HSKJ and Minister for Immigration and Border Protection (Migration)

[2017] AATA 1802

HSKJ and Minister for Immigration and Border Protection (Migration) [2017] AATA 1802 (19 October 2017)

Division:GENERAL DIVISION

File Number:           2017/4728

Re:HSKJ  

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President Dr Christopher Kendall

Date:19 October 2017

Place:Perth

The decision under review is affirmed.

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

Deputy President Dr Christopher Kendall

CATCHWORDS

MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – expectations of the Australian community – other considerations – non-refoulement obligations – strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed

LEGISLATION

Migration Act 1958 – s 499(2A), s 501(3A), s 501(6), s 501(7)(c), s 501CA(4)

Administrative Appeals Tribunal Act 1975 – s 35(3)

CASES

Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96

SECONDARY MATERIALS

Direction No 65: Migration Act 1958 – Direction under Section 499 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA – paras 6.2, 6.3, 7(1), 8(1), 13(2), 13.1(1), 13.1(2), 13.1.1(1), 13.1.2(1), 13.3(1), 14(1)(a), (b) and (e), 14.1, 14.2(1), 14.4, 14.5(1)

REASONS FOR DECISION

Deputy President Dr Christopher Kendall

19 October 2017

INTRODUCTION

1. Pursuant to s 35(3) of the Administrative Appeals Tribunal Act 1975, the Administrative Appeals Tribunal (the “Tribunal”) can restrict the publication of the names of a party to proceedings and allocate a pseudonym to a party if the Tribunal deems it appropriate to do so.

2. The Tribunal determined that it was appropriate to restrict the identification of the Applicant in these proceedings.  Accordingly, the Applicant will be referred to below by the pseudonym “HSKJ”.  The Tribunal has also determined that it should not disclose the names of any of HSKJ’s family members, witnesses or those who provided support references. 

3. By application dated 9 August 2017 (G1), HSKJ seeks review of a decision of a delegate of the Respondent, made on 25 July 2017 (G4), refusing, pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the “Migration Act”), to revoke the mandatory cancellation of HSKJ’s visa. HSKJ’s visa had previously been cancelled pursuant to s 501(3A) of the Migration Act because it was found that he does not pass the character test by reason of his substantial criminal record and because he was serving a term of imprisonment for a crime against a law of the Commonwealth or a state.

4. HSKJ is a 26 year old citizen of Iraq.  He first arrived in Australia in 2010 at the age of 20 and was granted a Class XB Subclass 200 (Refugee) visa (SG5).  He arrived in Australia with his mother and sister (SG5).  A second sister was granted a visa in the United States.

5. Shortly after arriving in Australia, HSKJ was convicted in the District Court of Western Australia of multiple aggravated burglary offences, dishonesty offences and driving offences (G6).  HSKJ was sentenced to a total effective sentence of three years imprisonment with a non-parole period of eighteen months (G8 at 42).

6. In 2012, as a result of this conviction and sentence, HSKJ was issued a warning from the Department of Immigration and Citizenship that future criminal conduct might result in the cancellation of his visa and his removal from Australia (R6). 

7. On 27 June 2016, HSKJ was convicted in the Perth Magistrates Court of a number of serious driving related offences.  He received an effective sentence of two years imprisonment with a non-parole period of twelve months.

8. In total, HSKJ has a lengthy criminal history comprising approximately 30 offences over a 5 year period.  He has convictions for aggravated burglary, stealing, impersonating a public officer, attempt to pervert justice, steal motor vehicle, possession of stolen or unlawfully obtained property, assault with intent to prevent arrest, reckless driving (inherently dangerous (to escape pursuit by police)) and possession of a prohibited drug with intent to sell or supply (methylamphetamine).  A breakdown of these convictions and the sentences received is provided below.

9. On 9 February 2017, as a result of his 27 June 2016 convictions, HSKJ’s visa was cancelled by a delegate of the Minister for Immigration and Border Protection (the “Minister”) pursuant to s 501(3A) of the Migration Act (the “Cancellation Decision”).

10. On 13 February 2016, HSKJ made representations to the Minister seeking revocation of the mandatory visa cancellation decision (G9).

11. On 26 July 2017, a delegate of the Minister decided, under subsection 501CA(4) of the Migration Act , not to revoke the visa cancellation decision dated 9 February 2017 (G2).

12. On 9 August 2017, HSKJ lodged an application with this Tribunal for review of the decision not to revoke his visa cancellation (G1).

    ISSUES

13. The broad issue for consideration by this Tribunal is whether the discretion in s 501CA(4) of the Migration Act should be exercised in HSKJ’s favour having regard to the mandatory considerations identified in Ministerial Direction No. 65 (discussed below).

14. To determine this broad issue, the Tribunal must decide:

    (a)whether HSKJ passes the “character test” as that term is used in s 501(6) of the Migration Act; and

    (b)if not, whether the discretion in s 501CA(4) of the Migration Act should be exercised in HSKJ’s favour such that the mandatory decision to cancel his visa is revoked.

    EVIDENCE

15. This matter was heard in Perth on 13 October 2017.  HSKJ, who was recently moved from prison to a detention facility, appeared in person and was self-represented.  HSKJ was assisted by a qualified Iraqi interpreter, although HSKJ spoke fluent English.  The Minister was represented by Mr Gerrard of the Australian Government Solicitor.

16. The evidence before the Tribunal consisted of:

    ·the Minister’s Statement of Facts, Issues and Contentions dated 4 October 2017 (R1);

    ·the Minister’s submissions in relation to international non-refoulement obligations dated 4 October 2017 (R2);

    ·a Department of Foreign Affairs and Trade country information report in relation to Iraq dated 26 June 2017 (R3);

    ·a 165 page set of G-Documents (G1 to G28) (R4);

    ·a set of supplementary G-documents (SG1 to SG5) (R5);

    ·a “Departmental Warning” to HSKJ regarding possible deportation dated 7 May 2012 (R6); and

    ·outgoing and ingoing passenger cards dated 13 April 2014 (R7).

17. Although HSKJ did not provide the Tribunal with a written witness statement or any documentation in support of his case, the Tribunal has noted and treated as HSKJ’s written evidence the following documents that appear in the G Documents:

    ·Request for Revocation of a Mandatory Visa Cancellation under s 501(3A) (G9);

    ·HSKJ’s personal circumstances form dated 15 February 2017 (G10);

    ·An undated letter from HSKJ (G11); and

    ·A letter from HSKJ dated 21 June 2017 (G12).

18. The Tribunal also heard oral evidence from HSKJ and his mother. 

    CONSIDERATION

    (i)        Does HSKJ pass the character test?

19. The Tribunal must first consider whether HSKJ passes the “character test” as that term is defined in s 501 of the Migration Act.

20. Section 501 of the Migration Act deals with refusals or cancellations of visas on character grounds. Subsection 501(3A) provides that the Minister must cancel a visa that has been granted to a person if:

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

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

    ... 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 Territory.

21. Section 501(6) of the Migration Act provides that a person does not pass the character test if:

    (a)the person has a substantial criminal record (as defined by subsection (7)). [Emphasis added].

22. Section 501(7) of the Migration Act relevantly provides:

    (7)For the purposes of the character test, a person has a substantial criminal record if:

    ...

    (c)the person has been sentenced to a term of imprisonment of 12 months or more.

23. It is common ground that:

    ·as a consequence of receiving a sentence of imprisonment in excess of 12 months, HSKJ has a “substantial criminal record” and, as a result, does not pass the character test in s 501(6) of the Migration Act; and

    ·as HSKJ was serving a sentence of imprisonment, on a full-time basis in a custodial institution, he was liable for mandatory cancellation of his visa pursuant to s 501(3A) of the Migration Act.

24. On the evidence before it, the Tribunal finds that HSKJ does not pass the character test as defined in the Migration Act.

