HSKJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 3981

HSKJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3981 (30 November 2023)
Division:GENERAL DIVISION
File Number:2023/6445
Re:HSKJ
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

REASONS FOR DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:30 November 2023
Place:Perth

The following decision was made and given to the parties on 20 November 2023 with a note that written reasons would be provided within a reasonable time:
The Reviewable Decision, being the decision of a delegate of the Respondent dated 24 August 2023, is set aside and substituted with a decision that the cancellation of the Applicant's Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

These are the written reasons for my decision.
....................[Sgd]....................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – mandatory visa cancellation – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – substantial criminal record – offences include numerous offer to sell/supply a prohibited drug offences, aggravated burglary and breaches of family violence restraining orders – Applicant is a 33 year old citizen of Iraq who arrived in Australia as a 19 year old – Direction No 99 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – family violence – strength, nature and duration of ties to Australia – best interests of minor daughter whom the Applicant has not met – expectations of the Australian community – Applicant is the subject of a protection finding – legal consequences of the decision changed on the 84^th day that the Tribunal’s decision was due because the Applicant was released on a Bridging (Removal Pending) (subclass 070) visa – impact of the High Court’s orders in NZYQ on the legal consequences of the decision – extent of impediments if removed to Iraq – impact on victims – Reviewable Decision set aside and substituted
LEGISLATION
Family Law Act 1975 (Cth) ss 60CA, 60CC
Migration Act 1958 (Cth) ss 36(1C), 36(2)(a), 76B, 76C, 76D, 76DA, 189(1), 195A, 196, 197AB, 197D, 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)
Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth)
CASES
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
NZYQ v Minister for Immigration Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154 (S28/2023)
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), 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) paras 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(4), 6, 7, 7(2), 7(3), 8, 8(1), 8(2), 8(3), 8(4), 8(5), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(i), 8.1.1(1)(b), 8.1.1(1)(b)(ii), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.2(2), 8.2(2)(a), 8.2(3)(a), 8.2(3)(b), 8.2(3)(c), 8.2(3)(c)(i), 8.2(3)(c)(ii), 8.2(3)(c)(iii), 8.2(3)(d), 8.3, 8.3(1), 8.3(2), 8.3(3), 8.3(4), 8.4, 8.4(4), 8.4(4)(a), 8.4(4)(b), 8.4(4)(c), 8.3(4)(d), 8.4(4)(e), 8.4(4)(f), 8.4(4)(g), 8.4(4)(h), 8.5, 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 8.5(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.1.1, 9.1.1(1), 9.1.1(2), 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4(1)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
30 November 2023
BACKGROUND

The Applicant is a 33-year-old man who was born in Iraq. He arrived in Australia with his mother on 4 March 2010 (R1/88; R1/202) when he was 19 years old.
The Applicant started offending within months of arriving in Australia (R2/30), committing a string of offences, including “aggravated burglary and commit offence in dwelling” (five counts), “stealing” (two counts), “criminal damage”, “entered or is in the place of another person, without that other person’s consent, with intent to commit an offence”, “no authority to drive (fines suspended)” and “unauthorised driving by learner drivers”, for which he appeared in the Perth District Court on 15 August 2011 (R1/42-43).
He subsequently appeared in Court for sentencing 10 more times between 17 March 2015 and 4 February 2022.
On 25 January 2022, the Applicant was sentenced in the Perth District Court to a total term of two and a half years imprisonment comprising two 12-month cumulative terms, a six-month cumulative term, and numerous concurrent terms of imprisonment for 11 counts of “offer to sell/supply a prohibited drug to another (methylamphetamine)” (R1/52-53).
On 2 March 2022, the Applicant’s Class XB Subclass 200 Refugee visa (Visa) was mandatorily cancelled (Cancellation Decision) under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that he had a substantial criminal record and was serving a full-time custodial sentence of imprisonment (R1/203).
The letter advising the Applicant of the Cancellation Decision advised that he could make representations to seek revocation of the Cancellation Decision. The Applicant sought revocation of the Cancellation Decision in a request for revocation dated 8 March 2022, sent to the Department of Home Affairs (Department) by facsimile on 15 March 2022, together with a completed personal circumstances form (R1/81-100). The Applicant’s legal representative at that time made submissions on his behalf and submitted supporting documentation (R1/101-181).
However, on 24 August 2023, a delegate of the Minister decided not to exercise discretion under s 501CA(4) of the Migration Act to revoke the Cancellation Decision (R1/15). This is the Reviewable Decision in this application.
The Reviewable Decision, and documents required to accompany it, were sent to the Applicant’s legal representative by email on 28 August 2023 (R1/11). On 1 September 2023 the Applicant lodged an application seeking a review of the Reviewable Decision in the General Division of this Tribunal (R1/1-6). His application was therefore lodged within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84-day period started running from 28 August 2023, meaning that I must hand down a decision on or before 20 November 2023.
On the evening of Friday, 17 November 2023 the Applicant was granted a Bridging (Removal Pending) (subclass 070) visa (Bridging Visa) pursuant to amendments made to the Migration Act by the Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth) (Amending Act). I outline what occurred below under the heading, “The hearing and the evidence”, and discuss the implications of the grant of this Visa in the section below on the legal consequences of the decision.
ISSUES
The issues that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if he does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
THE HEARING AND THE EVIDENCE
This application was heard on 6 November 2023.
The Applicant was represented by Mr T Lettenmaier of counsel, instructed by Ms C Sim of Redlich’s Work Injury Lawyers. Both were representing the Applicant pro-bono. I sincerely thank them both for their pro-bono representation of the Applicant.
At the hearing of this application the Respondent was represented by Mr C Beetham of counsel, instructed by Mr J Papalia of The Australian Government Solicitor.
The hearing took place in person.
The Applicant gave evidence at the hearing.
Forensic psychiatrist Dr Nina Zimmerman also gave evidence by Microsoft Teams.
The Applicant’s former partner, D, who is now his friend, also gave evidence in person.
I admitted the following documents into evidence at the hearing:
(a)Applicant’s exhibit bundle, labelled 1-9, comprising pages 1-50 (Exhibit A1);
(b)G-Documents, labelled G1-G8, comprising pages 1-556 (Exhibit R1);
(c)Respondent’s Tender Bundle, labelled 1-3, comprising pages 1-150 (Exhibit R2); and
(d)Report of Dr Nina Zimmerman dated 9 January 2020 (Exhibit R3).
Prior to the hearing, the Respondent lodged a Statement of Facts, Issues and Contentions (SFIC) dated 2 October 2023 and the Applicant lodged a SFIC dated 24 October 2023.
This application was complicated by the orders made by the High Court in the matter of NZYQ v Minister for Immigration Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154 (S28/2023) (NZYQ), and a delay in receiving submissions from the Respondent about NZYQ which were not received until the decision due date of Monday 20 November 2023.
The application was further complicated by the Applicant’s release from immigration detention on the evening of Friday 17 November 2023. The Applicant’s solicitor found out about his release when the Applicant contacted her over the weekend. It was the Applicant’s representative who contacted the Tribunal early on the morning of 20 November 2023 to advise that the Applicant had been released and that she was seeking details from The Australian Government Solicitor (AGS) as to the circumstances. Additionally, the Department apparently did not advise AGS that the Applicant had been released on the Bridging Visa either.
I held a directions hearing by telephone on 20 November 2023 at 12.30pm AWST to ascertain the basis for the Applicant’s release. Mr K Sypott of AGS (who had taken over carriage of this matter from Mr Papalia at short notice) confirmed that the Applicant had been released pursuant to a Bridging Visa. Immediately after the directions hearing I received a copy of the Bridging Visa, a copy of a Protection Visa decision concerning the Applicant (which I refer to below) and the Respondent’s submissions on NZYQ. This was a less than ideal situation from a procedural fairness perspective because the Applicant had minimal time to prepare any submissions in response to the Respondent’s NZYQ submissions and the legal consequences created by the grant of the Bridging Visa.
I adjourned and reconvened at 3.30pm AWST when I heard oral submissions from the parties about the legal consequences of the decision.
The release of the Applicant from immigration detention was a significant change to the factual matrix of this application. If the Department had notified the parties and the Tribunal that it was considering granting the Applicant a Bridging Visa it would have allowed more time for the parties to be able to make submissions on the aspects of this application that were affected by the grant of that visa.
I thank the parties for their efforts in making comprehensive oral submissions on 20 November 2023 (regarding the legal consequences of the decision due to the grant of the Bridging Visa) after having minimal time to prepare them. I particularly acknowledge the efforts of the Applicant’s solicitor and counsel who had the least amount of time to prepare and who continued to act pro-bono for the Applicant.
LEGISLATIVE FRAMEWORK
Migration Act
Subsection 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
i. paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
…
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Subsection 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(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; or …
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
i.      a written notice that sets out the original decision; and
ii.     particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
i.      that the person passes the character test (as defined by section 501); or
ii.     that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 99
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 23 January 2023, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 99) under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA made on 8 March 2021 (Direction No 90).
Paragraph 5.1 of Direction No 99 sets out “[o]bjectives”, with paragraphs 5.1(3) and (4) being relevant to the current application:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(4)The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction No 99 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles 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 measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. 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 non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.

