HSKJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 176

HSKJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 176 (12 February 2020)

Division:GENERAL DIVISION

File Number(s):2017/4728      

Re:HSKJ  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Britten-Jones

Date:12 February 2020

Place:Adelaide

The delegate’s decision of 26 July 2017 is set aside.

In substitution for the 26 July 2017 decision, the 9 February 2017 decision to cancel the applicant’s Class XB Subclass 200 (Refugee) visa is revoked.

.............[Sgnd]..........................

Deputy President Britten-Jones

Catchwords

MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record –- whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – non-refoulement obligations –strength, nature and duration of ties – extent of impediments if removed - other considerations outweigh the primary considerations – decision set aside

Legislation

Migration Act 1958 (Cth)

Cases

BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gasper v Minister for Immigration and Border Protection [2016] FCA 1166
Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018

REASONS FOR DECISION

Deputy President Britten-Jones

1. This is an application for review of a decision of a delegate of the respondent not to revoke a mandatory cancellation of the applicant’s visa under s 501(3A) of the Migration Act 1958 (the Act).

   THE DECISION TO CANCEL THE VISA

2. On 9 February 2017, the applicant’s Class XB Subclass 200 (Refugee) visa (the visa) was cancelled by a delegate of the Minister for Home Affairs under s 501(3A) of the Migration Act 1958 (the Act). The visa was mandatorily cancelled (the cancellation decision) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment.

3. On 13 February 2017, the applicant made representations seeking revocation of the cancellation decision.

4. On 26 July 2017, a delegate of the respondent decided not to revoke the cancellation decision.  That decision was affirmed by the Administrative Appeals Tribunal (AAT) in October 2017 (the 2017 AAT decision). The 2017 AAT decision was quashed by the Federal Court on 4 December 2018 and remitted to the AAT.  The Federal Court found that the Tribunal fell into jurisdictional error by failing to consider the impact of the applicant’s removal on his sisters.

5. On 23 May 2018, while the applicant’s Federal Court matter was pending, he applied for an Onshore Protection Visa (Class XA, subclass 866) (the protection visa).  The protection visa application was refused on 18 September 2019, and on 1 October 2019, the Migration and Refugee Division of the AAT affirmed the decision not to grant the applicant a protection visa (the MRD decision).

   EVIDENCE

6. The applicant relied upon the material provided to the AAT for the hearing in 2017 together with further material including; a statement by the applicant, dated 8 January 2020 and several statements from family and friends, a ‘Risk Assessment and Psychiatric Report’ from Dr N Zimmerman, updated country reports on Iraq, relevant applicant correspondence and other materials which were attached to the applicants ‘Further Reply to the Minister’s Statement of Facts, Issues and Contentions.’

7. The respondent also provided additional material, which included client incident reports in immigration detention, a Health Transfer Summary, Mental Health Assessments, a letter sent to the applicant from Border Force and an ‘Agreed Bundle’ of documents which incorporated the Appeal book filed in the Federal Court of Australia.

   BACKGROUND

8. I make the following findings of fact based upon the evidence before me.

9. The applicant is an Iraqi citizen who was born in Baghdad in 1990. His mother was a teacher and his father worked with the local council. His father was abusive to him and his mother. His parents separated when he was young. In around 2003, when he was 13 years old, he left Baghdad with his mother and two sisters.  They travelled to Jordan where they stayed for about 3 years. Whilst in Jordan he visited Baghdad and was abducted by Sunni extremists. They bashed him in the face with the butt of an AK-47 breaking bones and teeth and rendering him unconscious. They thought he was a Shia because of his name.  They demanded a ransom. He was released 18 hours later upon payment of the ransom.

10. In June 2007 the applicant and his family moved to Turkey to seek asylum and lived in a refugee camp.  The applicant decided to return to Baghdad to work so as to provide money for his family. He gave evidence that he worked in the Green Zone for a western company providing services to the US Army and that he escorted food supplies and occasionally acted as an interpreter on an informal basis. He lived in the Green zone and witnessed a lot of violence whilst there. He suffered an injury when he was shot in the leg. He returned to Turkey less than one year later.

11. The members of his family were eventually granted refugee status, and on 4 March 2010 the applicant, his mother and one of his sisters arrived as refugees in Australia. 

