HNHB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 3688

HNHB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3688 (3 November 2022)
Division: GENERAL DIVISION
File Number: 2022/6783
Re:HNHB
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Deputy President Britten-Jones
Date:3 November 2022
Place:Adelaide

The Tribunal affirms the decision dated 15 August 2022 to not revoke the mandatory cancellation decision made on 23 June 2021.
...[sgd].....................................................................
Deputy President Britten-Jones
CATCHWORDS
MIGRATION – mandatory cancellation of Class BB Subclass 801 visa – applicant has substantial criminal record and has had his visa cancelled twice – whether there is another reason to revoke mandatory cancellation decision – the primary considerations of the protection and expectations of the Australian community and family violence outweigh the countervailing considerations - the decision under review is affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673
WKMZv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
YKZZ and Minister for Home Affairs (Migration) [2019] AATA 3248
SECONDARY MATERIALS
Department of Foreign Affairs and Trade, DFAT Country Information Report Iran, Report (7 June 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
REASONS FOR DECISION
Deputy President Britten-Jones
3 November 2022

This is an application for review of a decision to not revoke the mandatory cancellation of the applicant’s Class BB Subclass 801 Spouse (Permanent) visa (the visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
The decision to cancel the visa AND SUBSEQUENT PROCEDURAL HISTORY
The applicant’s visa was first cancelled on 9 May 2016. A delegate of the Minister decided not to revoke this first visa cancellation and the applicant applied to the Tribunal for review of that decision. On 30 August 2019, the Tribunal (differently constituted) decided to set aside the delegate’s decision and to revoke the first visa cancellation decision.[2] The applicant was subsequently released from immigration detention.
[2] YKZZ v Minister for Home Affairs [2019] AATA 3248 (30 August 2019).
On 23 June 2021, the applicant’s visa was again mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months.
On 21 July 2021, the applicant made representations seeking revocation of the cancellation decision.
On 15 August 2022, a delegate of the Minister decided under s 501CA(4) not to revoke the cancellation decision (the non-revocation decision). On 23 August 2022, the applicant applied to the Tribunal for review of the non-revocation decision.
Legislative Framework
Under s 501(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 paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); 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.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[3]
[3] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is “another reason” why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
Sections 197C and 198 are also relevant:
“197C Relevance of Australia’s non‑refoulement obligations to removal of unlawful non‑citizens under section 198
(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.
(3) Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non‑citizen to a country if:
(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has      been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.
(4) For the purposes of subsection (3), a protection finding is made for a non‑citizen with respect to a country if a record was made in relation to the non‑citizen under section 36A that the Minister is satisfied as mentioned in paragraph 36A(1)(a), (b) or (c) with respect to the country.
(5) For the purposes of subsection (3), a protection finding is also made for a non‑citizen with respect to a country if the Minister was satisfied of any of the following (however expressed and including impliedly):
(a) the non‑citizen satisfied the criterion in paragraph 36(2)(a) with respect to the country and also satisfied the criterion in subsection 36(1C);
(b) the non‑citizen satisfied the criterion in paragraph 36(2)(aa) with respect to the country;
   (c) the non‑citizen:
(i) would have satisfied the criterion in paragraph 36(2)(a) with respect to the country except that subsection 36(3) applied in respect of the non‑citizen;
(ii) satisfied the criterion in subsection 36(1C);
(d) the non‑citizen:
(i) satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and
(ii) would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non‑citizen was a non‑citizen mentioned in paragraph 36(2)(a);
(e) the non‑citizen:
(i) satisfied the criterion in paragraph 36(2)(a) with respect to the         country but did not satisfy the criterion in subsection 36(1C); and
(ii)   would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non‑citizen was a non‑citizen mentioned in paragraph 36(2)(a) and subsection 36(2C) or (3) applied in respect of the non‑citizen;
(f) the non‑citizen would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that subsection 36(2C) or (3) applied in respect of the non‑citizen.
(6) For the purposes of subsection (3), a protection finding is also made for a non‑citizen with respect to a country if:
(a) the Minister was satisfied (however expressed and including impliedly) that, because subsection 36(4), (5) or (5A) applied to the non‑citizen in relation to the country, subsection 36(3) did not apply in relation to the country; and
(b) a protection finding within the meaning of subsection (4) or (5) was made for the non‑citizen with respect to another country.
(7) For the purposes of subsection (3), a protection finding is also made for a non‑citizen with respect to a country in circumstances prescribed by the regulations.
(7A) For the purposes of subsection (3), if an unlawful non‑citizen has made more than one valid application for a protection visa that has been finally determined, that subsection applies only in relation to the last such application.
(8) For the purposes of subsection (5), it is irrelevant whether or not the non‑citizen satisfied any other criteria for the grant of a protection visa.
(9) For the purposes of subparagraph (3)(c)(iii), a non‑citizen who withdraws their written request to be removed to a country is taken not to have made that request.
198 Removal from Australia of unlawful non‑citizens
Removal on request
(1) An officer must remove as soon as reasonably practicable an unlawful non‑citizen who asks the Minister, in writing, to be so removed.”
Issues before the Tribunal
The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has “a substantial criminal record” as defined under s 501(7). Therefore, the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is “another reason” why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which I am required to read, identify, understand and evaluate.[4] Deciding whether or not to be satisfied that “another reason” exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.[5]
[4] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].
[5] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [14].
The applicant concedes that he does not pass the character test and that the only issue for the Tribunal is whether there is “another reason” to revoke the cancellation decision having regard to the principles and considerations in Direction 90.[6]
[6] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021) (“Direction 90”); Applicant’s Statement of Facts, Issues and Contentions at [9].
Direction 90
The purpose of Direction 90 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.
The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 90 as follows:
“(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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens 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 by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.”
In making a decision under s 501CA(4), the following are primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia; and
(d)expectations of the Australian community.[7]
[7] Direction 90 at 8.
In making a decision under s 501CA(4), other considerations must also be taken into account, including (but not limited to):
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.[8]
[8] Ibid at 9.
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[9] However, as held in Jagroop v Minister for Immigration and Border Protection,[10] “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”.[11]
[9] Ibid at7.
[10] (2016) 241 FCR 461 at [57].
[11] Ibid.
SOME BACKGROUND FACTS
The applicant is a 45-year-old man who was born and raised in Iran. He is the youngest of nine children. His family is of the Baháʼí Faith and they were discriminated and persecuted in Iran due to their faith. Growing up, the applicant had a hard time at school. During his compulsory military training he was detained and tortured for 30 days. After military training he commenced work with his brothers because no one in Iran employs Baháʼí people, nor are they able to attend university
The applicant moved to Australia in 2006 and married soon thereafter. In December 2007 his daughter was born.
He worked as a welder and then incorporated a company and employed other workers. He commenced taking ice to keep himself awake during nightshift and he became an addict in 2010. This affected his work and the family finances. He started to manufacture his own ice using a home laboratory which caused a fire in the family home in December 2011. His ex-wife and daughter fled the building.[12] He suffered burns and was hospitalised. 2012 and 2013 were the worst years of his life. He separated from his ex-wife and ended up living in his car and in a granny flat. He continued taking drugs and began committing crimes up until he was imprisoned in November 2013. He has not seen his daughter since.
[12] The applicant and his ex-wife separated in approximately 2012. In this decision, she will be referred as his “ex-wife”.
The applicant remained in prison until 2017 when he was transferred to immigration detention because his visa had been cancelled in 2016. As a result of an earlier decision of the Tribunal (differently constituted) he was released from detention in August of 2019. He reverted to a life of drugs and crime and was again imprisoned from November 2020 and his visa was cancelled for a second time in 2021. He is currently in detention on Christmas Island.
CONSIDERATION
Protection of the Australian community – 8.1 of Direction 90
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering 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. As required by paragraph 8.1(2) of Direction 90, I give consideration below 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.
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 90