Informed by the principles set out in paragraph 5.2 of Direction No 99, when making a decision the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 99) must consider the primary considerations listed in paragraph 8 of Direction No 99, and the other considerations listed in paragraph 9 where relevant (see para 6 of Direction No 99).
Specifically, paragraph 8 of Direction No 99 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)       whether the conduct engaged in constituted family violence;
(3)       the strength, nature and duration of ties to Australia;
(4)       the best interests of minor children in Australia;
(5)       expectations of the Australian community.
Paragraph 9 of Direction No 99 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)        legal consequences of the decision;
b)        extent of impediments if removed;
c)        impact on victims;
d)        impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
The Applicant does not pass the character test due to the operation of s 501(6)(a) of the Migration Act because he has a “substantial criminal record” as defined by s 501(7) of the Migration Act, having been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act). This is due to the terms of imprisonment imposed by the Perth District Court for the 11 counts of “offer to sell/supply a prohibited drug to another (methylamphetamine)” which included two cumulative terms of 12 months and a cumulative term of six months as well as numerous concurrent terms (R1/52-53).
As the Applicant fails the character test, the statutory power to revoke will only be enlivened if there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
PRIMARY CONSIDERATIONS
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 99)
Paragraph 8.1(1) of Direction No 99 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No 99 then provides:
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 99)
Paragraph 8.1.1(1) of Direction No 99 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.      violent and/or sexual crimes;
ii.     crimes of a violent nature against women or children, regardless of the sentence imposed;
iii.    acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.      causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.     crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.    any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv.    where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal 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).
h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant has a Western Australian criminal history that is approximately seven and a half pages long (R2/84-91). His offences include:
·Breaches of court-imposed orders, namely seven “breached a family violence restraining order” offences and two “breach of ISO [intensive supervision order]” offences.
·11 “offer to sell/ supply a prohibited drug to another (methylamphetamine)” and numerous other drug possession offences.
·Two offences involving violence, namely “common assault in circumstances of aggravation or racial aggravation” and “assault with intent to prevent arrest of a person”.
·Dishonesty offences including “stealing”, “possession of stolen or unlawfully obtained property”, “steal motor vehicle”, “impersonating a public officer” and five “aggravated burglary and commit offence in dwelling” offences.
·Other offences that could be classified as dishonest or misleading namely, “attempt to pervert justice” and two offences of “accessory after the fact to an indictable (principal) offence” (Accessory offence).
·Property offences namely “criminal damage”, “entered or is in the place of another person, without that other person’s consent, with intent to commit an offence” (Trespass offence) and “unlicensed possession of dangerous goods”.
·Numerous driving/ traffic related offences including unlicensed driving, driving whilst suspended, driving with false number plates, driving with number plates not issued to a vehicle, two “reckless driving – inherently dangerous (to escape pursuit by police)” (Reckless Driving offences) and “driver failed to stop (circumstances of aggravation)” (Fail to Stop offence).
The Applicant’s national criminal history shows two New South Wales convictions on 31 August 2020 for “stalk/ intimidate intend fear physical etc harm (domestic)” (R1/42). Western Australia’s borders were closed for most of 2020 and the Applicant was on bail for drug charges and could not travel as part of his bail conditions (R1/125, para [6]). He was also in Western Australia for an appearance in the Magistrate’s Court on 15 July 2020 (R1/47) and was stealing a motor vehicle in Western Australia on 14 September 2020 (R2/87). It seems highly unlikely that he could have travelled to NSW during a period of travel restrictions and border closures during that short period of time, and that he would have had the opportunity to engage in stalking or intimidation in a domestic setting. I therefore accept that these convictions do not belong to the Applicant and have been included in his record by mistake.
Direction No 99 provides that certain categories of offences may be viewed as very serious, including “violent crimes” and “acts of family violence” (para 8.1.1(1)(a)(i) and (iii) of Direction No 99). The Applicant’s “common assault in circumstances of aggravation or racial aggravation” offence was an offence against K who is the mother of the Applicant’s minor child, A. There are no sentencing remarks or other evidence such as statements of material facts or a witness statement involving this offence. As such, I accept the Applicant’s evidence that this offence involved him slapping K on the forehead because he was upset that she was using drugs when she was pregnant. I discuss this offence in more detail in the section on family violence below. Although the conduct was a slap, it is nevertheless serious, although at the lower end of seriousness.
The Applicant also has seven breaches of a family violence restraining order (FVRO) protecting K. I discuss these breaches in more detail in the family violence consideration below. They did not involve violence. The Applicant did, however, make threatening comments to be conveyed to K to a third party to obtain photographs and to have contact with his minor daughter A. Breaches of FVROs are nevertheless serious because they are in place to protect victims of family violence from both physical and psychological harms.
Other categories of offences may be viewed as serious including crimes committed against government representatives or officials in the performance of their duties (para 8.1.1(1)(b)(ii) of Direction No 99). The Applicant has a conviction on 27 June 2016 for “assault with intent to prevent arrest of a person” committed on 15 May 2015. The sentencing remarks do not make it clear what this offence was, and the Applicant was not asked about it (R1/55,57). It is therefore unclear who was assaulted and whether this offence involved an assault on a public officer in the performance of their duties. I therefore cannot conclude that offence falls within this category. Nevertheless, an “assault” can be categorised as a violent offence and is inherently serious.
The Applicant has been convicted of numerous driving/ traffic related offences. These include reckless driving offences. The Tribunal has often regarded driving offences to be serious (see, for example, Zaya and Minister for Immigration and Border Protection [2017] AATA 366 at [54], per Deputy President Kendall, as His Honour then was). Reckless driving, the two Fail to Stop offences and driving whilst suspended or disqualified are serious because that type of conduct places innocent road users at risk. That observation is supported by the sentencing remarks from 27 June 2016 which refer to the Applicant having engaged in “a very serious pursuit in a stolen vehicle” where the Applicant drove “at very high speeds through busy roads and residential areas”. As well as driving at high speeds, the Applicant was also “contravening traffic signals” and reversed into a police car causing damage to it (R1/55).
The Applicant’s 11 convictions for “offer to sell/ supply a prohibited drug to another (methylamphetamine)” were the basis for the Cancellation Decision. Over a period of approximately two months the Applicant offered to sell varying quantities (between one gram for $1,100 to 14 grams for $8,500) of methylamphetamine to 10 different people (R1/46). The Tribunal has previously recognised the seriousness of drug trafficking (see, for example, Senior Member Cameron in SCJD and Minister for Home Affairs [2018] AATA 4020 at [81]–[83]). Distributing drugs into the community is serious due to the variety of harms they cause to the community. I explain these in more detail below in the section on “the nature of the harm”.
The Applicant has convictions for other offences which, by their nature, can be categorised as being less serious. They include property offences such as the possession of stolen property, the Trespass offence, criminal damage, and other general offences such as impersonating a public officer, unlicensed possession of dangerous goods, and driving with false number plates.
The Applicant has received “no punish[ment]” for two offences of “drove or permitted vehicle with false plate to be driven” (R1/533). He has received fines for many of his other driving/traffic offences which tends to indicate that they are less serious in nature. He received fines for some of his drug possession offences.
Some of his offending is, however, more serious, which is reflected in the lengthy terms of imprisonment imposed (para 8.1.1(1)(c) of Direction No 99). They include the following offences with the dates stated being the court dates. There were two errors in the Applicant’s criminal history regarding the prison terms imposed on 27 June 2016 and 25 January 2022. These errors involved cumulative sentences being incorrectly recorded as concurrent sentences (R2/ 85-86). I have therefore applied the sentences recorded in the sentencing Judge’s remarks which are the correct record:
·15 August 2011: A total term of three years imprisonment comprised of 15 months imprisonment for “aggravated burglary and commit offence in dwelling”; nine months cumulative imprisonment for the Trespass offence; and 12 months cumulative imprisonment for an Accessory offence as well as numerous concurrent terms of imprisonment for other offences including “stealing”, “criminal damage” and several other aggravated burglary offences (R1/66-67).
·17 June 2016: An eight-month sentence of imprisonment for “Breach of an ISO”, and another four-month concurrent term for the same. The Perth District Court had imposed the ISO that the Applicant was convicted of breaching on 17 March 2015 (R2/88).
·27 June 2016: A total term of two years imprisonment comprised of two six month cumulative sentences of imprisonment for “possession of prohibited drug with intent to sell or supply (methylamphetamine)” and for the Fail to Stop offence, and 12 months cumulative imprisonment for “steal motor vehicle and drive recklessly”, as well as numerous other concurrent sentences of imprisonment for the Reckless Driving offences, “assault to prevent arrest of a person” and two offences of “possession of stolen or unlawfully obtained property” (R1/58).
·25 January 2022: a total term of two and a half years imprisonment comprising two 12-month cumulative terms, a six-month cumulative term, and numerous concurrent terms of imprisonment for 11 offences of “offer to sell/ supply a prohibited drug to another (methylamphetamine)” (R1/53).
When sentencing the Applicant on 27 June 2016 for 12 offences, the sentencing judge remarked that some of the Applicant’s offences (five in total which included possession of methylamphetamine, possession of stolen property and dangerous goods and failing to stop his vehicle for police in circumstances of aggravation), which were committed on 26 and 27 May 2015, were “all the more serious” because the Applicant was on bail at the time, as well as being subject to an intensive supervision order (R1/55). I agree with this assessment because committing further offences whilst on bail and whilst subject to a supervision order displays a negligent or deliberate disregard for lawful authority.
The Applicant’s first traffic offence was committed on 11 November 2010 and his first criminal offence (“aggravated burglary and commit offence in dwelling”) was committed on 28 April 2010, just over a month after he arrived in Australia. His most recent offences of “breached a family violence restraining order” were committed in October 2021. During this period of approximately 11 years, the Applicant has committed 12 driving/traffic related offences and 45 criminal offences (R2/85-91). Consequently, his offending can be characterised as being frequent. There is no overall trend of increasing seriousness when the nature and progression of the offences are considered (para 8.1.1(1)(d) of Direction No 99).
The Applicant’s criminal history shows that he has appeared in court for sentencing on 11 occasions and he has been sentenced to two suspended imprisonment orders (on 17 March 2015), which he breached (R1/40-43). He has also served four custodial sentences of imprisonment. This would have placed some burden on the resources of police, corrective services, and the Courts. I therefore find that there is likely to have been a cumulative effect of the Applicant’s repeated offending (para 8.1.1(1)(e) of Direction No 99).
I am also required to consider whether the Applicant has provided false or misleading information to the Department, including not disclosing prior criminal offending (para 8.1.1(1)(f) of Direction No 99). There is no evidence of this before me.
Paragraph 8.1.1(1)(g) of Direction No 99, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. In January 2012, the Applicant was advised that his Visa was being considered for cancellation (R1/185). A decision was made on 7 May 2012 not to cancel his Visa and the Applicant was given a formal warning that “visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in the future”. The warning continued: “Disregard of this warning will weigh heavily against you if your case is reconsidered” (R1/182). He also signed to acknowledge receipt of the warning on 20 May 2012 (R1/184). The Applicant’s evidence was that he did not remember receiving this warning and that he was not aware of the rules in Australia and did not speak very much English at the time (transcript/53-54). I accept the evidence that the Applicant did not understand the warning because he has only recently learnt to read and write English.
The Applicant reoffended by committing numerous offences. As a result, his Visa was cancelled on 9 February 2017 (R1/194). After considering representations from the Applicant, a delegate decided not to revoke the cancellation decision on 26 July 2017 (R1/191). In October 2017, the Tribunal affirmed the delegate’s decision (First AAT Decision). The Applicant appealed to the Federal Court who quashed the First AAT Decision and remitted it to the Tribunal. The Tribunal, differently constituted, revoked the Cancellation decision of 9 February 2017 (Second AAT Decision). Despite these Tribunal proceedings and the Applicant’s visa cancellation being revoked, he continued to offend. The Applicant acknowledged these AAT proceedings and that he had been warned (transcript/54). He said that he did not he did not think he had an issue with drugs at that time. He said he felt good because he was in detention and thought that he would not take drugs again (transcript/59). Nevertheless, after these proceedings the Applicant would have understood the consequences of further offending could be Visa cancellation again.