12. He arrived in Australia as a 19-year-old and felt lost due to the extreme change of environment and his poor English skills. He admits now that he fell in with the wrong crowd and soon became involved with their criminal activities. His first period of imprisonment commenced on 23 November 2010 after his involvement in numerous burglaries, driving offences and a mugging. He was released on parole in May 2012. He secured employment as a panel beater for the next three years.  He committed one offence in July 2013 but otherwise stayed out of trouble until a period when he started taking drugs and went on a “crime spree” from early May 2015. His second period of imprisonment began on 28 May 2015. He was in prison for about two and a half years and then placed into immigration detention where he remains.

    ISSUES BEFORE THE TRIBUNAL

13. The applicant does not pass the character test prescribed under s 501(6)(a) of the Act as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has “a substantial criminal record” as defined under s 501(7) of the Act. The applicant concedes the same. Therefore, the applicant cannot rely on s 501CA(4)(b)(i) of the Act in order to have the mandatory visa cancellation revoked.

14. The only issue for the Tribunal to determine is whether having regard to Ministerial Direction No. 79 (Direction 79) there is another reason why the cancellation decision should be revoked. Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must decide to revoke the decision.[1]

    [1] Gasper v Minister for Immigration and Border Protection [2016] FCA 1166 at [38].

    THE OFFENDING

15. The National Police Certificate recorded the following offences:

Court	Court Date	Offence		Court Result
Perth Magistrates Court	27.06.2016	Possession of a prohibited drug with intent to sell or supply (methylamphetamine)		imprisonment: 6 months cumulative from 27-Jun-2016
Reckless driving inherently dangerous (to escape pursuit by police)		imprisonment: 12 months – concurrent
Reckless driving inherently dangerous (to escape pursuit by police)		imprisonment: 12 months – concurrent
Driver failed to stop (circumstance of aggravation)		imprisonment: 6 months cumulative from 27 Jun 2016 – cumulative; mdl disqualified 2 years – concurrent
Driver failed to stop (circumstance of aggravation)		imprisonment: 6 months cumulative from 27 Jun 2016 – cumulative; mdl disqualified 2 years – concurrent
Possession of stolen or unlawfully obtained property		imprisonment: 1 months – concurrent
Possession of stolen or unlawfully obtained property		imprisonment: 3 months concurrent from 27-Jun-2016
Assault with intent to prevent arrest of a person		imprisonment: 12 months – concurrent
Steal motor vehicle and drive recklessly		imprisonment: 12 months – concurrent
Drove or permitted vehicle with false plate to be driven		no punish s 46
Drove or permitted vehicle with false plate to be driven		no punish s 46
Used an unlicensed vehicle		fine $100
Perth District Court of Western Australia		17.06.2016	Breach of iso (order of 17.03.15)	imprisonment: 8 months
Breach of iso (order of 17.03.15)	imprisonment: 4 months
Perth Magistrates Court		30.12.2015	Unlicensed possession of dangerous goods; Possession of stolen or unlawfully obtained property;	$900 $300
Perth Magistrates Court		07.04.2015	Unlicensed vehicle (not owner) No authority to drive Drove vehicle with number plate not issued to that vehicle	fine $200 fine $250
Perth District Court of Western Australia		17.03.2015	Impersonating a public office Attempt to pervert justice	intensive supervision order: 18 months intensive supervision order: 18 months

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

16.It is apparent from his history of offending that there were two significant periods during which the applicant committed offences, namely; soon after arriving in March 2010 up until he was imprisoned in November 2010 and then again during the month of May 2015. In between these two periods he committed the offence of impersonating a public officer on 5 July 2013.

17.With respect to the first series of offences, the applicant pleaded guilty and was sentenced on 15 August 2011. The applicant said that he got involved with the wrong crowd of people who asked him to drive them around whilst committing various crimes. The applicant told the sentencing Judge he felt pressured to participate in these criminal offences because his sister had rejected an offer of marriage from another Iraqi family, who then demanded that he participate with them in their criminal activities. The sentencing Judge, not surprisingly, considered that reaction to be quite unreasonable.

18.These offences included aggravated burglary, being an accessory after the fact to a robbery, stealing, criminal damage, and unauthorised driving. One offence involved the applicant gaining entry to a home and being disturbed by the home owner. In another offence the victim was mugged and robbed and it was the applicant who drove from the scene knowing that the robbery had taken place. Another offence involved stealing money from a taxi driver and smashing his window. Again, the applicant was not directly involved in the robbery, but he was aware of what was taking place and drove the offenders away.

