Hanna and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 293

Hanna and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 293 (25 February 2020)
Division:GENERAL DIVISION
File Number: 2019/8096
Re:Wadhah Hanna
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:25 February 2020
Place:Melbourne

The Tribunal decides to affirm the decision under review.
.............[sgd]...........................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – mandatory cancellation of Class XB Subclass 200 Refugee visa – Iraqi citizen – delegate refuses to revoke mandatory cancellation of visa – applicant seeks review by Tribunal – consideration of ministerial Direction No. 79 – primary considerations – nature of offending – sexual offending involving a child – protection of the Australian community – nature and seriousness of the conduct – risk should non-citizen re-offend - best interests of minor children – expectations of Australian community – other considerations – non-refoulement obligations – extent of impediments if removed – decision under review affirmed
Legislation
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Migration Act 1958 (Cth)
Sex Offenders Registration Act 2004 (Vic), Sch 2
Cases
Ali v Minister for Home Affairs [2019] FCA 1900
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
GBV18 v Minister for Home Affairs [2019] FCA 1132
Minister for Home Affairs v Omar [2019] FCAFC 188
Secondary Materials
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature on 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention relating to the Status of Refugees, opened for signature on 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol relating to the Status of Refugees, 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
DFAT Country Information Report – Iraq – 9 December 2018 (Department of Foreign Affairs and Trade)
International Covenant on Civil and Political Rights, opened for signature on 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Migration Act 1958 – Direction under s 499 – Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 32(2C(b) (commenced 7 September 2017)
Migration Act 1958 – Direction under s 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Commenced 28 February 2019)
Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, adopted and proclaimed by UN General Assembly on 15 December 1989, A/RES/44/128 (entered into force 11 July 1991)
REASONS FOR DECISION
Senior Member D. J. Morris
25 February 2020

Mr Hanna was born in 1989 in Iraq, a country of which he is a citizen, and is currently aged 30. In February 2013 he arrived in Australia as the holder of a Class XB Subclass 200 Refugee visa. On 4 June 2018 the visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) because the Respondent was satisfied that Mr Hanna did not pass the statutory character test as he had a substantial criminal record (section 501(6)(a)).
On 24 June 2018 Mr Hanna made representations to a delegate of the Respondent under section 501CA(4)(a) of the Act. On 2 December 2019 the delegate decided not to revoke the mandatory cancellation of the visa. The Department of Home Affairs notified Mr Hanna of that decision the following day, 3 December 2019. It is this decision that Mr Hanna has brought to the Tribunal for review.
The hearing was held on 3 February 2020. Mr Hanna was represented by Mr Angel Aleksov of counsel, instructed by Ms Liz Kefford of Melbourne Lawyers and Mediators. The Respondent was represented by Mr Tal Aviram of Clayton Utz. Mr Hanna gave evidence and was cross-examined. The Applicant’s wife, brother, sister and former employer also gave oral evidence. The Tribunal appreciates the assistance of an interpreter in the Arabic language.
The Tribunal has decided to veil the identity of certain persons associated with this matter. The Applicant’s wife will be called Ms ZW. His sister will be Ms ZA. His brother will be Mr ZT. His former employer will be Mr ZK. The Applicant’s infant son will be described as ZS, and his late brother who died in Iraq in tragic circumstances will be described as Mr ZF.
The Tribunal admitted into evidence a volume of ‘G’ documents (GD), and a volume of supplementary ‘G’ documents (SGD), collated by the Respondent. The Tribunal also admitted a Foundation House Health Assessment Summary Report dated 3 December 2019 (Exhibit A1) and a DFAT Country Information Report – Iraq, dated 9 October 2018 (Exhibit A2).
The Tribunal had regard for a Statement of Facts, Issues and Contentions provided by the Respondent, and a document titled Submissions by the Applicant, provided by Mr Aleksov.
The legislative framework
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or the Minister’s delegate) must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of section 501(6)(ii) of the Act, and under section 501(3A)(b) of the Act the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory.
Section 501CA(4) of the Act provides that a decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period, and the decision-maker determines that the Applicant passes the ‘character test’, or, as provided for under section 501CA(4)(b)(ii) of the Act, there is another reason why the mandatory cancellation decision should be revoked. The Respondent conceded that Mr Hanna had made representations within the prescribed period.
If the Tribunal finds that Mr Hanna fails the character test, the sole issue before the Tribunal then becomes whether there is another reason why the original decision to cancel the visa should be revoked. In undertaking this task, the decision-maker should examine the factors for and against revoking the cancellation and if satisfied that the cancellation should be revoked, the Respondent must act on that view (see North ACJ in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, at [38]).
Evidence in relation to the character test
Before the Tribunal was a Criminal History Check produced by the Australian Criminal Intelligence Commission (GD, pp 31- 32), dated 14 March 2019. This document stated that on 27 April 2018 Mr Hanna was convicted by the County Court of Victoria at Melbourne under the Criminal Code Act 1995 (Cth) of Use carriage service to procure person under 16 years old and Use carriage service to solicit child pornography material. For each of these offences he was sentenced to three years imprisonment to be released after 12 months on entering recognizance of $1,000 to be of good behaviour for two years, to attend sex offender treatment as directed for two years and to be registered as a sex offender for 15 years.
Before the Tribunal were the sentencing remarks of Her Honour Judge Pullen on 27 April 2018 in relation to Mr Hanna’s pleas of guilty to the above offences (GD, pp 33-60). Her Honour imposed an aggregate term in relation to the two convictions of three years imprisonment and ordered release after serving 12 months under s 20(1)(b) of the Crimes Act1914 (Cth). The Judge also told Mr Hanna that, having pleaded guilty to two registrable Class 2 offences as identified in Schedule 2 of the Sex Offenders Registration Act 2004 (Vic), he would be required to comply with mandatory reporting obligations for 15 years.
At GD p 442 was a departmental note of 4 June 2019 by an officer of the Department of Home Affairs stating that the writer had contacted the sentence management section of Corrections Victoria and was advised that Mr Hanna was on that date serving a sentence of imprisonment on a full-time basis in Hopkins Correctional Centre in Victoria.
Finding in relation to the character test
On the basis of this evidence, and because of the operation of section 501(7)(c) of the Act, the Tribunal finds that Mr Hanna fails the character test in section 501(3A) of the Act.
The remaining task for the Tribunal is to determine whether there is ‘another reason’ why the mandatory cancellation of the visa should be revoked.
Direction No. 79
Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The Minister has made such a direction, Direction No. 79 (‘the Direction’). The Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter.
Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
The Direction includes the following principles at paragraph 6.3:
(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.
In deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’ Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed.’
The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations.
The Applicant’s offending
Judge Pullen set out the circumstances of Mr Hanna’s offending in her remarks to the Court (GD, p 33-60). Her Honour said:
On 29 July 2017, you “matched” with another user who used the name Joshua [a pseudonym](the victim) on the social network “Skout”. The victim had a profile which identified his age as being 31, however subsequent inquiries confirmed the victim was an 11 year old child. The victim initially stated in the chats with you that he was 20 and sent you a photograph of himself and his phone number. Subsequently, the victim asked you, “Has a kid sucked your cock before?”
You asked the victim to send you a photo of his body and the victim replied that he could not because his mother was in the room. You suggested he take a photo in the 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 you and the victim, as set out in the prosecution opening at (paragraph 5). During that conversation, Joshua said that he was 12 years of age. You stated in your record of interview you contacted the victim to arrange details of the meeting and a number of messages were set out in the prosecution opening referable to that discussion (paragraph 6).
The following day, 30 July 2017, commencing at 5.39 am, a number of messages were exchanged between yourself and Joshua, as set out in Exhibit A (paragraph 7). I will not repeat those details here. After that you asked the victim to “send you ass pic” and the victim replied “Fuck off”. You asked, “Why?” No further communication occurred between you and Joshua.
[….]
You agreed you called the victim on the phone, discussed oral sex and arranged to meet in a park near the victim’s house. You told police that when you arrived at the park, you rang the victim and said, “Look, I’m there” and that he replied, “Just wait”. You waited, saw him and that he was young. He came over and you went back home. You told police, “At that moment, my brain was not – does not work”. You told police that the victim entered the front passenger door of your car, sat down and told you to, “Just go”. That after driving for a few minutes, the victim asked you to return home and you dropped him back from where you picked him up. You could not recall any further contact with the victim. You said that the victim told you he was 12 when you met in person.
You agreed a photograph of your penis was sent by you to the victim, a photograph you had previously taken. You told police you were unable to remember the part of the conversation where the victim asked, “Has a kid sucked your cock before?”. Nor could you remember why the victim would have said to you, “Hey, your dick feels nice” following that meeting. You did not remember discussing a second meeting with the victim.
…
You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial and witnesses have not been required to give evidence upon your trial. There is utilitarian benefit in your plea of guilty.
In the circumstances, I am prepared to accept your plea of guilty indicates remorse for your offending. There are a number of aggravating features of your offending. That the victim was a real person (not a covert police operative) and a child known to you to be aged 11/12 at the time. Further, disturbingly, there were attempts by you to arrange a second meeting with the victim, fully aware of the victim’s age at the time.
Judge Pullen went on to refer to further text communications, after the meeting between the Applicant and the victim, and discussion about Mr Hanna wanting to see the victim again, “maybe that night”. A second request was made by the Applicant to the victim for an intimate photograph. The prosecution accepted, as did Her Honour, that the second request was not responded to, and a further meeting did not take place.
The Judge said:
It is in this context that I regard your planning of a second meeting to be an aggravating feature of your offending. This reflected your preparedness to meet the victim at least aware from an earlier photograph on 29 July and from the victim telling you that he was 12 years of age and seeing him, the circumstances of your offending, in my opinion, are very serious.
Opening submissions for the Applicant
Mr Aleksov submitted that he relied on the written Submissions of the Applicant, dated 14 January 2020.
The written submissions set out that Mr Hanna fled Baghdad to Turkey then gained a refugee visa for Australia in 2013. The document goes on:
He and his family faced persecution in Iraq as they belonged to a marginalized Christian group. Three of his ten siblings are dead, one as a result on [sic] a bomb attack in Baghdad, two live in Northern Iraq, two live in Jordan with his mother (after fleeing Baghdad) one lives in the US and two are Australian citizens living in Melbourne. Mr Hanna met his wife (also an [sic] Refugee visa holder) in Melbourne in late 2013. They later married and have a two-year-old son.
Counsel for the Applicant stated that the applicant posed no unacceptable risk of harm to the Australian community. He submitted that Mr Hanna has a child in Australia and that Australia has protection obligations which would mean that the Applicant could not be returned to Iraq and, as a consequence, the Minister would have to consider ‘management options’ in regard to Mr Hanna if he was continued to be denied a visa.
Opening submissions for the Respondent
Mr Aviram submitted that he relied on the Statement of Facts, Issues and Contentions before the Tribunal. He said it cannot be conclusively said that protection obligations are owed to the Applicant and that Mr Hanna had the right to apply for a protection visa, and that the Tribunal is not required to consider whether non-refoulement obligations are owed, citing the judgment of Anderson J in GBV18 v Minister for Home Affairs [2019] FCA 1132 (GBV18), but that it is open for the Tribunal to make an assessment of non-refoulement obligations, and that such assessment need not be as comprehensive as would happen in an application for a protection visa.
Evidence of the Applicant

