HQBW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 4372

HQBW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4372 (22 December 2023)
AppID:HQBW and Minister for Immigration, Citizenship and Multicultural Affairs

MatterType:  Migration
Division:GENERAL DIVISION
File Number(s):      2023/8100
Re:HQBW
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mr Rob Reitano, Member
Date of decision: 22 December 2023
Place:Sydney

I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of the Applicant’s Refugee (Class BA) (Subclass 200) visa.

....................................[SGD].......................................
Mr Rob Reitano, Member
CATCHWORDS
MIGRATION – visa cancellation – protection of the community – very serious criminal offending – risk of reoffending – expectations of the Australian community – relevance of personal circumstances – best interests of minor children – nature, duration and ties to community – legal consequences of decision – six years in immigration detention – impediments if removed to Iraq – mental illness – decision to refuse set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 559
CRNL v Minister Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396
SECONDARY MATERIALS
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
Department of Foreign Affairs and Trade, 'DFAT Country Information Report Iraq (16 January 2023)
REASONS FOR DECISION
Mr Rob Reitano, Member
22 December 2023

The Applicant was born in Basra in Iraq in November 1972. He left Iraq in 1991 and lived in Saudi Arabia before he arrived in Australia on 4 March 1996. He had been granted a Refugee (Class BA) (Subclass 200) visa (visa) which entitled him to remain living in Australia.
On 22 May 2018 his visa was cancelled because s.501(3A) of the Migration Act 1958 (Cth) (Act) required the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) to cancel it on being satisfied that the Applicant had a substantial criminal record as defined in the Act and because he was serving that sentence full time in a custodial institution. The Applicant had a substantial criminal record because he had been sentenced to a period of imprisonment of 12 months.
The Applicant asked the Minister to revoke the cancellation of the visa, but a delegate of the Minister decided not to do so. And so, the Applicant has asked the Tribunal to review that decision with a view to having it set aside and replaced with a decision revoking the cancellation of the visa. The effect of such a decision would allow the Applicant to resume living lawfully in the Australian community.
I have decided to set aside the decision revoking the decision cancelling the visa and substitute in its place a decision revoking the cancellation of the visa. These are my reasons.
WHAT IS THE ISSUE?
The issue is whether I am satisfied that there is ‘another reason’ why the decision cancelling the visa should be revoked.
The issue comes about because s.501CA(4)(b)(ii) of the Act says that revocation of the decision cancelling the visa can happen, but only if the Minister is satisfied that ‘there is another reason why the original decision [the decision to cancel the visa] should be revoked’. The only other basis for revocation is in s.501CA(4)(b)(i) of the Act which is that the Minister is satisfied that the Applicant passes the character test in s.501 which he cannot because of his sentence of 12 months imprisonment. The Tribunal stands in the place of the Minister so that any satisfaction that the Minister was required to have is one that the Tribunal must have in disposing of the matter.
The only issue is then whether I am satisfied that there is ‘another reason’ to revoke the cancellation of the visa.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
The issue concerning satisfaction about whether there is ‘another reason’ why the Minister’s decision cancelling the visa should be revoked requires the making of an evaluative judgment about there being a reasoned basis for revoking the visa cancellation.
The satisfaction about there being ‘another reason’ is guided by Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction).
The Tribunal is required by s.499(2A) of the Act to comply with the Direction in performing its functions and in the exercise of its powers. The Direction is required to be applied by the Tribunal to determine whether there is a satisfaction about there being ‘another reason’ to revoke the decision cancelling a visa.
It is helpful in order to understand the approach taken to the matter to make some general observations about the Direction. The Direction identifies ‘principles’ which provide a framework to decide whether a decision to revoke a decision cancelling a visa should be made, and ‘considerations’ that are the matters a decision-maker must consider in making that decision, but only to the extent that they are relevant.[1]
[1] Paragraphs 5.2(6) and 6 of the Direction.
The ‘principles’ are relatively straightforward. They are:
(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 non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not 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 8.5(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 measurable risk of causing physical harm to the Australian community.[2]
[2] Paragraph 5.2 of the Direction.
The Direction refers to two categories of ‘considerations’ which are referred to as ‘primary considerations’ and ‘other considerations.’ The ‘primary considerations’ are:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the strength, nature and duration of ties to Australia;
·the best interests of minor children in Australia; and
·the expectations of the Australian community.[3]
[3] Paragraph 8 of the Direction.
The ‘other considerations’ include:
·legal consequences of the decision;
·extent of impediments if removed from Australia;
·impact on victims; and
·impact on Australian business interests; and
·any other considerations that the Tribunal considers relevant.[4]
[4] Paragraph 9 of the Direction.
