commendable.
There was very limited evidence as to the known views of the son other than the fact that both the applicant and his wife said that a rapport has developed between father and son as a result of the video calls that they have engaged in. There was, as noted earlier, the evidence of the applicant’s wife that the son does ask about his father. She said that when she is unable to provide a satisfactory answer, the son does start crying. The Tribunal infers from this evidence, given the age and maturity of the child, that he would prefer to have his father back.
In analysing this primary consideration, the Tribunal finds that a relationship has developed between the applicant and his son. It is a limited relationship by reason of the fact that there has been no personal contact between them since the applicant went to jail. Such contact as there is has been by video link which on its face is limited. It is highly likely, given the age of the applicant’s son, that he would have no recollection of the last time there was personal contact. Paragraph 8.3(4)(a) of Direction 90 prescribes that less weight should generally be given where the relationship has experienced long periods of absence or limited meaningful contact. This is the case here.
The Tribunal considers that nonetheless this consideration weighs in favour of revocation of the mandatory cancellation of the Visa.
Also, when addressing this primary consideration, reference must be made to the applicant’s nieces and nephews. His brother and sister who reside in Australia have three children each making a total of six. The evidence concerning these nieces and nephews before the Tribunal was limited. However, it is apparent from the evidence that like many migrant families, the applicant’s broader family including his brother and sister do have a unique and special relationship. The applicant was described as having a very close relationship with his nieces and nephews and being, amongst other things, a cherished uncle. The Tribunal accepts this evidence.
There was no evidence adduced as to the impact of the applicant’s offending on his nieces and nephews. There was really no evidence that enables the Tribunal to assess the likely effect that separation from the applicant has had on his nieces and nephews. The Tribunal infers it has probably been limited. Such relationship that the applicant had with his nieces and nephews has of course been interrupted by his imprisonment and subsequent immigration detention. It was acknowledged by all witnesses who gave evidence concerning the nieces and nephews that they have not seen the applicant since he was taken into custody in April 2018.
Nonetheless, the relationship of course is nonparental and by reason of his incarceration and subsequent immigration detention has been limited for in excess of three years. If the applicant is released into the community, the Tribunal considers that it is more probable than not that the applicant would play a positive role in his nieces and nephews’ lives to some extent. Some weight must therefore be given to this consideration. However, it must be limited.
The Tribunal considers that this primary consideration weighs marginally in favour of the applicant, particularly due to the limited nature of the contact that he has had with his son over most of his life.
Expectations of the Australian community
Paragraph 8.4 “Expectations of the Australian Community” provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a)acts of family violence…
b)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, “serious crimes” include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
Both parties referred to the majority decision in FYBR v Minister for Home Affairs[8]. Although it related to a previous Direction 65, the applicable consideration of Direction 90 is expressed in similar terms. The majority held that this consideration should be understood as expressing a deemed community expectation. This ascribes to the community an expectation aligning with that of the executive government which would generally weigh in favour of non-revocation. It is not, however, necessarily an inflexible conclusion.
[8] [2019] FCAFC 185.
In addressing this consideration, the applicant acknowledges he has committed serious offences for which he was imprisoned for 12 months. He concedes that it is open to the Tribunal to find that the expectations of the Australian community would be that the applicant should not hold a visa.
However, the applicant seeks to persuade the Tribunal that in undertaking the evaluative assessment incumbent upon the decision-maker under this primary consideration, there are several relevant matters to be taken into account.
It is contended on behalf of the applicant that the Australian community would expect citizens and noncitizens alike to be given an opportunity to participate in treatment and rehabilitation programs at the conclusion of their sentence. If such treatment was successful, they are rehabilitated and should be granted the opportunity to be released into the community. Therefore, the Tribunal may reasonably find that this consideration weighs in favour of revocation.
The respondent contends that the nature of the offences committed by the applicant, which it must be reiterated, are sexual in nature against a vulnerable young child, leading to a lengthy term of imprisonment, are such that the Australian community would expect his visa to be cancelled.