    (ii)      Should the Tribunal Revoke the Decision to Cancel HSKJ’s Visa?

25. Having determined that HSKJ does not pass the character test and was liable for the mandatory cancellation of his visa, the Tribunal must now consider whether the mandatory cancellation of HSKJ’s visa should be revoked by the Tribunal standing in the Minister’s shoes.

26. Section 501CA(4) of the Migration Act provides that the Minister (and the Tribunal) may revoke the mandatory cancelation of an applicant’s visa 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.

    [Emphasis added].

27. The central question before the Tribunal is whether there is “another reason” to revoke the decision to cancel HSKJ’s visa.

28. When considering HSKJ’s request to revoke the decision to cancel his visa, the Tribunal must comply with Ministerial Direction No. 65 (“Direction No. 65”) (as per s 499 (2A) of the Migration Act).

29. Direction No. 65 was issued by the Minister on 22 December 2014 and is binding on the Tribunal from that date.

30. Paragraph 6.2 of Direction No. 65 provides “general guidance” to the Tribunal in relation to the character test and the exercise of the Tribunal’s discretion to revoke a decision to cancel a visa. It provides:

    6.2General Guidance

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

    (2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

    (3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501 CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

31. Paragraph 6.3 of Direction No. 65 then sets out a number of “Principles” to be applied by the Tribunal, including the following:

    6.3Principles

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    ...

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

32. Paragraph 7(1) of Direction No. 65 provides guidance to the Tribunal on how to determine whether mandatory cancellation of a non-citizen’s visa should be revoked.

33. Paragraph 7(1) states:

    How to exercise the discretion

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

    ...

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

34. Paragraph 8(1) of Direction No. 65 further states:

    8.Taking the relevant considerations in account

    (1)Decision-makers must take into account the primary and other considerations relevant to the individual case. ...

    (2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of the visa.

    (4)Primary considerations should generally be given more weight than the other considerations.

    (5)One or more primary considerations may outweigh other primary considerations.

35. Part C of Direction No. 65 sets out considerations that are relevant when determining whether to exercise the discretion in s 501CA (4) of the Act.

    Primary Considerations

    Pursuant to paragraph 13(2) of Direction No. 65, the following are “primary considerations” that the Tribunal must take into account in deciding whether to revoke the cancellation of an applicant’s visa:

    i.Protection of the Australian community from criminal or other serious conduct;

    ii.The best interests of minor children in Australia; and

    iii.Expectations of the Australian community.

    (i) Protection of the Australian Community

36. Paragraph 13.1(1) of Direction No. 65 provides that decision-makers considering the protection of the Australian community should have regard to the principle in paragraph 6.2(1) (set out above). Paragraph 13.1(2) then identifies two other factors to which consideration should also be given:

    (a)The nature and seriousness of the person’s conduct to date; and

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

    (a)       The nature and seriousness of the conduct

37. Paragraph 13.1.1(1) of Direction No. 65 gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of a person’s criminal conduct. Relevantly, these include:

    (1)In considering the nature and seriousness of the person’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

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

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

    (c)     The sentence imposed by the courts for a crime or crimes;

    (d)     The frequency of the person’s offending and whether there is any trend of increasing seriousness;

    (e)     The cumulative effect of repeat offending;

    …

    (g)     Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);        

38. In assessing the seriousness of HSKJ’s criminal offending, the Tribunal first turns its attention to HSKJ’s criminal record.  

39. Overall, HSKJ has been convicted in Australia of the following offences (G6):

Court	Court Date	Offence		Court Result
Perth Magistrates Court	27.06.2016	Possession of a prohibited drug with intent to sell or supply (methylamphetamine)		[count 1] imprisonment: 6 months cumulative from 27-Jun-2016 – cumulative
Reckless driving inherently dangerous (to escape pursuit by police)		[counts 1] imprisonment: 12 months conc from 27-Jun-2016 – concurrent; mdl disqualified: 2 years – concurrent
Reckless driving inherently dangerous (to escape pursuit by police)		[counts 1] imprisonment: 12 months conc from 27-Jun-2016 – concurrent; mdl disqualified: 2 years – concurrent
Driver failed to stop (circumstance of aggravation)		[counts 1] imprisonment: 6 months cumulative from 27 Jun 2016 – cumulative; mdl disqualified 2 years – concurrent
Driver failed to stop (circumstance of aggravation)		[counts 1] imprisonment: 6 months cumulative from 27 Jun 2016 – cumulative; mdl disqualified 2 years – concurrent
Possession of stolen or unlawfully obtained property		[counts 1] imprisonment: 1 months concurrent from 27-Jun-2016 – concurrent
Possession of stolen or unlawfully obtained property		[counts 1] imprisonment: 3 months concurrent from 27-Jun-2016
Assault with intent to prevent arrest of a person		[counts 1] imprisonment: 12 months concurrent from 27-Jun-2016 – concurrent
Steal motor vehicle and drive recklessly		[counts 1] imprisonment: 12 months concurrent from 27-Jun-2016 – concurrent
Drove or permitted vehicle with false plate to be driven		[counts 1] no punish s 46
Drove or permitted vehicle with false plate to be driven		[counts 1] no punish s 46
Used an unlicensed vehicle		[counts 1] fine $100
Perth District Court of Western Australia		17.06.2016	Breach of iso (order of 17.03.15)	[counts 1] imprisonment: 8 months from 17.06.16 (h.s.)
Breach of iso (order of 17.03.15)	[counts 1] imprisonment: 4 months conc from 17.06.16 (h.s.)
Perth Magistrates Court		30.12.2015	Unlicensed possession of dangerous goods; dangerous goods safety ACT 2004; 12 Possession of stolen or unlawfully obtained property; criminal code (wa); 417(1)	[counts 1] $900 [counts 1] $300
Perth Magistrates Court		Unlicensed vehicle (not owner) No authority to drive Drove vehicle with number plate not issued to that vehicle	[counts 1] fine $200 [counts 1] fine $250
Perth District Court of Western Australia		17.03.2015	Impersonating a public office Attempt to pervert justice	[counts 1] intensive supvsn order: 18 months [counts 1] intensive supvsn order: 18 months

Perth District Court of Western Australia	15.08.2011	Aggravated burglary and commit offence in dwelling	Imprisonment: 15 months concurrent
Aggravated burglary and commit offence in dwelling	Imprisonment: 15 months concurrent
Aggravated burglary and commit offence in dwelling	Imprisonment: 15 months concurrent
Aggravated burglary and commit offence in dwelling	Imprisonment: 12 months concurrent
Accessory after the fact to an indictable offence	Imprisonment: 9 months – concurrent
Entered or is in the place of another person, without the others [sic] person’s consent, with intent to commit an offence	Imprisonment: 9 months cumulative Total: 3 years imprisonment from 23.11.10
Stealing	Imprisonment: 3 months – concurrent
Stealing	Imprisonment: 3 months concurrent. 3 months licence disqualification
Criminal damage	Imprisonment 3 months – concurrent
No authority to drive – fines suspension	Fine: $200 licence disqualified 3 months – cumulative
Unauthorised driving by learner drivers	Fine: $100

1. In determining whether HSKJ’s conduct should be viewed as “serious”, the Tribunal places considerable weight on the sentencing comments outlined by the courts. 

2. In that regard, it is noted that in sentencing HSKJ for a range of serious driving related offences on 15 August 2011, Bowden DCJ stated that HSKJ’s conduct “could only be described as a crime spree” and “serious”. 

3. In sentencing HSKJ to a lengthy term of imprisonment for burglary related offences, His Honour described the events in question as follows:

   BOWEN DCJ:                      … insofar as … count 6 is concerned; entry to the premises had been gained by the laundry. The homeowner disturbed the person inside the house, which as I understand it was you. Your fingerprints were located inside the house.