The Direction says, ‘primary considerations should generally be given greater weight than the other considerations.’[5] The word ‘generally’ contemplates cases where it may not be appropriate to do that.[6] No single ‘primary consideration’ or ‘other consideration’ is required to be given greater importance than any other: the importance attaching to each consideration is left to the decision-maker. Further, the Direction lays down within each consideration particular matters that must be taken into account.
[5] Paragraph 7(1) of the Direction.
[6] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [76] (per Charlesworth J).
The process of weighing the considerations involves considering them and the matters to which the Direction refers and giving them importance. It is also necessary to engage in a process of comparing considerations one to the other to determine which of them, or group of them, is of greater or lesser importance to the decision to be made. The process of weighing has as its focus arriving at a decision about whether there is another reason to make such a significant decision about revoking a visa cancellation.[7]
[7] CRNL v Minister Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [34].
The obligation ‘to consider’ recognises that there are real and practical consequences for people and the community resulting from a decision not to revoke, or to revoke, the cancelation a visa. The obligation ‘to consider’ does not involve the completion of a checklist, should not depend upon technical legal arguments and is certainly not formulaic.[8] The decision will have a real impact on many people other than an applicant, such as an applicant’s children, immediate and extended family, friends and potentially others such that it is important to give genuine consideration to all matters.[9] There are also potential serious ramifications for the Australian community which means it is necessary to consider the protection of the community against future criminal offending, especially where past criminal behaviour has been egregious. Also, there is a need to pay regard to important community expectations about what should result from a non-citizen’s offending.
[8] Ibid at [38].
[9] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].
All this points to the need to consider things very carefully, weighing up the importance of the private and public interests that might or will be affected, and reaching a firm and reasoned conclusion about their respective and relative importance. It is ultimately that to which the Direction is focused which when applied ensures that all relevant interests are considered and weighed, given their respective importance, properly and appropriately.
The ‘primary considerations’ relevant here involve ‘the protection of the Australian community from criminal or other serious conduct’, ‘conduct involving family violence’ ‘the strength, nature and duration of ties to Australia’, ‘the best interests of minor children in Australia’ and ‘the expectations of the Australian community’. The ‘other considerations’ that are relevant are the ‘legal consequences of the decision’, the ‘impact upon victims’ and ‘the extent of impediments if returned’ in this case to Iraq. There are also several additional ‘other considerations’ that concern the Applicant’s personal circumstances which I will identify when I deal with the expectations of the community
I will deal with each of the considerations in turn, and ascribe them weight, before weighing and balancing them against each other in order to determine whether there is ‘another’ reason to revoke the decision cancelling the visa.
PROTECTION OF THE AUSTRALIAN COMMUNITY
The Direction requires me to consider the nature and seriousness of the Applicant’s conduct which includes both criminal offending and other conduct, and the risk to the Australian community, should he commit further offences or engage in other serious conduct.
The Direction requires me to have regard to the fact that the Australian Government and community regard offences that involve violence and violent offences against women as very serious regardless of the sentence imposed.
The Direction requires that regard be had to the sentence imposed (in this case for those offences that did not involve violence against women), the frequency of the offending, the existence of any increased trend in seriousness, the cumulative effect of repeat offending, whether false or misleading information has been provided to the Department by not disclosing prior criminal offending and whether there has been reoffending after being warned in writing about the consequence of reoffending.
On 11 July 2005 the Applicant was convicted of two offences, one of driving whilst unlicensed and one of driving with prescribed concentration of alcohol in his blood and fined a total of $800 and disqualified from driving for six months. On 28 February 2007 the Applicant was fined $400 for a minor public nuisance offence for which he was not convicted. The seriousness of the offence is reflected by the sentence.
It is since 16 July 2013 that the Applicant has collected a significant criminal record involving an array of offences which include driving whilst unlicensed or whilst disqualified, possessing prohibited drugs, failure to appear in accordance with bail conditions and having drug related equipment in his possession. For those offences the Applicant received a range of punishments by way of fines, bonds to be of good behaviour and disqualification from driving. None of these offences appear to have been serious especially when regard is had to the sentences imposed.
The Applicant’s more serious criminal offences involve five counts of common assault for which he was found guilty on various dates: on 29 August 2013 when he was fined $500, on 2 June 2014 when he received a sentence of imprisonment of 38 days (reflecting the time he had been in custody at the date of sentencing), another on 28 April 2015 when he received a sentence of three months imprisonment, one on 7 December 2016 when he was placed on an 18 month bond and one on 25 May 2018 for which he was sentenced to two months imprisonment. Over the same period there were three offences of using a telephone to harass or menace, the victims of which were his de facto partners at each time and for which he received bonds and small fines. There were also nine offences of contravening an Apprehended Violence Order (although five of them appear to have arisen out of the same circumstances) again all of which attracted bonds or small fines.
