HLQV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 685

HLQV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 685 (30 March 2020)
Division:GENERAL DIVISION
File Number: 2020/0153
Re:HLQV
APPLICANT

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

DECISION
Tribunal:Senior Member D. J. Morris
Date:30 March 2020
Place:Melbourne

The Tribunal decides to set aside the decision under review. In substitution, the cancellation of the Applicant’s Class XA Subclass 866 Protection visa is revoked under section 501CA(4)(b)(ii) of the Migration Act 1958.
.......[sgd].................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – mandatory cancellation of visa – applicant formerly held Class XA Subclass 866 Protection visa – applicant is citizen of Libya – whether recent decision in BAL19 v Minister for Home Affairs [2019] FCA 2189 applicable – that decision distinguishable on facts – the statutory character test – ministerial direction No. 79 – primary considerations – protection of Australian community – best interests of affected minor children – expectations of Australian community – whether international non-refoulement obligations owed – strength, nature and duration of ties to Australia – extent of impediments if removed – significant mental health conditions – judicially supervised treatment order yet to commence – decision under review set aside and new decision substituted
Legislation
Administrative Appeals Tribunal Act 1975, s 33A
Migration Act 1958, ss 36, 499, 501, 501CA, 501K
Cases
BAL19 v Minister for Home Affairs [2019] FCA 2189
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294
FYBR v Minister for Home Affairs [2019] FCAFC 185
Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116
WQKK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 319
Secondary Materials
DFAT Country Information Report Libya (14 December 2018) – Department of Foreign Affairs and Trade
Migration Act 1958 – direction under s 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Commenced 28 February 2019)
REASONS FOR DECISION
Senior Member D. J. Morris
30 March 2020

