HJBL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 1434

HJBL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1434 (22 May 2020)

Division:GENERAL DIVISION

File Number(s):      2020/1239

Re:HJBL

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:22 May 2020

Place:Sydney

The Reviewable Decision dated 18 February 2020 to refuse to revoke the Mandatory Visa Cancellation Decision is set aside and substituted with a decision to revoke the mandatory cancellation of the Applicant’s Class XE, Subclass 790 Safe Haven Enterprise visa.

..............................[sgd]..........................................

Senior Member Linda Kirk

CATCHWORDS

MIGRATION – Class XE, Subclass 790 Safe Haven Enterprise visa – citizen of Iran – failure to pass character test – driving offences – whether discretion to revoke mandatory visa cancellation should be exercised – considerations under Direction No. 79 – primary considerations – other considerations – non-refoulement obligations – likelihood of indefinite period of detention – decision under review set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) ss 48A, 48B, 195A, 197AB, 197C, 198, 499, 500, 501, 501E 501CA

Migration Regulations 1994 (Cth) reg 2.12AA

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

CWGF v Minister for Home Affairs [2019] FCA 1802
Dalley and Minister for Home Affairs [2019] AATA 3738
DKXY v Minister for Home Affairs [2019] FCA 495
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Border Protection v Le [2016] FCAFC 120
Pavey and Minister for Home Affairs [2019] AATA 4198
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Saleh v Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tuioti and Minister for Home Affairs [2019] AATA 4423
Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

Ministerial Guideline – The ministerial intervention power under s48B of the Migration Act 1958

REASONS FOR DECISION

Senior Member Linda Kirk

22 May 2020

1. HJBL (‘the Applicant’), a citizen of Iran, was born in 1990.  He arrived at Christmas Island as an unauthorised maritime arrival on 13 June 2013.[1]  On 12 October 2016, the Applicant applied for a Class XE, Subclass 790 Safe Haven Enterprise visa (‘the protection visa’).[2] On 15 September 2017, the Applicant was granted the visa.[3]

   [1] Exhibit R1, G12 124-125, G14 135.

   [2] Exhibit R1, G12 75-130.

   [3] Exhibit R1, G15 137.

2. On 3 July 2019, the Applicant was convicted in the Parramatta Local Court of New South Wales of two counts of Drive motor vehicle during disqualification period - 2nd+offence, for which he was sentenced to 12 months’ imprisonment on each count.[4]  On appeal on 4 September 2019 in the District Court of Parramatta, thve sentences were affirmed.[5]

   [4] Exhibit R1, G3 28-29.

   [5] Exhibit R1, G4 31-34.

3. On 12 November 2019, the Department issued the Applicant with a Notice of Visa Cancellation (‘the Mandatory Visa Cancellation Decision’) under section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that he did not satisfy the character test in section 501(6) of the Act by virtue of the term of imprisonment referred to above.[6] On this date, the Applicant was serving a sentence of full-time imprisonment in Dawn de Loas Correctional Centre in New South Wales.

   [6] Exhibit R1, G15 137-147.

4. On 19 November 2019, the Applicant made a request for revocation of the Mandatory Visa Cancellation Decision and made representations to the Minister in support of his revocation request.[7] 

   [7] Exhibit R1, G8 50-57.

5. On 18 February 2020, a delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision under section 501CA(4) of the Act (‘the Reviewable Decision’).[8]

   [8] Exhibit R1, G2 16-26.

6. On 2 March 2020, the Applicant lodged an application with the Administrative Appeals Tribunal (‘the Tribunal’) seeking a review of the Reviewable Decision.[9]

   [9] Exhibit R1, G1 1-7.

7. The matter was heard by the Tribunal at a hearing on 7 and 8 May 2020. The Applicant attended the hearing by video-link and was represented by his migration agent. He gave oral evidence at the hearing.  Mr Siamak Parsafar also gave oral evidence by telephone.

8. The material before the Tribunal consists of:

   ·Applicant’s Statement of Facts, Issues and Contentions (‘SFIC’), undated and filed with the Tribunal on 22 April 2020;

   ·Respondent’s SFIC dated 29 April 2020;

   ·Respondent’s further written submissions dated 13 May 2020; 

   ·Applicant’s further written submissions dated 15 May 2020;

   ·G documents (G1 to G18, pages 1 – 152) – Exhibit R1;

   ·Sentencing remarks of Magistrate Keady dated 3 July 2019 – Exhibit R2;

   ·Statement of the Applicant dated 19 April 2020 – Exhibit A1; 

   ·Statement of Siamak Parsafar dated 22 April 2020 – Exhibit A2;

   ·Letter of Dr Reza Pishyar dated 17 April 2020 – Exhibit A3; and

   ·Letter of Dr Mohd Daud Noorzad dated 14 April 2020 – Exhibit A4.

9. The Tribunal has reviewed all of the evidence before it and refers to all relevant materials below.

   LEGISLATION

10. Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:

    (3A)     The Minister must cancel a visa that has been granted to a person if:

    (a) the Minister is satisfied that the person does not pass the character test because of the operation of:

    (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

    (ii) …; and

    (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

11. Subsection 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Relevantly, pursuant to subsection 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to ‘a term of imprisonment of 12 months or more’.

12. Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person.

13. Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:

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

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

    (b) the Minister is satisfied:

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

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

14. Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.

    MINISTERIAL DIRECTION NO. 79

15. When considering whether to revoke the cancellation decision, the Tribunal is required under subsection 499(2A) of the Act to have regard to the Minister’s Direction. The relevant Direction is Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’).

16. The Preamble to the Direction provides a framework for the guidance of decision-makers considering cancellation of a visa. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:

    (1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

17. The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The principles referred to in the General Guidance (and reproduced below) constitute a framework within which decision-makers apply the considerations in Part A, B, or C of the Direction.

18. The first paragraph of the General Guidance provides:

    (1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

19. The following Principles are set out in 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.

20. Paragraph 7(1) of the Direction sets out how the discretion under sections 501 and 501CA of the Act is to be exercised:

    Informed by the principles in paragraph 6.3 above, a decision-maker:

    a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or

    b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

21. In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under subsection 501(3A) of the Act.

22. In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case. The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):

    … Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

23. Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include ‘primary considerations’ and ‘other considerations’. The primary considerations are:

    (a)protection of the Australian community from criminal and other serious conduct;

    (b)the best interests of minor children in Australia; and

    (c)expectations of the Australian community.

24. The other considerations are:

    (a)       international non-refoulement obligations;

    (b)       strength, nature and duration of ties [to Australia];

    (c)       impact on Australian business interests;

    (d)impact on victims; and

    (e)extent of impediments if removed.

25. Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 8(3) provides that ‘[b]oth primary and other considerations may weigh in favour of, or against …whether or not to revoke a mandatory cancellation of a visa.’ Paragraphs 8(4) and (5) provide that primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations.

    ISSUES FOR DETERMINATION

26. Before the power in section 501CA(4) of the Act, to revoke the original decision, is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.

27. There is no dispute that the Applicant made the representations required by section 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[10] the Full Court of the Federal Court of Australia made the following observations in relation to section 501CA(4):

    ... there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view...[11]

    [10] [2018] FCAFC 151.

    [11] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

28. The issues for determination are:

    (a)whether the Applicant passes the character test; and

    (b)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.

29. If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision must be revoked.

    EVIDENCE BEFORE THE TRIBUNAL

    Background and protection claims

30. The Applicant was born in Tehran, Iran.[12]  He completed high school in Tehran in 2008[13] and then worked as a sales person selling clothes until 2010.[14]  He undertook military training in Tabriz, Azerbayejan for three months from November 2010 to February 2011.[15]   Following this training, the Applicant worked as an accountant in his father’s wholesale trade timber business in Tehran from February 2011 to 2013.[16] During this period, he also would tattoo people from his home on a part-time basis. [17]  

    [12] Exhibit R1, G8 55

    [13] Exhibit R1, G12 117.