Mr Hanna gave evidence and adopted a written statement he made on 10 May 2019 (GD, pp 101-103).
Mr Hanna said he was born in Baghdad, Iraq, in 1989 and was educated there until grade 9. He said he left Iraq when he was aged around 22 or 23 and subsequently arrived in Australia aged 24 in 2013.
Mr Hanna said he met his wife and they married in Australia in June 2016. Together they have one son, XS, who was born in April 2017. Mr Hanna said he last saw his son almost two years ago.
Mr Aviram took Mr Hanna to the Criminal History Check, which he accepted accurately recorded the two offences of which he has been convicted.
Mr Hanna was referred to Judge Pullen’s remarks that the facts in the case were most serious and concerning. He responded that he agreed he did something wrong, and he regretted and felt sorry for that.
The Applicant said that he initially met the victim on-line and remembered the victim saying that he was 20 years of age. He also remembered that, when he asked for a photograph, the victim said his mother was in the room so Mr Hanna suggested he go into the bathroom to take the photo. He accepted that the victim did send him a photograph.
Mr Aviram put to Mr Hanna that at this stage, the victim having sent him messages and a photograph, he knew that the person was a child. Mr Hanna said he did not. He said he did not realise his age. When it was put to Mr Hanna that the child told him he was 12 years of age, the Applicant said “Yes, I thought he was joking about it.”
Mr Hanna said that before he met with the victim he was not aware of the person’s age, but at the meeting he was. He agreed that he spoke to the victim on the telephone before meeting him to discuss oral sex and Mr Aviram asked if he thought he was speaking to an adult. Mr Hanna replied, “yes”.
When they met at a park, Mr Hanna said the victim got into his car and drove around the road and then he stopped and the child got out. Mr Hanna agreed that when he saw the person he had arranged to meet, he thought the person was aged about 12.
Mr Hanna agreed that he sent further messages the next day and then “I stopped it. I realized I was doing something that was wrong.”
When asked directly by the Tribunal whether he could explain why he committed the offences, Mr Hanna said “I did something wrong, that’s why I pled [sic] guilty. We all make mistakes; I don’t have any crimes before or after.”
Mr Hanna said at the time of these offences, his wife’s doctor had told him that, because his wife had just given birth to a premature baby, he “could not meet with her for several weeks.” When asked by the Tribunal whether by saying ‘meet’ he meant have sexual relations, Mr Hanna agreed.
Mr Hanna said that he remembered meeting a psychologist, Dr Michael King, “four or five times”. He said he remembered telling Dr King he was not a sexual offender, and telling him that he had no sexual intentions in meeting the victim.
When asked whether Dr King knew that contact had continued after he met with the victim at the park, Mr Hanna said he understood his lawyer had spoken to Dr King after he had seen him but before he wrote his report.
Mr Hanna said he had undertaken no treatment or courses about paedophilia or attraction to minors. He said there had been no historical psychological issues in his life except when he was in Iraq.
In respect of the Foundation House Summary Assessment Report (Exhibit A1), Mr Hanna agreed with Mr Aviram that the report related to trauma and torture counselling and that he had sought assistance after the death of his mother because he felt low and wanted someone to talk to. He said he did speak to the assessor, Mr Rees, about his offending but not in detail, and then moved on to other topics.
Mr Hanna was asked where he would live if released into the community. He said he would find a house and obtain re-employment with Mr ZK, who knows about his offending. Mr Hanna said that doctors think his son has cancer and that he wanted to help him and needed to be there for him. Mr Hanna said he knows he made a huge mistake in his offending, and that he has paid for it. He said he would be happy to live with his wife, but first needed to rebuild the relationship with her, her parents and the community.
Mr Hanna was referred to a remark by Judge Pullen that his wife intended to divorce him. He said that is why he needed a chance to explain things to her, and that he hoped they could reunite as a family so he could provide for their child.
He said that ZW had not visited him in prison but had visited him three or four times in immigration detention.
In respect of family members still in Iraq, Mr Hanna said that he has two sisters living there but he did not have much contact with them, and that the family relationship is “a bit difficult”. He said he has a brother and a sister in Jordan who had been looking after his late mother and that they are in the process of applying to come to Australia.
In respect of fears of returning to Iraq, Mr Hanna said he fears for his life as a Chaldean Christian. He described receiving a phone call and the caller threatening to kill him and his family to rid Iraq of Christians. He also said that his family business used to provide “electrician” items to an American company in Iraq. He stated that he and his brother had received death threats because “we work with Americans,” which is why he had left the country and initially gone to Turkey. Mr Hanna said that he had given this information to authorities in Turkey when he was being assessed for a refugee visa, which was subsequently granted. Mr Hanna also said that there was an incident in 2007 when TNT had been found hidden under his house.
In response to direct questions from the Tribunal, Mr Hanna said that, despite the messages regarding engaging in sexual acts, he had not intended to do ‘anything sexually’ when he went to the park to meet the victim. He also said he had been told by Corrections Victoria staff that he did not have to do any sex offender courses because his level of risk is not high, but “it is from ‘medium’ to ‘low’.” He was also asked whether he had been offered the option of doing the course, to which he responded that he was not offered the option, and that if he had been offered he would have done it.
Evidence of ZW
ZW, the Applicant’s wife gave evidence. She adopted a written statement made on 6 May 2019 (GD, pp 107-111).
ZW told the Tribunal about the health of her son, ZS. She said that ZS was born prematurely and was kept in hospital for one month after his birth. Six months after that, a lump was found in his colon and he could not pass waste and this intestinal problem had to be investigated. This was around the time Mr Hanna was incarcerated. ZW said that for a period it was not known whether tumours found in ZS were benign or cancerous but that her latest medical advice is that they appear to be benign, but there must be regular checks with doctors. ZW said every three months they took ZS for medical examination and that he has also developed speech and some social issues, which she partly attributed to not knowing his father.
ZW said she remembers the police executing a search warrant at their family home. When asked whether her husband had explained why the police were there, she said that at a later stage when child protection authorities had become involved, Mr Hanna confessed to what he had done and was very remorseful.
ZW was asked about the paragraph in her statement which states:
My world fell apart on 8 December 2017 when I became aware of my husband’s offending. I was in complete shock, absolutely disgusted and devastated that the man I loved and had begun a life with could behave in such an abhorrent way.
ZW clarified that this was the date that Mr Hanna first appeared in Court, and that she knew of the offending before then.
ZW said she initially did not see her husband in prison, but spoke to him on the telephone. She said Mr Hanna did not want her to come and see him because he wanted her to be looking after ZS. She said she had to give up the house and go back to live with her parents.
ZW said that in June 2019 she went to see Mr Hanna in prison because his mother had passed away in Jordan and he was devastated and asked her to come and see him.
Asked directly about Judge Pullen’s remark that she intends to divorce the Applicant, ZW said that she had decided to give him a second chance. She said everyone deserves a second chance and he was a good man before. She said she had not initiated divorce proceedings and wanted Mr Hanna to prove his good intentions. In respect of accommodation, she said Mr Hanna had promised to do obtain accommodation for ‘us’ and said she is relying on what he actually does, rather than what he says he will do. In answer to a direct question from the Tribunal, ZW said she believed that the marriage was retrievable. ZW said that the State Department of Health and Human Services had ceased to have any involvement with the family because it was satisfied that ZS was in good care.
When asked directly by the Tribunal whether she would be happy for Mr Hanna to be with ZS, just father and son together, ZW said she could not judge it at this stage and she would be ‘protective’, but she hoped he would be a normal parent later at some stage. She agreed that she would give Mr Hanna a chance to prove himself to her, before they take the next step.
Evidence of Mr ZK
ZK adopted the written statement he made on 29 April 2019 (GD, pp 120-123). He said that when he made the statement he was “not 100 per cent aware of what the details of the conviction were, but I have since found out.”
ZK said that he employed Mr Hanna at his food manufacturing factory for over four years. He said that he employs around 20 people at the factory. He said that the Applicant was a vulnerable young man, who told him harrowing stories of his experiences in Iraq.
ZK told the Tribunal that Mr Hanna’s attitude to work was of an exceptional nature. He said he took initiative to do anything that was required of him. He said he had spoken on several occasions to Mr Hanna while he has been in prison and detention and after a discussion with his own wife, who is a co-director of the company, they jointly decided that if Mr Hanna is allowed to stay in Australia, they would offer to re-employ him. ZK said that before he made the offer, he spoke to each of his employees and all agreed with this course of action.