In this matter the Applicant held a protection visa which was cancelled. Under section 501K of the Migration Act 1958 (the Act) the Tribunal must not publish any information that may identify him or any relative or other dependant of the Applicant. The anonym ‘HLQV’ has been assigned to the Applicant. The identities of other relevant persons referred to in this decision have been anonymized.
HLQV was born in Egypt in 1972 when his parents were studying there, but returned as an infant to Libya, the country of which he is a citizen. He arrived in Australia in March 2008 on a Visitor (Subclass 676) visa, and applied for a protection visa in May 2008. In April 2010 he was granted a Class XA Subclass 866 Protection visa (the visa). The visa was cancelled on 24 July 2019 under section 501(3A) of the Act.
HLQV was invited to and made representations to the delegate of the Respondent as to whether there was ‘another reason’ why the original decision to cancel the visa should be revoked, as provided for under section 501CA(4)(b)(ii) of the Act. On 3 January 2020 the delegate decided not to revoke the mandatory cancellation of the visa. It is this decision that HLQV has brought to the Tribunal for review.
The hearing was held on 23 March 2020. The Applicant was represented by Ms Felicity Fox, of counsel, instructed by Mr Rohan Thwaites of Refugee & Immigration Legal Centre Inc. HLQV gave evidence, and was cross-examined by Mr Adam Cunynghame, of Sparke Helmore Lawyers, representing the Respondent. Two other witnesses, a friend of HLQV, Mr ‘AF’, and the Applicant’s former domestic partner, Ms ‘AP’ gave evidence by telephone by leave of the Tribunal under section 33A of the Administrative Appeals Tribunal Act 1975. Although the Applicant responded in English, the Tribunal appreciates the assistance provided by an interpreter in the Arabic language.
The Tribunal admitted into evidence the following documents:
§Volume of ‘G’ documents collated by the Respondent, paginated 1 to 210 (‘GD’);
§Two volumes of supplementary ‘G’ documents collated by the Respondent, paginated 1 to 1000 (‘SGD’);
§Tender bundle of documents collated by the Applicant, paginated 1 to 154 (‘TB’); and
§Transition Plan of the Applicant (Exhibit A1).
The Tribunal also had regard for the Statements of Facts, Issues and Contentions lodged by both parties and the Applicant’s Reply to the Minister’s Statement of Facts, Issues and Contentions with annexures.
PRELIMINARY MATTER
The Tribunal at a directions hearing asked parties for submissions on the recent Federal Court decision in BAL19 v Minister for Home Affairs [2019] FCA 2189 (BAL19). In that case Rares J found that section 36(1C) of the Act was inserted by the Parliament to codify Australia’s non-refoulement obligations for a protection visa applicant or holder who otherwise raised character concerns and that the power to refuse or cancel such a visa could only be enlivened by relying on section 36(1C). Therefore, since that amendment, section 501(1) and its analogues could not be relied on as a basis to refuse to grant or cancel a protection visa. Mr Cunynghame, for the Respondent, submitted that it was the Minister’s view that BAL19 was wrongly decided and that he had lodged an appeal to the Full Court of the Federal Court which is to be heard in May 2020.
Ms Fox, for the Applicant, submitted that because of BAL19 the cancellation of HLQV’s visa was without legal basis and any decision regarding the cancellation of his visa and revocation of that cancellation under section 501CA of the Act would be unlawful. Therefore Ms Fox submitted that the Tribunal should set aside the decision under review and direct that the visa should be reinstated on the grounds that it was not lawfully cancelled.
The Tribunal is not persuaded by the Applicant’s argument. In BAL19 His Honour was considering a decision of the Minister, acting personally, to refuse the grant of a protection visa under section 501(1) of the Act. The Court in that case did not pronounce on sections 501(3A) or 501CA(4) of the Act and, with respect, that decision does not apply to the cancellation of a protection visa. The Tribunal considers that the approach adopted by Deputy President Britten-Jones in WQKK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 319, that an application brought by a non-citizen seeking the revocation of the mandatory cancellation of a protection visa should be considered and determined in the usual way by the Tribunal, is correct.
In FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294, Member Eteuati gave a useful exposition on why BAL19 is distinguishable on its facts from a matter where the Tribunal is considering whether to revoke the mandatory cancellation of a protection visa. The Tribunal considers that the learned Member’s logic in that summary is sound, noting that the position may change after the Full Court deliberates on the pending appeal the Minister has brought.
THE LEGISLATIVE ARCHITECTURE
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or the Minister’s delegate) must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of section 501(6)(a) of the Act, and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.
Section 501CA(4) of the Act provides that a decision-maker may revoke the mandatory cancellation of a visa if the person makes representations within the relevant time period, and the decision-maker determines that the Applicant passes the ‘character test’, or there is another reason why the mandatory cancellation decision should be revoked. There was no contention before the Tribunal that HLQV had not made representations within the prescribed period.
If the Tribunal finds that the Applicant fails the character test, the sole task before the Tribunal then becomes whether there is another reason why the original decision to cancel the visa should be revoked. In undertaking this task, the decision-maker should examine the factors for and against revoking the cancellation and, if satisfied that the cancellation should be revoked, the Tribunal, standing in the shoes of the Minister, must act on that view. A useful elaboration of the process can be found in Viane v Minister for Immigration and Border Protection [2018] FCAFC 116, where Colvin J said, at [64]:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
Does the Applicant fail the character test?
The Minister contended in his written submissions that HLQV does not pass the character test (section 501(3A)(a)(i) of the Act) because he has been sentenced to a term of more than 12 months’ imprisonment and therefore has a ‘substantial criminal record’, as defined by section 501(7)(c) of the Act. The Applicant conceded in written submissions that HLQV does not pass the character test.