    [14] Exhibit R1, G12 116.

    [15] Exhibit R1, G12 116.

    [16] Exhibit R1, G12 116; Transcript, 21.

    [17] Exhibit R1, G12 116.

31. The Applicant left Iran at the age of 22 years to travel to Australia.[18] He arrived at Christmas Island as an unauthorised maritime arrival on 13 June 2013.[19]  He was transferred to Wickham Point Immigration Detention Centre in Darwin and remained there until September 2013.[20]  The Applicant told the Tribunal he left Iran because his life was at risk, and his father helped him to leave the country.[21]

    [18] Exhibit R1 G12, 116; Transcript, 20.

    [19] Exhibit R1, G14 135.

    [20] Transcript, 67.

    [21] Transcript, 21-23.

32. On 15 September 2017, the Applicant was granted a protection visa. The delegate’s file note in relation to the Applicant’s claims for protection provides as follows:

    I have found that the applicant was a tattoo artist in Iran and that when he left Iran he was a person of interest to the Iranian authorities. Being a tattoo artist is an illegal occupation in Iran as it is deemed to breach Islamic law (CX318213) and in recent times the regime has been taking a harder line against this profession. As discussed above, in 2014 a person received one hundred lashes and six months in gaol for being a tattoo artist (CX320655). This tattoo artist’s penalty was particularly harsh due to his prominent clients. While the applicant did not have the clientele that this person had, he was from a social and economically affluent background. His father currently owned a successful business and his father had previously held the position of Colonel with the Police Force. The applicant stated that he was mostly tattooing friends and friends of friends. So it is likely that his clients would have been people from a similar socioeconomic status as the applicant.

    The Iranian government sees tattoos as an action that is anti the regime as they see it as a western trait (CIS26056). There is limited information on the treatment of tattoo artists in Iran (CIS38A8012677) but there is information demonstrating that being a tattoo artist is a crime against morality (CIS26056) (CX320655). The applicant claimed that his family has been harassed since he has departed Iran and this is consistent with country information that indicates that the authorities will target family members of persons of interest (OGD95BE926964) (CX264514) (CIS38A80122742). I have found the applicant’s claims to be credible and I am satisfied that the Iranian regime will see his previous actions as anti the Iranian regime and a moral crime. When this is considered in conjunction with the applicant’s family’s position in society and that the authorities have shown an ongoing interest in the applicant and his family, I am satisfied that the cumulative effect will be that on return to Iran, there is a real chance that the applicant will be persecuted due to his imputed political opinion.

    I am therefore satisfied that there is a real chance of persecution for one or more of the reasons mentioned in subsection 5J(1)(a) of the Act in the receiving country. The essential and significant reason for the systematic and discriminatory persecution is the applicant’s imputed political opinion. (s5J(4)(a), (b), (c)). As the agent of persecution is the Iranian State I am satisfied this real chance of persecution relate to all areas of Iran (s5J(1)(c)) and that effective protection measures are not available (s5J(2)). I am also satisfied that the applicant has not engaged in conduct in Australia for the purpose of strengthening their claim to be a refugee (s5J(6)).

    I am therefore satisfied the applicant is a refugee as defined by section 5H(1) of the Act. I am also satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in paragraph 36(2)(a) of the Act. I am satisfied that the exclusion clauses in paragraphs 5H(2)(a), (b) or (c) of the Act do not apply to the applicant.[22]

    [22] File note, Department of Home Affairs, 12 July 2017.

    Work in Australia

1. From September 2013, the Applicant was living in Sydney.[23]  Between late 2014 and 2018 he worked as a painter with GP Coating.[24]  He did not work full-time but did so when a project needed to be completed.  He also worked as a part-time casual with other businesses.[25]  For some of this period the Applicant was receiving Centrelink benefits.[26] The Applicant told the Tribunal he was earning about $1000 per week and was sending some money back to Iran.[27]  He was working mainly during weekdays and sometimes on weekends.  He would usually drive to work as during this period he held an international driving license.[28]In addition to working as a painter, from 2016 the Applicant also worked in the construction industry doing cleaning and carpeting.[29]

   [23] Transcript, 68.

   [24] Exhibit R1, G12 116; Transcript, 24.

   [25] Transcript, 25, 70.

   [26] Exhibit R1, G12 116; Transcript, 26, 69.

   [27] Transcript, 27.

   [28] Transcript, 27.

   [29] Exhibit R1, G12 117.

2. The Applicant confirmed that he has debts totaling approximately $40,000 which consist of penalties for driving offences, money owed to the Australian Tax Office, and debts owed to friends.[30]  He also owes money to his father for a loan.[31]

   [30] Transcript p 28-30; Statement of Applicant dated 19 April 2020.

   [31] Transcript, 30-31.

   Criminal offending

3. A Nationally Coordinated Criminal History Check dated 11 December 2019 issued in respect of the Applicant shows that he has been convicted of a number offences in Australia.[32] In his representations to the Department and the Tribunal, the Applicant did not dispute the convictions and sentences in the Nationally Coordinated Criminal History Check.[33]

   [32] Exhibit R1, G3 28-30.

   [33] Transcript, 31.

4. On 26 July 2017, the Applicant was convicted in the Parramatta Local Court of Drive etc when visiting privileges withdrawn – first offence resulting in a 12-month licence disqualification.[34]  He told the Tribunal that he was driving to work when he committed this offence.[35]  He agreed that from the date of this conviction he was disqualified from driving in Australia.[36]

   [34] Exhibit R1, G3 30.

   [35] Transcript, 32.

   [36] Transcript, 32.

5. On 21 December 2017, the Applicant was convicted in the Newtown Local Court for Driving during disqualification period – first offence and Negligent driving (no death or grievous bodily harm). He was fined and disqualified from driving for a further 12 months.[37]  He told the Tribunal that at the time of the offences he was driving to work.  He ‘didn’t really think that it is serious’ but since he has been in gaol he has made a plan so that he ‘will not repeat such offences again.’[38]

   [37] Exhibit R1, G3 30.

   [38] Transcript, 3.

6. On 31 January 2018, the Applicant was convicted in the Fairfield Local Court for Drive motor vehicle during disqualification period and Driver use mobile phone when not permitted.  He was fined and received a further 12-month disqualification.[39]

   [39] Exhibit R1, G3, 30; Transcript, 34.

7. On 28 February 2018, the Applicant was convicted in the Fairfield Local Court of two counts of Drive motor vehicle during disqualification period – 2nd+off. He was sentenced to eight months’ imprisonment (suspended) and three years’ licence disqualification and received two fines of $1000.[40]  The Applicant told the Tribunal that he was aware from this time that he could go to prison for driving offences.[41]

   [40] Exhibit R1, G3 30.

   [41] Transcript, 35.

8. On 3 July 2019, the Applicant was convicted in the Parramatta Local Court and sentenced to 12 months’ imprisonment for two counts of Drive motor vehicle during disqualification period – 2+off and sentenced to 3 months imprisonment for two further counts of the same offence. He was also convicted of Not give particulars to other driver, Resist officer in execution of duty, Possess/attempt to, prescribed restricted substance, and Not keep left of oncoming vehicle.[42]On 4 September 2019 the sentences were confirmed on appeal by the Parramatta District Court.[43]

   [42] Exhibit R1, G3 29-30.

   [43] Exhibit R1, G3 28-29; G4 31-34.