19.The sentencing Judge noted that the applicant fully cooperated with the police and provided them with information, which resulted in further charges being laid against him, but the Judge concluded that a period of imprisonment was warranted due to “the serious nature of this offending, the period of time within which the offending continued and the criminality displayed in the offending.” Consequently, a three year term of imprisonment was imposed with eligibility for parole after 18 months.

20.With respect to the second series of offences, the applicant pleaded guilty and was sentenced in the Perth Magistrates Court on 27 June 2016. The applicant said that these offences were committed during a period of five months when he took a lot of drugs including methamphetamines. The offending included two police pursuits on 4 May and 15 May 2015 when the applicant drove a stolen vehicle at very high speeds through busy roads and residential areas. During the second pursuit the applicant caused damage to a police car, and he was found in possession of a number of allegedly stolen items and some quantities of drugs. He was released on bail but further offended on 26 and 27 May 2015. The sentencing Magistrate considered the offences were “a very serious matter” aggravated by the fact that the applicant reoffended whilst on bail.  The applicant was sentenced to a further two years of imprisonment.

21.In between these two series of offences the applicant was charged with impersonating a police officer and attempting to pervert the course of justice. These offences took place on 5 July 2013 and the applicant pleaded guilty to them. He was sentenced to an 18 month intensive supervision order, which he breached by committing the second series of offences. The applicant explained his offending as getting involved as a mediator with respect to two friends who were having an argument and trying to fix it in a way that was acceptable in Arabic culture. He accepts now that he should not have done it.

22.The respondent also relies upon the further conduct of the applicant as evidenced by a report of incidents while in immigration detention.

LEGISLATIVE FRAMEWORK

23.Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if:

(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and

(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

24.The character test referred to in (3A) is outlined in s 501(6) of the Act. Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)).

25.For the purposes of subsection (6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[2]

[2] Migration Act 1958 (Cth) s 501(7)(c).

26.Where a visa has been cancelled under s 501(3A), the Minister has a power to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked.[3] The discretion to revoke the cancellation on the grounds that ‘the Minister is satisfied that there is another reason why the original decision should be revoked’ is a broad one.

[3] Ibid s 501CA(4).

27.Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.

IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?

28.When considering whether to revoke the delegate’s decision, the Tribunal must have regard to Direction 79. The objective of Direction 79 is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[4]

[4] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018) at 6.1.

29.The guiding principles in Direction 79 that the Tribunal must apply in determining whether or not to revoke a visa cancellation include:

·Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia bearing in mind that being allowed to remain in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law abiding.

·The Australian community expects that the Australian Government can and should cancel a non-citizen’s visa if they commit serious crimes in Australia or elsewhere.

·A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to have to forfeit the privilege of staying in Australia.

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

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

30.Keeping those guiding principles in mind, I turn my mind to the primary considerations and other considerations set out in Part C of Direction 79:

·Primary considerations:

oProtection of the Australian community

oThe best interests of minor children in Australia

oExpectations of the Australian community

·Other considerations include (but are not limited to):

oInternational non-refoulement obligations

oStrength, nature and duration of ties

oImpact on Australian business interests

oImpact on victims

oExtent of impediments if removed

Protection of the Australian community – 13.1 of Direction 79

31.When considering the protection of the Australian community, I have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity. I give consideration to:

·the nature and seriousness of the non-citizen’s conduct to date; and

·the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The nature and seriousness of the offending

32.The offending by the applicant was serious as reflected by the sentences of imprisonment imposed by the Courts. I note that the applicant was formally warned in May 2012 that his visa may be cancelled, but he went on to commit further offences in July 2013 and in May 2015. Some of the offending involved violence although not perpetrated directly by the applicant. I note that most of the offending by the applicant was not violent and was not directed towards women, children or those less vulnerable in the community. There were numerous victims including those whose homes were broken into, the woman who was mugged and had her bag stolen, the taxi driver whose window was smashed and who was robbed and the person whose car was stolen. No doubt the impact on these victims was significant. The offences of reckless driving whilst fleeing the police were very serious and resulted in property damage and could have resulted in casualties. They also showed a complete disrespect towards the police. I take into account the cumulative effect of this repeated offending over a 5 year period. Although concentrated in two significant periods, the offending was frequent and continued after warnings from the judiciary and from the respondent.