The Tribunal cannot accept the applicant’s contention, as this paragraph of Direction 90 specifies the Australian community expects noncitizens to obey Australian laws whilst here. The applicant’s offending was against a vulnerable member of the community, being a young child, against whom he committed sexual offences. The applicant has contended that the Tribunal may also accept that the Australian community expects citizens and noncitizens alike to be given an opportunity to participate in treatment and rehabilitation programs after serving their sentence, and if successful, that offenders be granted the opportunity to rejoin their families and the broader community. Therefore, on balance it may reasonably find that this consideration weighs in favour of revocation. When one considers the actual language used by this paragraph of Direction 90 together with the findings of the Full Court of the Federal Court of Australia in FYBR, it is clear that it is not for the Tribunal to determine for itself what the community’s expectations are which is the effect of the applicant’s submissions. It is beside the point that he has not yet undergone any rehabilitation or treatment as a sexual offender. There is no doubt that the community would expect the applicant to undergo such treatment. It is unfortunate that he has not done so for whatever reason. However, this fact cannot circumvent the effects of the applicant’s offending. This fact cannot outweigh the community expectation of obedience to the law. It cannot outweigh the community expectation that the applicant’s visa remain cancelled.
The applicant’s lack of insight into his offending has been canvassed earlier in these reasons. The respondent went so far as to describe the applicant as an unrepentant sex offender who has not come to terms with his actions and in particular has not sought counselling for his sexual offending. The Tribunal certainly agrees that the Australian community would expect that a person with the serious criminal history of the applicant, which involves offences against a vulnerable young child, should not continue to hold a visa.
Accordingly, the Australian community’s expectations with respect to this primary consideration weigh very heavily against the revocation of the mandatory cancellation of the visa.
The above expectations of the Australian community apply regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community.
OTHER CONSIDERATIONS
INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
Paragraph 9.1(1) of Direction 90 states that 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. It also states that 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”).
Paragraph 9.1(2) specifies that in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the noncitizen’s criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful noncitizens are, in accordance with section 198, liable to removal from Australia as soon reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
Paragraph 9.1(3) of Direction 90 states, however, that that does not mean the existence of a non-refoulement obligation precludes non-revocation of the mandatory cancellation of a noncitizen’s visa. This is because such a decision will not necessarily result in removal of the noncitizen to the country in respect of which the non-refoulement obligation exists. Following the visa refusal, cancellation decision or non-revocation decision, if the noncitizen applies for a protection visa, the noncitizen would not be liable to be removed while their valid visa application is being determined. It should also be observed that under section 197C(3) of the Act, if protection findings are made, the Act neither requires nor authorises the person’s removal to the relevant country.
The respondent urged the Tribunal to apply the decision of the High Court of Australia in Plaintiff M1/2021 v Minister for Home Affairs[9] and defer consideration of the applicant’s non-refoulement claims because he is a person able to make a valid application for a protection visa. The High Court observed in that case as follows:
“Decision-maker’s approach to non—refoulement
[28] Where the representations do not include, or the circumstances do not suggest, a non-refoulement claim, there is nothing in the text of s 501CA, or its subject matter, scope and purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke the cancellation of any Visa that is not a protection Visa.
[29] Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error-they are not part of Australia’s domestic law.
[30] Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former Visa holder is owed those non-refoulement obligations on the basis that it is open to the former Visa holder to apply for a protection Visa.”
[9] [2022] HCA 17.
It should be emphasised that in expedited hearing processes such as this, the Tribunal cannot make an assessment of protection obligations in the way that would occur were the applicant to make an application for a protection visa.[10] Nor is the Tribunal required to conduct an extensive assessment of the applicant’s claims to fear harm should he return to Iraq.
[10] Reference should be made at this juncture to the provisions of paragraph 9.1(6) of Direction 90 which provides as follows:
“It may not be possible at the section 501/501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection Visa application.”
The Tribunal considers that it should not defer a consideration of the applicant’s protection claims. It does not do so because, amongst other things, such a decision to defer consideration could potentially lead to the applicant spending a longer time in detention whilst a protection visa application for instance is being considered. However, nonetheless insofar as international non-refoulement claims are made, they should be identified, understood and evaluated as best as is open to it on the material that has been tendered.