   As far as count 7 is concerned; the facts briefly were, in essence, the victim was mugged. Robbers got out of a vehicle, grabbed the victim’s shoulder bag. During the struggle for the bag the victim was pulled to ground.

   The strap of the bag broke. The robbers took the bag back to the vehicle. Running back to the vehicle, you were the driver of that vehicle and your criminal culpability is not on the basis that you knew that the robbery was going to occur but that you were the driver who drove them from the scene knowing that the robbery had taken place.

   In count 8; the victim had parked his taxi and was asleep. Two persons knocked on the window demanding entry. One had a torch, the other a metal bar. The victim, as I understand it, tried to drive away. The driver’s side window was smashed with a torch, the victim was threatened, he got out of his vehicle in an attempt to flee, was struck by either the torch or the metal bar causing him to go to the ground.

   The offenders then removed $30, ran back to the vehicle; you were the driver of the vehicle. Again, it’s not suggested that you were the person who was involved in the robbery in the sense of knocking on the window; your role was an accessary after the fact is having known what took place and drove the offenders away [sic].

   There are also the matters on the section 32 notice. The damage relates to the damage of a car window. One of the stealings relating to then stealing the cash from that motor vehicle. The other count of stealing relates to you and others going to a delicatessen, you keeping watch or lookout whilst the others stole small items from the delicatessen. The unauthorised driving by a learner driver related to you driving without the appropriate P-plate or an instructor, no authority to drive because you were under a fined suspension and they constitute the section 32 matters.

4. His Honour then highlighted HSKJ’s troubled background as follows:

   Now, much has been referred to about your background.  I accept that you have pleaded guilty at a very early opportunity and that is a matter which entitles me to impose a lighter sentence on you.  It is treated as evidence of remorse. That is, that you know that what you did was wrong and that you’re prepared to take the consequences.

   You are still a young man at 20 years of age, that is also a matter which ought to be taken into account and I acknowledge that you have no prior criminal record. I also acknowledge that you cooperated with the police, that is, in the sense that the police came to speak to you, no doubt as a result of your fingerprint or other investigatory tools at their disposal. Once the police spoke to you, you cooperated, telling them not only things that they knew but also things that the police didn’t know. As I have remarked you’ve also entered a plea of guilty.

   I’ve read the references of character and people speak highly of you. I acknowledge that you have employment to go to. I understand that your background has been difficult in the sense that you were born in Iraq; your father left home when you were around about 13. Your family then fled to another country; you returned to Iraq. From what I’m told you’ve had a good employment record in Iraq.

   You were involved in an incident there where you were kidnapped, restrained and held for ransom for a period a time and I accept, without reservation, that must have been very traumatic for you. I accept that you were receiving counselling for that and also that type of incident affects a person in a way in which quite often they can’t understand and that is also a  matter which must be taken into account. I also accept that there had been cultural difficulties in the sense that when you came to Australia there were language and cultural differences and no doubt, coupled with incidences that occurred in your background, you may well have felt overwhelmed. I accept all of those materials and they are matters which must be taken into account.

   Insofar as your reasons for involvement in the offence, it’s put to me that what occurred was when you came to Australia, you came in contact with another Iraqi family. In due course an offer was made by a member of that family to marry your sister. Your family declined that offer and as a result of that you felt pressured to participate in these criminal offences.

5. Having noted HSKJ’s background, His Honour nonetheless sentenced him to a lengthy criminal term.  This is despite incarceration being a last resort in the sentencing hierarchy:

   Now, that may well have been the position you found yourself in, you may well have felt pressured and that if you didn’t then cooperate with that family, retaliation may have been taken against you and other members of your family. That may well have been how you felt, but the reality is that your reaction is quite unreasonable.

   At no stage were the authorities advised. You then participated in what could only be described as a crime spree, when one considers the totality of the counts on the indictment and the totality of the counts on the section 32 notice.

   You’ve indicated that you received a sum of money, although only a small amount, and didn’t receive many of the goods. But the reality is on many of these burglaries you were the person that entered into the property. And it is important that you understand that sentencing’s not just about you. There are other factors that must be taken into account.

   I’ve got to consider the need to punish you to protect the community; to deter you from similar conduct; to deter others; and to aid in your rehabilitation.

   Now, the point made by Ms [E] on behalf of the State, that in all the reports there’s not much reference to any victim empathy, is a good point. I mean the courts have an obligation to protect home-owners from this sort of conduct. Quite often it’s not the items taken or indeed the value of the property that’s taken, but the fact that home-owners naturally feel that their privacy has been violated; their property has been violated and it creates feelings of insecurity and they are entitled to look to the courts to protect the violation of their property.

   As I have remarked, I note that you have pleaded guilty and your cooperation has gone past simply saying, “I’m guilty”, in the sense that you cooperated fully with the police officers when they attended, providing them with information which has resulted in further charges being laid against you. They are matters which are significant and must be taken into account .

   Now, as you have heard counsel refer, imprisonment is a sentence of last resort. It can only be imposed if the protection of the public requires it, or the offence is so serious that no other sentence in the circumstance can be justified. Your age and personal background do excite sympathy, there’s no doubt about that.

   But I have reached a conclusion that the offence is so serious that a period of imprisonment is warranted. I’m aware that even for offences which often carry periods of imprisonment, consideration must always be given to dealing with the matter other than by way of period of imprisonment and if a conclusion is reached that imprisonment is appropriate, immediate imprisonment can only be imposed if a suspended sentence is wholly inappropriate.

   I do consider that to deal with this case by way of a suspended sentence or any other disposition, simply put, would be wholly inappropriate. It would fail to reflect the serious nature of this offending, the period of time within which the offending continued and the criminality displayed in the offending.

6. The Tribunal also notes the comments of Magistrate Young in sentencing HSKJ to a lengthy term of imprisonment for reckless driving offences (including a “very serious” police pursuit in a stolen car) (G7) in 2015 as follows:

   HIS HONOUR:          … You’ve pleaded guilty to a number of charges. The sequence commences on 4 May last year with a very serious pursuit in a stolen vehicle. And it has to be said that was a pursuit at least in the middle - the middle of the range of seriousness if not higher. I say that because it involved driving at very high speeds through busy roads and residential areas.

   It has been well documented, [HSKJ], that innocent lives have been lost in the course of police pursuits both on the road and otherwise. Cars have careered off, gone through houses through fences, through walls. So your manner of driving put yourself a risk, pursuing police at risk and the innocent members of the public at risk. You were driving on the wrong side of the road contravening traffic control signals and driving at very high speeds: all of that done in a stolen vehicle.

   I note in that regard that indeed the car had been stolen from a burglary. You were then seen by the police on 15 May. Again a pursuit ensued and a pursuit fairly similar in its character and again you were driving at very high speeds contravening traffic control signals. This was aggravated by the fact that you reversed into a police car causing damage to that vehicle and when apprehended you were found with possession of a number of electronic items suspected of being stolen and also some quantities of drugs.

   You were then released on bail in relation to that and you were perhaps fortunate to be granted bail. And that means that the conduct which took place on 26 and 27 May is all the more serious. At that time you were subject not only to a District Court order but also to bail for serious charges. And there was then a further incident which occurred in relation to failing to stop for the police for reasons which are by no means apparent.

   The more serious charges have been withdrawn leaving you with only a fail to stop but that still carries a sentence of imprisonment and it’s still a serious matter and involved a similar manner of driving to the other ones that I’ve referred to. And then when apprehended the following day by the police you had possession of a quantity of amphetamines. There’s about three and a-half grams. But, [HSKJ], the facts were that you were found in possession of a mobile phone with messages relating to the sale and supply of illicit drugs.