The applicant commenced taking methylamphetamine or ice as it is known to stay awake during night shift from about mid 2008. By 2010 he was addicted to ice and taking it almost every day. In 2011 he commenced making his own ice. On 9 December 2011, there was a fire in his apartment caused by his home laboratory. He was charged with damage to property by fire or explosion and manufacture of drugs and exposing a child. He was sentenced to imprisonment for four and a half years with a two year and six month non-parole period.
In his remarks on sentencing the applicant for offences committed on 9 December 2011 (damaging property by fire and related offences), Judge Conlon said:[13]
“In respect of the objective seriousness of the offences it is clear from a recitation of the facts that the resultant fire occurred as a result of an explosion which no doubt occurred in the process of the manufacture of these drugs. ... There is nothing in the facts to indicate the type of lab that had been set up, other than to say that it could not have been an elaborate set up and on the balance of probabilities I am prepared to accept that it was a rather primitive attempt at manufacturing the methylamphetamine. There is nothing to suggest that the manufacture of the methylamphetamine was in order to supply for any financial gain. Indeed, when I come to the subjective material I have been able to be satisfied on the balance of probabilities that his attempts to manufacture the drug were so that he could obtain the methylamphetamine for his own use.
There can be no doubt that the establishment of these clandestine laboratories does present a significant potential risk of danger to those who are in the vicinity. In this particular case the potential danger extended not only to his own wife and child, but to the other residents in that building. Substantial damage was caused by the explosion and the resultant fire.
Accordingly, they are most serious offences, albeit the Court must distinguish the charge under s195(1)(b) [of the Crimes Act 1900 (NSW)] from those that regularly come before the courts where somebody has intentionally set about setting fire to premises and or buildings or motor vehicles.”[14]
[13] The applicant was sentenced on 13 March 2015 having been in custody since 19 November 2013.
[14] Exhibit 1, pp 95-96.
The applicant committed further crimes related to his drug addiction in 2012 and 2013 including domestic violence in November 2012. On one occasion, the applicant visited the victim’s home and threatened to bash the victim if she left the house. The applicant further sent threatening text messages on a separate occasion.[15] On 25 February 2013, he was convicted of stalk/intimidate intend fear of physical/mental harm and sentenced to a 12-month good behaviour bond. On 5 September 2013, he was convicted of assaulting and resisting a police officer and possessing suspected stolen goods and was sentenced to a further 12 months good behaviour bond. He was placed into custody on 19 November 2013. On 9 January 2014, he was convicted of driving under the influence of drugs/alcohol and possessing goods suspected of being stolen. He remained in prison until 30 March 2017 when he was transferred to immigration detention.
[15] Ibid, p 125.
Whilst in prison he pleaded guilty to the offence of manufacturing a prohibited drug, namely methylamphetamine. This offence was committed on 19 November 2013 and involved again a home laboratory. He was sentenced to three years imprisonment with a non-parole period of two years. The sentencing Judge noted it was not a commercial operation but was a dangerous operation in relation to which he should have known better given his previous offence involving the fire for which he was still on bail.
He was released from immigration detention on 30 August 2019 but soon found himself back before the Courts. He was arrested on 18 April 2020 and again on 22 July 2020, for charges including possessing housebreaking implements. On 31 July 2020 in the Liverpool Local Court he was convicted of possessing housebreaking implements and given a 12 month community correction order. On 2 September 2020, in the Parramatta Local Court he was convicted of failing to comply with a public health order, custody of a knife in a public place, possessing suspected stolen goods and possessing housebreaking implements. His time in the community ended on 17 November 2020 when he crashed his car whilst high on ice and GHB (gamma hydroxybutyrate) and was found in possession of 14 clear resealable plastic bags containing over 100 grams of methylamphetamine plus a separate bag of heroin and a stack of cash. It is apparent that by this stage he was not only taking drugs, but he was selling them too. On 31 March 2021, he was convicted for drug driving in the Liverpool Local Court.
On 26 April 2021, in the Bankstown Local Court, the applicant was convicted on a guilty plea of five further offences relating to the events of 17 November 2020. Those offences included drug driving, supply and possession of a prohibited drug, recklessly dealing with proceeds of crime and custody of a knife in public place. His licence was suspended for three years. On 19 October 2021, Judge Hanley of the District Court of New South Wales reduced the sentences with respect to those offences to two years and nine months (with a non-parole period of 18 months) and he allowed an appeal thereby overturning three other convictions for break and enter offences relating to events on 5 December 2019.
The crimes committed since being released from detention up until his return to prison (a period of 15 months) are very serious and frequent. The applicant’s conduct to date must be regarded as very serious, particularly as it involved the production of a prohibited drug and the exposure of his daughter to that process, as well as the intimidation of his ex-wife, together with the later sale of drugs.
Conclusion as to nature and seriousness of conduct