As well as those offences the Applicant was in the same period convicted of an offence of resisting or hindering police for which he was punished on 28 April 2015 by a sentence of imprisonment for seven months; an offence of having stolen goods in personal custody for which he was on 22 March 2018 sentenced to five months imprisonment; and some offences of driving whilst disqualified for which he was received six and 12 months imprisonment. The offence of resisting or hindering the police officer appears to have involved no more than the Applicant pulling his arm away from the police officer.
I should say a little more about the common assault offences. The common assault offence dealt with on 29 August 2013 involved the Applicant putting his hands on his then de facto and pushing her and asking, ‘why are you doing this to me?’. The common assault offence dealt with on 2 June 2014 involved the Applicant placing his hand or hands on his then de facto partner in attempting to persuade her to go somewhere to discuss their relationship. The common assault dealt with in April 2015 involved the Applicant slapping his then de facto partner across the face. That was the most violent offence the Applicant has committed. That offence was aggravated by the fact that the Applicant was on a bond at the time for previous domestic violence offending. The offence dealt with in December 2016 involved the Applicant yelling at his former de facto partner, but it is not clear from the evidence what exactly constituted the offending conduct. The Applicant was frank when he gave his evidence that he was likely to have been affected by drugs when he committed many of the offences and did not have a great deal of recall about them.
The Applicant’s most serious criminal offence which resulted in him having his visa cancelled was that of possessing an unauthorised firearm, a plastic toy gun, for which he was convicted and sentenced on 7 December 2016 to 12 months imprisonment. The evidence suggests that he did not use the toy gun for any particular purpose such as to threaten or intimidate someone.
The Applicant’s criminal offending so far as it involves assaults on women is regarded by the Australian government and the Australian community very seriously. The sentence and even the maximum sentence for such offences is irrelevant to the assessment of the seriousness of those offences. The other offences that involved contravening Apprehended Violence Orders had as their victims’ women, one or other of his former de facto partners, but they did not involve, so it seems, acts of physical violence. Those latter offences were treated leniently which most probably reflects that they were not very serious offences for the purpose of criminal sentencing. The Applicant’s use of telephones to harass or menace the same women are, in context, serious especially because they were repeated and were directed at woman. Again, it is not clear whether those offences involved actual or threatened violence but the nature of those offences when committed against women and in the context of the common assaults which did involve violence means they too should be seen as very serious offences.
It is also relevant that the Applicant has committed an offence involving violence against a public official, the police officer, who more likely than not, was just doing his job. That offence carried with it a sentence of seven months imprisonment. It is a serious offence even though the evidence suggests that all the Applicant did was pull his arm away from the police officer The offence of possessing an authorised firearm is objectively serious given that it attracted condign punishment by way of sentence to 12 months imprisonment although it seems there was no actual victim, no violence, no threats and no consequences It carried a maximum sentence of five years imprisonment.
The frequency of offending over something like five years together with the number of offences all point to a conclusion that the nature and seriousness of the Applicant’s criminal offending is very serious. Although the Minister submitted there was an increase in seriousness in the offending it seems for the most part the offences are relatively much the same. It is true that the goods in custody offence, the firearms offence and the driving whilst disqualified offences occur towards the end of the record and they attracted some of the more serious penalties, but the offences against his former de facto partners which involved violence against woman are to my mind more serious and occurred before those other offences. Also, the nexus to the increase in the kinds of penalties the Applicant received for his offending does appear to have some probable relationship to his continued offending as distinct from the offending becoming more serious.

The fact that the Applicant continued to offend despite being treated relatively leniently by being placed on good behaviour bonds and after 2015 when he was warned that his visa status was in jeopardy if he continued to offend adds to the seriousness of his offending.
Although the Applicant’s record of criminal offending contains what should properly be regarded as less serious offences especially because of the penalties that were imposed, the fact that he has threatened and used violence against women and has been sentenced to several periods of imprisonment means that the nature and seriousness of his criminal offending overall should be treated and seen as very serious.
Next, I am required to consider the nature of the harm to individuals should the Applicant reoffend. The Applicant’s history of criminal offending albeit extensive is remarkable in that it has not involved a single instance of serious physical harm to anyone, even though it has involved violence to people. There is no evidence before me of any significant harm, whether physical or psychological, caused to anyone as a result of the Applicant’s offending, although it goes without saying that slapping someone across the face with the consequence of immediate pain is harmful. That, so it seems, is the highest the Applicants harm to anyone gets. One of his victims, one of his de facto partners and the mother of his children, is a person who remains acquainted with the Applicant. The fact that his offending in the past has not involved serious harm is indicative that his offending so far as personal violence is concerned in the future is unlikely to result in significant personal harm to members of the Australian community. There is of course the social and economic harm to the community arising from the law enforcement endeavours that go with investigating, charging, prosecuting and imprisoning the Applicant should he commit any further offences.
The harm caused by the same or similar offending is likely to be real, but it is unlikely to involve significant harm to individuals or a significant cost to the community more generally.