   So the quantity is not the only thing I have to consider. The quantity may well be what is left over after your stocks have been depleted by previous sales or the very least it indicates a course of conduct prior to that where you had been involved in the trade of illicit drugs all the while whilst subject to the District Court order I’ve referred to which was there to try and give you some assistance and avoid you behaving in this way.

   That said I can appreciate the amount of money in your possession was relatively modest and there’s perhaps no indications of high level commerciality in relation to the drug dealing. Your record is quite serious. You served three years imprisonment in 2011. You reoffended a relatively short time after being released or after being – after completing that sentence.

   I’m now told that you are serving eight months imprisonment imposed in the District court for what appear to be unrelated offences. And I further note that you’ve been in custody continuously since 28 May 2015. And in terms of mitigation you have pleaded guilty to these charges but the pleas probably have differing levels of credit that can be attributed to them. The 15 May offences, you were caught essentially red-handed so that would limit the credit for the plea on those.

   The other matters - I note you weren’t apprehended in the driver’s seat and albeit they proceeded to trial allocation dates. I think the lesser strength of evidence warrants some further credit for the ultimate plea of guilty. I accept there has been some trauma in your background. By way of explanation you said that you were affected by drugs at the time. It doesn’t excuse it obviously: if anything it makes it somewhat worse the fact that you’re driving in this fashion whilst affected by drugs.

   The manner of driving is bad enough as it is and if you’re not in possession of your faculties and your judgment is impaired then it really makes that even worse.

   I also note the matters that your counsel raised which were also raised before the District Court and you get credit for those matters. And time in custody is difficult to work out. There’s been a long period of time in custody but I’m told that there’s been some credit given for the time in custody in the District Court.

   But it’s not really specified quite how much.  The best I can say is really in a global sense that you’re to be given some credit for the period of time that you’ve had in custody in the sense it has been a long period of time and hopefully that’s had some punitive deterrent and rehabilitative affect upon you. I need to bear in mind the totality principle: the need to ensure that the sentence I impose is proportionate to the offending viewed as a whole and to avoid imposing a crushing sentence.

   This is a course for offending though where the offences have come before the Magistrates Court are certainly more serious than those you were sentenced for in the District Court and does warrant some additional penalty being imposed. Indeed, [HSKJ], a starting point in my view for the offences taken as whole would be somewhere in excess of three years imprisonment in my view. Steal motor vehicle, reckless driving is a very serious matter. It carries eight years as a maximum penalty.

   I think there has been a previous case albeit some years ago – might have been Cunningham – carried about six years for a much younger offender. And then the behaviour is repeated on two subsequent occasions noting again you’re not charged with the third one or not with all aspects of the third one. The offending is aggravated by the fact you’ve reoffending [sic] whilst on bail and I further note that the possession with intent is an entirely separate matter.

   …

   So it makes a total of two years imprisonment and again I stress I arrived at that taking into account the time in custody globally and I further have regard to all those matters and also regard to the comments of the District Court that the offences that they dealt with were not in isolation of necessarily warranted immediate imprisonment. It’s appropriate in those circumstances the sentence I impose be served concurrently with the District Court sentence so effectively it’s two years imprisonment commencing from today.

7. These comments reflect considerable concern on the part of the judiciary about HSKJ’s conduct and evidence serious criminal conduct on his part.

8. The Tribunal also notes that HSKJ’s most recent offences were committed:

   (a)despite having been warned by the Department in 2011 of the possible negative migration consequences if he were to seriously reoffend; and

   (b)whilst subject to District Court order and also on bail for serious charges.

9. This is of particular concern to the Tribunal as it reflects disregard for the law and a degree of indifference that cannot be excused.

10. Overall, taking into account the nature of his offences, the sentences imposed, the comments of the sentencing judges, and the specific guidance and principles set out in Direction No 65, counsel for the Minister contended that the nature and seriousness of HSKJ’s conduct is a significant consideration that weighs heavily against revocation of the decision to cancel the applicant’s visa.  The Tribunal agrees.

11. HSKJ has a substantial criminal record including convictions for aggravated burglary, stealing, impersonating a public officer, attempt to pervert justice, steal motor vehicle, possession of stolen or unlawfully obtained property, assault with intent to prevent arrest, reckless driving - inherently dangerous (to escape pursuit by police) and possession of a prohibited drug with intent to sell or supply (methylamphetamine). The offences for which he was convicted are clearly serious and of the sort identified in Direction No 65.

12. Having viewed the evidence before it, HSKJ’s conduct must be viewed, objectively, as serious.  As per Direction No. 65, the cumulative effect of HSKJ’s offending over a lengthy period of time and the seriousness of his offending are factors that weigh heavily against the revocation of the decision to cancel his visa.  Overall, the nature and seriousness of HSKJ’s offences evidences a degree of recklessness toward the well-being of the Australian community that cannot be ignored.  

13. The Tribunal has no alternative but to find that HSKJ’s serious criminal record weighs heavily against the revocation of the decision to cancel his visa.

    (b)      The risk to the Australian community should further offences be committed

14. Subparagraph 13.1.2 of Direction No. 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether HSKJ represents an unacceptable risk of harm to the Australian community (i.e. the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct).

15. Subparagraph 13.1.2 of Direction No. 65 provides:

    (1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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 to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

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

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

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

    [Emphasis added]

1. Previously, HSKJ has expressed remorse for his actions.  It is noted, for example, that in his Personal Circumstances Form (G10), HSKJ wrote:

   I am deeply remorseful for my action that led me to offend which ultimately came from my use of illicit drugs. I feel [sic] into this drug use cycle as a coping mechanism to deal with the traumas I was suffering from all the things I have witnessed in Iraq.

   The nature of reoffending came from lack of understanding of Australian Laws and clouded judgement from heavy drug use, which I was using to make the traumas suffered in life. [sic]

2. Further, in his revocation submission to the Department of Immigration and Border Protection (G9 at 46), HSKJ submitted:

   I am deeply remorseful for my actions that lead [sic] to my imprisonment, through my programs that I have completed whilst in prison I now have a greater awareness of myself and how to deal with lingering PTSD issues.

3. In oral submissions to the Tribunal, however, HSKJ was quick to blame others for his conduct.  Previously, HSKJ stressed that his criminal actions were influenced by his Post Traumatic Stress Disorder (“PTSD”) (which was caused by the events he experienced in Iraq).  In oral submissions in relation to his most recent offences for reckless and dangerous driving, however, HSKJ explained that he was drug addicted at the time but this only occurred because he was “acting undercover” for the WA Police.  He explained that none of this would have happened if one of the men he was watching for the police had not got him addicted to drugs.  He further stated, “so thank you WA Police for getting me addicted to drugs …”. 

4. In addition to bringing into question HSKJ’s sense of remorse for his past crimes, the Tribunal has serious concerns about HSKJ’s credibility in this regard.  There is nothing in the sentencing remarks of Magistrate Young to suggest that HSKJ was acting as a police informant. 

5. The Tribunal also notes that in 2011 HSKJ explained to the District Court that his 2011 burglary offences resulted from peer and family pressure (G8 at 40).  In oral evidence before this Tribunal, however, HSKJ denied that this was the case – suggesting simply that he was young and fell in with the wrong crowd.  This also brings into question the credibility attached to his evidence as a whole and says much about the lack of remorse for his actions overall. 

6. In relation to whether he will again reoffend, the written evidence before the Tribunal suggests that HSKJ’s more recent offences were tied to post traumatic stress disorder (resulting from the trauma attached to his kidnapping in Iraq), which, he has previously claimed, resulted in an addiction to illicit drugs. 

7. To some extent, HSKJ’s written evidence contradicts his oral evidence before the Tribunal (given under cross examination) that his drug addiction initially resulted from someone giving him an illicit drug while he was working undercover with the WA Police (see above at paragraph 58).  However, the Tribunal is prepared to accept that given that he comes from a war torn country, it is quite conceivable that HSKJ did (and still does – as discussed below) suffer from PTSD and developed a drug addiction in order to manage his mental anguish.  