The applicant commenced taking prohibited drugs from mid-2008 and engaged in frequent offending from 2011 up until he was incarcerated in November 2013. The applicant has engaged in acts of family violence which are viewed very seriously by the Australian Government and the Australian community. When released into the community in August 2019, he took up where he left off and reverted to a life of drugs and crime despite having engaged in some rehabilitative exercises and despite having had time to reflect outside of the community for nearly six years. I take into account the cumulative effect of his repeated offending. The seriousness of his offending is reflected in the fact that he has received a custodial sentence on three separate occasions, namely four years and six months on 13 March 2015, three years on 29 November 2016 and two years and nine months (as varied) on 19 October 2021. I also take into account that he committed crimes against government officials in the performance of their duties, namely the two counts of resisting a police officer in execution of duty and one count of assaulting a police officer. His conviction for the supply of drugs is particularly serious given the impact of drugs on vulnerable people in our community. The applicant’s offending must be seen in the context of his own drug addiction and, to a lesser extent, his mental health conditions, but it is very serious and is a very significant factor in terms of whether I am satisfied that there is “another reason” to set aside the non-revocation decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 90
In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.[16] As required by paragraph 8.1.2(2) of Direction 90, I also 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:
(i)information and evidence on the risk of the non citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[16] Direction 90 at 8.1.2(1).
In terms of measuring the risk of harm to the Australian community, guidance can be found in the decision of Justice Mortimer in Tanielu v Minister for Immigration and Border Protection.[17] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 90
[17] (2014) 225 FCR 424; [2014] FCA 673.
If the applicant were to engage in further similar criminal offending, then the nature of the harm would be very serious because it involved offences of family violence, police assault and repeated drug related offending with a significant cumulative effect.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 90
The applicant contends that there is a low risk of re-offending because he has changed and shown remorse through his engagement in rehabilitative exercises. I note that the applicant has previously expressed remorse and said he would not offend but has then failed to live up to his promises.
When sentencing the applicant on 13 March 2015 for the offences he committed at the time of the fire, Judge Conlon said:
“Concerning his future intentions the psychologist stated that the offender had a high level of motivation to return to the work force and indeed hopes to re-enter the welding trade sometime in the future.
... He informed the psychologist upon entering custody that he experienced withdrawal symptoms, he had hot and cold sweats, muscle pain, shaking, headaches, disruptive sleep, emotional disturbance, nausea, vomiting and cravings. He said it took several weeks for those symptoms to subside. He reportedly engaged in the Getting Smart Program in custody and indicated that he found that helpful. He also had been attending regular Narcotics Anonymous meetings whilst in custody and he said that was a particular benefit to him.
...In respect of the present offences he informed the psychologist that he had been attempting to make ice in order to feed his own addiction. She commented, “It was evident that his judgement was impaired as a result of the large quantity and increased frequency with his substance abuse at that time”.
... By way of summary [redacted] the psychologist stated,
“At the time of the current offending behaviour [the Applicant] did not present with a criminal history and as such his involvement in the offending behaviour appears to be out of character ... it is likely that his deteriorating psychological health and his increasing substance abuse negatively impacted his judgement and led to his poor choice at the time of the offences. He presented with a level of remorse related to his involvement in the offending conduct”.
... [The Applicant’s] background indicates that for a substantial period of time in his adulthood he has been a rather industrious person who has shown an ability to seek out employment and to maintain it. He has also demonstrated over the years a deal of enterprise in relation to setting up and running his own businesses. Accordingly, upon my consideration of that material I am satisfied that he has very good prospects of rehabilitation ...”.[18]
[18] Exhibit 1, pp 99-103.
In sentencing the applicant on 29 November 2016 after the applicant pleaded guilty to one charge of manufacturing a prohibited drug, Judge Pickering said:
“I accept that he is remorseful for what he has done here. True it is that much of the remorse is the impact that drugs have had on his own life, but I think he also has insight through what has happened to him about the significance of methylamphetamine in our community and, as such, the seriousness of the manufacturing before the Court, so I give weight to the plea in both those aspects that I have indicated.
… he was living a quite pathetic existence at that stage. Living in a small area on a mattress with a whole bunch of chemicals around him. It was indicative of him being a person who, whilst manufacturing drugs, seemingly was doing most of it, if not all of it, purely to feed his own habit. This was anything but a commercial operation going on, but it was a dangerous operation.
... I have had the benefit now of hearing him as a witness giving what I found to be truthful evidence on the sentencing aspect of the matter. Had he simply just sat there in a trial and been convicted after a jury verdict he would have been in no position to give any evidence that outlined his life and his acceptance of guilt in relation to this matter. So it is of much benefit to him in the grand scheme of things here to acknowledge his guilt and he has shown himself to be someone capable of being honest about his involvement in relation to this matter.
... As such the particular amount to be manufactured points the matter towards the lower end on the scale of objective seriousness ...