Before the Tribunal was an Australian Criminal Intelligence Commission Criminal History Check dated 22 July 2019. It records that in April 2019, HLQV was convicted of the crime of Arson and was sentenced to 12 months’ imprisonment with a 27-month Community Corrections Order (CCO) to commence on completion of imprisonment. On the same occasion he was also convicted of the crimes of Prohibited person possess a firearm, Reckless conduct endangering serious injury, Cause explosion likely to damage property, and Prohibited possession of imitation firearm. These other offences resulted in various terms of imprisonment, some parts suspended, with an aggregated term of six months, meaning that the total term of imprisonment conferred on HLQV was 18 months. No parole period was set, but the period of just over a year that the Applicant had already been in custody was counted as already served.
At GD p 184 was a Prisoner Holding Indent dated 29 May 2019 from the corrections authority showing that HLQV commenced a term of full-time imprisonment in April 2019 and was due to complete his aggregated terms of imprisonment in September 2019.
Finding in relation to the character test
On this evidence, the Tribunal finds that HLQV fails the statutory character test in that he has been sentenced to a term of imprisonment of 12 months or more (sections 501(7)(c) and 501(3A)(a)(i) of the Act) and was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory (section 501(3A)(b) of the Act).
Having made this finding, the next task of the Tribunal is to consider whether it is satisfied that there is another reason why the original decision to cancel HLQV’s visa should be revoked, exercising the discretion available under section 501CA(4)(b)(ii) of the Act.
THE MINISTERIAL DIRECTION – DIRECTION NO. 79
Section 499(1) of the Act provides that the Minister has power to give directions to a person or body having functions or powers under the Act relating to the performance of those functions or the exercise of those powers. On 20 December 2018 the Minister made a direction, Direction No. 79 (the Direction). The Direction commenced on 28 February 2019 and was the Direction the delegate referred to when exercising the discretion not to revoke the cancellation of HLQV’s visa. In undertaking this review, the Tribunal stands in the shoes of the decision-maker, in this case the Minister’s delegate. Under section 499(2A) of the Act, The Tribunal must comply with the Direction.
The Direction comprises a Preamble which contains the Objectives of the Direction and General Guidance for decision-makers that provide a framework within which decision-makers should approach their task to cancel or refuse a non-citizen’s visa or revoke the mandatory cancellation of a visa. Part C of the Direction identifies considerations relevant in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa.
The Direction includes the following principles at paragraph 6.3:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account the considerations set out in Part C, which are divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: (a) protection of the Australian community from criminal or other serious conduct; (b) the best interests of minor children in Australia; and (c) expectations of the Australian community.
Paragraph 14 of the Direction also requires a decision-maker to take into account, where relevant, the following other considerations: (a) international non-refoulement obligations; (b) strength, nature and duration of ties; (c) impact on Australian business interests; (d) impact on victims; and (e) extent of impediments if removed. Paragraph 14 also makes clear that a decision-maker is not limited only to the stipulated other considerations. Logically, any other consideration that is consistent with the purpose of the Act and which is raised by parties or in the knowledge of the Tribunal should also be taken into account in the merits review.
The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (paragraphs 8(4) and 8(5)). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations.
RELEVANT OFFENDING
HLQV pleaded guilty to the offences referred to above and which were dealt with by the Court in April 2019. The relevant circumstances were set out by the sentencing judge. The actions which led to the convictions occurred over several days, spaced apart, in 2017. There was a dispute between the Applicant and another person over some mechanical work on HLQV’s car. Early one morning, HLQV set up a homemade incendiary device at the front of the other person’s residence, which, as the victim left for work, he found alight. The victim managed to extinguish it. Later examination showed it to be a dangerous, improvised, explosive device. A few days later, the same person came to visit HLQV seeking the return of an item. There was a verbal argument and HLQV came out of his house with what the victim thought was a gun. The victim ran to escape.
About six weeks later, a different person was walking past HLQV’s residence. For an unknown reason, HLQV thought this man had damaged his motor vehicle. HLQV made this allegation and levelled a handgun at him. Four days later HLQV went to a house where he thought this second man lived. HLQV was, as it turned out, mistaken and the house was occupied by other persons who had no link with the second man.
HLQV set up some sort of explosive device in a vehicle at the house. The device was removed, with some damage to the vehicle. HLQV then returned to the house and set fire to the motor vehicle with a ‘Molotov cocktail.’ Neighbours managed to put the fire out. A subsequent search of HLQV’s house and car by police found various items connected with the construction of the incendiary devices, and ammunition in his car.
The judge said that the damage caused by these actions on each occasion was fortunately minimal, but the risk to persons and property was significant; the homemade devices were volatile and dangerous. His Honour found that HLQV was motivated by ill-considered (and wrongly directed) revenge at persons he had perceived had done him wrong, some of whom were innocent strangers.
In sentencing HLQV, the judge referred to his prior criminal offending. The Criminal History Check before the Tribunal records many offences dating from 2011, including convictions for contravening family violence intervention orders, intentionally damaging property, stalking, motor vehicle theft, firearms offences, making threats to kill, assaulting police, and several offences relating to possessing and using methylamphetamine and cannabis. There were also convictions for driving offences, committing indictable offences whilst on bail, dealing in property suspected to be the proceedings of crime and dishonestly assisting in the retention of stolen goods.