ZK said that Mr Hanna was originally employed as “what I would describe as a roustabout” (i.e. undertaking general factory duties as required) and within just over two years he had been promoted to be a supervisor, with responsibility for between four and six other staff involved in the packing of goods. ZK said that Mr Hanna’s conduct at work has always been very good.
Evidence of Ms ZA
ZA, sister of the Applicant, adopted a written statement she made on 6 May 2019 (GD, pp 113- 119).
ZA told the Tribunal she had three children, a daughter aged 10, and two sons, aged 7 and 6. She said she had not taken the children to visit their uncle in prison or immigration detention, nor had he talked to them by phone.
When asked in cross-examination what she knew about the offences, ZA said she understood Mr Hanna sent some messages. ZA said that her brother is very remorseful and “he doesn’t have the nerves to give the elaboration about what he did.” She said Mr Hanna had not explained to her anything else about his offending and that she did not know anything about the victim of the offending, except that it was a child.
ZA confirmed that she had two sisters living in Iraq and that they are trying to leave the country because of the conflict there. She said she keeps in occasional contact with them but was aware that Mr Hanna did not because of historical issues he has had with them. ZA said her sisters were aware of Mr Hanna’s offending and were very disturbed and sorrowful about it. She felt it would affect their relationship with the Applicant. ZA stated that if the Applicant returned to Iraq he would be killed and that he had left Iraq because he was threatened. She said that her parents had died, her brother had died in an explosion, and the family home in Iraq was demolished.
ZA said that she relied on the Applicant for support in Australia and that when she was in labour he had gone to the hospital with her. She said she had visited Mr Hanna in immigration detention but when the subject of his offending had come up, he did not discuss it and became tearful.
Evidence of Mr ZT
ZT, brother of the Applicant, adopted a written statement he made on 6 May 2019 (GD, pp 116-119).
In respect of the Applicant’s offending, ZT was referred to a paragraph in his statement which states:
He tells us that he made a stupid mistake but otherwise cannot explain why he asked a child for an explicit photo.
ZT was asked whether this was a full description of the offending, and said it was.
ZT said that he had two sisters still living in Iraq, and wrote in his statement:
If he is sent back to Baghdad he will almost certainly be killed. We fled Iraq because of the continuous and dangerous conflicts and also because of threats we would be killed. Wadhah has no family or friends or property in Baghdad, and if his presence is noticed he will be killed.
ZT was asked whether he made this prediction because of the civil unrest in Iraq or because he thought his brother would be singled out. ZT said that his brother was threatened before they left the country. He told the Tribunal that the family business sold electrical products and supplied “the US Government and US troops”, and that they and the nature of their business were well known in the district “which is why we had to flee.”
In answer to a question from the Tribunal about whether he thought the fact that the Applicant was a Chaldean Christian would be a risk factor, or whether the family’s former business would be, ZT responded that both would have an effect.
ZT said that he had three children, two daughters aged 13 and 4, and a son aged 10. He said that the Applicant lived with the family before he got married and had a close relationship with his nieces and nephew and agreed that the children view him like another father.
ZT said that he first learned of the offending when the police executed a search warrant on his house because the mobile telephone the Applicant used to communicate with the victim of his offending was bought in ZT’s name. He had given the phone to his brother as a present.
ZT said he was shocked by the offending because it was completely out of character. ZT said that he knew that the Applicant had requested an explicit photograph and that there was a meeting but that “nothing happened during that.” When asked whether he knew that there had been a further attempt at a meeting after the initial meeting, ZT said he was not 100 per cent sure that he had understood that because of language difficulties but agreed that “something like that happened.”
ZT said, in regard to his two sisters in Iraq, that he keeps in contact with them on important festive occasions. He was unaware whether his brother did or not, but knew that there had been a falling out in the past, but he did not know the reason.
Closing submissions for the Applicant
Mr Aleksov submitted there was a very low risk of Mr Hanna re-offending and that everything else in his life would operate as protective factors to tend to diminish the risk. Mr Aleksov pointed to the Criminal History Check and the order of the Court and said that it would seem from the Applicant’s evidence that he had not been required to undertake any treatment or attend any sex offender courses, which could be taken to be probative of there being a low risk.
Mr Aleksov said that Mr Hanna pleaded guilty at the earliest opportunity, has shown good insight and genuine remorse and has not engaged in any form of victim-blaming. He said that Mr Hanna would be able, if his visa is restored, to immediately resume his former employment and has a strong family network, and a marriage to rebuild.
In terms of the best interests of minor children, Mr Aleksov said the principal minor child that would be affected by the decision is the Applicant’s young son, ZS, but that his six nephews and nieces in Australia would also be affected.
Mr Aleksov said that the family are from a persecuted minority group in Iraq and that ZS would never be able to travel to Iraq to see his father, even when he is old enough so to do, because of the unrest there. Mr Aleksov said that there was no other place to which Mr Hanna could be removed except to Iraq, that it would be ‘futile’ for him to apply for a protection visa, and that it was “quite clear that he faces a moderate risk of violence as a Christian” if he is repatriated.
Closing submissions for the Respondent
Mr Aviram said that the Respondent relied on his written submissions. He said that in relation to non-refoulement obligations, there had been no assessment as to whether the Applicant may be owed protection obligations currently. Mr Aviram said that there was no evidence in this case of persecution or significant harm, as defined in the Act.
Mr Aviram said that the Minister acknowledged that the DFAT Country Information Report - Iraq (Exhibit A2) stated that there was a moderate risk to Christians in Iraq but submitted that in the Respondent’s view this did not rise to the level of significant harm. Mr Aviram noted that Mr Hanna had two sisters living in Iraq and that it would not be easy for him if he is repatriated, but that he is a young man who grew up in that country and would not face any substantive language or cultural barriers.
Mr Aviram said that the Minister accepts that the Applicant’s wife, son and other family members live in Australia, and that he has an employment connexion here.
The Respondent submitted that there was a high risk of Mr Hanna re-offending. Mr Aviram said that this becomes apparent when the Applicant does not acknowledge the complete circumstances of the offending and tends to minimise it. Mr Aviram noted that the sentencing Judge had seemed concerned about Mr Hanna’s rehabilitation to date and his prospects in the future.
Mr Aviram said that in spite of what Dr King stated, there was a sexual intention in the meeting with the child and that in the absence of evidence the Tribunal should not be satisfied that there is a low risk of re-offending.
In terms of the best interests of minor children, Mr Aviram said that this is not a case whether the best interests lie in revoking the mandatory cancellation of the visa. He said that ZS has a mother playing a parental role and that Mr Hanna had not had face-to-face contact with ZS for around two years. He said as the Respondent submits there is a high risk of re-offending, this is not a clear case where Mr Hanna would present an appropriate role model for a child.
In respect of Mr Hanna’s nieces and nephews, Mr Aviram submitted that, on the evidence, there had been no contact for the last two years with any of them.
CONSIDERATION OF THE DIRECTION
Primary considerations
Protection of the Australian community (paragraph 13.1)
The nature and seriousness of the non-citizen’s conduct to date (paragraph 13.1.1)
Counsel for the Applicant submitted that the Applicant accepts the circumstances of the offending as outlined in the reasons for sentence of Judge Pullen, and accepted that Mr Hanna’s conduct would be viewed as “serious” within the meaning of the Direction.
The Respondent contended that in accordance with the Direction, Mr Hanna’s offending should be viewed very seriously. Further, the Minister noted that the offending was committed against a vulnerable member of the community, being a minor, and that therefore the offending should be viewed as serious.
The Respondent submitted that the offending included, after entering into a sexualised on-line conversation with the victim, requesting that the victim send the Applicant a photograph of his body. Being aware that the victim was 12 (he was in fact aged 11), agreeing to meet the victim in a park, calling him on the phone to discuss oral sex and the planned meeting. The conduct also included, when they met, Mr Hanna taking the victim in his car and then, after the meeting, discussing seeing the victim again and asking the victim to send him a picture of his “ass”.