... Nevertheless he had a seemingly successful life in Iran. He worked with the family, he had no reason to suggest he was anything but of good character when he came to Australia at 30 years of age on a fiancé visa. Indeed for quite a while in Australia he was again a very successful person. I often say to people when you look at someone who comes to Australia with no command of English and a very different culture in Australia to Iran, the fact that you can achieve so much as he did before he ran into problems with the criminal law is actually quite remarkable.
... I think the mere fact that the offender has insight and real insight to what has happened in his life, does give him some prospects of rehabilitation. ... I think he has real prospects of not necessarily re-offending, albeit that again I have to be guarded about that, because so much of that would flow on how he rehabilitated himself on drugs.
... I think one of the answers that he gave Mr Crown in cross-examination was probably indicative of how he was living his life at that time of offending. He was living it day to day and he was not really thinking through the consequences of anything he was doing.”[19]
[19] Ibid, pp 78-89.
In the Decision of the Tribunal of 30 August 2019, the Deputy President hearing the matter said:
“(59) The Applicant has spent over five years in either prison or immigration detention separated from his family. This should serve as a deterrent to his resuming his past lifestyle. He has undertaken several rehabilitation courses and he has been free of illicit drugs and excessive use of alcohol. I am satisfied that he genuinely intends not to re-offend and that his addiction is now controlled to the extent that it is unlikely that he will again find himself in the position that led to his criminal activity.
(60) Since the remarks of the Courts set out above were made, the Applicant has acted to rehabilitate himself. To date he has shown that the comments of the sentencing Judges as to his prospects of rehabilitation were justified.
(61) I take into account also that the Applicant has the incentive of the possibility of re-establishing his relationship with his daughter. I am satisfied that he understands his drug use has caused him to lose that relationship. In addition, he will have support of the Baha’i community and friends to assist him with his continued efforts to rehabilitate himself.
(62) In considering all of the evidence, I have come to the conclusion that it is unlikely that the Applicant will re-offend or engage in other serious conduct.
(63) I am satisfied that the Applicant’s most serious offending was associated with his need to satisfy his drug addiction. While I have decided it is unlikely that he will re-offend, his resolve has not been tested in the wider community where he will inevitably find himself subjected to the stresses of living and working in the community. Nevertheless, taking all of the evidence into account, I conclude that while there is a risk to the Australian community, it is an acceptable risk.”[20]
[20] YKZZ and Minister for Home Affairs (Migration) [2019] AATA 3248.
I have set out the sentencing remarks and the comments from the Tribunal to show that the applicant has been afforded leniency in the past partly because the applicant’s conduct was accepted as being out of character, that he was remorseful, that he had good prospects of rehabilitation and was unlikely to re-offend. The applicant appears before this Tribunal making the same claims. I have serious doubts that the applicant will live up to those claims for the reasons that follow.
As a result of the earlier Tribunal decision, the applicant was released from detention on 30 August 2019 and had the opportunity to prove himself in the community. The applicant by this stage had been incarcerated either in prison or detention for about six years and had engaged with numerous programs of rehabilitation. He had been drug free for about five years (the applicant admitted taking drugs for the first year of his prison sentence). He wanted to reconnect with his daughter and he had supposedly learnt from his mistakes. The Tribunal and the other judicial officers who had sentenced him considered that he had good prospects of rehabilitation and that he had expressed genuine remorse.
The applicant did not take advantage of the opportunity to prove himself as a law abiding person and he found himself back before the courts and in custody less than a year after his release into the community. He reverted to taking drugs and a life of crime. He was clearly not rehabilitated and his expressions of remorse were not genuine. On 20 February 2020, he was taken into custody for nine days before being released on bail. He was charged with failing to comply with a public health order on 9 April 2020 and then arrested on 18 April 2020 and 22 July 2020 for possessing housebreaking implements. On 31 July 2020, in the Liverpool Local Court he was convicted of possessing housebreaking implements and given a 12 month community correction order. On 2 September 2020, in the Parramatta Local Court he was convicted of failing to comply with a public health order, custody of a knife in a public place, possessing suspected stolen goods and possessing housebreaking implements. He was granted bail on 9 November 2020 but within days he was arrested on 17 November 2020 for possessing over 100 grams of methylamphetamine and has since been in prison followed by detention. On 31 March 2021, he was convicted for drug driving in the Liverpool Local Court.
The applicant was then convicted on 26 April 2021 in the Bankstown Local Court for 12 separate offences. Three of those offences were overturned on appeal by Judge Hanley on 19 October 2021 and the sentence was reduced to two years and nine months (with a non-parole period of 18 months) for the balance of the remaining offences. Those remaining offences included drug driving, supply and possession of a prohibited drug, recklessly dealing with proceeds of crime and custody of a knife in public place.
The crimes committed since being released from detention up until his return to prison (a period of 15 months) are very serious and frequent. Some of this offending was committed whilst on bail.