Finally, I need to consider the likelihood of the Applicant engaging in criminal conduct in the future. I am required to assess this having regard to the available evidence and information. I should note that the context is one where there is no expert testimony, and I am required to do the best I can based on the information and evidence available to me.
There is one important matter that points to the risk of reoffending being high, namely the Applicant’s propensity to offend consistently over a period of five years against a backdrop of regular court attendance and criminal sanctions, even if many of them were very light. His offending and frequent court attendances over that period suggests that there is a real likelihood that he will simply continue to offend if permitted into the community again. As the Minister fairly points out the context included a warning in 2015 that the Minister was considering cancelling the Applicant’s visa and, yet still, he did not stop. Those things are reason to think the risk of reoffending is likely to be very great.
On the other hand, there are things that suggest the risk may not be as high as the record and continued offending after chance upon chance suggest.
First, the Applicant had been in Australia for almost ten years before he committed his first offence and nearly 16 years before his record of serious criminal offending which I have referred to earlier commenced. The fact that he was for the greater part of 15 years a law abiding citizen living in the Australian community at least on face of things suggests he is capable of doing so again.
Second, most if not all of the offending involved the Applicant admitting his offences or offending conduct. The Applicant’s statement that he accepted responsibility for his offending was in my assessment genuine. He also apologised for his offending. I have little difficulty in accepting his word about his acceptance of responsibility, his remorse and his contrition.
Third, the Applicant’s most recent period of imprisonment commenced on 2 December 2017 which was his sentence to 12 months imprisonment for possessing a firearm. In late 2018 when he was released from prison, he went to immigration detention because he did not have a visa. He has been in immigration detention ever since. The Applicant has as a result of the offence that led to his imprisonment had his liberty removed for more than six years. That is a significant period out of anyone’s life. Rationally the period of incarceration and detention is likely to be something that will operate as a significant deterrent against reoffending. It is difficult to imagine that confronted with the prospect of committing another offence he will not be reminded of the consequence of his past offending. The Applicant will also be deterred by reason of being taken to the precipice of exclusion from Australia. He cannot seriously be under any doubt about what will happen should his criminal offending be repeated. All of what has happened since December 2017 has been no mere good behaviour bond, small fine or warning but the reality of loss of liberty over many years.
Fourth, there is the fact that the Applicant whilst in prison and detention has remained free from drugs. His record of serious criminal offending was associated with his drug habit which he developed after the death of one of his sons in 2012. His use of methamphetamine seems to have been a significant contributor to his offending. He now has a lengthy period during which he has been drug free that engenders some, albeit cautious, confidence that that might continue. That caution relates to the fact that the Applicant has not been drug free in the community but in the regulated environment of prison and detention where drugs may not be so freely available. I accept the Applicant’s statements that he genuinely wants to remain drug free, and he has, to date, backed up his words with actions.
Fifth, whilst incarcerated the Applicant has undertaken courses that are relevant to his offending such as courses involving anger management, drugs and depression. In addition, he has recently undertaken drug and alcohol counselling through the SMART Recovery Program which involves weekly sessions. His time in prison was relatively unremarkable, having one offence for damaging property. He was employed whilst in prison. His time in detention has been marked by comments as to his being polite, co-operative and of assistance to other detainees and officers. Again, his good behaviour in prison and detention over a very long time suggests on the face of things he will be of good behaviour in the community, although again there must be some caution associated with that,
Sixth, the Applicant has what are usually described as ‘protective factors’ available to him such as his family, children, a network of social support, promised employment as a food delivery person and accommodation with his brother which will all be things that act as factors that will assist him in giving effect to his stated desire not to reoffend. The Minister submitted these factors were present before the Applicant went to prison and detention so should not loom large in any assessment about the risk of reoffending. Despite that it must be observed that those factors take on something of a different meaning now as they are against a period of six years of significant separation for both the Applicant his family and friends and undoubtedly a desire on all parts to avoid reliving the past.
In my assessment the risk of the Applicant reoffending is real but most probably somewhere below the moderate level of risk albeit it is not low.
I am satisfied that the nature and seriousness of the Applicant’s criminal conduct to date is very serious. The consequence of him reoffending will be harmful to the community and individuals but the harm is not so significant that it precludes the possibility of revoking the cancellation. The likely harm is certainly not at the high end of harm that often follows very serious criminal offending. The likelihood of reoffending is towards the lower end of likelihoods and probably at or below the moderate range of risk.
This consideration weighs against revoking the decision cancelling the visa but only moderately so given my conclusion about the harm that might result from reoffending and the likelihood of the Applicant reoffending.
FAMILY VIOLENCE
The Direction requires me to consider offences of family violence because of the Australian Government’s serious concerns about permitting non-citizens who engage in family violence to remain in Australia. The Direction expressly refers to the fact that those concerns are proportional to the seriousness of the family violence engaged in by a non-citizen.