9. These offences related to four incidents, three of which involved a collision.[44]  On 30 January 2019, the Applicant was driving to pick up paint and was turning right when another car came from the left and they collided.  He agreed that he was at fault.  He was not arrested but given a letter to report to court.[45]  The second incident occurred on 4 March 2019 and involved a collision.[46] He was arrested and taken to the police station. For this offence, he was sentenced to three months’ imprisonment, a 12-month disqualification. He was also convicted of Not give particulars to other driver.[47]  The third incident occurred on 4 April 2019 and again involved a collision.[48]  The Applicant was sentenced to six months’ imprisonment with six months’ non-parole period and a further 12-month licence disqualification.[49]

   [44] Transcript, 35-36.

   [45] Transcript, 36.

   [46] Transcript, 36-37.

   [47] Exhibit R1, G3 30; Exhibit R2, 2.

   [48] Transcript, 38.

   [49] Exhibit R1, G3 39; Exhibit R2, 2.

10. The fourth incident occurred on 15 June 2019.  According to the NSW Police Facts Sheet, the Applicant veered onto the wrong side of the road and collided head on with another vehicle. The collision was heard by an off-duty police officer who attended the driver and passenger of the other vehicle (aged 75 and 8 years respectively) and began applying first aid to the 8-year-old passenger. The police officer saw the Applicant exit his vehicle, attempt to conceal his bag in a nearby garden bed, and then flee the accident on foot, without providing his particulars to the other driver. The Applicant was located by police and arrested shortly thereafter. The Applicant resisted arrest. A prescribed restricted substance was also found in his bag.[50]

    [50] Exhibit R1, G3, 45-49.

11. The Applicant told the Tribunal that on this occasion he was driving to work and a water bottle got stuck under the brake pedal and resulted in an accident.[51] Following the accident, he got out of his car and looked into the other vehicle.[52] He saw that the child was distressed and he gave him some water. He then phoned his employer and told him he’d been involved in an accident and was unable to report to work.[53]. He told the Tribunal he took his belongings out of the car and put his bag under a nearby bush. He was told by someone that he was leaving the scene of an accident and he got frightened and started running.  The police came and confronted him and took him to the police station.[54] He agreed that he struggled with the police to resist arrest.  He said he had never been involved in drink driving or driving under the influence and he ‘was afraid of being in prison.’[55] He agreed that he did not have a prescription for the prescribed drug (Suboxone) that was found in his possession and that he was given it by a friend,[56] and was taking it for back pain.[57]  He had been taking the drug for about a month.  He was going to get a prescription for it from his doctor.[58] He was unaware that it is a prescribed restricted substance.[59]

    [51] Transcript, 39.

    [52] Transcript, 39.

    [53] Transcript, 40.

    [54] Transcript, 41.

    [55] Transcript, 42.

    [56] Transcript, 44-45.

    [57] Transcript, 49.

    [58] Transcript, 46.

    [59] Transcript, 49.

12. In his sentencing remarks, Magistrate Keady of the Local Court of Parramatta, found that there were no sanctions available other than a sentence of imprisonment.  His Honour stated

    In a very short period of time you accumulated numerous infractions for speeding so now at the time today that I am to sentence you, I will note that you have already been convicted previously and over a short period of time, of six offences of driving disqualified and to repeat, I am now to sentence you for a further four.

    The Court has previously imposed different kinds of sanctions ranging from fines to suspended sentences but nothing has succeeded in stopping you driving illegally. Despite the fact that you have been picked up four times over a period of months, each arrest did not prevent you from the subsequent offence. There is nothing the Court, it seems, can say or do to stop you driving illegally. As to why that is important I refer again to the fact that you have been involved, just across these offences, in three collisions.

    I have heard what has been said about your history. You came to this country for your own reasons. One would expect that that involved the pursuit for a better life than was available to you in your homeland but your record thus far has been characterised by persistent offending. You owe the company that has given you temporary refuge more than that.

    Having surveyed the offences before me, the convictions previously recorded, the sanctions previously applied unsuccessfully, in the sense that they have not resulted in an end to your offending, there are no sentences available to me. No sanction available to me other than the one that is the sanction of last resort which is a sentence of imprisonment and that sentence will be served in full-time custody.[60]

    [60] Exhibit R2, 1-2.

    Remorse and responsibility for offending

13. During cross-examination, it was put to the Applicant that he had placed his job above compliance with Australian laws.  He stated:

    Yes, I accept that my behaviour was dangerous and I accept that what I did was – could be or was harmful – not could be, was harmful to Australian community.  And since I was imprisoned I sort of came to this realisation that I should not repeat such behaviour and since I came here since being released from prison I will do my best not to commit similar offence.[61]

    [61] Transcript, 52.

14. In his written submissions dated 15 May 2020, the Applicant stated:

    I acknowledge that I have committed offences of a serious nature. My criminal record is relatively long and it includes some offences, which are “serious” offences, and some, which also have some aspect of violence. Before coming to Australia, I had never been convicted of any offences connected somehow to any types of driving, drug or alcohol dependence.

    These offences are clearly related to my previous personal and political problems that have come about because of my own background. I now feel ashamed about the way I have behaved in the past and deeply regret the hurt I have caused to my friends, my family as well as the various victims of my crimes.

    …

    Since sentenced to prison I had time to think about my life. I haven’t been a good child to my family and not a good friend to others and also not a pleasant character into (sic) the Australian community. Now I am clean and I am in a different place in my head. I no longer want to live the life I was living. I put my transformation down to the access I have had to professional help, which helped me realise the mistakes I was making. Now I realise this I am doing everything I can to straighten up my life.

    Time in custody and immigration detention

15. The Applicant did not engage in any misconduct or behavioural breaches whilst incarcerated.[62]

    [62] Exhibit R1, G13 131-134.

    Mental health and psychological assessment

16. The Applicant provided to the Tribunal a letter dated 17 April 2020 from Dr Reza Pishyar, clinical psychologist. Dr Pishyar confirmed that the Applicant is under his clinical care and is receiving ‘ongoing supportive counselling to improve his coping strategies to manage his day to day living challenges after his nine months incarceration.’  He stated that, in his opinion, the Applicant’s symptoms are of ‘adequately frequency and severity to warrant a clinical diagnosis of adjustment disorder’ (emphasis in original) as defined by DSM-IV.[63]

    [63] Exhibit A3.

17. The Applicant told the Tribunal that he has seen Dr Pishyar once and is seeing him again following the hearing.[64]  Dr Pishyar is going to arrange classes to assist the Applicant to change his behaviour and lifestyle.  At their first session Dr Pishyar told him in general terms what these classes will involve, and at their second session he will give the Applicant further details of the program.[65]

    [64] Transcript, 61.

    [65] Transcript, 62.

18. The Applicant was asked whether he saw a psychologist when he was in gaol.  He said that he visited by a psychologist twice and the total duration of both visits was half an hour.[66]

    [66] Transcript, 63.

    Rehabilitation and risk of re-offending

19. In his statement in support of his request for revocation, the Applicant stated:

    I now understand the seriousness of the offence (sic) I am in gaol. I will not do this again. I will also just work as a labourer and catch public transport. I can also hire another worker to do the driving for me until I get my licence again.[67]

    [67] Exhibit R1, G9 66.

20. In his written submissions dated 15 May 2020, the Applicant stated:

    If I am permitted to remain in Australia, I will not repeat the mistakes of my past. I am now in a different position to where I was before and with the love and support of my friends, Psychologist and family, I can succeed.

    I have started many plans, like the behaviour rehabilitation as well as receiving assistance and support from the psychologist. There will be a genuine and significant improvement in my behaviour and commitment to staying safe in community and to have a low risk of reoffending, if I maintain my progress.