The applicant approaches this consideration in several ways.
Firstly, he contends that there is a real risk that if he is returned to Iraq, he will be killed or kidnapped.
Secondly, he claims that he faces a real risk of harm as a registered sex offender if returned to Iraq.[11]
[11] Specifically, in paragraph 27 of his Amended Statement of Facts, Issues and Contentions dated 2 July 2021 he contends as follows:
"The applicant wishes to raise a fresh claim that he faces a real risk of harm as a registered child sex offender if refoulement to Iraq and faces a lifetime on the sexual offenders scheme in Iraq under Australia's international non-refoulement obligations and under the extent of impediments if removed. Further country information will be provided on this issue at a later stage."
Thirdly, he claims that he would be punished for paedophilia under sharia law.
Fourthly, there are the legal consequences of the Tribunal’s decision were he to be returned to Iraq.
The applicant is a Chaldean Christian. The respondent accepts that he is a member of the Chaldean Christian community in Victoria.[12]
[12] Paragraph 106 of the Respondent’s Amended Statement of Facts, Issues and Contentions.
The applicant consistently gave evidence that there is a real risk that if he is returned to Iraq, he will be killed or kidnapped. The principal reason he offered for this is that he is a Chaldean Christian.
He produced much documentary and video evidence demonstrating that there had been bombing of, and atrocities carried out against Christians and Christian churches of all denominations in Iraq.[13] Whilst this material demonstrated that there had been attacks against Christian churches in particular, it did not assess the level of risk that Christians face, in particular of killing and kidnapping. The material produced by the applicant does not enable the Tribunal to specifically assess the risk of harm that the applicant faces of being killed or kidnapped as he asserts.
[13] The 24 video files contained in Annexure 6 are referred to by way of example. They largely consisted of news reports from various outlets. Several of these video files recorded the aftermath of attacks on popular shopping precincts, particularly in Baghdad. There was also the Applicant’s bundle of material filed on 3 and 19 April 2021 which contained photos and stories of attacks on Christians and Christian churches.
The applicant also gave evidence that an older brother was killed in a targeted attack near his family’s home in Iraq shortly after he arrived in Australia. Additionally, he gave evidence of threats made to him and members of his family when he was in Iraq. In particular, he referred to the contents of an alleged threatening phone call made to him and his brother in Iraq in 2011. These threats were largely due to the fact that he was a Chaldean Christian together with the fact that he had been working for a company doing business with the Americans during the conflict in Iraq.
There were two DFAT Country Reports for Iraq in evidence before the Tribunal. DFAT assesses that Christians in Iraq face low levels of official discrimination. This was in contrast to the material of a general nature that was filed by the applicant and referred to above. However, the DFAT report further assesses that Christians face moderate levels of societal discrimination and violence, similar to that faced by other religious communities in areas where they are a minority. The respondent accepts that this level of risk is faced by the applicant.[14] The Tribunal agrees.
[14] See paragraph 106 of the Respondent’s Amended Statement of Facts, Issues and Contentions dated 6 August 2021.
However, when one carefully assesses all of the evidence that was before the Tribunal, including the most recent DFAT Country Information Report of 17 August 2020, there is nothing in that material which establishes that the applicant would be killed or kidnapped due to his Christianity or more accurately, his Christian beliefs. It should be repeated that this report records that Christians in Iraq face low levels of official discrimination and moderate levels of societal discrimination and violence. It does not specify killing or kidnapping, and nothing in the evidence rises to the level of harm contended by the applicant. This assessment is the same as the earlier DFAT Country Information Report dated 9 October 2018 that was in evidence before the Tribunal. It appears from that material, the position has not changed in recent years.
The Tribunal prefers the contents and conclusions contained in the DFAT Country Information Reports as they have been carefully compiled and contain details of the security situation as at the date of such compilation in Iraq. They are prepared to a very high standard.
As for the threatening telephone call that took place over 11 years ago, the Tribunal cannot see how the threat posed in that phone call from an unidentified individual would subsist to this day in the event that the applicant returns to Iraq.
The material before it, including that relied upon by the applicant, does not create a sufficient evidentiary platform or foundation for the Tribunal to be satisfied that the applicant would be killed or kidnapped were he to return to Iraq. The Tribunal does not doubt that it would be difficult for him over there due to his Christian beliefs. However, it appears to the Tribunal that it is a quantum leap to suggest that he would be certainly killed or kidnapped.
It should also be observed that there are an estimated 250,000 Christians continuing to live in Iraq including two sisters of the applicant.