In his request for revocation the applicant said that he had problems using drugs and gambling and that he “was acting without thinking to support my drugs use and gambling habits”.[21] He said that he had now addressed these problems and that he planned to stay clean and strong to support his daughter.
[21] Exhibit 1, p 185
The applicant said in oral evidence that he has changed and will not relapse into drug use or criminal behaviour but the fact remains that whilst in the community since about 2010 he has engaged in frequent drug taking and serious criminal behaviour. The only significant gap in his offending was whilst he was in prison or detention. I find it difficult to accept his most recent assurance because he made similar assurances in his statutory declaration of 11 June 2019, having been incarcerated since 2013. In this statutory declaration he said he had not taken drugs for five years and was committed to staying sober both for himself and his daughter. He said he would stay away from those associated with his past drug addiction and that he had good support from other positive peers in the community. Instead of making good his intentions, the applicant started taking drugs again and committed further serious offences. He was not able to see or make any contact with his daughter because his ex-wife forbad contact. To his credit, the applicant complied with her wishes, but he was unable to stay away from drugs or crime.
It is also of concern to me that the applicant chose to re-offend even after his visa had been cancelled and reinstated by this Tribunal. However, I take into account that he received very little financial or other support when he was released from detention in August 2019. A friend collected him from the airport in Sydney and took him to a house of persons using drugs. He tried hard to get a job with limited success and then he had the added difficulty of COVID-19 from early 2020. It was in these circumstances that he started taking drugs again (for about six months) and committing crimes. The applicant says that these circumstances are unlikely to be repeated so he expects that he will remain drug and crime free this time if released.
I accept that because of his daughter the applicant has a strong incentive to avoid drugs and crime if he is released but that same incentive had little effect on him when he was released in 2019.
I take into account his good behaviour whilst in prison and detention and that since being imprisoned in November 2020, he has stopped taking drugs and attended Narcotics Anonymous and completed the TRIP Program and the High Intensity Program Unit. In August to October 2022, the applicant completed numerous certificates for drug and alcohol abuse, domestic violence, etiquette, memory improvement, workplace drug use, conflict resolution, healthy relationships, emotional intelligence, understanding addictions and confidence building. This is an impressive attempt at rehabilitation but he still has not been tested in the community and when he was given the opportunity to prove himself in 2019 and 2020, he failed in a most significant way.
I also take into account the assistance he has provided to the New South Wales Police. I heard evidence from a Detective Senior Constable who said that from July 2020 the applicant assisted an investigation into a large commercial drug supply in the north-west Sydney area and that he was pivotal in gathering intelligence, providing access to the criminal network and securing a conviction against two offenders for several significant drug offences. The weight of the information and assistance provided by him was assessed as being high and included putting himself at significant risk to his own safety to ensure criminal convictions which most likely would not have eventuated without his assistance. This is very commendable behaviour and indicates that the applicant wishes to make amends for his previous criminal conduct and that he has a genuine desire to cooperate with police so as to rid society of those who supply drugs.
Mr Luke Brabant, a Forensic Psychologist, prepared a comprehensive report after interviewing the applicant in April 2022. He diagnosed a mild major depressive disorder present at the time of the applicant’s offending but in remission at present. He found that the applicant was at risk of suffering from this condition again in the future if faced with significant situational stressors. He noted the applicant’s trauma history and diagnosed him with post-traumatic stress disorder. As to risk assessment, Mr Brabant opined that he poses a medium risk of reoffending generally but that if he re-engages in employment, limits contact with negative influences, strengthens his connections with prosocial friends, maintains his abstinence from illicit substances and engages in formal and informal leisure pursuits, his risk would reduce significantly so as to place him in the low-risk range. He noted that the applicant presents as highly motivated to engage in rehabilitative efforts and that he described a positive attitude towards the possibility of personal change, the value of therapy and the importance of personal responsibility.
Mr Brabant said in his report that the applicant provided a confusing account of the details and timeline of his offending following his prior release from immigration detention and that he appeared to minimise some of his more recent offending. I also found that the applicant’s account to the Tribunal of his more recent offending was confusing, and I accept Mr Brabant’s view that he appeared to minimise this offending.