There was some argument about which of the Applicant’s offences fell within the meaning of family violence as referred to in the Direction. That definition provides that ‘family violence means violent, threatening or other behaviour by a person that coerces or controls a members of the persons family (the family member) or causes the family member to be fearful.’ The offence of common assault obviously involves as an element violence that causes fear. The use of the telephone to harass and menace an ex-partner most probably had as their objective coercion and control. The position with breaches of Apprehended Violence Orders is less clear especially when neither party identified what the contraventions of those orders involved. The safest course is to regard them as part and parcel of the overall family violence offences I have already referred to.
The offences of common assault were all committed against the Applicant’s two former de facto partners at each relevant time. The most serious of them involved slapping his former de facto partner once across the face. Those offences happened five times during a five year period. Those offences and the offences of family violence generally do not involve a trend of increasing seriousness. They have a sameness about them. They have been reasonably frequent. Taken together the offences involving family violence are very serious because there are so many of them over a short period. They are also very serious because they were in defiance of the formal warning the Applicant received in 2015.
The Applicant has accepted responsibility for the offences of family violence. He has engaged in some attempts at rehabilitation whilst in prison evidenced by the courses he has undertaken and, of course, by reason of his imprisonment. His efforts to remain free from illicit drugs are also relevant in that respect.
The Applicant’s conduct involving offences of family violence is very serious, but it is certainly not at the highest end of very serious offending conduct. The importance to be given to this consideration is reduced by reason of his rehabilitative efforts, his acceptance that he is genuine in his efforts to refrain from offending again, his genuine apology for his offences and the relatively moderate likelihood of his engaging in similar conduct again.
STRENGTH, NATURE AND DURATION OF TIES TO AUTRALIA
The Direction requires me to consider the impact of my decision upon the Applicant’s immediate family members in Australia where they are Australian citizens, Australian permanent residents or people with a right to lawfully remain in Australia indefinitely.
The Direction requires me to give more weight to this consideration where the ties involve children in those categories. The Direction requires that I consider the strength, duration and nature of family ties or social links generally to people in those categories.
The Direction also requires me to consider the strength, nature and duration of other ties that the Applicant has to the Australian community. The Direction requires regard to the length of time the Applicant has resided in the Australian community. The Direction requires more weight to be given to the time the Applicant has contributed positively to the Australian community and less weight to the time the Applicant was not in Australia during his formative years and where the offending started soon after arriving in Australia.
The Applicant has three children in Australia two of who I will refer to in a little more detail when I consider the best interest of minor children. The children are aged 24, 14 and five years of age. The Applicant remains in contact with their mother, his former partner by use of social media, and has a support from her even though they are no longer partners. He also has a grandchild.
The Applicant has two brothers and a sister in law in Australia who are close to him. At least one of his brothers is an Australian citizen and the other is a person entitled to be in Australia indefinitely. His sister-in-law is a permanent resident. One of the Applicants brothers and his sister-in-law have three children who all ‘love the Applicant very much’. I will say a little more about those children when I deal with the best interests of minor children.
A friend of the Applicant who regards him ‘as close as a brother’ spoke of the Applicant’s participation in a charity that had as its objective providing nutritious food to homeless people. The charity was coordinated by her mother. She also spoke of the Applicant’s relationship with her four children, two of whom referred to him as ‘dad’. There were several other Australian citizens and permanent residents who provided evidence about their strong relationship with the Applicant, in most cases for more than a decade. Although many of them did not articulate it, it is obvious from the strength of the relationships that they would be adversely emotionally affected by the cancellation of the Applicant’s visa and if it eventually happened his return to Iraq. That takes on some significance given the strength and duration of the relationships.
The Applicant was in employment or running his own car wash business when he was in the community. He employed people in the business. From some of the references he was a good boss and a friend to some of his employees.
Before his first offence in 2005 the Applicant had been in Australia for nearly ten years and so far as his catalogue of offending which started in 2013, he had then been in Australia for 17 years. Even though he has spent the last six or so years in prison and detention the Applicant has been in Australia for 26 years and for twenty of those years made a positive contribution to the Australian community even though five of the were accompanied by a litany of criminal offences. It is true that that he was not in Australia during his formative years, from birth or young age but 26 years is a long time.
The Applicants strong ties to his family, friends, members of the community and his contribution to the community are matters that cause me to give this consideration strong weight in favour of there being another reason to revoke the cancellation of the visa.
BEST INTERESTS OF MINOR CHILDREN
The Direction requires me to make a determination about whether cancellation of the visa is in the best interests of minor children affected by the decision and to the extent that their interests might differ I must consider them separately. There are a series of matters relevant to this consideration which I will address in the context of the particular facts.