The material also does not demonstrate that the applicant would face persecution or harm due to being a convicted or registered sex offender. There was no material before the Tribunal that would establish that he would be punished for paedophilia under sharia law as contended by him. There was nothing in the material referred to by the applicant, beyond his uncorroborated self-reported claims, that demonstrated he faces a real risk of harm as a registered child sex offender if returned to Iraq, or faces a lifetime on the sexual offenders’ scheme in that country.
Apparently, the state of Victoria does not have a public sex offender register and such information is only made public about a registered individual under specified circumstances, such as where the individual cannot be located.[15]
[15] Division 10 of the Sex Offenders Registration Act2004.
As for the legal consequences of the Tribunal’s decision if he is unsuccessful in his application, the applicant’s contentions were difficult to follow.[16] However, the thrust of those contentions was that if he is unsuccessful in this application, he would be either returned to Iraq in breach of Australia’s international non-refoulement obligations, or he would be indefinitely detained.[17] It was also contended by the applicant that there are no reasonable prospects of removal in the foreseeable future and therefore the applicant faces the prospect of arbitrary and indefinite detention. Therefore, it is contended it would not be unreasonable for the Tribunal to give significant weight to this consideration in favour of revocation.
[16] Paragraphs 30 to 34 of the Applicant's Amended Statement of Facts, Issues and Contentions are referred to.
[17] There was also a contention that the closure of Australia's borders due to the outbreak of Covid 19 would also lead to the prospect of indefinite detention. This is not being considered as it is now apparent that the borders have reopened.
The respondent contends and the Tribunal agrees that the legal consequences of the Tribunal’s decision not to revoke the mandatory cancellation of the applicant’s visa are that it would be open to him to make an application for a protection visa. It should be observed that the applicant has not to date made an application for a protection visa. Should a protection finding be made in such application, he would not be returned to Iraq. However, if he were not granted a protection visa but subject to a protection finding in respect of Iraq, other management options could be considered and whilst so considered, he would remain in indefinite immigration detention.
In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[18] the Full Court of the Federal Court stated:
“The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a Visa decision-maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to common law. As we explained below, for our own part we see no difficulty in attaching the adjective “indefinite” to such further period of detention, in circumstances where there is no fixed chronological endpoint, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom.”
[18] [2021] FCAFC 55 at [123].
The applicant has been in custody and subsequent immigration detention since April 2018. The Tribunal acknowledges that such period of detention is a significant matter which has clearly had an impact on the applicant.
Overall, due to the prospect of indefinite detention, the Tribunal places some weight on this consideration in favour of revocation of the cancellation of the applicant’s visa.
Extent of impediments if removed
Paragraph 9.2 of Direction 90 provides:
“Decision-makers must consider the extent of any impediments that the noncitizen 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:
(k)the noncitizen’s age and health;
(l)whether there are substantial language or cultural barriers; and
(m)any social, medical and/or economic support available to them in that country.
The applicant is presently 32 years of age and apparently in good health.
He faces no substantial language or cultural barriers, having lived in Iraq until he was a young adult prior to his arrival in Australia.
There was surprisingly little evidence adduced before the Tribunal on the extent of impediments if the applicant were to be removed to Iraq. In his Amended Statement of Facts, Issues and Contentions, it was simply submitted that the applicant would face serious impediments if he were to be returned to Iraq and that significant weight should be given to such consideration in favour of revocation. No particulars or details were identified by the applicant in support of such assertions. In another submission, he contended that he would face substantial cultural barriers. However, in his witness statement and from the witness box, those cultural barriers, let alone any other impediments, were not articulated.
In his Request for Revocation of a Mandatory Visa Cancellation, he did say it would be hard, almost impossible, to get a job because of his religion[19]. The DFAT 2020 Country Information Report for Iraq that was in evidence before the Tribunal confirmed that unemployment was very high[20]. It also confirmed that the public sector provides around 40% of employment. Given moderate levels of societal discrimination against Christians, it seems likely that the applicant will face difficulty finding employment.
[19] Page 79 of the G documents.
[20] The DFAT 2018 Country Information Report for Iraq that was also in evidence noted that the 2016 UNDP Human Development Report estimated an unemployment rate of 16.9%.