    …

    At the end, my first plan is attending a rehab program, which is planned for behavioural and mind changes. This program as explained by doctor will assist me to change unwanted behaviours and is finally registered in my head that it is time for me to pay back to Australian community.[68]

    [68] Applicant’s further written submissions dated 15 May 2020. 

    Family members and friends

21. The Applicant’s father, mother, two sisters, two grandparents, six uncles/aunts and 12 cousins all reside in Iran.[69]  He told the Tribunal that he speaks to his family regularly and they are aware that he was in prison for driving offences.[70]  He does not have any family members in Australia.[71]  He confirmed that Jarad Ghorbani, who he listed as a cousin in his Personal Circumstances Form, is not a blood relative.[72]

    [69] Exhibit R1, G9 65.

    [70] Transcript, 20, 60.

    [71] Transcript, 20.

    [72] Exhibit R1, 72; Transcript, 24.

22. The Applicant told the Tribunal that prior to going to gaol he had a girlfriend, but they are now separated.  She did not visit him in gaol and did not answer his calls.[73]

    [73] Transcript, 63.

23. The Applicant said that two friends visited him in gaol: Siamak Parsafar and Sam Gadari, his employer.  He was however reluctant for them to visit him.[74]

    [74] Transcript, 64.

    Plans for the future

24. The Applicant was released from gaol on 2 April 2020.  He is currently living in a room share in North Parramatta.  He told the Tribunal that he does not currently have a job.  He has contacted his former employer who informed him that he does not have any current projects due to the COVID-19 situation.  He will however contact the Applicant if he needs his services.[75]

    [75] Transcript, 61.

25. The Applicant told the Tribunal that his protection visa expires on 15 September 2022.  He has permission to work and it is his intention, if everything goes well, to set up his own business and work for himself.[76]  He has not applied for a driving licence and will not do so until he has paid the penalties he owes. He told the Tribunal:

    I am partly … psychologically affected to such an extent that I have to find myself … and once I’ve found myself and positioned myself in society, then I will apply.  I think I will apply in a year’s time.[77]

    [76] Transcript, 66.

    [77] Transcript, 66.

    Impediments on return

26. In his Personal Circumstances Form, the Applicant outlined his concerns about returning to Iran:

    I will face death due to the country believing that I am not practising the correct religion because of my tattoos.  They think I am an atheist.

    …

    Not only I will face death my family members may be punished as well.[78]

    [78] Exhibit R1, G9 69.

27. In his further written submissions dated 15 May 2020, the Applicant stated:

    My protection visa (sic) cancelled and was due to character concerns and I will not (sic) able to make a further application for a protection visa and not eligible to lodge another type of visa while in the migration zone. I may be liable for removal, but I will face a high risk of arrest and imprisonment. I fled or probably escaped Iran because of managing a small tattooing business and wish to safely reside in Australia peacefully.[79]

    [79] Applicant’s further written submissions dated 15 May 2020. 

28. In his oral evidence at the hearing the Applicant stated:

    I do not really like to think about returning to Iran.  I was tortured there and I was persecuted by the authorities there and my condition there was very bad and after I left the country, they harassed my father on a few occasions and now the condition of the country has worsened, so I do not like to return.[80]

    Evidence of witnesses

    [80] Transcript, 67.

    Mr Siamak Parsafar

29. Mr Parsafar provided a written statement dated 22 April 2020 and gave oral evidence at the hearing.  He told the Tribunal he has known the Applicant for six years. They met in the detention centre in 2013 and became friends.[81]  They shared a house together for about six months. He said he knew that the Applicant has 12-14 convictions for driving while disqualified,[82] but he was unaware that the Applicant was convicted of possession of a prescribed substance.[83]  He told the Tribunal that the Applicant has told him that he will not drive to work in future but will go by train or bus.[84]

    EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION

    [81] Transcript, 79.

    [82] Transcript, 83.

    [83] Transcript, 84.

    [84] Transcript, 77.

    Does the Applicant pass the character test?

30. The Applicant did not dispute the Respondent’s contention that he does not pass the character test. The evidence before the Tribunal is that on 3 July 2019, the Applicant was convicted of a two counts of Drive motor vehicle during disqualification period - 2nd+offence and sentenced to 12 months’ imprisonment on each count. As such, the Tribunal is satisfied that the Applicant does not pass the character test prescribed in subsection 501(6)(a) of the Act, as he has ‘a substantial criminal record’ as defined in subsection 501(7)(c). The Tribunal is also satisfied, for the purposes of subsection 501(3A)(b) of the Act, that the Applicant was serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the state of New South Wales.

31. For these reasons, the Applicant cannot rely on subsection 501CA(4)(b)(i) for revocation of the Mandatory Visa Cancellation Decision.

    Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?

32. In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.

    PRIMARY CONSIDERATIONS

    Primary Consideration A – Protection of the Australian community

33. Primary Consideration A of Part C is the Protection of the Australian Community. Paragraph 13.1(1) of the Direction provides:

    When considering protection of the Australian community, decision-­makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-­citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

34. Paragraph 13.1(2) directs that decision-makers should also give consideration to:

    a) the nature and seriousness of the non-citizen's conduct to date; and

    b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

1. Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:

   (a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

   (b)The principle that crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed;

   (c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

   (d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

   (e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

   (f)The cumulative effect of repeated offending;

   (g)…

   (h)…

   (i)…

   (a) Nature and seriousness of the Applicant’s conduct to date

2. For the reasons that follow, and as required by paragraph 13.1(2)(a) of the Direction, the Tribunal finds that the Applicant’s criminal offending is serious.  In making this finding the Tribunal has had regard to the factors listed in paragraph 13.1.1(1).

3. The Applicant has a history of disregard for road laws over a two-year period from July 2017 to June 2019, with 17 driving offences recorded against him.  These offences include Drive etc when visiting privileges withdrawn- first offence, Drive motor vehicle during disqualification period, Negligent driving (no death or grievous bodily harm), Driver use mobile phone when not permitted, Not give particulars to other driver, Not keep left of oncoming vehicle.  These offences included three incidents in which the Applicant collided with another vehicle.  While there were no fatalities arising from these accidents, the victims of these offences would have likely been subjected to shock and fear and possibly injuries, both physical and/or psychological. 

4. The Applicant’s most serious criminal offending occurred on 15 June 2019 when he caused a head on collision with another vehicle.  Having regard to paragraph 13.1.1(1)(c) of the Direction the Tribunal finds that this offending is serious because it involved vulnerable members of the community, being the driver and passenger of the other vehicle, who were aged 75 and 8 years old respectively.  While neither the driver nor passenger were seriously injured, the young boy required first aid at the scene.  The accident would have been extremely frightening for the passenger and driver, and likely caused them psychological distress.

5. Having regard to paragraph 13.1.1(1)(d) of the Direction, although the offences committed by the Applicant are driving offences, which are at the less serious range of criminal offending, the seriousness of the Applicant’s conduct is reflected in the length of the sentence imposed by Magistrate Keady, being 12 months’ imprisonment on both counts. The custodial sentences imposed on the Applicant by the Court are an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: Pavey and Minister for Home Affairs [2019] AATA 4198 at [44]; PNLB v Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh v Minister for Immigration and Border Protection [2017] AATA 367 at [50]. The fact that Magistrate Keady found that no penalty other than imprisonment was appropriate for the Applicant’s offending, further demonstrates the very serious nature of the Applicant’s criminal offending.