The Respondent noted that the offending took place over a period of two days but also noted the comments of the sentencing judge who stated:
While I accept your offending was not over a prolonged period, i.e. specifically only on 29 and 30 July, and does not show a pattern of behaviour entrenched in your history, it is nevertheless very concerning behaviour by you… (GD, p 43)
The Tribunal accepts that this was not a case where the Applicant was “trolling” the Internet in search of a young person to engage in sexual activity, as the Judge also found. However, while the Tribunal accepts that at the commencement of his on-line conversation with the victim Mr Hanna thought he was engaging with an adult, at a very early stage the person told the Applicant that he was aged 12. The print out of the exchange of messages between Mr Hanna and the victim show that at 5.35 pm (AEST) the victim stated “And I’m not young I’m 20.” The Applicant sent him a photograph of his genitals. However, at 6.18 pm, less than an hour later having sent intimate and facial photographs to the Applicant, the victim sent another message stating “I’m 12 yrs old come on.” He did so before the meeting was arranged, and in relation to the time of the meeting told Mr Hanna that his “mum said only 15 minites [sic].”
I do not find it plausible that, as the Applicant asserted during the hearing, having spoken to the victim on the phone and having, since initiating contact, received photographs of the victim’s face, genitals and torso, Mr Hanna still had any apprehension that he was communicating with an adult. He had also spoken to him on the phone. My conclusion that this is not plausible is reinforced by the fact that the victim told Mr Hanna he could not send a photograph because his mother was in the room, so the Applicant suggested he go into the bathroom to take it.
I note that in response to a direct question from me as to what he thought when the victim told him that he was “12 years old,” Mr Hanna said that he “thought he was joking.” This evidence does not accord with what he told the police when he was interviewed after arrest. I am satisfied that, before the meeting was arranged, Mr Hanna knew that he was arranging to meet a child.
Mr Hanna was unable to explain what the purpose of going to the park that day to meet up with the young person was. He stated “It wasn’t my intention to do anything, like, sexually, but I don’t know why I went there.” I do not find this explanation plausible. Based on the content of the messages, the phone call and the exchange of the intimate photographs, I am satisfied that the purpose behind arranging the meeting was for his sexual gratification, as referred to by Judge Pullen (GD, p 43).
The Direction requires the Tribunal, in assessing the nature and seriousness of a non-citizen’s criminal offending, to view sexual crimes very seriously (see paragraph 13.1.1(a)), and that crimes against vulnerable persons are serious (paragraph 13.1.1(c)). While there is no evidence of any offending other than the two offences for which Mr Hanna has been convicted, it would seem to me a proper understanding of this part of the Direction would categorise the Applicant’s two offences as serious, as they are sexual in nature and involve a vulnerable person, a minor child. This conclusion is supported by Mr Hanna being registered as a sex offender because the offences of which he has been convicted are Schedule 2 offences under the Sex Offenders Registration Act 2004 (Vic), and Judge Pullen accepting the submissions from the prosecution that the presumed harm from sexual offences involving children applies to carriage service offences (GD, p 48).
The Applicant remarked during his evidence that he has spent “the last two years” reflecting on what made him do the acts which led to the convictions. Notwithstanding this period of reflection, Mr Hanna was unable to provide any explanation except that he was at the time unable to have sexual relations with his wife owing to medical advice to avoid it for a few weeks following the premature birth of their son. This seems to be a very inadequate explanation for what drove Mr Hanna to, once he realised the stranger he was communicating with was a child, nevertheless follow through with arranging a meeting, and then make attempts for a second meeting. He had many opportunities to cease contact with the victim before the meeting transpired.
I am satisfied that the nature of this offence puts it in the very serious category, which is reflected in the relatively significant sentence of three years imprisonment (of a possible maximum of 15 years available to the Judge under the relevant statute) imposed in a case where the Judge accepted there had not been physical contact between the offender and the victim.
I find that the nature and seriousness of the conduct weighs heavily against revoking the mandatory cancellation of the visa.
The risk to the Australian community (paragraph 13.1.2)
The Direction requires the Tribunal to have regard to the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct, and the likelihood that he will engage in such conduct, taking into account available evidence.
There is no evidence before the Tribunal of any other prior offending or other serious conduct by Mr Hanna. Therefore, the Tribunal will focus on the particular offending for which he has pleaded guilty and been convicted. The nature and extent of harm of an adult seeking out a person who they then came to realise was a young child, and then sexually exploiting that vulnerable child by soliciting an intimate photograph, is obvious.
When interviewed by the police, Mr Hanna said he was unable to remember the victim asking him whether a child had performed oral sex on him before, and was also unable to remember why, after the meeting at the park, the victim would have said “Hey, your dick feels nice.” Mr Hanna also told the police he could not remember discussing a second meeting with the victim (GD, p 37).
I note that Judge Pullen remarked that she was concerned about Mr Hanna’s responses in the police interview involved “admissions ‘up to a point.’” Her Honour also recorded that at the sentencing hearing Mr Hanna’s counsel accepted that there had been attempts by his client to minimise his involvement, in particular in relation to plans for a second meeting and the request for a further intimate photograph from the victim.
As mentioned above, Mr Hanna said he had a number of clinical sessions with Dr Michael King, a clinical psychologist. Dr King wrote a report on the Applicant dated 26 March 2019 (GD, pp 126- 133). Under the heading ‘History in context’, Dr King made reference to the turbulent nature of Mr Hanna’s upbringing in Iraq, including the death of his brother. He wrote:
Mr Hanna grew up in Iraq in a time of brutal conflict. It is relevant that his experiences did not include any sexual offending against himself or his peers. However there was much trauma and death of friends and relatives (including the terrorist-killing of his brother).
The importance of this history is not so much the point of how terrible his experience was in Iraq but rather that he entirely lost any sense of his youthfulness in growing up.
His actions underlying the present matter are interpreted as a fumbling attempt to achieve the task of filling in this missing developmental stage of having young child and adolescent friendships and experiences. With this direction my client was befriending people on social media. In the sense of re-creating a component of what was missing in his life, the youthful friendship he had missed out on, he arranged to meet this lad.
As I understand it the meeting was brief and had no sexual intentions nor advances from my client. He did recognise the inappropriateness of this effort to venture into a “missed out on” aspect of his life – that being normal friendship in young adolescence, and concluded the meeting.
This interpretation seems to provide clear and credible pathway to the situation that Wadhah is found in, and does not suggest that he is likely to re-offend.
The Respondent submitted that the conclusion of Dr King in the second paragraph that there were no ‘sexual intentions’ behind the meeting suggests that Mr Hanna did not reveal to Dr King the nature of his communications with the victim before and following the meeting. It may also be that Mr Hanna suggested to Dr King he did not go to the park with the intention of engaging in sexual activity, as he asserted in his oral evidence at this hearing.
The Tribunal has arrived at the same conclusion as the Respondent. Mr Hanna said in his evidence that he saw Dr King “four or five times.” It does not seem plausible that, in the context of preparing a report to be considered by the Court, a clinical psychologist would not have asked specific questions to probe the circumstances of the offending, in order to come to a forensic conclusion. For Dr King to express the view that, as he understood it, there were “no sexual intentions” behind the meeting leads me to the view that Mr Hanna withheld significant relevant details from the clinical psychologist, or perhaps that Dr King was merely uncritically reciting what Mr Hanna told him.
It is clear to the Tribunal from the exchange and content of several of the approximately 106 electronic messages between the Applicant and the victim (SGD, pp. 66-68) that, despite the Applicant’s assertions to the contrary, the purpose of the meeting in the park, and the purpose behind the proposed second meeting, was for sexual gratification. I therefore come to the conclusion that the content and nature of the messages between the Applicant and the victim was not frankly conveyed to Dr King by the Applicant. Simply put, Dr King did not have the background context.