There are two children who are aged five years of age and 14 years of age. Both are boys. The Applicant is their father. So far as the older child is concerned the Applicant was active in his life before he went to prison. The younger child was born after the Applicant went to prison. The Applicant remains in contact with them both albeit less regularly than previously; in September 2022 he was in contact with them daily and his contact with them now is less frequent. The children’s mother in a brief note in July 2022 tells of how both children speak of their father, love him and miss him. I need to take care with this evidence as their mother was not available for questioning about her written statement. It is the only evidence I have about the wishes of the children, but it is not implausible. If the Applicant remains drug and offence free, which is a realistic scenario he will in my opinion play a positive role in both their lives. Both children have some time to go before they turn 18 years of age.
The Minister submitted that the Applicant had through his offending conduct absented himself from the children’s lives. I do not accept that that directs attention to the proper inquiry I need to investigate, which is what is in the best interests of the children for the future. On one view the absence of the Applicant in the past may only serve to underscore the very reality of the best interest of the children favouring revocation to make up for lost time. If the decision revoking the visa is not revoked and the Applicant is returned to Iraq it is reasonable that the children may never see their father again. There is a reality about that which suggests that non- revocation is a long way from their best interests.
The Applicant also has a six year old grandson but there was not much more evidence about him. That may be explained by the fact that the child was very young when the Applicant went into prison. I know little more about the interests of the grandchild but again it is reasonable that being brought up without his grand father in his life in some way would not be in his best interests.
There are three children of the Applicant’s brother, two are boys, and one is a girl. They are aged 11, ten and seven years of age. The Applicant is in contact with them once or twice a week by phone. As well he has a friend with two children who are 13 and 15 years of age. They both call him ‘dad’ which speaks of a likely close relationship. He speaks to them every couple of days. I give them some weight in the equation, but it is far less than I give to the Applicant’s own children mainly because the relationship is not parental.
I am satisfied that the best interests of each of the Applicants two minor children, weighs reasonably firmly in favour of revocation. The best interest of the other children I have identified weighs slightly in favour of revocation.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
I am required to give weight to the expectations of the Australian community, the expectations that people who are allowed to live and be in Australia will obey Australian laws and that where someone who has been permitted to stay in Australia ’has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia’.
This means that ‘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 non-citizen should not … continue to hold a visa.’ Specifically, the expectation is that a visa should be cancelled if character concerns are raised through conduct involving acts of family violence, the commission of serious crimes against women or children, or commission of crimes against government representatives, amongst others.
I must decide whether more or less weight is to be given to the community expectation of non-revocation of mandatory cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[10] This involves an evaluation about how strong this factor is in the particular circumstances of the case.
[10] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [77] (per Charlesworth J).
An issue arose in the hearing concerning whether the personal circumstances of an applicant could be taken into account in giving weight or importance to this consideration. The issue arose because of the judgments in Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[11] where Beach J held that this ‘consideration does not incorporate all the countervailing factors from the person’s specific circumstances. Instead, these individual factors are brought to account when deciding what relative weight to give community expectations’ and in Ali v Minister for Immigration, Citizenship and Multicultural Affairs[12] where Bromberg J suggested that those factors might be of direct significance to the importance to be attached to this consideration as well as to the relative weight to be ascribed to the expectations of the community relative to other considerations.
[11] [2022] FCA 396 at [97].
[12] [2023] FCA 559 at [86].

The argument is more theoretical than practical because whether personal circumstances are thrown into the evaluation ‘directly’ at this point when considering the expectations of the community or later when assessing ‘relative weight’ does not alter their relevance or the assessment of the importance, if any, they have in the evaluative process. What is important is that they are considered because, and if, they are relevant to the satisfaction about whether there is ‘another reason’. I will return to the personal circumstances in a moment.
The nature of the criminal offending is very serious as some of it involves violence towards women, family violence and the offending is over a long period such that the expectations of the community weigh in favour of non-revocation. The offences are very serious, but the conduct if repeated and the harm likely to be caused if the offending were to be repeated is not so serious that revoking the mandatory cancellation is out of the question. The offences are not in the category of the ‘particular’ offences identified in the Direction that make non revocation appropriate simply because of the nature of the offences.
Returning to the personal circumstances that the Applicant relied upon to suggest that I should give this consideration less weight. Those circumstances were, first, what can only be described as his horrifying time in Iraq which involved his father and mother being murdered, one of his brothers being tortured, his being left destitute, eventually being tortured and shot himself, and then at 20 years of age escaping to Saudi Arabia; second, his more recent prolonged period of imprisonment and detention which very recently had its sixth anniversary; and third the death of his child in 2012 at four years of age and in 2017 at birth. These three circumstances are matters that I consider in giving less weight to the expectations of the community, whether it arises directly or relatively matters not a great deal, but it will be seen when I compare the relevant importance of this consideration with the others I do not consider that the expectations of the community are of much relative importance in the evaluation I must make.