The judge noted that HLQV’s offending had taken place when he was a mature adult and that he had been sentenced to terms of imprisonment by magistrates for earlier criminal conduct and breaches of court orders. His Honour noted HLQV accepted that he had a problem with illicit drugs and had done courses in an attempt to deal with this significant challenge.
The judge noted that HLQV had been examined in 2018 by a neuropsychologist, Dr Treeby, who noted an earlier diagnosis, in 2012, of Major Depressive Disorder, a diagnosis with which Dr Treeby concurred. The judge stated that he would mitigate the penalty to be imposed because of the mental health diagnosis and also because of physical health problems HLQV had, namely back problems owing to two assaults on him while in prison, which require him to use a mobile walker. The judge said that HLQV’s plea of guilt, while late, was also an important factor in his consideration of the sentencing tariff.
The judge decided to use a combination of a CCO of significant length to follow a sentence of imprisonment in order to simultaneously punish the Applicant and help him to reform, especially in terms of him not returning to drug taking. The judge noted that the crime of Arson specifically allowed for longer CCOs and decided that requiring HLQV to complete treatment programmes for arson-type offences, given that the homemade devices he deployed caused fear and property damage, was appropriate.
ORAL EVIDENCE
Evidence of HLQV
HLQV gave evidence about being born in Egypt when his parents were both studying at university. They returned with him to Libya when he was aged about 1 year old and he said he grew up in Tripoli. He had six brothers and one sister.
HLQV said that when he was aged about sixteen he realised what had been taken from the family by the then Gaddafi regime in Libya, knowledge which he believes his parents had shielded him from when he was younger. He told the Tribunal that he remembers fellow students at his school whose fathers ‘disappeared,’ during that time.
HLQV said he finished secondary schooling and then trained in physiotherapy. He said that there was a requirement to do two years’ military service which he did not want to do, so he left the country. He said if a person failed to do the compulsory military service they would be unable to obtain employment and they may even be killed.
HLQV said he left Libya aged in his twenties, and told the Tribunal that he swam from Tripoli to St Julian’s, which is a seaside town on the east coast of Malta, GC. HLQV said he had been a champion swimmer and had won gold medals for swimming, and told the Tribunal he swam for two days. He said his grandfather lived in Italy at that time, and he wanted to be close to him.
HLQV said he lived in Malta for four years, travelling occasionally to Italy by speedboat to visit his grandfather, who sadly passed away after about three years. HLQV told the Tribunal that he did not have a Libyan passport but was able to freely travel between Malta and Italy with another travel document.
While in Malta, HLQV met an Australian woman who had a Maltese background. He said they commenced a relationship and married during a visit to Egypt. HLQV said that they returned to Libya because he wanted to introduce his wife to his family. He said he made contact with some cousins but did not go to Tripoli because of the dangerous situation. He said he did not have contact with his parents or any of his siblings and, after living there for a month or so, decided to leave because ‘it was scary.’ He said his wife was also scared to stay there and she was by this time pregnant with their daughter.
HLQV and his wife then returned to Australia and the Applicant said he had not left Australia since that time. He said after about four years his marriage broke down. He said that he was having liver treatment at the time and was under stress and they argued, which led to the end of the marriage. HLQV agreed with the evidence in the Criminal History Check that a Family Violence Intervention Order was taken out against him in 2011 barring him from seeing his wife and his children, a son and a daughter.
HLQV said that his estranged wife extended the intervention order every two years and he had not seen his children since 2011. He said that if he is permitted to stay in Australia, his aim was to make an application to the Family Court to have parental access to his children.
In respect of his use of drugs, HLQV said that he started using marijuana in around 2011 and then moved on to ‘ice’, using both drugs ‘on and off.’ He said five or six years ago he commenced a new relationship with Ms AP. Ms AP had four children, three now living. HLQV lived with her in a domestic relationship until he went into custody. They ended the relationship shortly afterwards in 2017.
HLQV said he had a good relationship with Ms AP’s children, but admitted to continuing to take drugs during that period, though he said Ms AP did not always know of his drug-taking. He said that in around July 2019 he made contact with Ms AP and they had resumed regular telephone discussions, every two or so days. Although she had not visited him in immigration detention, Ms AP had brought him clothes and other personal items.
HLQV said that he had undertaken some 31 courses in prison and had worked in the prison kitchen. He said he was aware that conditions of the CCO ordered by the Court included urine testing, a treatment component and judicial supervision. He said when he had been in prison before he had undertaken no courses and did not have support, and now wanted the chance to prove himself. He agreed that he had relapsed into drug taking on being released from custody in the past.
HLQV said that Mr AF, his neighbour and friend, is his ‘family’ now. Mr AF had offered him accommodation with him and his own children and HLQV knew if he re-offended or returned to drugs, ‘he’d kick me out.’ HLQV said he planned to work for Mr AF in his concreting business while he completed his CCO obligations and then he wanted to revive a renovation and construction company he had previously operated when first coming to Australia.
In respect of Ms AP, HLQV said that she now lived in Melbourne and he would like to have time with her and her children, which gave him another incentive to stay off drugs.
When asked about his concerns if he returned to Libya, HLQV said he did not know anybody there and that there were ‘three sides’ attacking each other. He was concerned that if he returned there, each of the sides would question his allegiance, placing his safety in jeopardy. He said he believed he would be killed because of the manner in which he left Libya, and was therefore ‘shamed.’ When pressed, HLQV said he did not know who would kill him and had spoken to no one in Libya. He said that his language skills had deteriorated and he was concerned that this would be another factor that would flag to potential aggressors that he was from ‘away.’
Under cross-examination, HLQV maintained that he had swum from Libya to Malta, stating that he had used automotive grease to prepare his body for the water temperature. Mr Cunynghame put to HLQV that the distance between Tripoli and St Julian’s was some 300 kilometres and that such a swim was impossible. HLQV said it would be an impossible swim for a person not trained or who did not have gold medals for swimming, which he did.
HLQV said he had known Mr AF for around five years. They were neighbours and would frequently talk. He said he had not discussed his criminal or his drug history with Mr AF, and had not discussed his estranged wife and children with Mr AF because of the intervention order. HLQV said that if his visa is restored he would help Mr AF in his business in whatever way directed, such as driving a truck and accounting work. HLQV said he had not done concreting in the past himself, but because of his own background in construction he knew the elements of the skills needed.
HLQV was asked about an incident in the middle of 2011 (SGD, p 105) which led to a conviction for breaching the intervention order. The Applicant said he saw his wife and children at the post office and they came rushing to him. The solicitor for the Minister drew HLQV’s attention to the reference in the summary of charges to him going to his wife’s car (which he said had formerly been his car), parked outside the post office, and removing the spark plugs. HLQV said that the car was unlocked and he opened the door to retrieve some personal items he knew were in it, including a spare mobile phone.
The Tribunal noted that the police record showed that HLQV denied going to the vehicle at all, and that he said “No, I don’t know which car she even came in. I don’t know about the car.”
HLQV was asked about an incident at the end of 2017 where he had an altercation with a male person and, when the person’s female friend told him to get away from their car or she would call the police, HLQV responded “I don’t normally hit females but I’ll bury you.” HLQV said that the statement was inaccurate, that the male person had driven his car at him and that he did direct an obscenity at him, in Italian, but he did not say what was alleged to the person’s female friend. When asked whether he accepted he had pleaded guilty and been convicted of the offence of Unlawful assault in relation to this incident, HLQV said he did so because the Magistrate told him he would get fourteen days imprisonment if he pleaded guilty. He said he was affected by drugs at the time.
Evidence of Mr AF
Mr AF gave evidence that he had known HLQV for around five years as a friend and neighbour. He said they had struck up a warm friendship and he had done some handyman jobs for him, including fixing his former wife’s car and procuring a bike for one of his children.