Given this, the Tribunal cannot place any significant weight on Dr King’s conclusions that Mr Hanna is “not to be at risk of future sex-related offenses” (sic). This is because this conclusion is based on incomplete factual information. Even putting what appears to be a lack of candour from Mr Hanna to Dr King to one side, there appears to be no basis whatsoever for Dr King’s proffered theory, given that Dr King had at least some information about the circumstances of the offences, that Mr Hanna’s conduct relates solely to missing out on youthful friendships.
Accepting that Mr Hanna grew up in a place, Baghdad, that faced extraordinary turbulence and traumatic pressures, he told the Tribunal that he was schooled there to “level 9” before, it appears, working in the family business. There was no other evidence before the Tribunal of the Applicant not having friendships and experiences as a child and adolescent. It would seem, perhaps because Dr King was not given the full picture of what interaction took place between Mr Hanna and the victim before, during and after their physical meeting, that he has landed on the fact that the Applicant’s upbringing occurred in a war-torn place, and then concluded the meeting between the victim and Mr Hanna was for the purpose of “youthful friendship.” That is a conclusion the Tribunal, on the whole of the evidence and on the findings of the Court, cannot accept.
I note that the sentencing judge remarks (GD, p 44) that Mr White, counsel for Mr Hanna before the Court, was “concerned about the incomplete nature of [Dr King’s] report” and that Dr King’s assessment of Mr Hanna as being of low risk of future sexual offending was based on Mr Hanna’s self-report of his offending which Her Honour said was, in many respects, inconsistent with the prosecution opening, which contained factual circumstances Mr Hanna accepted.
Judge Pullen adjourned the hearing to allow Mr White the opportunity to obtain an addendum report from Dr King to “specifically address his conclusion that you were a low risk of sexual re-offending and whether such would continue to be his opinion if made aware of the full circumstances of your offending”.
The Judge records that a further report was tendered, but Mr Aviram confirmed to the Tribunal that this further “addendum report” was not in the possession of the Respondent or in the papers before the Tribunal. In any event, I note Her Honour stated (GD, p 44): “In that report Dr King unfortunately did not specifically confirm “low risk” of re-offending, nor any other specific risk.”
Dr King’s addendum report did, apparently (GD, pp 44-45):
…address your [i.e. the Applicant’s] intentions that a sexual encounter was contemplated.
Dr King, being aware of that, remained of the opinion you were “not similar to” habitual sexual offenders. That your offending reflecting a blurring of two motivations, your desire for friendship and your desire for sexual gratification.
You are not of a similar profile, he said, compared with entrenched sexual predatory offenders. You now recognise the wrongfulness of your intentions and actions.
In his opinion you require close clinical monitoring and assistance over a significant period (at least one year) as a high priority.
The Addendum at best it seems can be interpreted, as Mr White submitted, that you are not medium to high risk.
It is regrettable that this second report is not before the Tribunal, but I accept that the sentencing Judge has accurately recorded the salient parts of it, in terms of risk, in her sentencing remarks.
I do not accept the proposition from Mr Aleksov that there is “a very low risk” of Mr Hanna re-offending. In the absence of any clear statement from the Applicant as to what led him into the sexualised conversation with this child and the meeting, it is relevant to note that the victim told the Applicant in their message exchange that he had been sexually abused by his father, so Mr Hanna had pre-warning that the victim was a vulnerable person. Regardless of the initial text message from the victim, early on, that he was “20 years old,” that this statement was untrue must have quickly become apparent to the Applicant when he asked for a photograph of the victim’s body and the victim told him he could not send one because his mother was in the room, and clearer still when he received several photographs of the victim.
The plain fact is that Mr Hanna has been unable to explain to the Tribunal his motivation for his actions that day, and that he proceeded to an encounter which, as the Judge remarked (GD, p 49), led him, in the submissions of the prosecution, “very close to committing the offence [i.e. the offence of procuring a minor for indecent purposes] being in the car with the victim on the first occasion,” and yet proposed a second meeting, in the full knowledge of the age of the child. This is profoundly disturbing.
The evidence of Mr ZT and, particularly, Ms ZA also indicate to the Tribunal that Mr Hanna had not given them all the facts about his offending. This may be because of embarrassment, but it also may be an effort to minimise the nature of it.
Mr Aleksov submitted that protective factors including a supportive family network and Mr ZK's invitation of full-time employment would militate against re-offending. Those factors were in place when the offending occurred. By all accounts, and on ZK's evidence, Mr Hanna was a diligent and respected employee. In the words of ZW he was “a brilliant” husband, helping her with a sickly premature baby. He had good relations with his siblings and his extended family in Australia.
I find, in all the circumstances, that there is a real risk of Mr Hanna re-offending, and that while it may not be a high risk, given there was no history of previous offending, I am satisfied that it is a medium risk, particularly because of the Applicant’s inability to explain what led to his serious criminal conduct. Mr Hanna will have to face new pressures, such as rebuilding his marriage, where ZW’s evidence was clearly that she is wary of living again with her husband and allowing him to be alone with their son, until he has “proven himself” to her satisfaction. Although there is evidence of his significant involvement with members of the Chaldean Christian community, that community’s level of knowledge about his offending, and the specific nature of the offending, was not apparent to the Tribunal.
Weighing all of these factors, I find that this consideration weighs heavily against revoking the mandatory cancellation of the visa.
Best interests of minor children in Australia affected by the decision (paragraph 13.2)
The Direction requires the Tribunal to make a determination about whether revocation is in the best interests of a relevant minor child, or relevant minor children.
Mr Aleksov submitted:
The Applicant has two-year-old son whom he has not seen since his incarceration for fear that it will harm his efforts to be reunited with his family. Prior to his incarceration he was heavily involved in the child’s life. Upon release from detention, he would return to his family home which is a loving and caring environment and he will play an extremely positive role in his child’s life.
The last sentence of this submission is at odds with the oral evidence at the hearing. Mr Hanna said that, if he is released from immigration detention, he would obtain accommodation for himself. The previous matrimonial home was given up, and ZW now lives with her son at her parent’s house. ZW did not say definitely that she would move back to live with Mr Hanna, though she held the door open to that prospect sometime in the future and said that Mr Hanna would be “able to obtain accommodation for us,” agreeing with the Tribunal’s direct suggestion to her that Mr Hanna would have to prove himself.
It is accepted that Mr Hanna is a loving father to his son, and the evidence that he was especially attentive from the time of his son’s birth until he was taken into custody, especially in regard to the special medical needs of the infant, was not challenged.
The Respondent submitted that the offending occurred when Mr Hanna’s son was three months old and that the Applicant was arrested and bailed when he was five months old. From late February 2018, prior to Mr Hanna entering custody in April of that year, Child Protection Services became involved and Mr Hanna could only see his son in a supervised setting. From late-February, the Applicant was not able to live at his former home and could only see his son once or twice a fortnight with another person present.
Mr Hanna told the Tribunal that, at this time, for a period he lived in hotels and sometimes in his car, because he could not afford to stay in hotels all the time. When he did sleep in his car, he said he would contact ZW and she would arrange to be absent with the baby for two hours to enable him to shower at home. Sometimes she would stay overnight at her parent’s house with their son so that Mr Hanna could get a proper night’s sleep at their former home.
I do not accept the Respondent’s submissions that Mr Hanna has been unable to fulfil a parental role for a significant proportion of his son’s life to date, but I do conclude that he has been unable to fulfil a regular, present, parental role for almost all of ZS’s life. ZS was born in April 2017. Mr Hanna was arrested on 14 September 2017 when ZS was just over five months old. After being granted police bail there were restrictions, as referred to above, on his contact with his son. Mr Hanna entered into custody after pleading guilty on 12 April 2018 and was sentenced on 27 April 2018. On release from prison, the Applicant immediately entered immigration detention. ZW visited the Applicant in prison once, after his mother died, but not with ZS, and it does not appear that ZS has been taken to visit his father in immigration detention.
I note ZW’s evidence that their son has suffered a number of health setbacks in his early life but on the evidence of ZW these seem now to be improving, and I also note her evidence that ZS has been socially affected by the absence of his father.