At times in his evidence to the Tribunal, the applicant sought to excuse his criminal convictions either because he had some partial success on the appeal dated 19 October 2021 or because he had been assisting the police. The appeal overturned three convictions relating to a charge of aggravated break and enter but I have not relied on those offences and nor did the respondent. There remained serious offences committed in 2020, namely drug driving, supply and possession of a prohibited drug, recklessly dealing with proceeds of crime, custody of a knife in public place, possess housebreaking equipment and custody of suspected stolen goods. The applicant sought to downplay these convictions by contending that, but for the break and enter charge, he would not have been charged with possessing the housebreaking implements. I reject that contention because the conduct relating to the offences which were overturned took place on 5 December 2019, whilst the other convictions for possess housebreaking equipment and suspected stolen goods related to later unrelated events on 18 April and 22 July 2020. He also maintained before the Tribunal the “housebreaking implements” were in fact tools for his job as a painter but if that were the case, he would not have pleaded guilty on two separate occasions. With respect to the police assistance, the Detective Senior Constable made it clear in his evidence that the criminal behaviour for which the applicant was convicted was not authorised by the police. Further, if his conduct for offences committed on 17 November 2020 was related to police assistance, he would not have pleaded guilty to those offences.
The applicant denied in his oral evidence before the Tribunal that he had ever stolen anything. It is true that the applicant has no convictions for stealing but he has numerous convictions of possessing suspected stolen goods and possessing housebreaking implements. The convictions for possessing suspected stolen goods were dated 5 September 2013, 9 January 2014 and 2 September 2020. The convictions for possessing housebreaking implements were dated 31 July 2020 and 2 September 2020. I reject the applicant’s evidence to the Tribunal that the “housebreaking implements” were in fact part of his tool kit for work and I note that he pleaded guilty to those offences. He may not have been convicted of stealing but the offences for which he has been convicted are of concern because they establish a pattern of consistent criminal behaviour during the periods he was in the community in 2013 and then again in 2020.
I accept the opinion of Mr Brabant that the applicant poses a medium risk of reoffending. Given his recent failure to prove himself in the community, I am not prepared to accept on the current evidence that he is in the low-risk range.
Conclusion as to protection of the Australian community – 8.1 of Direction 90
As I have already found, the applicant’s past offending is very serious. I consider that a medium risk of further criminal conduct of a similar nature represents an unacceptable risk to the Australian community.
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[22] The applicant has committed serious crimes, including domestic violence, which if repeated would cause serious harm. Whilst the applicant has engaged with some rehabilitative services, he has not proven himself in the community and most importantly, when he was given the opportunity to do so, he failed. I have little confidence that if released into the community, that he would remain free of drugs and that he would not re-offend. I conclude that the protection of the Australian community is a factor that weighs heavily against revocation of the cancellation decision.
[22] Direction 90 at 8.1(1).
Family violence – 8.2 of Direction 90
The Government has serious concerns about conferring the privilege of remaining in Australia on non-citizens who engage in family violence. The applicant was convicted in 2013 for offences involving domestic violence. The applicant said that all of the offending occurred on the one day but that does not appear to be correct based upon the police facts sheet. It records that on 6 November 2012 the applicant said he would bash his ex-wife if she tried to leave the house and that if she did leave, she could not take her daughter. Then on 10 November 2012 it is recorded that he told his ex-wife that she could not attend a dinner with her mother and that he would hurt her if she did. The applicant continued to send threatening text messages and claimed that he was going to kill himself. The applicant then went to the house of his ex-wife’s parents and his ex-wife and parents had to hide in the house silently until he left. Finally on 24 November 2012 the applicant sent his ex-wife a text message in Arabic saying “I am not going to let you live and have a life”. I accept that the applicant had a drug addiction at the time, but this conduct is viewed very seriously by the Australian Government and it obviously caused his ex-wife to fear for her life, and her daughter’s safety.
The applicant said that he was not proud of his past and that he did not breach the AVO that was issued following these events, but I was not convinced from his evidence that he fully understood the impact his conduct had on his ex-wife. The applicant admitted sending the text messages but when cross examined about his conduct, he denied part of his alleged conduct; he said that he could not remember going to the house and he said that it was over 10 years ago when he had mental health issues and was taking drugs. He focussed on himself but did not articulate an understanding of the harm he caused his ex-wife (and no doubt his daughter) such that the overall effect of his evidence was to minimise the domestic violence and to show a lack of insight.
In this regard, I note that the report from Mr Brabant says that the applicant’s ex-wife ended their partnership after he disclosed that he had been abusing substances for roughly two years and that his ex-wife subsequently stopped his contact with their daughter. It would appear that the applicant did not mention the family violence as a reason for his marriage break up. Instead, the applicant told Mr Brabant that he threatened to “do something” to her father’s house which resulted in the charge for stalk/intimidate intend fear of physical/mental harm and an apprehended violence order being put in place. It is telling that it appears from the report that the applicant did not disclose the full extent of the domestic violence in which he had engaged against his ex-wife. Mr Brabant also concluded that he appeared to minimise some of his more recent offending.