Mr AF said he was aware HLQV had a drug problem and had told him it was not doing him any good, and that he had regularly spoken to him by telephone while the Applicant has been in prison and immigration detention, and had noted a marked change in his behaviour, no longer ‘ranting and raving’ and that he was now able to hold a civil conversation with him.
Mr AF said that he was prepared to offer HLQV accommodation at his residence, and a job in his concreting business. He said although HLQV has no experience in concreting he is a talented person who is very practical, and he had no doubt he would be a useful asset. Mr AF said that his own father is from Libya so that had given him an affinity with HLQV.
Under cross-examination Mr AF said he was aware HLQV had been convicted for ‘blowing up a person’s car.’ Mr AF said he was unaware of any assault offences or any domestic violence incidents, and nor had he discussed such with the Applicant. He said his understanding of the incident involving the car was that it related to drugs and that ‘that person tried to blow up his car first.’
Mr AF said he was unaware that HLQV had children of his own. Mr AF said that he had met Ms AP and knew of her former relationship with the Applicant. He said he used to see Ms AP regularly and she still visits him around once a month.
Evidence of Ms AP
Ms AP said she met HLQV in August 2013 and they commenced a romantic relationship, which ended late in 2016 or early 2017 after he had gone into custody. Ms AP said she had three children, now aged 16, 13 and 12. Ms AP said that during the time she lived with HLQV and the children he did not have full employment but did various odd jobs. She said that her previous relationship with the father of her children had ended around six years before she met HLQV and the Applicant provided a father figure for them.
When asked whether, if he is allowed to remain in Australia, HLQV would again become involved in her children’s lives, Ms AP said that was a ‘possibility’. She said she was aware of HLQV’s offending history and the role that his drug-taking has played in that. She saw the drug-taking as some form of self-medicating.
Ms AP said that it was her view that HLQV had some form of PTSD and depression, which she put down to the experience he had in the army in Libya. Ms AP said that her relationship with the Applicant ended because she ‘had enough of the offending and drug use.’ She said that she had imposed a condition on their relationship continuing of no more drug use or offending. When HLQV did re-offend, she decided she could not continue in their relationship.
She said she had not spoken to HLQV for about twelve months when he contacted her to apologise for his past actions, not long before he was released from prison. She said she was now in contact at least twice a week, by phone. When asked how her children would be affected if HLQV’s visa was not restored and he returned to Libya, she said they would be sad. Under cross-examination, Ms AP said she had no plans to return to the town where she lived before with HLQV and would remain in Melbourne.
In answer to a direct question from the Tribunal, Ms AP said she knew that HLQV had undertaken his mandatory military service in Libya, but she did not know how long he had served but it was ‘at least twelve months.’ She said that HLQV did not tell her exactly what he did in the army, but that he had discussed with her how severe the training was.
When asked whether she believed there were prospects of her resuming a romantic relationship with the Applicant, Ms AP said it was ‘possible’. When pressed whether it was probable or possible, Ms AP repeated that it was ‘possible,’ and that she did not close the door to the possibility.
CONSIDERATION OF THE DIRECTION
Primary considerations in Part C
Protection of the Australian community (paragraph 13.1)
The nature and seriousness of the non-citizen’s conduct (paragraph 13.1.1)
The Direction exhorts decision-makers to take into account various principles, including that violent crimes are to be viewed very seriously. The Tribunal considers that the offences outlined above, where HLQV set up two homemade ‘bombs’ and then used a ‘Molotov cocktail’ to set a person’s vehicle on fire, fall squarely into this category. Other offences listed in the Criminal History Check relating to threats to kill and breaching family violence intervention orders also constitute serious offending in this category.
The Direction stipulates that crimes against government representatives or officials due to the positions they hold or in the performance of their duties are serious. HLQV’s conviction for assaulting police fits this category. The Applicant’s offending has also been frequent and there has been a trend of increasing seriousness, which the Direction stipulates must be taken into account in assessing seriousness of the conduct.
It would seem on the papers before the Tribunal that HLQV has been prepared to use fear and aggression against his victims, both verbally, such as his violent words to a female complainant as outlined above, where he threatened to ‘bury’ her, and physically, by brandishing a firearm and possibly an imitation firearm at two other people. The explosive devices he made and placed at one residence and on a vehicle at another residence, apart from being inherently unstable and dangerous, could have caused significant injuries to people, including strangers whom HLQV had, for unexplained reasons, decided to target.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2)
The Direction requires the Tribunal to have regard, cumulatively, to the nature of the harm to individuals or the community should the person engage in further criminal conduct, and the likelihood of him so engaging.
The nature of harm to individuals, if HLQV resumed making homemade explosive devices, is clear. Not only were the ingredients of these devices themselves dangerous, his fixation in both cases on doing damage, in some mission to avenge perceived wrongs, is very concerning. The Tribunal is particularly alarmed that Mr AF, who presented as a credible witness, appeared to have been told by the Applicant that he placed a ‘bomb’ in a person’s car only after he told Mr AF the person had first done the same to HLQV. There is no evidence whatsoever of that, and it would seem that Mr AF has been told this in order to explain HLQV’s motivation or even minimise his culpability.
In terms of the risk of re-offending, Dr Treeby, after recounting clinical opinions on the Applicant’s mental health conditions, concluded (SGD, p 989):
Mental health factors, substance abuse and cognitive limitations cannot entirely account for [HLQV’s] offending behaviour. I note that he now has a long history of failing to conform to social norms with respect to lawful behaviour and that he has appeared before court on numerous occasions during the past seven years for versatile criminal offending. My impression is that he has significant antisocial personality disorder traits.
[HLQV] presents with …multiple risk factors for recidivism including a history of violence, substance use problems, antisocial personality traits, and prior breaches of community-based orders. He also presents with some degree of executive dysfunction, has a poor ability to cope with stress, and has difficulties with emotion-regulation more broadly. On these bases, he is deemed to be at moderate-to-high risk of reoffending. His risk of reoffending would be reduced (but not eliminated) should his mental health and substance use problems be appropriately monitored and addressed. My impression is that he will have high and ongoing criminogenic needs which will need to be addressed upon his release into the community.
(Emphasis added.)
Ms Fox urged the Tribunal to note that the sentencing judge imposed a long CCO on the Applicant and that this would act as a protective factor, given that the Order includes urinalysis, other treatment options and reporting before a judge. The Tribunal notes the evidence in the papers that HLQV has undertaken a large number of improving courses while in custody, which is to his credit. However, the sentencing judge stated that he had ‘low confidence’ in HLQV’s complete rehabilitation, after reciting previous custodial sentences which had had little effect on stemming the Applicant’s offending, or the trajectory of it.
Counsel for the Applicant provided a copy of the CCO to the Tribunal with her Reply to the Minister’s submissions. It includes a condition that HLQV must undergo assessment and treatment (including testing) for drug abuse and dependency as directed by the Regional Manager of Correctional Services. He must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a residential hospital or residential facility as directed by the Regional Manager, and participate in any courses or programmes that direct factors relating to his offending. Importantly, the CCO includes that HLQV must appear back before the sentencing Judge for a review of his compliance at a nominated date. That did not occur because at the completion of his prison term HLQV was taken into immigration detention.
The Tribunal finds that this consideration weighs against revoking the mandatory cancellation of the visa, with that weigh lightened by the protective factors inherent in the yet to be completed CCO.
Best interests of minor children in Australia affected by the decision (paragraph 13.2)
The Tribunal must make a determination about whether revocation is in the best interests of relevant minor children. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Tribunal identifies three categories of children who are relevant in considering this part of the Direction: the biological children of the Applicant (who are not yet teenaged), the children of Ms AP and the children of Mr AF.
HLQV’s children