8. In these circumstances, the Tribunal must ask whether HSKJ has sufficiently addressed the personal and social issues that he says caused him to reoffend in the first place. 

9. It is noted that in his revocation request (G10 at 56), HSKJ wrote:

   My likelihood of reoffending is very minimal due to the mandatory and voluntary programs I have completed during my imprisonment.  I now have a greater skill set for dealing with issues in my life and know the importance of pro-social peers. I also now have a clearer understanding of Australian laws.

10. The Tribunal also notes that in an undated letter (G11 at 62), HSKJ relevantly wrote:

    I’v [sic] learned from my/this mistake not being with my mum. She is getting older and I care for her very often, this time being in prison has opened my eyes and made me realize that I have not only effect [sic] me but my 2 sisters and my and for that realization I will be making major changes in my life and making better decision [sic] so I don’t ever come back 2 [sic] prison.

11. HSKJ also wrote in his letter dated 21 June 2016 (G12):

    This time in incarcerated [sic] I have been doing a lot of education, courses and programmes to teach me how to manage live [sic] a normal life in the community. My mother has been very sick without me being around to help her with whatever she may need. I have made a promise to her if I got out this time I would get my life together and to stay away from any high risk factors that could lead me back to prison and where I know the Department of Immigration will deport me if l return prison [sic].

12. The Completion Report of the Medium Intensity Program (G15) explains that HSKJ has “demonstrated gains increasing his awareness into his previous substance abuse, managing his impulses, awareness of negative impulses”. The report also indicates that he made partial gains with respect to pro social attitude and emotional management.

13. The Tribunal also has before it a letter of support for HSKJ (G18), attesting to his good character and offering full time employment upon his release from prison.

14. In a letter from Asetts Counselling Service dated 21 August 2015 (G17), a counsellor (who is not a medical practitioner or psychologist) wrote that HSKJ has “overcome” the trauma related issues, and there has been a “vast improvement” in HSKJ’s case.  It is noted, however, that when questioned by the Tribunal, HSKJ suggested that he continued to suffer from anxiety and required further counselling and medication to address his inner demons.

15. In relation to these issues, the Minister contended as follows in a Statement of Facts, Issues and Contentions dated 4 October 2017 (R1):

    27.The applicant has accrued a relatively lengthy criminal history comprising of [sic] 34 offences over a 5 year period. The length and breadth of the applicant’s record alone indicates that there is a significant risk of re-offending.

    28.It is clear, having regard to the sentencing remarks and the nature of the offences themselves, that the applicant’s offending relates to his drug addiction. In this regard, the respondent draws the Tribunal’s attention to the following comments of Magistrate Young in sentencing the applicant on 29 June 2016:

    By way of explanation you said that you were affected by drugs at the time. It doesn’t excuse it obviously: if anything it makes it somewhat worse the fact that you’re driving in this fashion whilst affected by drugs.

    The manner of driving is bad enough as it is and if you’re not in possession of your faculties and your judgment is impaired then it really makes that worse. [G7,p29]

    29.The respondent also notes the applicant admitted that he would use methylamphetamines on a daily basis prior to his arrest [G15, p73].

    30.The applicant has provided evidence of undertaking rehabilitation courses whilst incarcerated. Whilst this is encouraging, it is nevertheless the case that the applicant’s rehabilitation remains untested in the community. Indeed, whilst the report from the completion of the Medium Intensity Program is generally positive, it also identifies that the applicant has outstanding criminogenic factors which should be of concern to the Tribunal [G15, pp72-77]. In particular, the respondent draws the Tribunal’s attention to the following comments:

    Although HSKJ has demonstrated partial gains in emotional management, this skill may still be developing. HSKJ made several comments about his hatred towards drug use. It may be considered that HSKJ’s strong feelings against using drugs is a positive, however, he stated he had threatened friends on social media that he would become violent if they offer him drugs. Facilitators questioned HSKJ whether violence would be the best solution, to which HSKJ replied that he would focus on his employment and occupying himself. For this reason, facilitators remain unsure how appropriately HSKJ would be able to apply coping skills in instances whereby people offer him drugs. During the program, band practice was being conducted in the joining room to the program. HSKJ became visibly frustrated that he could not hear the session and asked whether others were frustrated by the sound. HSKJ then walked to the room where the band were playing and told them to play quieter and if they did not he would break the music equipment, but then pay for the broken equipment. It may be considered that HSKJ’s emotional management skills are still developing and he may need further support. Social interaction may therefore be an adjoining treatment need which could be better developed in the future. Some of this may be due to cultural differences.

    Although HSKJ had demonstrated gains in developing pro social thinking, this skill may still be developing. During the program, an officer and their family were assaulted at their residence. HSKJ stated that he had heard about the assault and stated that he had deserved it as the officer was a “dick” who would provoke the prisoners. This comment is not pro social and suggests that his skills in developing pro social thoughts are still developing. [G15, p76]

    31.Furthermore, the applicant has provided evidence of rehabilitation courses completed in 2011 and 2012 [G20, pp95-98]. The fact that serious offences were committed after the completion of these courses gives rise to a significant concern over the efficacy of his most recent rehabilitation in circumstances where the applicant has not been tested in the community since the completion of his latest rehabilitation.

    32.The length, frequency, nature, seriousness and pattern of the applicant’s offences all give rise to a clear probability that the risk of the applicant re-offending is very high.

16. Evidence before the Tribunal shows that HSKJ has undertaken a number of programs to assist with his rehabilitation (G20) – in particular the Medium Intensity Program.  His willingness to undertake rehabilitation programs weighs in his favour.  The Tribunal is concerned, however, that HSKJ continued to offend post 2011 even after taking numerous rehabilitation courses while in prison in 2011-2012.  Under cross examination, HSKJ indicated that the counselling/rehabilitation programs he took in 2011 and 2012 were, in effect, “useless” because he did not speak English.  The Tribunal doubts this evidence.  This oral evidence contradicts his written evidence (above at paragraph 64) that his “likelihood of reoffending is very minimal due to the mandatory and voluntary programs” (he) completed during (his) imprisonment.”  Further, HSKJ’s use of the English language before the Tribunal was quite strong, almost fluent.  Further, it seems implausible that highly respected rehabilitation programs of the sort in evidence here would provide certificates of completion to an attendee who refused to participate, or who was incapable of participating. 

17. The Tribunal also has concerns that HSKJ’s mental health issues have not been sufficiently addressed, despite what his counsellor has stated (G17).  Before this Tribunal, HSKJ said he requires ongoing counselling and medical intervention.  Given the link between HSKJ’s mental health and his illicit drug use, this is highly problematic.  Nor is there any firm evidence that he will continue to receive treatment or rehabilitation if released into the community.  No evidence was provided that any steps have been taken to arrange appropriate treatment.  While it is certainly the case on his mother’s evidence that she will support her son if he is released, it is noted that that HSKJ’s mother has always supported her son in a loving family environment.  This did not, however, prevent him from engaging in serious criminal conduct in the past and the Tribunal is concerned that it will not prevent him from doing so in the future.

18. Overall, the Tribunal is entitled to have significant doubts about the effectiveness of the rehabilitation programs already taken by HSKJ in circumstances where he has not had the opportunity to demonstrate any meaningful rehabilitation outside of a supervised environment in prison.  Further, HSKJ’s past inability to demonstrate rehabilitation while in the community, despite being under a District Court order and on bail, weigh heavily towards a finding that he will re-engage in drug taking likely to cause him to reoffend.  The Tribunal also notes that a formal warning in 2011 from the Department that future offending would expose him to the risk of visa cancellation and removal also had no effect.  Since receiving that warning HSKJ has continued to offend, receiving a further 20 convictions.  Add to this the fact that HSKJ engaged in criminal conduct shortly after undertaking extensive and much respected rehabilitation programs in prison and the Tribunal finds itself doubting whether HSKJ has done enough to curb his offending behaviour. The Tribunal finds that in these circumstances the risk of recidivism is very high.