There is no evidence that the Applicant has committed any offences in another country, and so I am not required to consider whether any such offence is an offence in Australia (para 8.1.1(1)(h) of Direction No 99).
The Applicant has a lengthy criminal history, ranging from less serious offences through to serious offences. Although there is no overall trend of increasing seriousness, there is a cumulative effect, and his offending is frequent. He was not deterred from further offending by fines, suspended imprisonment orders, and several terms of custodial imprisonment. He offended whilst on bail and whilst subject to an intensive supervision order. He even reoffended after the Second AAT Decision which revoked the cancellation of his Visa. The nature and seriousness of the Applicant’s conduct, when viewed as a whole, falls withing the serious category.
I therefore find that paragraph 8.1.1 of Direction No 99, the nature and seriousness of the conduct, weighs strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 99)
Paragraph 8.1.2(1) of Direction No 99 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 99 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen 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:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
Nature of the harm (para 8.1.2(2)(a) of Direction No 99)
Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or to the Australian community should he engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 99).
A primary purpose of road traffic and driving laws is the protection of road users. For example, prohibitions against driving whilst having no authority to drive or whilst suspended exist to ensure that persons driving cars are appropriately qualified and safe to do so. Prohibitions against driving unlicensed vehicles and vehicles with false plates are there to ensure that cars are roadworthy. Contraventions of these laws can result in serious consequences, including fatalities from road traffic accidents, as well as physical and psychological injuries to innocent road users. Reckless driving to escape pursuit by police is extremely dangerous conduct that places lives at risk. This was explained by the sentencing Judge on 27 June 2016 (R1/55):
It has been well documented, Mr [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 at risk, pursuing police at risk, and innocent members of the public at risk.
The nature of the harm if the Applicant were to commit further drug offences is varied. Drug offences are generally, less serious than violent offences. As Senior Member Cameron in SCJD and Minister for Home Affairs [2018] AATA 4020 at [81]–[83] outlined in detail, the prevalence of drugs in the community causes harm to the community on many levels, including drug related crimes such as violence and theft, increases in property and health insurance premiums, as well as mental and other health issues for drug users, and the negative impact that this can have on their families.
The Applicant also has seven convictions for “breached a family violence restraining order” (R2/84). Whilst, not as serious as offences involving physical violence, these types of offences can make victims fearful of their safety, and therefore such offending can have a negative psychological impact on victims. Restraining orders are in place to protect the safety of those protected, and so breaching them can cause psychological and even physical harms to victims, depending on the nature of the breach.
Offences against property, including those involving stealing and property damage can also result in financial detriment, and indirectly contribute to increased insurance premiums.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 99)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (sub-paras 8.1.2(2)(b)(i) and (ii) of Direction No 99).
The Applicant is a 33-year-old man who has a lengthy criminal history over a period of approximately 11 years. The Applicant continued to offend after receiving fines, two suspended imprisonment orders, and custodial prison sentences. He has reoffended whilst subject to the suspended imprisonment orders and whilst on bail. He also reoffended after previously having his Visa cancelled and after a previous Tribunal (in the Second AAT Decision) revoked that previous Cancellation decision. Overall, his history suggests that there is a likelihood of future reoffending.
The Applicant was released on parole on 20 June 2023 but as his Visa was cancelled, he has been in immigration detention since that time (R1/78-80). His sentence came to an end on 7 September 2023 while the Applicant was in immigration detention. A period of parole with conditions and supervision can help a person’s rehabilitation and reintegration into the community which may in turn lower the likelihood of reoffending. The Applicant is currently residing in the community pursuant to the Bridging Visa. The Bridging Visa contains mandatory conditions whereby the Applicant is monitored in the community. Those mandatory conditions appear to be for the protection of the community and are not rehabilitative in nature. For example, unlike the parole conditions (R1/79), the mandatory conditions do not include conditions such as random urinalysis for illicit substances and programs and counselling to address the Applicant’s treatment needs in the community. If I decide that there is another reason to revoke the Cancellation Decision, the Applicant will be in the Australian community without any conditions or supervision. He will not have the benefit of parole because his parole period has now expired.
I note, however, that in making the parole order the Prisoners’ Review Board (PRB) decided that the Applicant’s release would present an acceptable risk to the safety of the community. The PRB’s reasons included that his treatment needs could be better addressed in the community; he had engaged in voluntary substance abuse counselling which showed a motivation and willingness to change; that he was recently downgraded to placement in a minimum-security prison which demonstrated that he could comply with directions, and a viable parole plan with accommodation, prospective employment, and family support. The PRB imposed conditions on the Applicant which included not to use or be in possession of any illicit drug, not to leave the state without permission, undertaking urinalysis, attending programs and counselling as directed; engaging in employment, training or job seeking; and not to change address without prior approval. The PRB’s decision to release the Applicant suggests that the Applicant does impose some risk of reoffending, but that risk could be managed with supervision and conditions (including treatment) in the community.
The Applicant has a history of methylamphetamine use. Prior to his arrest in 2017, he was smoking methylamphetamine daily (R3/13). He said that when the Tribunal set aside the decision to revoke the cancellation of his Visa in 2017, he had spent several years in immigration detention and was struggling with his mental health. He stated that, when released, he did not have the family support he anticipated because his mother had travelled overseas. He said that he became mixed up with the wrong people and started using and selling drugs. The Applicant said that he met K, who is the mother of his daughter A, who was born in May 2021. K was also a drug user. His evidence was that he was not interested in K because he was homosexual, but she wanted a relationship with him which he agreed to because K supplied him with drugs (R1/124-126).
The Applicant told the previous Tribunal in 2020 that he had been influenced by the wrong people, that he had matured, and that he accepted responsibility for his wrongdoing (R1/540). On 12 February 2020, (in the Second AAT Decision) the Tribunal found in favour of the Applicant and revoked the cancellation of his Visa (R1/528). However, within a few months, by June 2020, the Applicant reoffended again by committing the 11 offences that resulted in the mandatory cancellation of his Visa on 2 March 2022 (R2/85-86). At the hearing of the application before me the Applicant said that things were different this time. He promised not to use drugs and not to offend again. He stated (transcript/64):
… it’s serious this time. This time, I've got a daughter, two years old. I'm getting old. I've had enough. I've had enough of my whole life.
On the one hand, it is difficult to accept the Applicant’s representations this time, when he previously made similar representations and yet used drugs and reoffended within months of the Tribunal deciding in his favour. However, on the other hand, the Applicant’s circumstances have now changed. After the Tribunal decision in 2020, he commenced the relationship with K, but he is no longer in a relationship with her. This will be protective because the relationship was a volatile one, marred with mutual drug use. Further, the Applicant now has a daughter and appeared to me to be genuine in his desire to be involved in his daughter A’s life and to be a positive role model to her. He described being a changed person since his daughter was born (R1/125). In June 2022, he filed an application in the Family Court for parenting orders so that he could have access to his daughter (R1/165-175).