While there is no evidence before the Tribunal suggesting that Mr Hanna would offend against his son, the nature of the offending to which he pleaded guilty is serious sexual offending involving a child. Should he re-offend in this manner, it would not provide in any way a positive parental influence. It would in fact have a negative impact upon ZS (see paragraph 13.2(4)(c) of the Direction).
The Tribunal notes ZW’s evidence that the State Department of Health and Human Services ‘required’ that Mr Hanna not have contact with ZS for a period and then could only have supervised contact, but approved that the Applicant’s sister could be the supervisor. ZW said that DHHS had assessed that ZS was not at risk and, in her words, had closed the file. That is relevant to paragraph 13.2(4)(b) of the Direction.
It is also relevant, as Mr Aleksov submitted, that owing to the civil situation in Iraq, as well as ZS’s age, ZS would not be able to visit his father in Iraq if his visa is not restored and he returns there. There would be opportunities for Mr Hanna to maintain contact with ZS by telephone or social media, but these obviously would be of a much lesser quality than personal contact in Australia, even in the event the Applicant and ZW did not rebuild their marriage.
The Tribunal finds, in relation to the Applicant’s minor son, this consideration weighs in favour of revoking the mandatory cancellation of the visa but, in this particular circumstance because of the nature of the offending, only very slightly.
The Direction requires that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ. As mentioned above, Mr Hanna’s sister and brother in Australia each have three young children. In respect of Mr ZT’s children, the Applicant said that before he married he lived with his brother and was like a second father to them. The Tribunal accepts that there is a significant family bond between Mr Hanna and his nieces and nephews and that they would want him to stay in their lives. The weight that I give to these relationships is, however, diluted, because others (their own parents) fulfil parental roles in their lives (see paragraph 13.2(4)(a) of the Direction). There was no evidence that the interests of Mr Hanna’s nieces and nephews may differ materially, although it is reasonable to conclude the Applicant may have a slightly closer relationship with ZT’s children because they all lived together in the same house until 2016.
The Tribunal finds, in relation to the other relevant children, Mr Hanna’s six nephews and nieces, this consideration weighs slightly in favour of revoking the mandatory cancellation of the visa.
On balance, in spite of the specific nature of the offending, the Tribunal finds that because of the potential future effect on his son of having an absent father, this consideration weighs overall very slightly in favour of revoking the mandatory cancellation of the visa, but not as heavily as it might in other factual circumstances.
Expectations of the Australian community (paragraph 13.3)
Paragraph 13.3(1) of the Direction reads:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
FYBR v Minister for Home Affairs [2019] FCAFC 185, provides guidance to decision-makers in how to approach this primary consideration. In that matter, the Court was considering the superseded Direction No. 65, now replaced by Direction No. 79, but the wording of the relevant paragraph in the current Direction is identical.
In FYBR, the majority (Charlesworth and Stewart JJ) held that this part of the Direction expresses a ‘norm.’ It is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed – they are what the executive government has declared are its views, not apprehensions, presumptions or values that may be gauged or gleaned by some other independent evaluative process.
Stewart J stated, at [100]:
To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
. non-citizens will obey Australian laws when in Australia;
.it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere.
.in a particular case, the refusal of the visa may be appropriate simply because of the nature of the character concerns or offences is such that they should not be granted a visa.
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”
(Emphasis added.)
His Honour went on to state (at [102]) that the character assessment, even through the prism of community expectations, may not be decisively against an Applicant, which is why the decision-maker must assess what is ‘appropriate’ in the particular circumstances.
Mr Aleksov submitted:
It is accepted that this consideration must be treated as adverse to the applicant, but it is submitted that the Tribunal should not place weight on this consideration separate from its overlap with the aspects of this case adverse to the applicant’s character – his criminal offending.
In response to this submission by Counsel for the Applicant, the Tribunal cannot detour around consideration of paragraph 13.3(1). It is a primary consideration and the Direction states that decision-makers “should” have due regard to the Government’s views.
The Respondent submitted that the Australian community would expect that a person with the Applicant’s serious criminal history, involving the sexual exploitation of an 11 year old child, should not continue to hold a visa.
The Tribunal considers that the breach of the law by Mr Hanna, although an isolated incident, was a very serious breach, as was reflected in the sentencing Judge’s comments and in the term of imprisonment Her Honour imposed. The offending was against a young child, who appears on his own assertions to be the victim of sexual abuse. The offending was carried out deliberately, not opportunistically, in the sense that Mr Hanna arranged the meeting and sought intimate photographs of the victim. There was a significant period between the arrangement of the meeting and when he went to the park for the encounter, and at any time he could have stopped. It is also relevant that the Applicant asked the child for a further meeting. As Judge Pullen said, in the context of considering prosecution submissions about the possibility of further procurement offences being committed, the stage the interaction between the Applicant and the child had reached was already ‘very concerning’ (GD, p 49).
The Tribunal finds that this primary consideration weighs heavily against revoking the mandatory cancellation of the visa.
Other considerations
Paragraph 14(1) of the Direction requires the Tribunal to take into account other considerations where relevant. The Direction goes on to list five ‘other’ considerations but reminds decision-makers that this is not an exhaustive list.
Non-refoulement obligations (paragraph 14.1)
The Direction describes Australia’s obligations not to forcibly return, deport or expel a person to place where they will be at risk of a specific type of harm. The Direction goes on to refer to Australia’s non-refoulement obligations under three treaties: the 1951 Refugee Convention, the Convention against Torture, and the International Covenant on Civil and Political Rights.
In the written and oral submissions of the Applicant it was claimed that Mr Hanna is a person in respect of whom Australia owes protection obligations and that these claims must be assessed and weighed in the balance. The claim centres on Mr Hanna being a Chaldean Christian, and Mr Aleksov referred the Tribunal to the DFAT Country Information Report – Iraq. Mr Hanna also gave evidence about his family business working for another company, and accusations by unnamed persons who he said rang him and ZT that they would be harmed because of ‘working with the Americans’.
At the hearing the Tribunal questioned counsel for the Applicant on this submission and noted that the visa formerly held by Mr Hanna was not a protection visa and that the Applicant had the ability, should his visa not be restored, to apply for a protection visa. Mr Aleksov said that such an application would be “futile”. The Tribunal is not sure why this oral submission was made; it seems to pre-empt any possible submissions the Applicant might make, in the event that he applied for a protection visa, which would be likely to be assessed under Direction No. 75, where a decision-maker:
“must first assess the applicant’s refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns.
(Emphasis added.)
The Respondent submitted that the Tribunal is not required to determine whether non-refoulement obligations are owed to the Applicant as a valid application for a protection visa can be made in the future. In support of this contention, Mr Aviram drew the Tribunal’s attention to GBV18, and particularly to Anderson J’s comments, at [82] to [84]:
Having read and considered the relevant authorities, my interpretation of the current position of the law, based on the prevailing weight of authority, is as follows:
In circumstances where:
(a)Upon invitation under s 501CA(3), a person makes representations that he or she will experience a risk of harm in the receiving country of a character that may engage Australia’s non-refoulement obligations, as expressed in the criteria in ss 36(2)(a) and 36(2)(aa) of the Act; and