In respect of HLQV’s own two children, a son and daughter, he has not seen them since 2011. He told the Tribunal that he technically remains married to his estranged wife, but had no contact with her since 2011 other than seeing her across a court room. He believed she still lived in the location where they lived together, but did not have evidence of this. It would seem that his belief is probably accurate, because Ms AP said she had seen the children locally, but not spoken to them.
Notwithstanding that the circumstances of the breakup of the relationship led to family violence intervention orders, and regular renewal of those orders by HLQV’s wife, the Tribunal is loathe not to find that it is in the best interests of minor children for their biological father to be in the same country. There was no evidence before me of any violence of HLQV towards the children. However, the long periods of absence and past Court orders are factors that lessen the weight that would ordinarily attach to such a consideration. He has not played any part in their lives for some nine years, leaving the household when they were very young. As mentioned, HLQV stated that he intends to institute Family Court proceedings to obtain some rights of access to his two children.
The Tribunal finds that it would be in the best interests of HLQV’s minor children for the mandatory cancellation of the visa to be revoked.
Ms AP’s children
In respect of Ms AP’s three children, the Tribunal accepts that the Applicant played a role as something of a father figure for them, and Ms AP spoke of outings and other things he did, including caring for them on occasion. However, there has now been a period of absence owing to HLQV’s time first in custody and, now, in immigration detention. They have moved to Melbourne and it would seem that HLQV has a rosier view of whether the relationship can be rekindled than Ms AP has. Ms AP said the children would be ‘sad’ if HLQV had to return to Libya. While accepting that, the Tribunal did not get the impression from Ms AP’s evidence that there would be a particular emotional wrench.
The Tribunal finds, on balance, that it would be in the best interests of Ms AP’s three minor children for the mandatory cancellation of the visa to be revoked, but that the weight that attaches to this is not significant.
Mr AF’s children
In respect of Mr AF’s two children, there was not a great deal of evidence before the Tribunal other than Mr AF saying that HLQV had done a number of kindly acts for them. Mr AF said his children had asked when HLQV would be ‘coming back’ and he agreed with Ms Fox that there would be some emotional effect on them if the Applicant were deported. The Tribunal finds that it would be in their best interests for the Applicant’s visa to be restored, but the weight is not significant because there is no parental relationship.
All together, the Tribunal finds that this primary consideration weighs in favour of revoking the mandatory cancellation of the visa, but not heavily so.
Expectations of the Australian community (paragraph 13.3)
The Direction states, at paragraph 13.3(1), as follows:
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.
FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’) considered this paragraph in a predecessor to the current Direction, but the wording is the same. In that case, two of the three judges (Charlesworth and Stewart JJ) held, writing separate judgments, that this part of the Direction expresses a ‘norm’.
Decision-makers should not make their own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views. They are not presumptions or values that may be somehow deduced by some other independent evaluative process.
In FYBR, Stewart J stated, at [100]-[101]:
To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
·non-citizens will obey Australian laws when in Australia;
·it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere.
·in a particular case, the refusal of the visa may be appropriate simply because of the nature of the character concerns or offences is such that they should not be granted a visa.
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive”.
(Emphasis added.)
His Honour went on to state (at [102]) that the character assessment, even through the prism of community expectations, may not be decisively against an Applicant, which is why the decision-maker must assess what is ‘appropriate’ in the particular circumstances. Ms Fox correctly drew the Tribunal’s attention to Stewart J’s remark, at [97] that:
Direction 65 does not ascribe to the Australian community a relevant expectation with regard to the outcome in the particular case. That is a matter for the decision-maker.
HLQV has breached the law on many occasions, and a large number of these breaches have been serious. He has committed crimes against the person, property crimes and crimes intended to cause fear and injury.
The Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the visa.
Other considerations in Part C
International non-refoulement obligations (paragraph 14.1)
This consideration relates to Australia’s treaty obligations not to return a person to a place where they would be at risk of a specific type of harm. Paragraph 14.1(3) reads:
Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s 501CA 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).
In his oral evidence, HLQV submitted that a principle reason he would be at risk of specific harm if returned to Libya was that he fled the country to avoid compulsory military service.
The Tribunal notes that this oral evidence is contrary to other evidence before it. Ms AP ascribed HLQV’s mental health conditions to his time serving in the military, and said that while she did not know how long it was, she knew he had undertaken compulsory military service and remembered HLQV telling her about the severity of the training.
Dr Treeby (SGD, p 986), based on the history he took from the Applicant stated that in 2018 “he worked [as] a physiotherapist in the armed forces for two years.” The sentencing judge also refers to HLQV as “having time in the armed forces.”
On the weight of evidence, I am satisfied that HLQV did undertake military service in the Libyan Armed Forces, and that his stated reason for fleeing the country as avoiding such service is implausible. As a corollary, his claim of ‘shame’ in part for avoiding such service does not stand up to scrutiny.
Ms Fox urged me to not take account of HLQV’s evidence that he swam from Libya to Malta as affecting his credibility, in the sense that while it may do so, it is not strictly relevant to the matter before the Tribunal. Mr Cunynghame, while submitting that the account of the swim was inherently implausible, said that the Respondent did not seek to pursue this claim in terms of the Applicant’s credibility.
The Tribunal does not accept these submissions because truthfulness in evidence before the Tribunal and other government agencies is an important factor. The Tribunal finds that HLQV’s evidence to the Tribunal in this respect was fabricated. It is factually impossible for HLQV, talented swimmer or not, to have undertaken an unbroken swim across the Mediterranean Sea for some 255 kilometres in two days, which is the direct-line distance between Tripoli and Malta.
Other evidence of HLQV also shifted. Dr Treeby recited that he had lived for a time in Spain and France, but HLQV said that the psychologist had misunderstood. HLQV initially said at the hearing that when he arrived in Malta he did not leave the island until he travelled to Egypt to marry, and had to be prompted by the Tribunal before he agreed that he ‘several times’ went to Italy to visit his late grandfather, over a period of three years. HLQV also said he travelled from Egypt to Australia and had again to be prompted that he returned to Libya with his wife for a period of around a month after their marriage, which he then conceded, but he denied going to Tripoli.
When asked specifically why he did not want to return to Libya, HLQV said that it was because ‘he didn’t know anyone there,’ and then later said that he had learned from the ABC, YouTube and the BBC of the volatile political situation there and feared that, as a returnee after a lengthy time abroad, that fact would make him stand out and potentially subject him to danger, and even death.
The delegate noted that the Department had in 2010 found HLQV to be a person in respect of whom Australia has non-refoulement obligations but the Tribunal has some doubts that those obligations still obtain. There is no doubt that the civil situation in Libya remains volatile and dangerous but apart from some unparticularised remarks around the Gaddafi regime when he was growing up, and a general fear of harm due to his status as a returnee, the Applicant did not make any strong case directing the Tribunal to the specific risk of harm to which he would be exposed, because of his personal characteristics.
However, the Tribunal accepts that HLQV would face additional challenges as a former drug user and someone with mental health conditions that could give rise to complementary protection obligations. These factors relating to HLQV will be considered under the extent of impediments if removed.