The Applicant has not used drugs since he was arrested in June 2020 (R1/126). He was assessed by prison treatment assessors and recommended for participation in the Pathways drug and alcohol Program, but it was unavailable prior to his earliest date of release (R2/110). He did not return any positive drug tests while he was in prison between 2020 and 2023 (R1/160). To the Applicant’s credit, he has tried to access voluntary programs as follows.
·He has made enquiries with Holyoake, Relationships Australia, and Palmerston, to access counselling services and support, as well as with TAFE to enquire about literacy support (R1/161-164).
·Between 28 June 2022 and 2 February 2023, the Applicant attended trauma counselling with Blueknot (R1/159).
·On 6 January 2023 he self-referred to, and commenced, the Allied Drug and Alcohol Programs and Treatment (ADAPT) Through-care Counselling Service with Cyrenian House (R1/158) and had attended 13 sessions as at 8 September 2023 (A1/23). At the hearing the Applicant said that he was attending telephone counselling for two hours a week since he had been in immigration detention (transcript/38).
·He has a confirmed place in the Linkt Supportive Recovery Accommodation which is run by a doctor, clinical psychologist, psychiatrist, and psychotherapist. A letter from Linkt dated 30 May 2022 offering him a place describes the program as a specialist drug and alcohol program which offers safe accommodation and supervision, mental health monitoring, and emotional regulation to help clients settle into the community after incarceration. The letter confirmed that that the program will explore the Applicant’s underlying mental health issues that have caused his problematic behaviour (R1/156-157). An email from one of the program’s facilitators confirms that the program is based on the client’s individual needs and is trauma informed (A1/26).
·He has completed an eight week “Wellbeing Course” which he stated was related to domestic violence. However, as I discuss below under the “family violence” consideration the completion certificate does not refer to family or domestic violence and the program appears to be about communication and self-awareness (A1/27 and 29).
·At the hearing the Applicant said that he was currently undertaking a domestic violence course and that he had completed two sessions that were an hour and a half duration (transcript/18).
·At the hearing the Applicant also said that he intended to do parenting courses recommended by the Family Court (transcript/18).
The Applicant was able to reflect on his drug use and appreciated that he needed help in the community with his drug rehabilitation (transcript/18). The Applicant’s completion of voluntary courses and counselling show a willingness to address his underlying mental health issues, drug use and offending behaviour and to learn how to be a responsible parent to his daughter. So does his realisation that he needs continued support in the community to abstain from drugs, starting with residential rehabilitation. These are positive factors that are likely to reduce the likelihood of the Applicant using drugs again and reoffending. The period of abstinence from drugs that the Applicant has had in prison and immigration detention is also likely to assist him not to use drugs in the community.
The Applicant plans to complete his residential rehabilitation with Linkt. He will then live with his sister, her husband, and the Applicant’s two minor nephews. The Applicant described his sister and brother-in-law as having a “respected family” and that he was permitted to stay with them if he did not go out at night, did not bring anyone to the house (including K), if he did not get into trouble and if he obtained employment. This is likely to be a positive environment for the Applicant. The rules he will be subject to in his sister’s household are likely to assist him to reintegrate into the community, not to associate with negative peers, not to use drugs and not to reoffend.
The Applicant also plans to find employment and to resume his relationship with his former partner, D. D gave evidence at the Tribunal that he would also like to resume a relationship with the Applicant. D was very supportive of the Applicant and is willing to offer any support necessary to the Applicant if he is released into the community (R1/129-130). The Applicant hopes to live with D in the future (transcript/40-41). Having a supportive partner is also likely to assist the Applicant to reintegrate into the community, and not to reoffend.
I note that a report from Forensic Psychiatrist Dr Zimmermann dated 26 January 2023 stated that the Applicant is a moderate risk of violent offending, based on his history and the difficulties he faces. She opined that he was a high risk of future general reoffending because she had a “reasonable concern” that he may resume substance abuse (A1/19). However, Dr Zimmermann thought that the main risks were related to his drug use and stability in the community. She thought that the Applicant’s risk of reoffending would be reduced by a residential rehabilitation program, stable accommodation and employment, and that addressing past trauma may also assist (A1/19). The Applicant’s plans for when he is released into the community include these supports.
In summary, the following factors are not protective and suggest some likelihood of reoffending:
(a)The Applicant has a lengthy criminal history and has not been deterred by fines, intensive supervision orders, sentences of custodial imprisonment and the previous cancellation of his Visa. He has also offended whilst on bail and whilst subject to two intensive supervision orders.
(b)The Applicant has a history of methylamphetamine addiction. Despite representations made in previous Tribunal proceedings that he would not use drugs or reoffend again, the Applicant continued to use drugs and reoffended within months of the Tribunal deciding in his favour.
(c)His parole period has expired and so he will not have the benefit of parole supervision to assist with his reintegration and rehabilitation in the community. He is currently in the community on the Bridging Visa, but the conditions of that Visa are not aimed at rehabilitation.
(d)Dr Zimmermann assessed the Applicant as being a moderate risk of violent offending and a high risk of future general reoffending.
The following factors are protective and may reduce the likelihood of the Applicant reoffending:
(a)He has self-referred to and engaged with voluntary programs and counselling. He will attend residential rehabilitation in the community with Linkt where he has a confirmed placement. The Linkt program is a holistic program that will address trauma, drug use and the underlying causes of the Applicant’s drug use and offending.
(b)He has had a period of abstinence from drug use in prison and immigration detention which may assist him to stay drug free in the community, which may in turn reduce the likelihood of his reoffending.
(c)The Applicant now has a minor daughter. He wants to be a good father to her and has taken steps in the Family Court to obtain access orders.
(d)He has stable accommodation with his sister and brother-in-law who have laid out strict rules for him.
(e)The Applicant’s circumstances have changed. He is no longer in a negative relationship with K. He has a minor daughter. He has support from D, and he wants to resume a relationship with D and to live with him in the future.
(f)Dr Zimmermann stated that the Applicant’s risk of reoffending will be reduced if he engages in residential rehabilitation and has stable accommodation and employment, as well as addressing issues of trauma. The plans that the Applicant has made in the community address these factors.
Overall, after balancing the protective factors against those that suggest a likelihood of reoffending, I find that the Applicant is likely to be a moderate likelihood of general reoffending. Given that he has minimal violent offending in his criminal history, his likelihood of that type of reoffending is likely to be low.
After also considering the nature of the harm that could result if the Applicant reoffended, which ranges from less serious to very serious, overall, I find that paragraph 8.1.2 of Direction No 99, being the risk to the Australian community should the Applicant commit further offences, weighs moderately against the revocation of the Cancellation Decision.
Summary on para 8.1 of Direction No 99