6. Having regard to paragraph 13.1.1(1)(e) of the Direction, the Tribunal finds that the Applicant is a frequent offender and his criminal history is significant.  The Applicant’s pattern of behaviour indicates that he has no regard for the Australian legal institution and authorities. He had 17 driving offences recorded against him in a two-year period. His licence was suspended at least three times and, following each suspension, he continued to drive and committed further offences while he was disqualified from driving.  The Applicant continued to commit driving offences despite numerous fines, warnings and a suspended sentence.  His offending was frequent, repetitive and increasing in seriousness, resulting in three collisions in a period of just six months. 

7. Having regard to the cumulative effect of the Applicant’s offending as required by paragraph 13.1.1(1)(f) of the Direction, the Tribunal notes that the sentencing Magistrate found that, given the Applicant’s repeated offending and his disregard for earlier sanctions and penalties, there were no sentencing options available other than a sentence of imprisonment to be served in full-time custody.

8. The Applicant submitted that in considering the seriousness of his offending the Tribunal should take into account his ‘trauma, including exposure to violence and prosecution (sic) experience in Iran’ and that ‘he is isolated form (sic) family and he is not socially supported.’[85]  There is no evidence before the Tribunal as to the effects of any trauma on the Applicant’s criminal behaviour.  The letter from Dr Reza Pishyar, psychologist, provides a diagnosis of the Applicant as suffering from Adjustment Disorder. However, Dr Pishyar’s letter does not refer to the persecution the Applicant experienced in Iran and is limited to his circumstances in Australia.  Accordingly, on the available evidence, the Tribunal cannot be satisfied that the Applicant is suffering any trauma from his experiences in Iran, which in turn has had an adverse impact on his behaviour in Australia.  The Tribunal does however accept that the Applicant has been socially isolated and without family support in Australia, and that the pressure of repaying substantial debts may have caused him to act with reckless disregard for the consequences of his unlawful driving.

   [85] Applicant’s SFIC, undated, [4].

9. On the basis of the evidence before it and having regard to the considerations in paragraph 13.1.1 of the Direction, the Tribunal finds that the Applicant’s criminal conduct is serious.  His repeated instances of driving whilst disqualified indicate a stubborn and reckless disregard for Australian laws and institutions and an indifference to the safety of the community. The custodial sentences imposed for his most recent offences further reflect the seriousness of the Applicant’s offending. The seriousness of the Applicant’s criminal offending weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.

   (b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

10. In assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must have regard to paragraph 13.1.2(1) of the Direction:

    In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

    a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).

11. In its application of 13.1.2(1) of the Direction, the Tribunal has had regard to the Applicant’s evidence to the Tribunal, the representations he made in support of his request for revocation of the Mandatory Visa Cancellation Decision, and the evidence of those who gave oral evidence and/or provided letters of support.

12. Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to re-offend, as required by sub-paragraph 13.1.2(1)(a) of the Direction, the Tribunal finds that there is a significant risk of death or serious injury to other road users should the Applicant engage in further criminal conduct.  The Tribunal notes that three of the four most recent incidents resulted in collisions, which may have caused loss of life to the occupants of the other vehicles.  The Applicant’s driving is dangerous and potentially puts members of the community at serious risk of harm.

13. In relation to the likelihood of the Applicant engaging in further criminal or other serious conduct, the Tribunal has taken into account available information and evidence on the risk of him re-offending as required by sub-paragraph 13.1.2(1)(b) of the Direction.  The Tribunal notes that the Applicant stated he had ‘no choice’ but to keep working because he needed money to support himself and his family in Iran and to repay a $40,000 debt.[86]   The evidence before the Tribunal is that the Applicant continues to owe $40,000 and he needs to work to discharge this considerable debt.  The Applicant claims that he will work when he is able to do so, and he will take public transport to jobs when required.  He also intends not to apply for a drivers’ licence for a period of 12 months.

    [86] Exhibit R1, G9 66; Transcript, 28-30; Statement of Applicant dated 19 April 2020.

14. The Applicant is seeing a psychologist who has arranged a program to assist him to change his behaviour and his lifestyle.  He has expressed his remorse and taken responsibility for his criminal offending.  The Applicant is aware of the consequences of his behaviour on his visa status and its impact on his future life.[87]

    [87] Applicant’s SFIC, undated, [3].

15. The Tribunal finds that the Applicant is remorseful, has taken responsibility for his offences, and recognises the potential consequences of him continuing to reoffend. However, his history of criminal offending demonstrates a fundamental lack of respect for Australian laws and disregard for the consequences of his actions. It cannot therefore be satisfied that the Applicant will not, under the pressure of earning a living, repaying his debts, and providing financial assistance to his family in Iran, drive whilst unlicensed and put members of the community at risk.

16. On the basis of the evidence before it and taking into account available information and evidence on the risk of the Applicant re-offending, the Tribunal finds that the likelihood of the Applicant engaging in further criminal conduct is at the moderate level and that this level of risk is unacceptable. The Tribunal finds that there is a real risk that the Applicant will reoffend, and that the need for protection of the community from that risk weighs against revocation of the Mandatory Visa Cancellation Decision.

17. For the reasons above and applying the guidance in paragraphs 13.1.1(1) and 13.1.2(1) of the Direction, Primary Consideration A, on balance, weighs against the revocation of the Mandatory Visa Cancellation Decision.

    Primary Consideration B – The best interests of minor children in Australia affected by the decision

18. Primary Consideration B of Part C in paragraph 13.2 of the Direction requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of the child.

19. The evidence before the Tribunal is that the Applicant does not have any children nor is there any other minor child who may be affected by the non-revocation of the Mandatory Visa Cancellation Decision.

    Primary Consideration C – The expectations of the Australian community

20. Primary Consideration C of Part C in paragraph 13.3(1) of the Direction states:

    (1) 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 to not 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.

21. In a number of recent decisions, the Federal Court has considered the scope and application of this primary consideration.  In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (‘YNQY’), Mortimer J observed at [76] and [77] as follows in relation to the consideration detailed in this paragraph of the Direction:

    [76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

    [77] …It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]).

22. In Afu v Minister for Home Affairs [2018] FCA 1311 (‘Afu’), Bromwich J said at [85]:

    …The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 ...The Tribunal was required to give effect to those norms which is precisely what it did…

23. Last year, the Federal Court delivered two decisions relating to the approach in determining the expectations of the Australian community: FYBR v Minister for Home Affairs [2019] FCA 500 (‘FYBR’) and DKXY v Minister for Home Affairs [2019] FCA 495 (‘DKXY’).

24. FYBR is authority in support of what has been termed the ‘narrow’ approach[88] to the determination of the expectations of the Australian community. As observed by Perry J at [42]:

    It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...

    [88] DKXY at [22].

25. A broader approach to the determination of the expectations of the Australian community was adopted by Griffiths J in DKXY. In Dalley and Minister for Home Affairs[2019] AATA 3738 (‘Dalley’), Senior Member Tavoularis observed at [122] that DKXY is authority for the proposition that:

    (a)  the Government’s views regarding the expectations of the Australian community must be given due regard; and

    (b)  so must all other circumstances which are relevant in a particular case.[89]

    [89] Dalley at [122].

26. In FYBR v Minister for Home Affairs [2019] FCAFC 185, the Full Court of the Federal Court dismissed an appeal of Perry J’s judgment in FYBR, which was concerned with the correct construction and application of cl 11.3(1) of Direction No 65, which is, in all relevant respects the same as paragraph 13.3(1) of the Direction. In three separate judgments, (Charlesworth and Stewart JJ, Flick J dissenting) did not accept that the paragraph is a ‘deeming provision’ in that it must in all circumstances require the refusal or cancellation of a visa.