19. Like the Minister’s delegate before it, in considering whether HSKJ represents an unacceptable risk of harm to the Australian community, the Tribunal has had regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. It is noted that some conduct and harm that would be caused if it were to be repeated is so serious that any risk that it is repeated may be unacceptable. Further, in making an assessment regarding the risk to the Australian community, the Tribunal has had regard to, cumulatively:

    (a)the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and

    (b)the likelihood of further criminal or other serious conduct, taking into account information and evidence on the risk of the person re-offending.

20. Overall, although HSKJ has taken some positive steps towards rehabilitation, the Tribunal considers that it cannot yet be concluded that his risk of re-offending in the future is low. The present risk to the Australian community if HSKJ engages in further criminal conduct is simply unacceptable. The offences committed by HSKJ exhibit an attitude of recklessness toward the well-being of the Australian community. Offences of the sort committed by him have the potential to endanger lives in the Australian community. Given the nature and seriousness of HSKJ’s past conduct, and the very real risk that will commit further offences in the future as a result of his drug use and PTSD, the Tribunal finds that the protection of the Australian community is a consideration that weighs heavily in favour of refusing to revoke the mandatory cancellation of HSKJ’s visa.

    (ii) Best interests of minor children in Australia

21. As correctly contended by the Minister in a Statement of Facts, Issues and Contentions dated 4 October 2017 (R2), the second primary consideration listed in Direction No. 65 is the best interests of any minor children in Australia affected by the decision, and paragraph 13.2(1) requires decision-makers to make a determination about whether the refusal is, or is not, in the best interests of any minor children.

22. HSKJ has not made any representations in relation to the best interests of minor children and the available information does not indicate that there are any children under 18 in Australia whose best interests would be affected by a decision not to revoke the cancellation of HSKJ’s visa.

23. Accordingly, this consideration does not weigh in favour of, or against, the revocation of the decision to cancel HSKJ’s visa.

    (iii) Expectations of the Australian community

24. The third consideration listed in Direction No. 65 relates to the expectations of the Australian community.  Relevantly, paragraph 13.3(1) of Direction No. 65 states:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

25. In relation to the expectations of the Australian community, the Tribunal notes submissions made by the Minister in a Statement of Facts, Issues and Contentions dated 4 October 2017 (R2) as follows:

    38.The respondent again refers to the stated principles in paragraph 6.3 of Direction No 65 and in particular the principles that the Australian community expects the Australian Government to cancel the visas of non-citizens who commit serious crimes and non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia.

26. The Tribunal considers that the Australian community would have considerable sympathy for a young Iraqi male who has endured what HSKJ has endured in his lifetime.  The community’s generosity in this regard is unquestionable at a time when global conflict requires humanity and compassion.  Nonetheless, there are limits as to just how far that generosity and sympathy will extend.  The Tribunal finds that the expectations of the Australian community are that a non-citizen with an extensive criminal record should expect to lose his visa and forfeit the privilege of remaining in Australia.  To repeat what was noted above, HSKJ’s record of offending includes numerous serious property, dishonesty, drug and traffic offences and he had already received a prison sentence of three years prior to his current incarceration. In sum, HSKJ has almost 30 convictions, with his most recent offences being committed in 2015.  In that year, HSKJ was found guilty of possession of a prohibited drug with intent to sell or supply (amphetamine), several driving offences, assault with the intention to prevent arrest of a person and multiple possession of stolen unlawfully obtained property.  The sentencing magistrate described HSKJ’s actions as being a ‘very serious’ police pursuit in a stolen vehicle.  This echoes similar concerns by District Court Judge Bowden in 2011.

27. In these circumstances, the community would expect HSKJ to lose the protections afforded by his visa and be deported accordingly. 

28. The community’s expectations in this regard weigh heavily against the revocation of the decision to cancel HSKJ’s visa.

    (iv) Other considerations

29. Paragraph 14(1) of Direction No 65 provides:

    14.      Other considerations - revocation requests

    (1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

    (a)       International non-refoulement obligations;

    (b)       Strength, nature and duration of ties;

    (c)       Impact on Australian business interests;

    (d)       Impact on victims;

    (e)       Extent of impediments if removed.

30. Based on the evidence currently available, the other considerations that may be relevant in the present case are:

    I.Australia’s international non-refoulement obligations as they relate to HSKJ;

    II.the strength, nature and duration of the HSKJ’s ties with Australia; and

    III.the extent of impediments for HSKJ if he is returned to Iraq.

    International non-refoulement obligations

31. Direction No. 65 provides as follows in relation to Australia’s non-refoulement obligations:

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

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

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

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

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

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

1. HSKJ arrived in Australia as the holder of a Refugee visa. He has not previously had a visa refused or cancelled under section 501, 501A or 501B of the Migration Act. He is, accordingly, entitled to apply for a Protection visa. At the hearing of this matter, HSKJ indicated that he had never been told that he could apply for a protection visa but that he would do so if the Tribunal refused to revoke the decision to cancel his visa.

2. Until recently, the Tribunal would have found that, because of his ability to apply for a Protection visa, the Tribunal was not required to assess any non-refoulement obligations owed to HSKJ.  It was generally accepted that because Direction No. 65 specifically states that it is not necessary to determine a non-refoulement issue in circumstances where an applicant can apply for a Protection visa, the Tribunal would normally rely on any non-refoulement assessment being made by another body specifically charged with determining the validity of a Protection visa claim.

3. That position is now disputed, however, because of the recent decision of the Federal Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 (“BCR16”). Following BCR16 (now on appeal to the High Court but which is binding on this Tribunal) the Tribunal is required to assess (to the extent that it can on the evidence) any type of harm that might arise to him should HSKJ be deported to Iraq. This is so regardless of whether an applicant specifically frames his risk of harm as a non-refoulement issue.

4. In assessing any non-refoulement obligations, the Full Court has previously noted that the level of analysis required by the Tribunal is less than that required in assessing a claim for a Protection visa.  Relevantly, in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 in relation to a s 501 refusal, the Court found (at [28]):

   An exercise of the statutory power conferred by s 501 of the Migration Act does not require the same analysis to be undertaken as would be required if an application for a protection visa is made and s 36 is invoked. Nor is that analysis to be undertaken even where the Minister does take into account Australia’s non-refoulement obligations.

5. Nor, it should be stressed, could the Tribunal engage in the sort of evidentiary analysis that would be undertaken if a Protection visa claim were examined elsewhere by those specifically charged with analysing a Protection visa claim.  Normally, when a protection visa application is determined, the decision maker has access to an extensive interview with the applicant and, importantly, a detailed International Treaties Obligations Assessment (“ITOA”).  That is not the case here.  Before this Tribunal, in an expedited hearing that requires the Tribunal to make an assessment in a very short period of time, the Tribunal does not have the benefit of an ITOA or the full body of evidence one would expect in a protection visa hearing. 

6. In these circumstances, the Tribunal can only assess the often limited evidence before it in determining any risk of harm to HSKJ.  This is arguably less than ideal given the possible negative consequences for an applicant in this context. 

7. Here, HSKJ claims, in relation to the harm he believes he will face if he is returned to Iraq, that if returned he would be “signing (his) own death sentence”.  He says that while in Iraq he worked with American military forces as a builder and has subsequently been labeled “a traitor” (G3 at 8).  He claims that his neighbours all know who he is and who he worked for and, as a result, if he returns, he will be targeted. 