I have found that paragraph 8.1.1 weighed strongly, and paragraph 8.1.2 weighed moderately against the revocation of the Cancellation Decision. Therefore, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs moderately to strongly against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 99)
Paragraph 8.2 of Direction No 99 requires decision-makers to have regard to family violence committed by the non-citizen:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
Family violence is defined in the interpretation section of Direction No 99 at paragraph 4(1), which provides, in part:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a)           an assault; or
b)           a sexual assault or other sexually abusive behaviour; or
c)           stalking; or
d)           repeated derogatory taunts; or
e)           intentionally damaging or destroying property; or
f)            intentionally causing death or injury to an animal; or
g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
j)unlawfully depriving the family member, or any member of the family member's family, or his or her liberty.
The following definition, in paragraph 4(1) of Direction No 99 is relevant:
member of person’s family, for the purpose of the definition of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.
Paragraph 8.2(2) of Direction No 99, stated above, sets out the circumstances where this primary consideration will be relevant. Firstly, it is relevant where the Applicant has been convicted of an offence, has been found guilty, or has had charges proven that involve family violence (para 8.2(2)(a)).
The Applicant has seven convictions for “breached a family violence restraining order”. These offences occurred on 18 October 2021, 21 October 2021, 25 October 2021 (two offences), 26 October 2021, 27 October 2021 and 28 October 2021 (R2/84). On 4 February 2022 the Magistrates Court imposed a global fine of $2100. The Family Violence Restraining Order (FVRO) protected both the Applicant’s former partner, K, who is the mother of his daughter.
The Applicant stated that K supplied him with drugs and that she wanted to be in a relationship with him. The Applicant stated that he did not want to be in a relationship with K but he “was caught up with her because of the drugs” (R1/124, para [3]). Nevertheless, K is a person who has had an intimate personal relationship with the Applicant and is therefore a member of the Applicant’s family (para 4(1) of Direction No 99).
According to the statement of material facts, the Applicant was served with a FVRO on 16 April 2021, which was due to expire on 12 April 2023 (R1/69-77). There is also another FVRO in place where the Applicant is the restrained person, protecting his daughter. That FVRO was served on 17 June 2021 and expires on 8 June 2024 (R1/69).
The breaches were of the FVRO protecting K. They included the Applicant making threatening telephone calls from prison to a permitted number and asking the person he contacted to communicate with K on his behalf. The Applicant’s evidence was that the telephone conversations did not involve direct contact with K and that the conversations mostly involved him trying to obtain photographs of his daughter from K and to arrange contact with his daughter (R1/125, para [5]).
There is one assault offence on the Applicant’s criminal history. It is an offence of “common assault in circumstances of aggravation or racial aggravation” committed on 3 April 2021, for which the Applicant was fined $6000 in the Perth Magistrates Court on 1 December 2021. In his statement dated 15 March 2023 (R1/124-125, paras [4]-[5]), the Applicant said that K was a “violent person” and that she had assaulted him on many occasions. He said that he only responded on this one occasion when he “slapped her [K] on the forehead to stop her from taking drugs when she was pregnant”. He said that he is “not a violent person”, immediately “regretted it” and “removed [himself] from the situation”. The Applicant’s explanation for what happened in Court was, “I pled guilty and when I went to court, the judge clarified that there were no bruises on K from the slap and as it was my first and only offence of this kind so she gave me a fine and no jail time”. The Applicant continued, “I regret that I physically harmed K and I would not do this again to anyone”. There were no sentencing remarks or a statement of material facts in the documents produced under summons from the Magistrates’ Court and so I accept the Applicant’s uncontested version of these events.
As I mentioned above in my analysis of the first primary consideration, I accept the Applicant’s evidence that the two New South Wales convictions on 31 August 2020 for “stalk/ intimidate intend fear physical etc harm (domestic)” do not belong to the Applicant and appear on his record by mistake. Western Australia’s borders were closed for most of 2020 due to the COVID-19 pandemic, and the Applicant was on bail for drug charges and could not travel as part of his bail convictions (R1/125, para [6]).
The seven convictions for “breached a family violence restraining order” occurred over a period of ten days (between 18 and 28 October 2021) and did not involve direct contact or actual violence. There is only one offence involving physical violence, the “common assault in circumstances of aggravation or racial aggravation” offence committed on 3 April 2021, where the Applicant slapped K. It therefore cannot be said that the offending is frequent, nor that there is a trend of increasing seriousness, nor a cumulative effect (para 8.2(3)(a), (b), and (c) of Direction No 99).
At the time of the seven restraining order breaches, the Applicant admitted that he did not know the charges were serious which is why he commented to police when he was arrested: “It’s [the restraining order] just a piece of paper” and “I wouldn’t care about a breach, it’s not indictable”. The Applicant pled guilty to the offences because he realised “it’s wrong” (R1/72; transcript/60). My impression of the Applicant’s evidence was that he took responsibility for the offending and understands now that it was wrong. I also note there has been no similar repeat offending (para 8.2(3)(c)(i) of Direction No 99).
The Applicant was not asked if he understood the impact that the offending may have had on K (para 8.2(3)(c)(ii) of Direction No 99).
In a supplementary statement dated 20 October 2023 (A1/27), the Applicant stated, “I undertook a Wellbeing Course related to domestic violence, which ran for 8 weeks. I have provided a copy of my certificate of completion”. However, the completion certificate does not mention domestic violence. It states that the course covered “effective communication and questioning skills, explore the science of mindset and behaviour change, personal growth and self-awareness” (A1/29). I therefore do not accept that this was a domestic violence course. However, it could be regarded as an attempt, in part, by the Applicant to address factors such as communication skills and consequential thinking which may have contributed to the Applicant’s conduct (para 8.2(3)(c)(iii) of Direction No 99).
The Applicant has not received any formal warnings about the consequences of further acts of family violence (para 8.2(3)(d) of Direction No 99).
After balancing the above considerations, I find that this primary consideration weighs slightly against the revocation of the Cancellation Decision.
The strength, nature and duration of ties to Australia (paras 8(3) and 8.3 of Direction No 99)
Paragraph 8.3(1) of Direction No 99 provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraphs 8.3(2) and (3) of Direction No 99 direct decision-makers to consider the non-citizen’s ties to any children, and the strength, duration, and nature of any family or social links to members of the Australian community who are citizens, permanent residents or who have an indefinite right to remain in Australia:
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Further, in paragraph 8.3(4) of Direction No 99, decision-makers are required to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. Specifically:
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)The length of time the non-citizen has resided in the Australian community, noting that:
•    considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
•    more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
•    less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant has a sister who lives in Western Australia and is an Australian citizen. His sister is married and has two children. The Applicant’s evidence was that he speaks with his sister, her husband, and the children on the telephone and that they have offered him accommodation with them after he has completed residential rehabilitation (R1/127, para [17]). The Applicant stated that he has a “good relationship” with his sister but that he has not told her that he is a homosexual “for cultural reasons” and because “it would damage the relationship” (A1/27). I do not have any evidence from the Applicant’s sister or brother-in-law before me. The Applicant’s sister may suffer some emotional detriment if the Applicant, who is her only sibling in Australia, is deported. I do not have information before me regarding the Applicant’s relationship with his brother-in-law, and there is consequently insufficient information to assess any impact on the Applicant’s brother-in-law. I have discussed the Applicant’s nephews, to the extent that was possible with the limited material concerning them before me, below in the section on the best interests of minor children.
Similarly, the Applicant has a two-year-old Australian daughter, A, and although the Applicant has not met her, I give significant weight to that relationship as a tie to Australia (para 8.3(2) of Direction No 99). I also discuss her best interests below in the section on the best interests of minor children.
A’s mother is K. As I explained above, she had a relationship with the Applicant which resulted in the birth of A. As I explained above in the section of family violence, K has taken out restraining orders against the Applicant, protecting herself and A. It therefore appears that K does not want to have a relationship with the Applicant and that she presently does not want A to have contact with him either. There may nevertheless be some impact on K if the Applicant is removed from Australia because it may impact on his ability to provide financial support for A, and to help K parent A in the future if that becomes a possibility. The duration of the Applicant being in the community under the Bridging Visa is unclear. It is a “pending removal” Visa, which contemplates that the Applicant may be removed to a third country. Thus, even if the Applicant can work and provide some financial support to K in the interim, there is doubt about whether any support could continue in the longer term if the Applicant is removed from Australia. I therefore find that there may be some practical and/ or financial detriment to K if the Cancellation Decision is not revoked.
The Applicant has submitted that I should consider the impact of an adverse decision on his mother who has some health issues. His mother came to Australia with him on 4 March 2010. She subsequently travelled to Saudi Arabia where she currently lives with the Applicant’s younger sister who helps to care for her. The Applicant stated that if he was able to stay in Australia his mother would return to live in Australia and he would be able to “offer [his] mother the support she needs” (R1/127, para [16]; transcript/15). The Applicant submitted that “if he were removed to Iraq then it is unlikely that they [his mother and sister] would see him again in Australia” (ASFIC, para [55(b)]). The Applicant will not be removed to Iraq for as long as he is owed protection and he is currently in the community as the holder of the Bridging Visa. I do not have any information about whether the Applicant’s mother will only come to Australia if the Cancellation Decision is revoked, or whether she will come to Australia now that the Applicant has a Bridging Visa and is in the community. It is also unclear whether the Applicant’s mother continues to have a right to remain in Australia permanently. Even if that is the case, I am uncertain about the extent of any detriment, if any, that the Applicant’s mother would suffer if she remained living in Saudi Arabia where she is being cared for by the Applicant’s sister. I accept that it would be easier for her to have regular contact with the Applicant if she is residing in Australia. Based on the information that I have, there is insufficient information before me upon which I can decide whether the Applicant’s mother will suffer any detriment because of a decision not to revoke the Cancellation Decision.
The Applicant’s former partner, D, submitted a statement in support of the Applicant being able to stay in Australia and gave evidence at the hearing (R1/129-130). D and the Applicant were previously in a year long relationship and they have remained close friends. D is willing to offer support to the Applicant to help him rebuild his life if the Applicant can stay in Australia. D and the Applicant hope to resume their relationship if the Applicant remains in Australia. As the Applicant is now in the community on a Bridging Visa, it may be possible for this relationship to resume. However, as I have stated, that visa is a “pending removal” visa and so he may be removed to a third country in the future. This may cause D some emotional detriment if the Applicant is removed from Australia.
The Applicant has also provided a letter from a friend, RC, dated 8 September 2023 (A1/24). RC states that she and the Applicant have been good friends for many years. I am uncertain what the impact on RC would be if the Applicant was not permitted to stay in Australia indefinitely, but her friendship is indicative of a tie to Australia.
The Applicant’s SFIC also mentioned other friends, AA, NP, KA and SX, who had provided written statements. These were not relied upon by the Applicant in these proceedings. When the Applicant was unrepresented, he put in statements from all these friends. My Associate sent a draft exhibit list to the parties including everything the Applicant submitted prior to being represented. The Applicant’s instructing solicitor stated that they only intended to rely on the “Applicant's exhibit bundle” and asked my Associate not to include everything the Applicant submitted prior to being represented. The Applicant’s counsel did not seek to refer or rely on these statements at the hearing. Consequently, these statements are not in the materials before me. However, as there is reference to these friends in the Applicant’s SFIC, and as the Respondent has had notice of the submission, I accept that the Applicant has friends in the community which are indicative of his ties to Australia.
The Applicant has lived in Australia for the last 13 years, since he was 19 years old. Although he arrived in Australia as an adult, this period comprises almost all his adult life. He was not, however, resident in Australia during his formative years and so less weight can be given to his time in Australia.
The Applicant has made some positive contributions to the Australian community, although they are somewhat diminished by his lengthy history of offending. He is assisting police as a witness in a homicide investigation which has placed his personal security at risk and resulted in his being kept in isolation in immigration detention (R1/176-181; A1/28). As of 20 October 2023, he had been in isolation for approximately 100 days (A1/27). I therefore regard this as a positive contribution and give it significant weight. The Applicant has also undertaken some work as a panel beater and smash repairer, but a substantial amount of his time in Australia has been spent in prison and immigration detention (transcript/34).