It is also telling that the applicant did not mention the full extent of the domestic violence in his statutory declaration of 11 June 2019 or his statement of 22 February 2022 despite referring to his other criminal conduct. It is apparent from all of the evidence that the applicant accepted and understood the negative impact on his ex-wife of his drug taking but I would have expected some specific expression of remorse with respect to his shameful behaviour when he threatened his ex-wife’s life and intimidated her in November 2012. Further, in his request for revocation dated 21 July 2021, the applicant referred to having addressed his problems using drugs and gambling but did not mention addressing his past domestic violence, although I do take into account that the applicant completed accredited courses on domestic violence and conflict resolution in September 2022. I also take into account that the applicant never breached the AVO and did not engage in any other family violence after the incidents in November 2012. Nevertheless, I remain concerned about the extent of his rehabilitation and the extent to which the applicant understands the impact of his behaviour on his ex-wife and his child.
The Government has serious concerns about those who engage in family violence and I consider that this is a factor that weighs heavily against revoking the cancellation decision.
Best interests of minor children – 8.3 of Direction 90
The applicant has a daughter who is 14 years old. He has not seen or had any direct contact with her since 2013. When released from detention in August 2019 he did not see or make any contact with his daughter because that was the preference of his ex-wife. It would seem that the applicant’s hopes of re-establishing that relationship have not been successful at this stage.
I must determine whether non-revocation of the cancellation of the visa is, or is not, in the best interests of a child who is affected by the decision. The following factors that we must consider and are relevant to this application include:
(a)the nature and duration of the relationship between the child and the applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
(b)the extent to which the applicant is likely to play a positive parental role in the future;
(c)the impact of the applicant’s prior conduct and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the applicant would have on a child, taking into account ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.[23]
[23] Direction 90 at 8.3(4).
The applicant has been absent from his daughter’s life since she was five years old but if he were released and remained drug and crime free then he would play a positive parental role in the future. Prior to his marriage break up and his addiction to drugs, he was a good father. The evidence shows that despite the lack of contact he does care for his daughter and wants very much to be part of her upbringing. I take into account that his daughter was exposed to the fire that he caused from his ice-making laboratory, but he did take steps to ensure she was not hurt in the fire; plus it was a long time ago. He has engaged in rehabilitative courses so that he can be a better person and support her emotionally and financially when released. The applicant has a good relationship with his father-in-law and brother-in-law, and he often passed on gifts and messages to his daughter through them. His daughter would benefit from having her father in the community and therefore, it is in her best interests for him to be released. If he were returned to Iran and his daughter wanted to visit him, then she would also be at risk of harm due to the situation facing the family in Iran because of their Baháʼí Faith. He and his daughter could maintain contact by phone but that does not adequately substitute for personal contact and it would likely depend on his ex-wife giving permission. This is a factor that weighs in favour of revocation of the cancellation decision.
Expectations of the Australian community – 8.4 of Direction 90
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[24]
[24] Direction 90 at 8.4(1).
In addition, non-revocation may be appropriate simply because the nature of the character concerns is such that the Australian community would expect that the person should not be allowed to stay in Australia. Of particular relevance in this case, the Australian community expects that the Government should cancel a visa if there are serious character concerns arising from acts of family violence.[25]
[25] Ibid at 8.4(2).
Paragraph 8.4(4) of Direction 90 provides that, as a decision-maker, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed therein, without independently assessing the community’s expectations in the particular case. I note the particular circumstances of the applicant including his depression and post-traumatic stress disorder and previous drug addiction, but the acts of family violence and repeated possession of drugs, housebreaking implements and suspected stolen goods are very serious. In these circumstances, the expectation of the Australian community is to not allow the applicant to remain in Australia.[26]
[26] Ibid at 8.4(1).
The applicant has engaged in serious conduct including domestic violence in breach of the Australian community’s expectation that he would obey laws while in Australia. The nature of the offending is serious and there is a medium risk of re-offending. The risk to the Australian community is unacceptable. The character concerns relating to the applicant and his past criminal behaviour mean that the expectations of the Australian community is a factor weighing in favour of non-revocation.
My conclusion as to the expectations of the Australian community is that it is a factor that weighs heavily against revocation of the cancellation decision.
Other Considerations
In deciding whether there is “another reason” to revoke the cancellation of the applicant’s visa, I must also take into account the other considerations listed in Direction 90, but these are not exhaustive.[27] I must consider and understand the representations received from the applicant.[28] I must also consider the consequences that would flow from not revoking the cancellation decision.[29]
[27] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
[28] Ibid at [11].
[29] Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 70-71 at [61]; [2016] FCAFC 244.
International non-refoulement obligations – 9.1 of Direction 90