27. Charlesworth J found at [66]-[67] that the paragraph does contain a statement of the government’s views as to the expectations of the Australian community and to this extent, it is a ‘deeming’ provision in the sense explained by Mortimer J. It is not for the decision-maker to make his or her own assessment of community expectations. However, Her Honour emphasised at [73] that the paragraph does not preclude the decision-maker from forming his or her own view as to whether the non-citizen should or should not hold a visa.  The decision-maker’s assessment of whether or not the person should hold a visa may differ from the expectations of the Australian community as deemed by the government. As Her Honour stated at [76], ‘[t]he question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion’.

28. Stewart J emphasised at [89]-[90] that whereas it is to be expected that the Government ‘may wish to set the norms by which decisions to refuse or cancel visas are made’ it is not to be expected that the Government would seek, via this device, ‘to dictate to the statutory decision-maker the outcome’ in any particular case. This would ‘be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker.’ Having regard to the text of the Direction, His Honour found at [103] that Australian community expectations ‘speak normatively’ and are ‘to be applied in every case but they are not expressed in relation to any particular case’.  He emphasised at [105] that ‘[t]he specific circumstances of the … applicant are necessarily front and centre of every decision’.

29. Flick J at [18]-[19] did not accept the ‘unqualified conclusion’ of Mortimer J in YNQY at [76] that Australian community expectations are defined in one particular way, namely that there should be non-revocation of the mandatory visa cancellation in circumstances where a person has been convicted of serious crimes of a certain nature. He also did not accept that the Tribunal may not go beyond the ‘norm’ which the paragraph sets forth and go on to find that there may be other aspects of Australian community expectations of relevance to the facts and circumstances of a given case. His Honour at [20] preferred the approach of Griffiths J in DXKY at [31] that allows a finding that the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. His Honour found at [21]-[22] that this approach was supported by the text of the Direction. He emphasised at [23] that in construing the Direction and other statements of government policy, it is necessary to have regard to ‘the overarching imperative that no statement of government policy can confine what would otherwise be the full ambit of any discretionary power conferred by statute’.

30. In Tuioti and Minister for Home Affairs [2019] AATA 4423, Senior Member Tavoularis observed at [116] that the Full Court’s decision, together with YNQY and Afu establish that:

    a) The ‘expectations of the Australian community’ cannot be measured or determined as if it is a provable fact. It is an assessment of community values made on behalf of that community.[90]

    b) The Tribunal cannot determine for itself what such ‘expectations’ are by reference to the Applicant’s circumstances or evidence about those expectations;[91]

    c) The Government’s view in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the government thinks is the ‘expectations of the Australian community’, and the Tribunal should have due regard of that statement, if made;[92]

    d) In assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles appearing in paragraph 6.3 of the Direction, in particular subparagraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[93]

    (footnotes in original)

    [90] Afu at [85].

    [91] FYBR at [42].

    [92] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.

    [93] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).

1. Having regard to the expectations of the Australian community as stated in paragraph 13.3(1) of the Direction, the evidence before the Tribunal is that the Applicant has been convicted of numerous driving offences in Australia.  The Tribunal has been guided by the Principles relevant to the Direction outlined above at [19] of this decision.

2. Having regard to Principle 1, the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached this trust, it may be appropriate not to revoke the cancellation of their visa. The Applicant has breached the trust of the Australian community as he has been convicted of multiple driving offences and has demonstrated a disregard for Australian laws and institutions.  The nature of these offences and the harm that would be caused if repeated is very serious and, as recognised by Principle 4, any risk of similar conduct in the future is unacceptable.  Given the seriousness and frequency of the Applicant’s offences, the Australian community would expect that he should not hold a visa.

3. The Tribunal has also been informed by Principle 6 which recognises that Australia has a low tolerance of any criminal conduct by those holding a limited stay visa, reflecting that there should be no expectation that such individuals should be allowed to remain permanently in Australia. Before its cancellation, the Applicant held a protection visa of five years’ duration.  Accordingly, given the Applicant held a limited stay visa, his circumstances fall within this expectation of the Australian community that he not be permitted to remain permanently in Australia.

4. In determining the expectations of the Australian community, the Tribunal has been informed by Principle 5 which provides that Australia has a low tolerance of any criminal conduct by non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.  It also has been informed by Principle 7 which makes relevant the length of time a non-citizen has been making a positive contribution to the Australian community.

5. Having regard to the factors in Principles 5 and 7, the Australian community would have some degree of tolerance for the Applicant’s criminal behaviour. The Applicant arrived in Australia in June 2013 and has therefore been a resident in Australia for nearly seven years. The Applicant was employed as a painter for four years, and also worked in the construction industry doing cleaning and carpeting.  He has therefore made a positive contribution to the Australian economy and has paid taxes during his residence in this country.  This contribution by the Applicant to the Australian economy is a factor that would raise the Australian community’s tolerance of his criminal offending.

6. On the basis of the evidence before it, having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account other factors relevant to the Applicant’s circumstances, the Tribunal finds that Primary Consideration C, on balance, weighs against revocation of the Mandatory Visa Cancellation Decision.

   OTHER CONSIDERATIONS

7. While the three primary considerations carry particular weight, the Direction acknowledges at paragraph 14 that ‘other considerations’ must be taken into account by the decision-maker where relevant.

8. The Tribunal notes that these considerations are “other” considerations, as opposed to “secondary” considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection[2018] FCA 594at [23]:

   ... Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.

   International non-refoulement obligations

9. Paragraph 14.1 of Direction 79 requires the decision-maker to take into consideration Australia’s international non-refoulement obligations:

   (1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

   (2) The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

   (3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).

   (4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

   (5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them — sections 48A and 48B of the Act refer).

   (6) In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

10. The Applicant is a national of Iran and was granted a Class XE, Subclass 790 Safe Haven Enterprise visa (‘the protection visa’) on 15 September 2017 based on his claims for protection made on 12 October 2016.[94]  The protection visa, the subject of the Mandatory Visa Cancellation Decision, is valid until 15 September 2022.[95]  The Applicant’s current claims that he will be the subject of serious harm on return to Iran are the same as his original claims for protection.  The Respondent accepts that the Applicant continues to be owed non-refoulement obligations by Australia based on these claims, and that there has been nothing that has occurred to change or alter the decision made to grant him protection.[96]

    [94] Exhibit R1, G12 118-122.

    [95] Notification of a grant of a Safe Haven Enterprise Visa (subclass 790) visa dated 15 September 2017.

    [96] Transcript, 101-102.

11. The Tribunal accepts that the Applicant is a person in respect of whom Australia has non-refoulement obligations. If the Mandatory Visa Cancellation Decision is not revoked, he will be prevented by section 501E of the Act from making an application for another visa, other than a protection visa or a Bridging R (Class WR) visa. According to regulation 2.12AA of the Migration Regulations 1994 (Cth) (‘the Regulations’), the Applicant could only apply for a Bridging R (Class WR) visa in response to an invitation. With respect to a protection visa, subsection 48A(1B) of the Act provides that subject to s 48B ‘a non-citizen in the migration zone who held a protection visa that was cancelled may not make a further application for a protection visa while in the migration zone.’


12. Section 48B provides the Minister with a personal and non-delegable (s 48B(2)), non-compellable (s 48B(6)) power to determine that s 48A does not apply to prevent an application for a protection visa, if it is in the public interest to do so.  The Applicant has previously been the beneficiary of the Minister’s exercise of power to ‘lift the bar’ to allow him to apply for a protection visa.[97] There is nothing in the wording of s 48B to prevent the Minister from exercising this discretion on more than one occasion.[98] 


    [97] Transcript, 103.

    [98] Respondent’s further written submissions dated 13 May 2020 [3].