Further detail about the Australian community’s expectations with respect to certain types of conduct is given in paragraph 8.5(2) of Direction No 99. That paragraph states that the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.5(2)(a)–(f). Sub-paragraph 8.5(2)(a) refers to “acts of family violence”. As I discussed above, the Applicant was the restrained person in a domestic violence restraining order taken out by the mother of his minor daughter, K. He has breached that restraining order seven times, and was convicted of “common assault in circumstances of aggravation or racial aggravation” against K. However, as I discussed in the family violence section above, the restraining order breaches did not involve direct contact with K and the Applicant was trying to obtain photographs of his daughter and to have contact with her. The common assault offence was a slap to his pregnant partner’s forehead, which is nevertheless serious, but at the lower end of seriousness.
Paragraph 8.5(3) of Direction No 99 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Further, paragraph 8.5(4) of Direction No 99 tells decision-makers that this consideration is about the expectations of the Australian community as a whole. It directs decision-makers to proceed based on the Government’s articulated views without assessing the community’s expectations in the particular case. I therefore cannot speculate about what the community’s views might be about the Applicant.
The principle in paragraph 5.2(4) of Direction No 99 is, however, relevant. It provides that “Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.” The Applicant arrived in Australia as a 19-year-old adult approximately 13 years ago, during which time he has offended frequently and has served several sentences of imprisonment. He can therefore be regarded as having participated in and contributed to the community for a relatively short period of time.
I therefore find that the primary consideration in paragraph 8.5 of Direction No 99, being the expectations of the Australian community, weighs moderately against the revocation of the Cancellation Decision.
OTHER CONSIDERATIONS (PARA 9(1) OF DIRECTION NO 99)
As I outlined above, Direction No 99 directs decision-makers to have regard to a non-exhaustive list of several other considerations to the extent they are applicable.
Legal consequences of decision under section 501 or 501CA (para 9(1)(a) and 9.1 of Direction No 99)
I will first address relevant parts of the Direction before turning to the issues created by NZYQ and the Applicant’s release.
Paragraph 9.1 of Direction No 99 identifies the legal consequences that decision-makers must bear in mind when making a decision under s 501 or 501CA of the Migration Act.
Paragraph 9.1.1 of Direction No 99 is applicable in the Applicant’s circumstances because it contemplates the legal consequences of the decision where the non-citizen is covered by a protection finding.
The first sub-paragraph, 9.1.1(1), of Direction No 99, explains that if the non-citizen is covered by a protection finding, Australia’s non-refoulement obligations are engaged. It provides:
Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
On 6 February 2023, the Migration & Refugee Division of this Tribunal made a protection finding regarding the Applicant. The Tribunal remitted the matter for reconsideration with the direction that the Applicant satisfies s 36(2)(a) of the Migration Act (R1/150-151). In other words, the Applicant is a person to whom Australia owes protection obligations.
I note that the Applicant’s protection visa application was denied by a delegate on 19 September 2023 on the basis that he did not meet the criterion in ss 36(1C). The delegate found that 36(2C)(b) of the Migration Act applied (because the Applicant is a person who has been convicted by a final judgment of particularly serious crimes and is a danger to the Australian community) and therefore he does not satisfy the criterion in s 36(2)(aa) of the Migration Act. He has appealed this decision to this Tribunal, but his application has not yet been heard and determined. If the Applicant succeeds in that application, he will be granted a protection visa. If he does not, he will continue to remain in the community as the holder of the Bridging Visa for an indeterminate period.
As is stated in sub-paragraph 9.1.1(2) of Direction No 99, if I make an adverse decision in this application, Australia will not breach its non-refoulement obligations by removing the Applicant to Iraq. That sub-paragraph provides:
(2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(My emphasis.)
However, on 8 November 2023, the High Court made orders in the matter of NZYQ which casts doubt on the passage that I have highlighted in bold.
Although no reasons had been handed down by the High Court at the time of my decision on 20 November 2023, the Court’s orders indicated that indefinite detention, to the extent that it is authorised by s 189(1) and 196 of the Migration Act, is unconstitutional. The effect of the High Court’s orders is that the Applicant would not be detained indefinitely.
In short, the submissions I received from the Respondent on 20 November 2023 confirmed that if I affirm the Reviewable Decision, the Applicant will remain in the community on the Bridging Visa where he must comply with mandatory conditions. I have reviewed the mandatory conditions of the Applicant’s Bridging Visa. I am persuaded by Mr Lettenmaier’s submission that the mandatory conditions attached to the Applicant’s Bridging Visa are broadly expressed. For example, condition 8303 provides that:
The holder must not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community.
It is unclear what “activities disruptive to … the Australian community” would be.
Condition 8401 provides:
The holder must report:
(a)at a time or times and
(b)at a place
specified by the Minister for the purpose.
It is unclear what “the purpose” is.
Condition 8514 states, “During the visa period of the visa, there must be no material change in the circumstances on the basis of which it was granted”. The “circumstances” are not defined and it is unclear what a “material change” would be.
Condition 8562 provides:
(1) The holder must not take up employment in:
(a)occupations that involve the use of, or access to, weapons or explosives; or
(b) occupations of a similar kind.
(2) In this clause:
weapon means a thing made or adapted for use for inflicting bodily injury.
This broadly expressed condition could potentially result in an unintentional breach. It is unclear, for example, whether the Applicant could work in a kitchen where he would have access to knives. The Applicant previously worked as a panel beater and spray painter, but if the Applicant were to return to this type of work in a vehicle repair shop, he may have access to items such as crow bars or other implements that could be adapted or used for inflicting bodily injury.
In short, I accept that the conditions are broadly expressed and that there is a possibility that they could be inadvertently breached. In this regard, I note that the Applicant has only recently learnt to read and write English which may make it difficult for him to understand some of the mandatory conditions that he has to comply with.
A failure to comply with certain monitoring conditions attached to the Applicant’s Bridging Visa could result in a mandatory sentence of imprisonment of at least one year pursuant to s 76DA of the Migration Act. For example, he would face a one-year mandatory sentence of imprisonment if he breached condition 8401 (reporting at a specified time or place) because it is a monitoring condition under s 76B(4)(a)(ii) of the Migration Act, unless he could meet the evidential burden of establishing a reasonable excuse for the breach (s 76B(2) of the Migration Act).