The Applicant relied on some other matters as basis for suggesting that I should give less weight to this consideration: the presence of his family, friends and children in Australia and his remorse for his offending. Those things are taken into account elsewhere where I have dealt with other of the considerations, and I should take a little care not to take them into account twice. They will be relevant when I weigh the considerations against one another.
It follows that the expectations of the Australian community should be afforded slight weight, in favour of non-revocation.
LEGAL CONSEQUENCES OF THIS DECISION
This consideration requires me to consider what will happen in the immediate future should the Applicant’s visa not be restored by revoking the cancellation. In ordinary circumstances a person who does not have a visa will be removed from Australia as soon as is reasonably practicable under s.198 of the Act. That will not happen where a person has been found to be owed protection obligations under the Act, where a person has made an application for a protection visa or where the Tribunal has found that the person is owed non-refoulement obligations. It is necessary consider those matters to determine what the immediate legal consequence of this decision will be.
I reject the Applicant’s suggestion that he is stateless. There is no evidence to support that conclusion other than some unsupported assertions. The Applicant was born in Iraq and by reason of that is a citizen of Iraq. There is no evidence that would permit me to conclude that he has been stripped of his citizenship. There was some evidence suggesting that he may have been liable to have had his citizenship taken away, but nothing to show that that in fact happened. The Applicant is a citizen of Iraq.
The visa is not a visa that was issued following the making of a protection finding such that the Applicant is not a person in whose favour a protection finding under the Act has been made. The Applicant applied for and has been refused a protection visa. There has been no protection finding made by anyone concerning the Applicant. He has been permitted to file a second application for a protection visa which has not been determined. That means should he be unsuccessful in this matter he will remain in immigration detention until that second application is determined.
The Applicant’s claims about his fear of harm which are said to engage non-refoulment obligations arise because the Applicant says he fears that he will be executed if returned to Iraq as he was a member of the Revolutionary Guard, because he or his father were activists who were opponents of the Hussein regime, that he will be tortured for having helped the United States military during the Gulf War or that he will be kidnapped or shot because he is Christian or because his heart and mental illness conditions cannot be treated in Iraq. These were the several bases on which the Applicant pressed his claim for a protection visa, all of which were rejected.
At the outset, non-refoulement obligations require that the Applicant have a well-founded fear of persecution or other harm as a consequence of being returned and there must be a real risk of persecution or harm.
There was not much evidence to support any of the Applicant’s claims about his fear of persecution or harm and far less to suggest that it was well founded. The Hussein regime which he and his father opposed has long gone, having been removed in 2003. Nor does there seem to be much evidence that would support his fear of persecution because he is a Christian, although there is some evidence that Christians face some risk of discrimination and violence in areas of Iraq where they are a minority. I will deal later with the evidence about mental health and health care services, but I do consider that the standard of healthcare is so low as to mean the Applicant is at a real risk of harm.
I have decided not to finally deal with the Applicant’s non-refoulement claims but leave them to be determined in his application for a protection visa. This is mainly because of the conclusion I have come to concerning the existence of ‘another reason’ to undo the decision cancelling the visa and because the Direction expressly permits me to adopt this course.
The Minister appropriately accepted that if I took this course, I should find that consequence of my decision will be that the Applicant would remain in detention until his protection visa application is determined and, consequently, it was permissible to take the Applicant’s ongoing deprivation of liberty into account. In this regard the Applicant’s further detention would be on top of the five years that the Applicant has already been in detention. The consequence of further detention weighs in favour of revoking the cancellation.
EXTENT OF IMPEDIMENTS IF REMOVED
The Direction requires me to consider the extent of any impediments that the Applicant may face in establishing himself and maintaining basic living standards considering his age, health, any language barriers and any social, medical and economic support available to him if he is returned to Iraq.
The Applicant has been in Australia for 26 years since arriving here in 1996. He has not lived in Iraq for 30 years. He speaks Arabic which is the most widely spoken language in Iraq. He would have some familiarity with Iraqi culture although it must be remembered that Iraq is a country that has been war torn over very many years and is unlikely to be the country the Applicant left all those years ago. The Applicant has no family in Iraq. He knows no one in Iraq.
More significantly the Applicant suffers from several serious medical conditions which includes an extensive history of significant mental health conditions such as post-traumatic stress disorder, schizophrenia and major depressive disorder. He has been prescribed anti-depressant medication and engages in counselling. He suffers from pulmonary embolism and a history of cardiac issues. He takes medication for both those conditions. All his various diagnoses are medically confirmed. No issue was taken about them in the hearing.
The Department of Foreign Affairs and Trade Country Information Report dated 16 January 2023 records that ‘the overall quality and availability of health care in Iraq is low’, that ‘mental health services are inadequate’ and that the ‘absence of community-based mental health care means that the only care is available is family based or in psychiatric institutions, which have been linked to inhumane treatment and degrading conditions.’