On the material before the Tribunal, I find that this consideration weighs in favour of revoking the mandatory cancellation of the visa but not significantly so. It may be objectively assessed that the situation in Libya is perilous, but that, by itself, does not satisfy the Tribunal that the international protection obligations are conclusively satisfied.
Strength, nature and duration of ties to Australia (paragraph 14.2)
The Direction requires the Tribunal to have regard to how long a non-citizen has been in Australia, noting that less weight should be given where the non-citizen began offending soon after arriving in this country and more weight should be given to the time HLQV has spent contributing positively to the community.
On the facts, HLQV arrived in 2008 and began offending in 2011, and continued offending in a relatively monotonous way. He gave evidence in writing and in his oral evidence of having operated a renovation and construction company for some years, and Mr AF attested to his practical skills. There was also evidence from Mr AF of periods of unemployment or underemployment. The Tribunal accepts that there has been some positive contribution by the Applicant to Australia.
In terms of family and social links, the Tribunal accepts that HLQV has an Australian citizen wife and two Australian citizen children, but also that he has not had contact with any of them for some nine years. It is notable that he had not told his friend, Mr AF, that he had children, even though on the evidence they have had frequent contact and discussions over the last five or so years. The Tribunal notes it is HLQV’s desire to restore at least some contact with his children.
The Tribunal also notes Ms AP’s friendship and former relationship with HLQV, and that he was close to her three children. The Tribunal also notes the evidence given by Mr AF of his friendship with the Applicant and accepts his evidence of a good relationship between HLQV and Mr AF’s children.
Taken as a whole, the Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of HLQV’s visa.
Extent of impediments if removed (paragraph 14.5)
The Applicant’s counsel submitted a discharge summary relating to HLQV dated 11 September 2019, issued at the end of his term of imprisonment. It recorded in terms of his mental health that HLQV suffered from post-traumatic stress disorder and depression, and that he had been treated for depression in the past. In respect of physical health conditions, the summary records diabetes mellitus and a past medical history of chronic obstructive pulmonary disease and hepatitis C. The summary records that HLQV had ongoing treatment for physiotherapy ‘following a fall in the shower.’ The Tribunal notes that HLQV also sustained back injuries following what the sentencing judge recorded were assaults on him while in custody. This initially put him in a wheelchair but he has improved to the extent he can walk with the aid of a walker, and hoped to improve further after future remedial surgery.
Counsel for the Applicant said that these medical conditions would not be able to be adequately treated in Libya and in the absence of health care, family and social support, HLQV’s physical and mental health would deteriorate, heightening the likelihood of him experiencing significant hardship and possible destitution and homelessness. The Respondent noted that HLQV would not face any serious cultural or linguistic barriers if returned to Libya, but accepted that a return to Libya would result in significant hardship.
Dr Treeby in his July 2018 report wrote (SGD, p 989):
Medical records indicated that [HLQV] has a history of mental health difficulties dating back to 2012 when he was diagnosed with Major Depressive Disorder by his general practitioner. I agree with this formal diagnosis. He continues to report severe difficulties with mood, stress, and anxiety and it follows that ongoing psychiatric monitoring is strongly recommended. He does not appear to cope well with the prison environment and has distress tolerance and emotion-regulation difficulties more broadly. It follows that he would benefit from ongoing counselling with a forensic or clinical psychologist so that he can learn more adaptive ways of managing stress, mood, and anxiety.
[HLQV] consumed alcohol heavily during his 20s and 30s before ceasing use at the age of 40. He became dependent on methamphetamine (ice) and cannabis at the age of 39 and it would appear that he engaged in this substance use to cope with his difficulties with depression to some extent. It should be noted that his decision-making, problem solving abilities, and his emotional and behavioural control are likely to be particularly impaired during times he is substance affected.
[HLQV’s] polysubstance abuse is clearly problematic he meets full DSM 5 diagnostic criteria for Stimulant Use Disorder (amphetamine-type) and Cannabis Use Disorder. His alcohol use has also been disordered in the past, though according to [HLQV’s] report, he has managed to address this. [He] would benefit from receiving ongoing monitoring with respect to his substance use. He may also benefit from formal drug and alcohol counselling with the goal of minimising his risk of relapse to methamphetamine and cannabis use once he is released into the community.
The DFAT Country Information Report on Libya dated 14 December 2018 states:
Libyans have poor access to health care. Libya’s weak health system has further deteriorated due to poor governance, limited financial resources, lack of health care workers including birthing attendants, and shortages of lifesaving medicines and basic equipment. The World Health Organisation (WHO) reports 1.3 million people have no access to basic health care. [An assessment] carried out in 2017 by WHO and Ministry of Health, found 17.5 per cent of hospitals, 20 per cent of primary health care facilities and eight per cent of other health facilities were not operational due to damage, lack of maintenance, inaccessibility or occupation by people and entities. In 2017, the European Commission reported that the Libyan health system had ‘practically collapsed’, with less than 20 per cent of public health facilities functioning in districts affected by the conflict.
The Country Information Report goes on to record that hospitals and other health facilities are bombed, shelled and hit by stray bullets during armed violence and there are regular reports of armed groups stealing medical equipment and supplies.
While noting that the Direction requires the Tribunal to look at the extent of impediments a person would face through the lens of what is generally available to other citizens of that country (not compared to what is available in Australia), the Tribunal is satisfied that the range of conditions HLQV has, in particular the settled and corroborated diagnosis of a Major Depressive Disorder, and to a lesser but not insignificant extent his physical mobility problems, would provide very significant challenges to him in re-establishing himself in a volatile society such as that obtaining in Libya.
The Tribunal finds that this consideration weighs heavily in favour of revoking the mandatory cancellation of the visa.
SUMMARY AND CONCLUSION
Parties made no submissions that the considerations relating to impact on Australian business interests (paragraph 14.3) and impact on victims (paragraph 14.4) were engaged in this particular case. On the evidence, the Tribunal finds that these considerations are not engaged and weigh neutrally in this assessment.
The Tribunal has found that the primary considerations relating to the protection of the Australian community and the expectations of the Australian community weigh against revoking the mandatory cancellation of the Applicant’s visa. The primary consideration relating to the best interests of minor children affected by the decision weigh in favour of HLQV, but only lightly.
In terms of the other considerations, the Tribunal is not satisfied on the evidence that a strong case has been made out that HLQV is currently owed protection, but on balance finds that consideration weighs in favour of revoking the mandatory cancellation of the visa. The other two relevant considerations, the strength, nature and duration of HLQV’s ties to Australia and the extent of impediments if removed weigh in favour of the Applicant, the latter very strongly so, given his special circumstances.
Paragraph 8(4) of the Direction sets out that primary considerations should generally be given greater weight than the other considerations. However, when assessing whether the discretion is enlivened for there to be ‘another reason’ under section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of a visa, the Tribunal must take into account the totality of the Direction. In Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; 241 FCR 261; 124 ALD 68, the Court said, at [57]:
Notwithstanding these features, as the Minister submitted, the terms of Direction No. 55 do not purport to direct a decision maker as to the outcome of the s 501(2) residual discretion in relation to any given individual, or categories of individuals. Further, by the use of qualifying words such as “generally” (for example, in cl 8(4) that primary considerations “should generally be given greater weight than the other considerations”), the weighing process in each case is in substance left, as it must be, to the individual decision maker exercising the power under s 501.