(b)At the time of making those representations, it remains open for the applicant to make an application for a protection visa; and
(c)It is certain, or at least highly likely, that Australia’s international non-refoulement obligations, as expressed in the criteria in ss 36(2)(a) and 36(2)(aa) of the Act, will be considered as part of that application,
The decision-maker under s 501CA(4) will not commit a jurisdictional error by, in the course of exercising his or her discretion, deferring consideration of such non-refoulement obligations until the determination of any application for a protection visa.
For the purposes of determining whether it is highly likely that Australia’s international non-refoulement obligations will be considered as part of a protection visa application, the existence of Direction No. 75, combined with sufficiently clear and unequivocal reassurances regarding the practices of relevant decision-makers not covered by Direction No. 75, will be sufficient to meet that test.
His Honour went on to say, at [85], that if a decision-maker does decide to consider non-refoulement obligations in the course of undertaking the balancing exercise required by section 501CA(4)(b)(ii) of the Act, he or she must give active intellectual consideration to these matters, although there is no necessity for the decision-maker to engage in the same level of analysis as would be expected in a protection visa application, citing Flick, Griffiths and Perry JJ in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513.
GBV18 preceded the Full Court decision in Minister for HomeAffairs v Omar [2019] FCAFC 188 but the conclusions of Steward J in the more recent case of Ali v Minister for Home Affairs [2019] FCA 1900, seem to encapsulate the current state of the law and preserve the approach taken in GBV18. His Honour stated, at [41]:
Anderson J observed that Omar was an “outlier” on the “jurisprudential spectrum” (at [81]) and thus declined to follow it. His Honour said at [73]:
However, notwithstanding these reservations, the clear weight of authority relevant to the review of administrative decisions made after the issuing of Direction No. 75 favour the conclusion that the first direction under Direction No. 75, combined with sufficiently clear and unequivocal reassurances regarding the practices of relevant decision-makers not covered by Direction No. 75, is sufficient to overcome the possibility of jurisdictional error based on the “first misunderstanding” identified in BCR16.
I respectfully agree with and adopt the foregoing.
42.Omar was the subject of an appeal to a Full Court of this Court: Minister for Home Affairs v Omar [2019] FCAFC 188. The issues before that Court were summarised in a judgment of the Court (comprising Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) as follows:
(a)Did the primary judge err in finding that the Assistant Minister fell into jurisdictional error in making his decision under s 501CA(4) by deferring consideration of any non-refoulement obligations to a future protection visa application by the respondent?
(b)Are non-refoulement obligations mandatory relevant considerations under s 501CA?
(c)Is the decision of the Full Court in Ibrahim v Minister for Home Affairs [2019] FCAFC 89, at [106]-[116] plainly wrong, as contended by the Minister? In light of this contention, the Chief Justice directed that the appeal be heard by five Judges.
(d)Does Direction No 75 reverse the effect of BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456?
(e)Did the primary judge err, as contended by the respondent, in not holding that the Assistant Minister had made a jurisdictional error by failing to consider the matters (including factual matters) raised by the respondent in his representations made under s 501CA(3) as being a reason for revoking the visa cancellation decision, irrespective of whether these matters engaged any of Australia’s non-refoulement obligations.
The Court did not decide the first four issues and thus did not consider whether Mortimer J’s conclusion about the effect of Direction No. 75 was correct. Rather, the Court said at [5]:
As will shortly emerge, we consider that issue (e) should be determined in the respondent’s favour, consequently the other issues need not be determined, including the challenge to the correctness of Ibrahim. Also, although issue (a) need not be determined separately from issue (e), there is some overlap between the two issues inasmuch as there are some factual matters which underpin both issues.
The Tribunal takes the view that it should examine the claims made by the Applicant and on his behalf, in respect of this consideration.
Mr Hanna wrote in his statement of 10 May 2019 (GD, p 101):
I arrived in Australia on 7 February 2013 after fleeing terrorism and violence in Iraq. My family and I lived in Baghdad which was subjected to repeated terrorist attacks, targeted air strikes and violence against the community. The problems in Iraq still exist today. My family and I are followers of a minority Christian religion which made us more vulnerable to attack. From 2003 onwards most Christians left Iraq because of the persecutions. After I arrived in Australia my older brother was killed in a targeted attack near our family’s apartment. By this time most of my family had fled Iraq because of the danger to their lives.
…
I wish to have the decision to cancel my visa revoked for a number of reasons. Firstly, if I am sent back to Baghdad I will almost certainly be killed. I have been threatened with death prior to fleeing the country, and I believe these threats will be carried out if I am returned. Most of my family has fled Iraq because of the danger to our survival. To this day the Australian government advises people not to travel to Iraq because although the terror cell Da’esh was supposedly defeated in 2017, the risks remain. The Department of Home Affairs reports that ‘the country continues to be beset by post-conflict challenges as well as longstanding political and sectarian divisions’. The UK Home Office observes that ‘terrorists are very likely to try to carry out attacks in Iraq. There’s also a high kidnap threat. While attacks can take place at any time, there’s a heightened threat during religious or public holidays’. It also advises against travel to Iraq.
The Tribunal accepts, on the basis of the evidence before it, that Mr Hanna is an active member of the Chaldean Christian community in Victoria. Before the Tribunal (GD, p 393) was a statement from the President of the St Addai Community Society Inc. (a Chaldean Christian organisation) dated 18 June 2018 which stated:
We want to certify that Mr Wadhah Hanna is an active member of St Addai Community Society Inc. Mr Hanna is regularly attending our meetings and he is always offering different types of social, financial and moral support to whoever needs help and support. Mr Hanna is usually showing a positive attitude to our community. Please don’t hesitate to contact us for any further information about Mr Hanna.
There was other evidence before the Tribunal of Mr Hanna being an active member of the congregation of St George’s Chaldean Church in Melbourne.
The DFAT Country Information Report – Iraq (Exhibit A2) states, under the general heading ‘Religion’:
Christians
3.21 In 1987, the government estimated 1.4 million Christians lived in Iraq. Christian community leaders estimate this number has fallen to fewer than 250,000. Conflict in Iraq after 2003 directly affected all religious communities, and the Christian community faced a high level of violence at the hands of armed groups. The rise of ISIL exacerbated violence towards Christians and many have fled Iraq.
3.22 Christian groups include Chaldean Catholics (67 per cent of all Christians) and the Assyrian Church of the East (a further 20 per cent)…
3.24 The general decline in acceptance of ethnic and religious minorities among majority communities in Iraq also affects Christians. Local sources report increased harassment and violence in areas where Christians are a minority, including Shi’a areas of Baghdad or in Basra. Christians may disengage from society for their own safety. State protection is often insufficient…
3.27 DFAT assesses that Christians in Iraq face low levels of official discrimination. However, DFAT 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 in a minority.
The Tribunal notes that “moderate risk” indicates that “DFAT is aware of sufficient incidents to suggest a pattern of behaviour” (A1, p 4).
Mr Hanna and his brother Mr ZT both referred to the death of their brother, Mr ZF, as the result of an explosion at a market place in Baghdad. Before the Tribunal was the English translation of Mr ZF’s death certificate, dated 3 July 2016, referring to the cause of death being ‘explosion’.
Mr ZT said in his written statement (GD, p 117) that this bomb attack occurred near their (former) apartment in Baghdad and that his death was ‘an example of the risk to everyday citizens.’ He then went on to say that ‘although people in Baghdad are at risk in general, [belonging to a minority Christian religion] placed our family in much more danger of attack from radicalized members of the Sunni Muslim religion. We were not safe, and followers of our religion were specifically targeted and hunted.’