It is a matter of significant weight as a primary consideration that the applicant’s daughter will not have the benefit of her father during her later teenage years. However, the applicant had a chance to re-establish his relationship with his daughter in 2019 after a long period apart and he clearly was not thinking about his daughter’s best interests when he was released from immigration detention in August 2019 and reverted to criminal behaviour which resulted in him being returned to prison and having his visa cancelled again. I have also placed significant weight on the likely consequence of indefinite detention in particular because the applicant has suffered from major depression. However, these very significant consequences together with the other countervailing considerations are outweighed by the primary considerations of the protection and expectations of the Australian community and because the applicant has engaged in family violence.
Given my finding that indefinite detention is the most likely consequence of not revoking the cancellation decision, I have given less weight to the potential breach of non-refoulement obligations and the extent of impediments if returned to Iran. In these circumstances, the non-refoulement obligation is outweighed by the seriousness of the applicant’s offending.
I reach this conclusion by applying the principles in paragraph 5.2 of Direction 90 to the specific circumstances of the applicant who has committed serious crimes involving drugs, stolen goods and domestic violence. Being able to remain in Australia is a privilege Australia conferred on the applicant in the expectation that he would be 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. The applicant has not been law-abiding; he has shown disregard for Australia’s law enforcement network by assaulting a police officer and he has caused harm in the domestic context and to the wider community. The applicant, as a non-citizen who has committed serious crimes including domestic violence, should generally expect to forfeit the privilege of staying in Australia. The Australian community expects that the Australian Government should cancel the visas of non-citizens who commit such crimes in Australia which raise serious character concerns.
It follows from the application of these principles that I am not satisfied that there is “another reason” why the cancellation decision should be revoked.
Decision
The decision of the Tribunal is to affirm the decision under review.

113. I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

...[sgd]............................................................
Associate
Dated: 3 November 2022

Dates of hearing:

24, 25 & 28 October 2022

Advocate for the applicant:

Solicitors for the applicant:

Alison Battison

Human Rights for All Pty Ltd

Advocate for the respondent:

Ingmar Duldig

Solicitors for the respondent: Clayton Utz

Dates of hearing:	24, 25 & 28 October 2022
Advocate for the applicant: Solicitors for the applicant:	Alison Battison Human Rights for All Pty Ltd
Advocate for the respondent:	Ingmar Duldig
Solicitors for the respondent:	Clayton Utz