The Minister properly conceded that the health care services the Applicant will receive in Iraq ‘are of a considerably lower standard to those of Australia, particularly those in respect of mental healthcare’. Despite that the Minister submitted that the evidence would not mean that the Applicant would be completely unable to establish himself in Iraq. That may be so, but it is reasonably clear that the Applicant will have considerable difficulties re-establishing himself in Iraq because of his significant health conditions and the more likely than not limited services that will be available to him. His lack of any familial or social network that might support him means it is likely he will have no care at all. That will be made all the worse given that the Applicant is returning to a country he has not known for 30 years.
The Applicant’s impediments to establishing and maintaining a basic living standard in Iraq weigh firmly in favour of revoking the decision cancelling the visa.
IMPACT ON VICTIMS
I am required to consider the impact on victims and their families of my decision. The Applicant submitted that one of his former de facto partners who was a victim of some of his offences of family violence will suffer hardship if the decision is not set aside. In the absence of direct evidence from her about the impact of the offending on her I am unable to give this consideration any weight one way or the other so far as the existence of ‘another reason’ might be concerned.
THE RELATIVE WEIGHT OF THE CONSIDERATIONS
I have found that the protection of the Australian community weighs moderately in favour of not revoking the cancellation of the visa, mainly because the harm that will be caused by future reoffending is not at the high or most serious level of harm because almost all the offending so far as it harmed others was very low level harm. Further, the risk of the Applicant reoffending again is below the moderate level of risk. Even though the offending is very serious those things mean that the risk is one that the community could take. Likewise, I have found that the consideration of family violence weighs moderately against revoking the cancellation of the visa. These two considerations whilst important are not so strong as to dominate or be determinative in the evaluative process.
The expectations of the community weigh only slightly in favour of non-revocation especially having regard to the Applicant’s horrendous life in Iraq, his loss of two children at very young ages in 2012 and 2017 and his more recent very lengthy period in immigration detention. As I have already indicated those matters are a sound basis for giving this consideration much less importance in the evaluation of whether there is ‘another reason’. The fact that the Applicant will remain in detention until his protection visa application is determined is also something that very much diminishes the significance of this consideration given that the Applicant has already entered his sixth year of detention.
The best interests of the Applicant’s minor children favours revoking the cancellation especially because the older child has probably suffered as a result of separation from his father over the last six years. That cannot have been good for the child and is a far cry from being in his best interests. The prospect of him not seeing his father ever again should he be returned to Iraq is significant and would not be in his best interests. The parental role as father that the Applicant has is not something that should be removed from either child without good reason. This is important in my assessment. The best interests of the other children in the Applicant’s life, his niece and two nephews and the other children of his friend who call him ‘dad’ are important, albeit not as important. This consideration is more important than the protection of the community and the weight given to the offences of family violence.
Similarly, the ties that the Applicant has to his family, his two brothers and his sister-in-law, his friends and other members of the community as well as his contribution to the community in the time he was in the community before he went to prison in December 2017 are matters of importance. It is at least as important as the other primary considerations concerning protection of the Australian community, family violence and the expectations of the community.
The impediments the Applicant will face re-establishing himself in Iraq if returned there are also important, especially given his mental health conditions and his need for mental health services. In my assessment it is reasonable to expect that he will have some difficulties in establishing his life in a country that he has not been to for more than 30 years, especially as a man with serious health problems. The prospect of a 50 year old man seeking help for his serious health and mental illness conditions in a country that has inadequate health services without any family or friends does not suggest he will be able re-establish the most basic of lifestyles without considerable difficulty. This consideration is a;sp relatively more important than the considerations that point against revocation.
In my assessment the considerations involving the best interests of the Applicant’s children, his ties to the community, mainly his brothers and friends and his long time in and contributing to the community are relatively more important than the three other primary consideration concerning the protection of the community, family violence and the expectations of the community. The difficulty that will confront the Applicant in re-establishing himself in Iraq if he is returned there is important too.
THERE IS ANOTHER REASON TO REVOKE THE CANCELLATION
The primary considerations involving the best interests of minor children and the ties the Applicant has to the community are more important than the other primary considerations in my evaluation. The best interests of the Applicant’s two children and the Applicant’s reasonably strong ties to the Australian community are the other reason that there is to revoke the cancellation of the visa. To the extent that it is relevant the Applicant’s significant challenges in re-establishing himself in Iraq should he be returned there also provides yet another reason for revoking the cancellation of the visa.
DECISION
I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of the Applicant’s Refugee (Class BA) (Subclass 200) visa.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

..................................[SGD]......................................
Associate
Dated: 22 December 2023

Date(s) of hearing: 12 and 13 December 2023

Solicitors for the Applicant: Ms A Battisson, Human Rights for All

Solicitors for the Respondent:

Counsel for the Respondent:

Mathew Burnham, Sparke Helmore

Mr A Hall