8. The Tribunal has little evidence before it in relation to who HSKJ worked for or what he did while in Iraq.  There is no evidence that he was kidnapped while there because of his work with the US military forces.  Nor is there credible evidence that his friends and neighbours were aware of who he was working for in Iraq.  The Tribunal can only take him on his word.  As noted above, however, the Tribunal has serious concerns about the credibility of HSKJ’s evidence generally.  Nonetheless, HSKJ’s mother indicated that her son would be harmed if he returned to Iraq because he worked for the US military.  She did not, however, detail what would happen to him.  HSKJ’s mother struck the Tribunal as credible and deeply distressed at the mere thought of the difficulties that await her son in Iraq if he returns. 

9. The Tribunal has reviewed the available country information in relation to the situation that those who assist US military forces face in Iraq.  Relevantly, a recent report from the Department of Foreign Affairs and Trade (R3) in relation to the country information of Iraq (“Iraq Report”) highlights that:

   Association with the International Community

   3.56Individuals who have worked with the international community (and, in particular, with the US Government) have faced recriminations since 2003. Many of those at risk of being targeted (for example, those most closely involved with the US military) have moved abroad. In-country contacts from the international community told DFAT that their local employees do not openly discuss their employment or association with the international community within their local communities. Overall, DFAT assesses that the risk of societal discrimination against individuals associated with the international community is high and the risk of societal violence is moderate.

10. Based on the limited evidence before it, the Tribunal is willing to accept that HSKJ:

    (a)assisted US military forces in Iraq in some capacity;

    (b)faces some risk of harm if returned to Iraq because of this alleged association.

11. On the limited evidence before it, this finding weighs to some degree in favour of revoking the decision to cancel HSKJ’s visa.  The question the Tribunal needs to ask, however, is whether this finding in relation to what is an “other” or “secondary” consideration outweighs the Tribunal’s findings in relation to the primary considerations detailed above. 

12. The Tribunal finds that it does not do so.  The Tribunal has considerable sympathy for HSKJ and, on the limited evidence, finds that he might have safety concerns in Iraq.  The evidence in support of this finding is, however, scant.  Overall, the Tribunal needs to weigh these safety concerns with the very strong concerns outlined above in relation to the seriousness of HSKJ’s crimes, the risk of further offending and what this would mean for the Australian community – findings that were based on very clear and strong evidence. 

13. The Tribunal recognises that any concerns it has in relation to HSKJ’s safety are somewhat addressed by the fact that HSKJ can apply (and has now indicated that he will apply) for a Protection visa.  Further, noting that the primary considerations in Direction No. 65 (based here on unequivocal evidence) are normally given greater weight than the other considerations (here, based on less than ideal evidence), the Tribunal finds that the primary considerations here clearly outweigh this secondary consideration.  This should not be seen, however, as a comment by the Tribunal as to the prospects of any future protection visa application.

    Strength, nature and duration of ties

14. Paragraph 14.2(1) of Direction No 65 requires the Tribunal to consider HSKJ’s ties to Australia as follows:

    14.2 Strength, nature and duration of ties

    (1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

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

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

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

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

15. The Minister in a Statement of Facts, Issues and Contentions dated 4 October 2017 (R1) contended as follows:

    44.The applicant has been ordinarily resident in Australia since arriving in 2010. He has worked in the automotive repair industry. His mother and siblings reside in Australia. Balanced against this, though, is the applicant’s history of criminality and substance abuse. His criminal record clearly does not reflect a positive contribution to the Australian community. Furthermore, his offending began shortly after his arrival in Australia.

    45.The applicant claims that he is the primary carer for his mother who has significant health issues and is reliant upon her son. The respondent accepts that the applicant’s removal from Australia is likely to be upsetting to his mother and may cause some hardship. However, in this regard, the respondent notes that the applicant has been imprisoned for some time and consequently unable to provide any form of tangible assistance to his mother over the past 2 years.

    46.The respondent concedes that the applicant has some ties to Australia, albeit not to the extent that they should outweigh the protection of the Australian community.

16. It is also noted that the Ministerial delegate found as follows (G4 at 20):

    Strength, nature and duration of ties

    60.HSKJ has resided In Australia for approximately seven years and four months, having arrived as an adult, aged 19 years.

    61.HSKJ’s first criminal convictions are recorded in 2011, approximately 15 months after first arriving in Australia. I have given less weight to this consideration as HSKJ started to offend soon after arriving in Australia.

    62. HSKJ submits that he is the primary carer for his mother … an Australian citizen, who has been diagnosed with breast cancer. HSKJ submits that his mother relies heavily upon him for practical assistance due to her poor English and lack of understanding of Australian society and culture.

    63.I considered (mother’s) letter of support to the Magistrate in 2015, describing HSKJ as a “devoted son and brother”. (Mother) writes that she has been diagnosed with breast cancer, and while at that time she was in remission, she relies on HSKJ as a primary care-giver. I note that a prison reports confirm that HSKJ receives regular visits from his mother.

    64.In considering the effect of a non-revocation outcome upon (mother) I note that she has not made representations in relation to the revocation of her son’s visa cancellation. Nonetheless I find that (she) has maintained her relationship with her son and I find that she will experience practical hardship and emotional hardship in the event HSKJ is removed from Australia.

    65.HSKJ has two adult sisters who reside with their husbands in Australia. I note that HSKJ’s sisters have not submitted information and HSKJ has not supplied detailed information about his relationship with his sisters. Nonetheless, I find that in the event of his removal from Australia, HSKJ’s sisters may experience some emotional hardship.

    66.HSKJ has indicated that he has extended family in Australia, however I note he has not provided detailed information about his extended family and there have been no representations in this respect.

    67.I have considered the letter dated 5 August 2015 from … which confirms that HSKJ was employed at … for a period of approximately five years. I accept that HSKJ has been employed when not serving time in prison.

    68. I accept that HSKJ has ties to the Australian community through his family including his mother, sisters and extended family, as well as his employer.

17. At the hearing, in relation to the strength of his ties with Australia, HSKJ submitted that his mother would be lost without him.  HSKJ’s mother also gave evidence.  She struck the Tribunal as a remarkably courageous woman who has sacrificed everything for her three children.  She is clearly devastated by her son’s serious criminal conduct (particularly given everything the family went through to get to Australia) and indicated that her daughters are not able to assist her.  If her son is deported she will, in effect, be left with little support.  The Tribunal finds this to be the case.

18. As correctly noted above, HSKJ has lived in Australia since 2010.  On the evidence, he has been engaged in consistent employment and has, accordingly, been making some contribution to the community.  Importantly, when not in prison or detention, he was the primary carer for his mother – a woman who will struggle without her son.

19. Overall, the Tribunal finds that HSKJ does have ties to the Australian community.  This is in his favor.  The Tribunal has considerable sympathy for HSKJ’s mother but notes that she does have family here other than her son.  The Tribunal notes that HSKJ began offending shortly after arriving in Australia.  On the evidence, the Tribunal is not convinced on the balance that the nature and strength of HSKJ’s ties with Australia outweigh the primary considerations analysed above.

    Extent of impediments if removed

20. Paragraph 14.5(1) of Direction No 65 requires the Tribunal to consider the extent of any impediments if HSKJ is removed from Australia as follows:

    1.5Extent of impediments if removed

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

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

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

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

21. In relation to this issue, the Minister contended as follows:

    50.The respondent accepts that the applicant’s transition back to Iraq is likely to be difficult. However, the applicant speaks the language and is familiar with the culture. He would have equal access to health services as other citizens, although it is accepted that he will face challenges in this regard. He could also utilise his employment skills to find a job. The difficulties the applicant would face do not outweigh the other factors set out in the Direction.