In Minister for Home Affairs v HSKJ [2018] FCAFC 217, the Court held, at [35], that the Tribunal would fall into error if it concluded that an ‘other consideration’ in the Direction was incapable of outweighing a primary consideration. This is consistent with the Minister’s use of the word ‘generally’ in paragraph 8(4) in Direction No. 79 and the equivalent paragraph in the superseded versions of the Direction.
In this matter, two factors have been prominent. The first is that HLQV’s evidence exhibited traces of a ‘Walter Mitty’ type fantastic belief about aspects of his past life, an example of which is his claim about swimming from Libya to Malta. Another possible example is HLQV’s claim to Dr Treeby, reiterated to the Tribunal, that he is related to former King Idris of Libya. This latter claim is not impossible, while the former claim is. The Tribunal has concluded that the reasons for this may well lie in his underlying diagnosed psychological conditions. These mental health conditions, combined with his illicit drug use, have also played a prominent part in much of his offending, especially in terms that his addiction to methamphetamine appears to have contributed to certain irrational acts.
I am satisfied that the CCO imposed by the County Court has a range of provisions that will operate as protective factors to substantially reduce the prospects of HLQV re-offending, such as urinalysis and direction to psychiatric care. My satisfaction in this factor is explicitly enhanced by the knowledge that a County Court judge will monitor compliance, and has powers to compel the Applicant in regard to provisions of the CCO. I note that there has been past non-compliance with court imposed orders but the fact that this CCO is judicially monitored as well as being monitored by the corrective services authorities is significant. Mr AF’s offer of secure accommodation and employment will also provide substantial protective assistance in directing HLQV away from the factors that led to his offending.
The independent and authoritative advice from the Department of Foreign Affairs and Trade on the health system in Libya satisfy me that, with his combination of mental and physical health conditions, which directly affect his mobility, there is little prospect that HLQV would get anything approaching adequate care if he is repatriated. I consider that these are ‘specific circumstances’ which I must consider in deciding whether to exercise the available discretion, as referred to in the Objectives at paragraph 6.1(2) of the Direction.
For these reasons, notwithstanding the Tribunal has found that there is a risk, and a real risk, that HLQV will re-offend, given the involvement of the County Court and the apparatus of court-directed treatment, I find that it is a tolerably acceptable risk. The Tribunal has, on balance, concluded that the discretion available in section 501CA(4) of the Act is enlivened, and the Tribunal is satisfied that there is another reason why the original decision not to revoke the mandatory cancellation of the visa should be revoked.
DECISION
The Tribunal decides to set aside the decision under review. In substitution, the cancellation of the Applicant’s Class XA Subclass 866 Protection visa is revoked under section 501CA(4)(b)(ii) of the Migration Act 1958.

I certify that the preceding 121 (one hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

………[sgd]…………………………………………
Associate
Dated: 30 March 2020

Date of hearing:

23 March 2020

Advocate for the Applicant:

Ms F Fox

Solicitors for the Applicant:

Advocate for the Respondent:

Solicitors for the Respondent:

Refugee and Immigration Legal Centre

Mr A Cunynghame

Sparke Helmore Lawyers