13. However, Ministerial Guideline The ministerial intervention power under s48B of the Migration Act 1958 (‘the Guideline’) provides, with respect to persons, like the Applicant, who have held a protection visa that has been cancelled: 


    I, generally, do not wish to consider my public interest power to enable the Department to assess whether protection obligations are engaged in respect of a person who has had their protection visa cancelled. 


    I will, however, consider my public interest power as a mechanism to resolve the immigration status of a person where the Department has already assessed, either during or following cancellation of a protection visa, that the person engages Australia’s non-refoulement obligations.

    These cases should be referred to me for consideration of my public interest power under both s48B and s195A. However, they should be referred for consideration of my s195A power only, and not s48B, where a person is unlikely to meet the criteria for grant of a protection visa, for example, due to character concerns.

14. The Respondent therefore submits, and the Tribunal finds, that the power to ‘lift the bar’ under s 48B is available to the Minister in relation to the Applicant’s circumstances. However, as the Guideline makes clear, in circumstances such as the Applicant’s where there are character concerns, the matter should be referred to the Minister under s 195A rather than s 48B.[99]

    [99] Respondent’s further written submissions dated 13 May 2020 [5].

15. The statutory consequence of non-revocation of a Mandatory Visa Cancellation Decision is that the Applicant will be an unlawful non-citizen. Section 198 of the Act dictates that as an unlawful non-citizen the Applicant must be removed ‘as soon as reasonably practicable’.

16. Section 197C of the Act states:

    1)For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

    2)An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.

17. Section 197C was considered in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 (‘DMH16’) where North ACJ stated at [26]:

    … In fact, by the operation of s 197C, if the protection visa was refused the applicant would either be removed to Syria immediately, or, if the Minister decided to consider alternative management options, be detained for a definite period, namely, until the Minister considered whether to exercise the power under s 195A. Then if the Minister refused to exercise the power, the applicant would be removed to Syria.

18. The impact of section 197C on the duty to remove under section 198 was also considered by the Full Federal Court in Minister for Immigration and Border Protection v Le [2016] FCAFC 120, where their Honours observed at [60]:

    [T]he operation of s 197C of the Migration Act … makes plain that Australia’s non-refoulement obligations are not a relevant consideration when an officer comes to discharge the statutory duty imposed by s 198 to remove an unlawful non-citizen as soon as reasonably practicable. Necessarily, therefore, to the extent that that issue is material it must be addressed at an earlier stage in the decision-making process.

19. In the recent decision of the Federal Court in CWGF v Minister for Home Affairs [2019] FCA 1802 (‘CWGF’), Gleeson J made the following observations at [10]:

    As a result of s 197C and s 198(2A), the legal consequence of refusing to revoke the cancellation of the applicant’s visa is that the applicant is required to be removed from Australia as soon as reasonably practicable… In the meantime, the applicant will be subject to “indefinite detention” in the sense that detention would be limited only by the time taken for the Minister to consider “alternative management options” or until removal is “reasonably practicable”.[100]

    (footnotes added)

    [100] Cited by Deputy-President Pascoe in TNJG and Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2020] AATA 10 at [72].

20. The Respondent concedes that, ‘there is a possibility that the applicant could be detained for an extended period of time, pending removal.’[101]

    [101] Respondent’s SFIC [46].

21. The Respondent advised the Tribunal that there are factors relevant to the Applicant’s circumstances that contribute to the practicalities of his removal.  Most relevantly, the Australian Government is not presently returning non-citizens to Iran.[102]  As the most recent Department of Foreign Affairs and Trade report on Iran dated 14 April 2020 states:

    [102] Respondent’s further written submissions dated 13 May 2020 [9].

    Conditions for Returnees

    5.27 Iran has a global and longstanding policy of not accepting involuntary returns. Historically, Iran has refused to issue temporary travel documents (laissez- passers) to facilitate the involuntary return of its citizens from abroad. In March 2018, Iran and Australia signed a Memorandum of Understanding on Consular Matters. This includes an agreement by Iran to facilitate the return of Iranians who arrived after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia. A laissez-passer can be obtained from an Iranian diplomatic mission on proof of identity and nationality.

    (emphasis in original)

22. On the basis of this evidence, the Tribunal finds that it is not currently reasonably practicable for the Applicant to be returned to Iran. Section 197C of the Act does not prevent the continued detention of the Applicant for the purposes of the Minister considering the exercise of his power under section 195A.[103]

    [103] DMH16 at [17]; see also SZSSJ v Minister for Immigration and Border Protection (2015) 234 FCR 1;
[2015] FCAFC 125.

23. Section 195A of the Act provides:

    Minister may grant detainee visa (whether or not on application)

    Persons to whom section applies 

    (1)  This section applies to a person who is in detention under section 189. 

    Minister may grant visa

    (2)  If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa). 

    (3)  In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act. 

    Minister not under duty to consider whether to exercise power 

    (4)  The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances. 

    Minister to exercise power personally 

    (5)  The power under subsection (2) may only be exercised by the Minister personally. 

    Tabling of information relating to the granting of visas

    (6)  If the Minister grants a visa under subsection (2), he or she must cause to be laid before each House of the Parliament a statement that (subject to subsection (7)): 

    a) states that the Minister has granted a visa under this section; and 

    b) sets out the Minister's reasons for granting the visa, referring in particular to the Minister's reasons for thinking that the grant is in the public interest. 

    (7)  A statement under subsection (6) in relation to a decision to grant a visa is not to include: 

    a) the name of the person to whom the visa is granted; or 

    b) any information that may identify the person to whom the visa is granted; or 

    c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the grant of the visa--the name of that other person or any information that may identify that other person. 

    (8)  A statement under subsection (6) is to be laid before each House of the Parliament within 15 sitting days of that House after: 

    a) if the decision to grant the visa is made between 1 January and 30 June (inclusive) in a year--1 July in that year; or 

    b) if the decision to grant the visa is made between 1 July and 31 December (inclusive) in a year--1 January in the following year. 

24. At the hearing, the Tribunal questioned the Respondent as to whether the Minister has already considered ‘alternative management options’ in relation to the Applicant, and if so, whether these include granting the Applicant a visa.[104]

    [104] Transcript, 104-106.

25. In its post-hearing written submissions, the Respondent advised:

    The Minister has not already considered any ‘alternative management options’, with respect to the applicant. Ordinarily alternative management options are only considered by the Minister after the review process has concluded, that is reflected in the Guidelines on Minister’s detention intervention power – section 195A of the Migration Act 1958.[105]

    [105] Respondent’s further written submissions dated 13 May 2020 [7].

26. The Respondent further advised that whether or not the Minister decides to exercise his non-compellable section 195A power:

    … it is impossible to say for how long, precisely, the applicant would be detained in either scenario.[106]

    [106] Respondent’s further written submissions dated 13 May 2020 [10].

27. The Tribunal questioned the Respondent as to whether the Minister had considered the exercise of his non-compellable power under section 197AB of the Act to make a residence determination.[107]

    [107] Transcript, 105-106.

28. Section 197AB provides:

    Minister may determine that person is to reside at a specified place rather than being held in detention centre etc.

    1) If the Minister thinks that it is in the public interest to do so, the Minister may make a determination (a residence determination) to the effect that one or more specified persons to whom this Subdivision applies are to reside at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).

    2) A residence determination must:

    a) specify the person or persons covered by the determination by name, not by description of a class of persons; and

    b) specify the conditions to be complied with by the person or persons covered by the determination.

    3) A residence determination must be made by notice in writing to the person or persons covered by the determination.

    (emphasis in original)

1. In its post-hearing written submissions, the Respondent advised:

   As [section 197AB] is a non-compellable power the respondent is unable to speculate as to whether the Minister will consider exercising that power, however it would be open to the Minister to do so.[108]

   [108] Respondent’s further written submissions dated 13 May 2020 [15].