22. The Tribunal has reviewed the Iraq Report (R3) which relevantly provides that:

    Conditions for Returnees

    5.25DFAT has considerable evidence that shows a number of Iraqis return to Iraq, sometimes only months after securing residency in Australia to reunite with families, establish and manage businesses or take up or resume employment. The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted amongst Iraqis, as evidenced by the large numbers of dual nationals from the US, Western Europe and Australia who return to Iraq. DFAT has limited evidence to suggest that voluntary returnees from the West face difficulties in assimilating back into their communities. However, in-country contacts have said that returning to Iraq can be difficult, particularly if the individual does not return to their original community. Integration within new communities is difficult, and complicated by the significant influence of patronage and nepotism that affect many aspects of day-to-day life in Iraq.

23. As discussed above at paragraphs 85 to 98 in relation to any non-refoulement obligations that arise as a result of the potential for harm if HSKJ is returned to Iraq, the Tribunal finds that HSKJ may face impediments in relation to his personal safety if returned to Iraq.  The Tribunal’s findings in that regard are repeated here.  The Tribunal notes further that access to health services in Iraq are poor and HSKJ may struggle to access mental health services to address what he claims is PTSD if he is returned to Iraq. 

24. This finding weighs in favour of revoking the decision to cancel HSKJ’s visa.  However, for the same reasons outlined above in relation to Australia non-refoulement obligations, the Tribunal does not find that this consideration outweighs the primary considerations outlined above.  HSKJ’s criminal conduct is serious and extensive and while the Tribunal has, on the limited available evidence, some concerns about his future health and safety, this does not outweigh the Tribunal’s concerns for the safety of the Australian community – a concern that is well founded on the very clear evidence before the Tribunal.

    CONCLUSION

25. HSKJ arrived in Australia from Iraq in 2010.  He has been convicted of numerous criminal offences since 2011 and has served lengthy terms of imprisonment.  In 2011, he was convicted in the District Court of Western Australia of multiple aggravated burglary offences, dishonesty offences and driving offences and sentenced to a total effective sentence of three years imprisonment with a non-parole period of eighteen months (G8 at 42).  In 2016, HSKJ was convicted in the Perth Magistrates Court of:

    (a)Possession of a prohibited drug with intent to sell or supply (amphetamine);

    (b)Reckless driving – inherently dangerous (2 counts);

    (c)Driver failed to stop (circumstance of aggravation) (2 counts);

    (d)Possession of stolen unlawfully obtained property (2 counts);

    (e)Assault with the intention to prevent the arrest of a person;

    (f)Steal motor vehicle and drive recklessly;

    (g)Drove or permitted vehicle with false plate to be driven (2 counts); and

    (h)Use an unlicensed vehicle.

26. As a result of his 2016 convictions, HSKJ received a total effective sentence of two years imprisonment with a non-parole period of twelve months.  The sentencing Magistrate remarked that HSKJ was involved in a “very serious” police pursuit in a stolen vehicle and that innocent lives have been lost as a result of police pursuits with HSKJ’s driving putting himself, the pursuing police and innocent members of the public at risk

27. Having received a sentence of a term of imprisonment in excess of 12 months, HSKJ has a “substantial criminal record” and does not, as a result, pass the character test in s 501(6) of the Migration Act. Further, as HSKJ was serving a sentence of imprisonment on a full-time basis in a custodial institution, he was liable for mandatory cancellation of his visa pursuant to s 501(3A) of the Migration Act and his visa was mandatorily cancelled

28. In determining whether there is any reason why the decision to cancel HSKJ’s visa should be revoked, the Tribunal has attached significant weight to the fact that HSKJ’s offending is quite serious in nature.  The commission of his most recent crimes shows that they were committed whilst on bail and subject to a court order and after undertaking extensive rehabilitation programs following his 2011 offences.  This evidences a flagrant disregard for the law and a failure to learn from his past mistakes.   

29. The Tribunal has taken account of the following factors detailed in paragraph 13.1.1 of Direction No. 65:

    (a)the sentence imposed by the courts for crimes – noting that in HSKJ’s case lengthy custodial sentences were ordered despite his early guilty plea and despite evidence of drug addiction and a mental health disorder;

    (b)a trend of increasing seriousness – noting that HSKJ’s crimes have indeed increased in seriousness since 2011;

    (c)the cumulative effect of repeated offending – noting that, despite HSKJ being imprisoned in 2011, he continued to offend at an alarming rate while subject to a District Court order and on bail; and

    (d)whether the non-citizen has re-offended since being formally warned – noting that HSKJ reoffended despite having been warned by the Department in 2012 of the possible negative migration consequences if he were to seriously reoffend.

1. In these circumstances, HSKJ should, as per paragraph 6.1 of Direction No. 65, expect to be denied the privilege of staying in Australia.

2. Like the Minister’s delegate before it, in considering whether HSKJ represents an unacceptable risk of harm to the Australian community, the Tribunal has had regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.  Further, in making an assessment regarding the risk to the Australian community, the Tribunal has had regard to, cumulatively:

   (a)the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and

   (b)the likelihood of further criminal or other serious conduct, taking into account information and evidence on the risk of the person re-offending.

3. The Tribunal finds that there remains an unacceptable risk that HSKJ may engage in further criminal conduct if he remains in Australia.  The Australian community will, as a consequence, be at risk.  In making this assessment the Tribunal has considered the nature of the harm to individuals or the Australian community should HSKJ engage in further criminal or other serious conduct and the likelihood of further criminal or other serious conduct, taking into account the evidence on the risk of HSKJ re-offending.  

4. On the evidence, HSKJ has used illicit drugs in the past to deal with his PTSD.  This precipitated his committing crimes which put the Australian community in peril.  There is insufficient evidence before the Tribunal to satisfy it that HSKJ has adequately dealt with his psychological condition.  Nor is the Tribunal convinced that any rehabilitation programs undertaken will prevent further misconduct – noting, in particular, that HSKJ has failed to prove that he can successfully deal with his illicit drug use when not in prison and noting that, despite having completed rehabilitation programs whilst in prison in 2011, he continued to offend once released. 

5. Overall, the Tribunal finds that the protection of the Australian community is a consideration that weighs in favour of refusing to revoke the mandatory cancellation of HSKJ’s visa. 

6. Given the quite serious nature of the crimes committed by HSKJ and the very real prospect of future serious criminal offending, the Tribunal is also of the view that the Australian community would expect that HSKJ’s visa would remain cancelled.  While it is undoubtedly the case that the Australian community would feel much sympathy for HSKJ in relation to his experiences in Iraq and subsequent PTSD, any such sympathy would be outweighed by the quite legitimate disapproval of his criminal conduct.

7. There are considerations that weigh in favour of revocation of the decision to cancel HSKJ’s visa.  These include concerns in relation to Australia’s non-refoulement obligations.  The Tribunal finds that that HSKJ may face harm if returned to Iraq because, on his limited evidence, he assisted the US Military in Iraq.  

8. The Tribunal also finds that HSKJ has ties to the Australian community and that his mental health may suffer if he is returned to Iraq. 

9. These findings weigh in favour of revoking the decision to cancel HSKJ’s visa.  The Tribunal finds, however, that these countervailing considerations do not, on balance, outweigh the other primary considerations referred to above – considerations which are generally afforded greater weight.  On the evidence, there is no reason for the Tribunal to reject that approach here.

10. Overall, the Tribunal finds that having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No. 65 the correct and preferable decision is to refuse to revoke the cancellation of HSKJ’s visa. 

    DECISION

11. For the reasons outlined above, the decision under review is affirmed. 

I certify that the preceding 125 (one hundred and twenty five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.

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

Administrative Assistant - Legal

Dated: 19 October 2017

Date of hearing:	13 October 2017
Applicant:	In person
Representative for the Respondent:	Mr A Gerrard
Solicitors for the Respondent:	Australian Government Solicitor