The Applicant said in his written statement (GD, p 101) that Mr ZF’s death was the result of a ‘targeted attack.’ It was not claimed by other witnesses that the explosion that caused Mr ZF’s death was specifically targeted at their brother. The evidence satisfies the Tribunal that Iraq remains a particularly volatile and dangerous location, and parts of Baghdad in particular. I am also satisfied that the fact of Mr Hanna being a Chaldean Christian would, on the basis of the DFAT Country Information Report, place him at a higher risk of harm.
Before the Tribunal (GD, p 173) was the translation of a statement dated 10 October 1995 [sic] written, it appears, by Mr ZT but also signed by the Applicant at some time in 2011, and translated in 2018. It stated:
My brother Wadhah and I used to work in the district of Shorja, in electrical apparatuses trade. I was one of those renting shops owned by Latin Sect Church, at that district based on the contract attached to this contract. We used to supply a famous construction company in Baghdad, known by Al-Khoudari General Construction Company. This company used to deal directly with the coalition forces as well as with public selling out electrical apparatuses. Despite that we had no direct communication and dealing with coalition forces, we still were subject to threat coming from extremist terrorist gangs, widely spread in Baghdad.
On 05/04/2011, at the evening, I was at home with my family. We received a phone call from a mobile phone. The person who contacted us did not disclose his identity, so he remained anonymous to us. When I answered the phone, he said “Are you Wadhah or [ZT]?” I replied to him, “go ahead please I am [ZT]”. He resumed his talk by saying, “You filthy Christian, how come you are still here and did not leave the country, aren’t you afraid of being killed”. I was stunned by those words. I asked him with panic, “who are you?” He did not answer and continued talking “listen, we know where you and your family live. We know that you and your brother are working with builders in the market. We have been watching you for a while and we will kill you and your brother you filthy” and hanged up on me. It was a horrible situation for me, as I knew that the overall security situation in Iraq had deteriorated.
[…]
My shops were subject to vandalism by fire in 2006 committed by terrorist militias. Despite reporting this incident to police, they authorities did not investigate or followed up this case. Since then I have lost trust in the Iraqi officials.
Mr ZT’s suggestion in his oral evidence that there may be an additional, more specific, risk of personal harm on the basis that the family previously operated a business which had some dealings with US troops and US government agencies in Iraq was not corroborated by the Applicant, who did say that their family business had some dealings with ‘an American company.’ It is also not consistent with the written statement above, which states that ZT and the Applicant “had no direct communication and dealing with coalition forces”.
It would seem, although there is some inconsistency in the evidence, reasonable for the Tribunal to accept that both the Applicant and his brother made submissions that they were placed in positions particularly vulnerable to harm because of both their Christianity and because of some links with an American company, or a company with American links, operating in Iraq.
While I am satisfied that returning to Iraq would be difficult, and that Mr Hanna is factually in a category of persons who face more violence and discrimination, I accept the submissions of both Mr Aleksov and Mr Aviram that the Applicant would face a moderate risk of harm. While some of the evidence does not rise to the level of a substantial risk of harm which would invoke Australia’s non-refoulement obligations, I am satisfied in this case that the Tribunal should, in the circumstances of the Applicant and those of his family who came to Australia, find that a case can be sustained where treaty-related or complementary protection may be owed.
I therefore conclude, noting the Applicant may apply for a protection visa at which time any claims can be put that would be considered under s 36 of the Act, that this particular consideration weighs somewhat in favour of revocation of the mandatory cancellation of the visa.
Strength, nature and duration of ties (paragraph 14.2)
The Direction requires the Tribunal to have regard to how long Mr Hanna has been in Australia, noting that less weight should be given where a non-citizen began offending soon after arriving in Australia, and more weight should be given to time the non-citizen has spent contributing positively to the community.
Mr Hanna arrived in Australia seven years ago, in February 2013. His offences occurred in July 2017, just over four years after his arrival in this country. There was evidence before the Tribunal of Mr Hanna making a positive contribution to the community, as mentioned above, from the President of the St Addai Community Society. There was also evidence of his active involvement in the congregation of his church.
The Direction also requires the Tribunal to have regard to family and social links with Australian citizens, Australian permanent residents or people who have an indefinite right to remain in Australia, including the effect of non-revocation on Mr Hanna’s immediate family in Australia.
The Tribunal has already noted that Mr Hanna has two siblings in Australia, both of whom is married and has children. He also has a wife, ZW and son, ZS in this country. He gave evidence that he has two other brothers currently in Jordan who are seeking to come to Australia.
The Tribunal will also consider here the evidence of ZK, the Applicant’s former employer. He spoke highly of Mr Hanna as an employee, and said that he was well-regarded by his work colleagues and was a hard and diligent worker. The Tribunal accepts ZK as a witness of truth, and notes that he went out of his way to give written and oral evidence in support of Mr Hanna, because of his regard for Mr Hanna when an employee. On this evidence, the Tribunal finds that Mr Hanna has made some positive contribution to the community.
The Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa.
Impact on Australian business interests (paragraph 14.3)
The Direction exhorts the Tribunal to consider the impact on Australian business interests of a 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 important service in Australia.
Counsel for the Applicant submitted that ZK’s evidence should be considered in regard to this part of the Direction. While the evidence of ZK about Mr Hanna’s record as an employee was not challenged by the Respondent, the Tribunal does not consider that this evidence rises to the level where his skills are pivotal to provision of an important service in this country.
The Tribunal finds that this consideration weighs neutrally in this assessment.
Impact on victims (paragraph 14.4)
The Tribunal is to consider the impact of a decision in relation to the visa on members of the Australian community, including victims of the non-citizen’s criminal conduct and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been accorded procedural fairness.
The Tribunal notes that the victim did not provide a written statement to the police, and while there was a written statement from the victim’s mother in the papers, this part of the Direction is only engaged where the persons know about the possibility of the person’s visa being revoked or restored. As there was no such evidence, the Tribunal finds that this consideration is not engaged in this assessment.
Extent of impediments if removed (paragraph 14.5)
The Tribunal has considered the extent of any impediments that the Applicant may face if removed from Australia to his own country, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country). The Tribunal has taken into account Mr Hanna’s age and health, any substantial language or cultural barriers and any social, medical and/or economic support available to him in Iraq.
Mr Hanna has two sisters in Baghdad but on his evidence, while other members of the family in Australia have maintained regular contact with them, he has not. On his evidence and that of Mr ZT, he would have no accommodation in Iraq and no apparent job prospects. It would seem to the Tribunal that he would not face language barriers because he speaks Arabic, but he may face certain cultural barriers, in common with other Chaldean Christians, noting that Christians are a minority numbering some 250,000 in Iraq (Exhibit A2).
While there was a letter before the Tribunal from Dr Bassim Francis, the Applicant’s treating general practitioner since the year Mr Hanna arrived in Australia (GD, p 135), it did not record any specific health conditions.
Dr King’s report (GD, p 126) recorded, after testing, that Mr Hanna had an average IQ (exactly at the 50^th percentile) and did not seem to alight on a diagnosis of any particular mental health condition, relevantly stating:
An analysis of his current mental state with regard to PTSD demonstrates the feature of the client currently having blurred and general memories rather than the normal profile of clear and specific personal history recollections. These significant and anticipated after-effects of early life trauma add a further layer of coherence to the overall interpretation of the case. Mr Hanna had himself sought counselling from an appropriate source (myself, a Clinical Psychologist) through a medical referral. He is a man with a profoundly traumatic early life, and has agreed to continue attending my clinic to enable ongoing counselling and assistance to help him over-come trauma-related effects in his psychological profile.
On the papers before me, it is not clear, therefore, that there is a diagnosis of PTSD or any other mental health condition. I may be satisfied that Dr King has identified some, as he puts them, “after-effects of early life trauma,” but this falls short of a settled diagnosis. The Foundation House report by Mr Dashiell Rees, counsellor (Exhibit A1), records that Mr Hanna
reports persistent poor mental health characterised by symptoms of trauma, anxiety, and depression, which he describes as exacerbated by his current detention disposition.
While this falls short of any clinical assessment (and does not purport to be such), I am satisfied that Mr Hanna does revisit some of the traumatic experiences he had growing up in a strife-torn city, possibly partly in ruminating about returning there if his visa is not restored.
The DFAT Country Information Report on Iraq records that health infrastructure has suffered from decades of conflict and that the United Nations Office for the Coordination of Humanitarian Affairs estimates that 7.3 million people who need health services lack access to them.
Exhibit A2 goes on to consider what it terms “considerable evidence that Iraqis who are granted protection return to Iraq, sometimes only months after securing residency in Australia, to reunite with families, establish and manage business or take up or resume employment.” It goes on:
DFAT has limited evidence to suggest that voluntary returnees face difficulties in assimilating back into their communities. However, local sources have said that returning to Iraq can be difficult, particularly if the individual does not return to their original community.
Although Mr Hanna was born and schooled and spent his early adult life in Iraq, it would seem to the Tribunal that there would be a number of challenges facing Mr Hanna if his visa is not restored, particularly in terms of obtaining accommodation and employment, amplified by the fact that the majority of his family are in Australia or Jordan. Balancing that, there is evidence before the Tribunal (GD pp 124-125, 183, 463-469) of a number of education courses the Applicant has undertaken in Australia, which will enhance his employability, as will his acquired English language skills.
On balance, the Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of this visa, but not heavily so.
SUMMARY
In considering whether there is another reason why the original decision that the visa be cancelled should be revoked under section 501CA(4)(b)(ii) of the Act, the Tribunal has conducted a balancing exercise of the primary and other considerations in the Direction. The primary considerations relating to protection of the Australian community and expectations of the Australian community weigh heavily against the Applicant. The primary consideration relating to the best interests of minor children affected by the decision weighs in his favour, but not as heavily as it normally would owing to the nature of his offending and the mandatory reporting requirements as a sex offender to which he is still subject. Of the other considerations, one, Australia’s non-refoulement obligations, has been found to weigh in the Applicant’s favour, one has been found to weigh neutrally, one is not engaged, and two, the strength, nature and duration of ties to Australia, and the extent of impediments if removed, have been found to weigh in favour of revocation.
The Tribunal is not limited only to the matters contained in the Direction, but concludes that the seriousness of the particular offences, in this case, prevails over the considerations that have been found to weigh in favour of the Applicant. He committed objectively serious sexual offences relating to a young child, who was legally incapable of giving consent. He met with the child and had plans for a second meeting. The Judge said she was concerned about Mr Hanna’s rehabilitation and his prospects for the future. The Applicant remained unable at the hearing to explain the motivation behind his offending, and I have concluded he gave evidence regarding his knowledge of the age of the victim which was not plausible. The Tribunal has also found that there is a real risk of the Applicant re-offending. If the Applicant were to offend again in a similar manner, it would bring great harm to the Australian community.
The Tribunal finds that the decision under review was the correct decision, and finds that the discretion available under section 501CA(4) of the Act is not enlivened.
DECISION
The Tribunal decides to affirm the decision under review.

I certify that the preceding 190 (one hundred and ninety) paragraphs are a true copy of the decision and reasons for decision herein of Senior Member D. J. Morris

……[sgd]……………………………………………
Associate
Dated: 25 February 2020

Date of hearing:

3 February 2020

Advocate for the Applicant:

Mr Angel Aleksov

Solicitors for the Applicant:

Advocate for the Respondent:

Solicitors for the Respondent:

Melbourne Lawyers and Mediators

Mr Tal Aviram

Clayton Utz