I accept Mr Lettenmaier’s submission that, for the Applicant, the legal consequence of a decision to affirm is that the Applicant will remain in the community as the holder of the Bridging Visa whereby he is subject to broad (and in some instances unclear) mandatory conditions for an indeterminate period, with the prospect of a mandatory sentence of imprisonment if certain of those conditions are breached. For any breaches that do not attract imprisonment, the consequences are also uncertain, but appear to be that the Applicant’s Bridging Visa could be cancelled. Specifically, the letter dated 17 November 2023 advising the Applicant that he had been granted the Bridging Visa stated: “It is very important that you understand and abide by these visa conditions, as failure to do so may result in the cessation or cancellation of your visa”. However, the practical consequences of a Bridging Visa are unclear. For example, it is not known whether cancellation of the Bridging Visa would result in the Applicant being returned to immigration detention, and if so, for how long, or whether (given that indefinite detention is unlawful) he would be granted another Bridging Visa and remain in the community, perhaps subject to different mandatory conditions, or whether other options may result. The lack of clarity as to these consequences further adds to the uncertainty surrounding the Applicant’s situation.
The Bridging Visa is also a “pending removal” visa and so the Applicant will also be living in the community with the uncertainty that he may be considered for resettlement in a third country, together with uncertainty as to when that resettlement may happen, if at all. The possibility that he may be resettled in a third country at an indefinite point of time in the future may be emotionally difficult for the Applicant if he is able to commence a relationship with his minor daughter. I appreciate that, given the timing, the Applicant has not been able to put on any evidence about any mental health impacts of his release into the community on the Bridging Visa and the uncertainty associated with the Bridging Visa. This would have been relevant to my decision because the Applicant has a history of trauma, post-traumatic stress disorder, and self-harm. Given this history, it is likely there will be an impact on the Applicant’s mental health.
I also note that the letter dated 17 November 2023 advising him of his Bridging Visa states that, “In granting this visa, the Minister has indicated that they intend to reconsider your circumstances in 12 months time”. I agree with Mr Sypott’s submission that nothing can be read into that statement and that there are a wide range of options that the Minister may consider at that time. The range of options could potentially include the Minister considering whether to exercise his or her non-compellable powers under s 195A of the Migration Act to grant the Applicant a visa, or under s 197AB of the Migration Act to make a residence determination. They could also include whether the Applicant continues to be owed protection, to consider whether to grant him another type of visa, to revise the conditions of his Bridging Visa, or to consider or pursue whether he can be resettled in a third country. These potential options further the state of uncertainty as to what will happen to the Applicant in the future.
The Applicant, having been granted the Bridging Visa, is arguably in a better position residing in the community subject to broadly expressed mandatory conditions, that being held in immigration detention. However, the grant of the Bridging Visa means that, if I affirm the Reviewable Decision, the Applicant will be in the Australian community for an indeterminate period whilst being subject to these conditions, some of which, if breached, could result in a further term of imprisonment. He would also face uncertainty as to how long he will be able to stay in the community (until, for example, he can be resettled to a third country), which given his history of trauma, self-harm, and mental health issues may be onerous for the Applicant and has the potential to negatively impact his mental health.
Overall, I find that the legal consequences of this decision should weigh moderately in favour of revocation of the Cancellation Decision.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 99)
Paragraph 9.2(1) of Direction No 99 provides:
(1)Decision-makers must consider 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.
The Applicant is owed non-refoulement obligations and so he will not be returned to Iraq while those obligations continue.
The Applicant could be removed to Iraq if he makes a voluntary request to be removed. There is no evidence before me that the Applicant intends to make such a request.
I do note, however, that the Applicant could also be removed to Iraq in the future if a finding is made under s 197D of the Migration Act that he is no longer a person to whom a protection finding applies. The harm that the Applicant would face as a homosexual man in Iraq is likely to be a significant impediment if he was removed there.
The Applicant is 33 years of age. He has lived in Australia for the last 13 years since he was a 19-year-old adult.
As he departed Iraq as an adult, there are unlikely to be any substantial language or cultural barriers. However, he has no family or friends in Iraq who would be able to provide him with any social or other type of support if he was returned there. He would also likely suffer emotional detriment being separated from his family and friends in Australia, and because of not having the opportunity to meet his daughter and to become involved in her upbringing. As he is a homosexual man, he would face discrimination or having to hide his sexuality.
The Applicant has significant mental health issues. He has a history of trauma, having been exposed to life-threatening violence in Iraq as a young man, including being shot at, kidnapped, and assaulted (R3). He has previously been diagnosed with post-traumatic stress disorder and has self-harmed in the past. Dr Zimmerman stated in her report (A1, para [162]) dated 26 January 2023 that:
Reminders of trauma can cause relapses in PTSD and returning to Iraq is likely to trigger a significant deterioration in his mental health. The dearth of mental health practitioners in Iraq mean that he is unlikely to access the help that he may be requiring. Given evidence that he engages in self-harming and suicidal behaviour when his mental state deteriorates, there is a risk of this occurring if he is returned to the country where his initial trauma was experienced.
I accept Dr Zimmerman’s evidence and find that the Applicant’s mental health issues and the insufficiency of mental health help in Iraq are likely to be significant impediments if he was returned there.
I do not have any evidence about any economic support that would be available to the Applicant in Iraq, although I note that he has worked as a panel beater and spray painter (R1/107).
Overall, I find that there would be significant impediments to the Applicant being able to establish himself and to maintain basic living standards if he were returned to Iraq. However, as stated, it is most unlikely he will be returned to Iraq due to his being the subject of a protection finding. Therefore, I find that this consideration weighs slightly in favour of revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 99)
Paragraph 9.3(1) of Direction No 99 provides that:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), or on any victims of any of the Applicant’s offences, including K, who is the mother of his daughter and was the protected person in the restraining orders the Applicant breached.
Consequently, I give this other consideration neutral weight.
Impact on Australian business interests (paras 9(1)(d) and 9.4 of Direction No 99)
Paragraph 9.4(1) of Direction No 99 states that decision-makers should consider the impact of a decision whereby the Applicant is not allowed to remain in Australia on any business interests. It provides:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before me and is therefore not relevant.
THE WEIGHING EXERCISE
The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 99.
For the reasons set out above, I made the following findings about the relevant primary considerations in Direction No 99. These were:
(a)The protection of the Australian community from criminal or other serious conduct primary consideration weighed moderately to strongly against the revocation of the Cancellation Decision.
(b)The family violence primary consideration weighed slightly against the revocation of the Cancellation Decision.
(c)The strength, nature, and duration of the Applicant’s ties to Australia weighed moderately in favour of the revocation of the Cancellation Decision.
(d)The best interests of the Applicant’s two-year-old daughter weighed very strongly in favour of the revocation of the Cancellation Decision. The best interests of the Applicant’s minor nephews, weighed slightly in favour.
(e)The expectations of the Australian community weighed moderately against the revocation of the Cancellation Decision.