The applicant has two sisters remaining in Iraq with whom he has not had recent contact. One assumes that he could resume contact with them and that he could draw on them for support to assist with his relocation.
The DFAT 2020 Country Information Report (“Conditions for Returnees”)[21] observes that DFAT has limited evidence to suggest that voluntary returnees face difficulties in assimilating back into their communities. It also noted that local sources reported that returning to Iraq can be difficult, particularly if the individual does not return to their original community.
[21] Further Supplementary G documents at page 270.
In relation to this consideration, the Tribunal accepts that the applicant may face impediments if removed to Iraq. It is apparent that life will be challenging for him. He will face limited job prospects and have limited family support. He will face moderate levels of societal discrimination.
However, there are several factors that must also be taken into account that would limit the extent of impediments that he might face if returned to Iraq. The Applicant is in his early 30s with no significant health concerns. There are no language barriers. The Tribunal does not consider on the evidence before it that there are any cultural barriers faced by him.
As an Iraqi citizen, he has access to the same benefits as other citizens do. There was evidence from the applicant’s sister who confirmed she would assist him financially if he needed it were he returned to Iraq.
The Tribunal considers that this consideration weighs in the applicant’s favour of revoking the decision to cancel his visa to a limited degree.
Impact on victims
Both parties agreed that there was no evidence to indicate that this consideration is relevant to this application. There was no evidence before the Tribunal concerning the impact on victims.
Links to the Australian Community-Strength, nature and duration of ties to Australia
The applicant arrived in Australia in 2013 when he was 23 years of age. He is presently 32. His offending commenced approximately four years and five months after his arrival in Australia.
As noted earlier, the applicant’s wife and son, brother, sister and their children live in Australia and have a right to reside here permanently. There was some evidence about the strength and ties that the applicant has with them. However, it was not altogether clear. Reference should be repeated to the observations made earlier that it appears the applicant was not completely candid with his immediate family members in explaining the precise circumstances of his offending. It may be that this indicates that his relationship with them is not as strong as he had contended. However, it is readily acknowledged that he and his wife did share a matrimonial home together prior to his offending being exposed.
The applicant has been a member of the Melbourne Chaldean Christian community. However, he informed the sentencing judge that he anticipated being ostracised and isolated from that community as a result of being sentenced for his offending. That being so, the strength of such attire has probably considerably diminished.
Until he offended and to some extent even afterwards, he made a positive contribution to the Australian community. There was evidence from both himself and his employer.
There was evidence that he gave about his employment in the cheese factory. The owner of that business, Mr Konos, gave evidence as to the exemplary attributes and qualities of the applicant as an employee. He described a strong work ethic and that he had completed numerous food standards courses. Mr Konos also explained that the applicant, in addition to working 45 hours a week at the cheese factory, contracted cleaning jobs to obtain extra money which he sent to his family overseas, including his mother who was ill in Jordan.
The Tribunal finds that this consideration weighs to a limited degree in the applicant’s favour.
Impact on Australian business interests
Both parties agree that there is no evidence to indicate that this consideration is relevant to this application.
CONCLUSION AND DECISION
The Tribunal finds that primary considerations 8.1 and 8.4 weigh very heavily against the applicant. To the extent that any of the other considerations weigh in the applicant’s favour, they are heavily outweighed by primary considerations 8.1 and 8.4. The Tribunal reaches this conclusion for several reasons which are referred to previously. Firstly, it is a case of very serious offending against a child. Secondly, the applicant on several occasions sought to minimise the gravity of his offending. Thirdly, the Tribunal considers, for the reasons explained earlier, that the applicant has a lack of complete insight into his offending. Finally, it has reached the conclusion that there is a moderate to high risk of the applicant reoffending, particularly if he does not undergo an appropriate treatment program as was recommended long ago by Dr King.
By reason of the foregoing, the reviewable decision will be affirmed.

170. I certify that the preceding 169 (one hundred and sixty-nine) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

.....[sgd].............................................
Associate
Dated: 23 August 2022

Dates of hearing:
20-21 October 2021, 20-21 July 2022

Advocate for the Applicant, October 2021:

Advocate for the Applicant, July 2022:

Advocate for the Respondent:

Jay Williams

Self-represented

Tal Aviram

Solicitor for the Respondent: Clayton Utz

[2022] AATA 2753

23 August 2022

Key Legal Topics

Areas of Law

Immigration & Refugee Law

Legal Concepts

Mandatory Cancellation of Visa

Character Test

International Non-Refoulement Obligations

Rehabilitation and Remorse

Direction 90