2. Having regard to the evidence before it, and in light of the operation of the Act and the relevant authorities as detailed above, the Tribunal finds it is highly likely that the Applicant faces a prolonged period of detention whilst the Minister considers any ‘alternative management options’, being the exercise of his non-compellable power under section 195A to grant the Applicant a visa or to make a residence determination under section 197AB.

3. If the Minister decides either to not consider these ‘alternative management options’, or decides not to exercise his non-compellable powers, then the Applicant faces the prospect of ‘indefinite detention’ as termed by Gleeson J in CWGF. The likelihood this will occur is heightened by the fact the Applicant cannot currently be returned to Iran.  The high possibility that the Applicant will be held in indefinite detention is of considerable concern. He has served his sentence of imprisonment for the driving offences and he is committed to taking steps to change his behaviour and not re-offend.  However, the most likely outcome should the Mandatory Visa Cancellation Decision not be revoked is that the Applicant will be held in immigration detention for an extended if not indefinite period of time.

4. In the circumstances of the Applicant, the most likely consequence of the non-revocation of the Mandatory Visa Cancellation Decision is that he will be held in indefinite detention. There is no evidence before the Tribunal that the Minister intends to consider, or if he does consider, then go on to exercise his non-compellable powers under the Act, which would allow the Applicant to be released from detention. In a situation where the Tribunal cannot be confident that the Applicant’s detention would be limited to a reasonable period to allow the Minister to exercise his non-compellable powers, and the high likelihood of the Applicant being held in detention for months if not years, weighs very heavily in favour of revocation of the Mandatory Visa Cancellation Decision.

5. On the basis of the evidence before it and having regard to the factors in paragraph 14.1 of the Direction, the Tribunal finds that this other consideration weighs very heavily in favour of revocation of the Mandatory Visa Cancellation Decision.

   Strength, nature and duration of ties

6. Paragraph 14.2(1) of the Direction states:

   …Reflecting the principles at 6.3, decision-makers must have regard to:

   (a) How long the non-citizen has resided in Australia, including whether the non-citizen has arrived as a young child, noting that:

   (i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and

   (ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

   (b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

7. Having regard to the factors in sub-paragraph 14.2(1)(a) of the Direction, the Applicant has resided in Australia for approximately seven years.  During this period, he has contributed to the Australian community and the economy through his work as a painter and in the construction industry. However, as required by sub-paragraph 14.2(1)(a)(i) of the Direction, the duration of his residency in Australia has been given less weight as the Applicant commenced offending in mid-2017, approximately four years after his arrival in Australia.

8. Having regard to the factors in sub-paragraph 14.2(1)(b) of the Direction, the Applicant has no family members in Australia and is not currently in a relationship. His friend, Siamak Parsafar, provided a written statement and gave oral evidence at the hearing.  Apart from Mr Parsafar, his close friend Mr Ghorbani and his employer Mr Gadari, the Applicant does not have friendships or other close ties to Australia.  The Applicant’s friends may experience some emotional hardship if the Applicant is removed from Australia, but as they are not his immediate family members, the Tribunal has given this limited weight.

9. On the basis of the evidence before it and having regard to the considerations in sub-paragraph 14.2(1) of the Direction, the Tribunal finds that this other consideration weighs neither in favour or against revocation of the Mandatory Visa Cancellation Decision.

   Impact on Australian business interests

10. Paragraph 14.3(1) of the Direction states:

    Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

11. The Applicant’s work prior to his incarceration was as a painter and in the construction industry.  There is no evidence of a relevant ‘employment link’, and the Applicant does not claim that any Australian business interests would be affected by his removal to Iran.  This factor does not therefore weigh in favour of revocation of the Mandatory Visa Cancellation Decision.

    Impact on victims

12. Paragraph 14.4(1) of the Direction states:

    Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

13. There is no evidence before the Tribunal on the impact of the non-revocation of the Mandatory Visa Cancellation Decision on the Applicant’s victims.

    Extent of impediments if removed from Australia

14. Paragraph 14.5(1) of the Direction states:

    The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    a) The non-citizen’s age and health;

    b) Whether there are substantial language or cultural barriers; and

    c) Any social, medical and/or economic support available to them in that country.

15. Having regard to sub-paragraphs 14.5(1)(a) of the Direction, the Applicant is currently aged 30 years and has been diagnosed with Adjustment Disorder. He spent most of his life in Iran before leaving there to travel to Australia at the age of 22 years and he is fluent in Farsi. 

16. Having regard to sub-paragraph 14.5(1)(b), the Tribunal finds that he would not face any significant linguistic or cultural barriers upon his return to Iran. Both his parents, his two sisters and extended family continue to reside in Iran.

17. Having regard to the factors in sub-paragraph 14.5(1)(c), the Applicant has built upon his work history in Iran with further skills and knowledge in construction, cleaning, carpeting and painting, as well as acquiring functional English in Australia. This should put him in a good position to look for and secure work in Iran.  He also has the advantage of family connections and support to assist in his job search, finding accommodation and settling and adjusting to life in his home country.

18. Further, the Applicant will have access to health services, treatment and welfare services in Iran, although the standard and ease of access may not be of the same high standard and as widely available as those services are to him in Australia. The Applicant may also suffer disadvantage if his medical records and history are not made available to his healthcare providers in Iran.

19. The Applicant will however suffer significant hardship and potentially serious harm from the Basij and other government authorities for his previous tattooing activities and having sought asylum in a western country should he be returned to Iran.Given the fears the Applicant has expressed on return to Iran, which it is accepted engage Australia’s non-refoulement obligations, the Tribunal accepts he is likely to experience danger if not death if he is returned.  It also accepts that the Applicant will face hardship upon return to Iran due to having sought asylum in a Western country.

20. Having considered the factors in paragraph 14.5(1) of the Direction, the Tribunal finds that this consideration weighs heavily in favour of the revocation of the Mandatory Visa Cancellation Decision.

    CONCLUSION

21. In summary, the Tribunal finds that Primary Consideration A weighs against revocation of the Mandatory Visa Cancellation Decision. The nature, seriousness and frequency of the Applicant’s offences, and the moderate risk of him committing future offences, are such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.

22. Primary Consideration C weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that the Applicant’s offending should cause him to forfeit the privilege of remaining in Australia. The duration of his residence in Australia and the positive contribution he has made to the economy are factors that would increase the Australian community’s tolerance for the Applicant’s offending, however not to the extent that its expectation would be that his visa be reinstated.

23. In regard to the relevant other considerations, the high likelihood that the Applicant will be subjected to indefinite detention, and the significant hardship if not serious harm he will face on return to Iran weigh heavily in favour of revocation of the Mandatory Visa Cancellation Decision.

24. Although the two primary considerations of protection of the Australian community and expectations of the Australian community weigh in favour of non-revocation, the Tribunal finds that these are outweighed by the other considerations of Australia’s international non-refoulement obligations and the extent of the impediments facing the Applicant on return to Iran. 

25. Accordingly, the Tribunal is satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.

    DECISION

26. The Reviewable Decision dated 18 February 2020 to refuse to revoke the Mandatory Visa Cancellation Decision is set aside and substituted with a decision to revoke the mandatory cancellation of the Applicant’s Class XE, Subclass 790 Safe Haven Enterprise visa.

I certify that the preceding 150 (one hundred and fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member L Kirk

...............................[sgd].........................................

Associate

Dated: 22 May 2020

Date(s) of hearing:	7 & 8 May 2020
Date final submissions received:	15 May 2020
Advocate for the Applicant:	Subclass Australia
Solicitors for the Respondent:	Australian Government Solicitor