I made the following findings with respect to the other considerations that were relevant. These were:
(a)The legal consequences of the decision weighed moderately in favour of the revocation of the Cancellation Decision.
(b)The extent of impediments if removed weighed slightly in favour of revocation of the Cancellation Decision.
(c)I gave neutral weight to the impact on victims consideration.
I have weighed the primary and other considerations against each other and after doing so, I am satisfied that the weight I have assigned to each of them above is appropriate.
Although primary considerations are generally to be given greater weight, they are not hierarchical and other considerations can outweigh primary considerations (para 7(2) and (3) of Direction No 99).
Overall, I find that the primary and other considerations that weighed in favour of the revocation of the Cancellation Decision, slightly outweighed those against revocation. The considerations that weighed in favour of revocation were the primary considerations of the strength, nature and duration of the Applicant’s ties to Australia (which weighed moderately) and the best interests of the Applicant’s daughter, A, (which weighed very strongly), and the other consideration of the legal consequences of the decision (which weighed moderately). The extent of impediments if the Applicant was removed to Iraq other consideration and the best interests of the Applicant’s minor nephews primary consideration, which both weighed slightly in favour of revocation of the Cancellation Decision, further added to the overall weighing exercise being in the Applicant’s favour.
This has been a complex weighing exercise for me as a decision-maker because the primary and other considerations for and against revocation of the Cancellation Decision are closely balanced. This is evident from a comparison of the above considerations in favour, against those against revocation of the Cancellation Decision. Those against revocation were the primary considerations of the protection of the Australian community (which weighed moderately to strongly), family violence (which weighed slightly), and the expectations of the Australian community (which weighed moderately).
The factor that was, in the end, determinative in the balancing exercise, was the best interests of the Applicant’s two-year-old daughter who would be deprived of the opportunity of being able to know her father if the Reviewable Decision was affirmed. The child is in a vulnerable position due to her young age and her mother’s drug use and faces the likelihood of an uncertain and unstable future without the presence of the Applicant in Australia.
In summary, I am satisfied that there is another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 24 August 2023, is set aside and substituted with a decision that the cancellation of the Applicant's Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 207 (two hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

.......................[Sgd]...........................................
Associate
Dated: 30 November 2023

Date of hearing: 6 November 2023

Representative for the Applicant: Mr T Lettenmaier, instructed by Ms C Sim of Redlich’s Work Injury Lawyers

Representative for the Respondent:

Mr C Beetham, instructed by Mr J Papalia of The Australian Government Solicitor

Date of hearing:	6 November 2023
Representative for the Applicant:	Mr T Lettenmaier, instructed by Ms C Sim of Redlich’s Work Injury Lawyers
Representative for the Respondent:	Mr C Beetham, instructed by Mr J Papalia of The Australian Government Solicitor