The risk to the Australian community of further offending

33.In considering whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, I have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I also have regard to:

·the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and

·the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.

34.In considering the risk to the Australian community, I must have regard to cumulatively; the nature of the harm should the applicant reoffend and the likelihood of the applicant engaging in criminal or other serious conduct. In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[5] Her Honour states that to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.

[5] (2014) 225 FCR 424.

35.If the applicant were to engage in further similar offending, then the resulting harm would be serious. The applicant was a knowing and willing participant in home invasions, a mugging and other stealing offences. Driving at high speeds whilst pursued by police is both reckless and harmful to the community. These are serious offences, but the applicant was not violent, so the nature of the harm is at the lower end of the scale.

36.The applicant says that his time out of the community has taught him a lesson and that he will not reoffend. He says that the first series of offences occurred when he was young and feeling lost having just arrived as a refugee and having got involved with the wrong people. He says that the second series of offences were drug induced and again he was influenced by the wrong people. He has now had time to mature and to reflect on what is important to him. He accepts responsibility for his wrongdoing. Whilst in prison, the applicant undertook numerous rehabilitative courses. He has the support of his mother and sister if he is released. His mother says that the applicant has grown and matured in the time that he has been outside of the community. She says that he is very different now and that he listens more and is prepared to help other people.

37.An individual management plan dated 14 December 2016 by the Director of Sentence Management for the Department of Corrective Services Western Australia noted that the applicant was a low risk of violent offending and did not require rehabilitation in that regard and that he posed a low risk of addiction offending.

38.With respect to the risk of re-offending, I also have the benefit of an expert report and oral testimony from Dr Zimmerman, a forensic psychiatrist with 30 years of experience. Her report, dated 9 January 2020, is very comprehensive. She met with the applicant and was provided with a large volume of material relevant to the issues of his mental health and likelihood of recidivism.

39.Dr Zimmerman concluded in her report that the applicant has a low risk of future violent offending. In her oral evidence, she confirmed that this low risk applied to other more general offending. She noted that the applicant planned to return to his previous employment and to reside with his mother which would assist in further reducing the risk of future offending. She further noted that the applicant’s history of violent offending is limited, that he has been free of drugs for a number of years and was compliant in the prison system such that he was deemed a low risk of violent offending and was recommended for a minimum secure prison environment. She considered that the applicant had demonstrated good insight into the link between his substance misuse and his offending.

40.Dr Zimmerman was cross-examined about a cluster of verbal abusive incidents in 2018 and 2019 whilst in detention. She noted that this verbal abuse towards staff in detention was in stark contrast to the applicant’s behaviour whilst in prison. She was also cross-examined about his self-harm and threats of self-harm whilst in detention. She considered that this arose because of the situation he was in, which exacerbated his mental health issues. I have taken these incidents into account but consider that they do not materially increase the risk of re-offending.

41.I accept the opinions expressed by Dr Zimmerman and conclude that the likelihood of the applicant engaging in further criminal conduct is low.

42.It is encouraging that whilst in prison the applicant completed a medium intensity program over a period of approximately 185 hours from October 2016 to February 2017. The completion report noted that the applicant participated in group discussions without the need for prompting and that he was respectful to other participants and facilitators with whom he built a rapport. The report made the following summary and recommendations:

[The applicant] was initially assessed to complete the Medium Intensity Program to gain insight into his previous substance use, impulsivity, negative peer influences, pro-criminal thinking, and emotional management. [The applicant] demonstrated gains increasing his awareness into his previous substance use, managing his impulses, awareness of negative peer influences, and partial gains in pro-criminal attitude and emotional management.

[The applicant] has identified that he enjoys being busy and intends to work six days a week. During his spare time, [the applicant] intends to spend time with his family, continue with his education and volunteer for the Breast Cancer Council. [The applicant] stated that he intends to continue getting counselling to address his PTSD.

43.It is also encouraging that if the applicant were released he would be able to live with his mother and receive support from her and his sister so as to provide stability and assistance to him.

44.Having regard cumulatively to the low risk of further offending and the predominantly non-violent nature of the harm should the applicant reoffend, I consider that there is a relatively low risk to the Australian community. It is certainly not an unacceptable risk.  Nevertheless, a risk remains and therefore I conclude that the protection of the Australian people is a factor that weighs in favour of non-revocation of the cancellation decision.

The best interests of minor children in Australia – 13.2 of Direction 79

45.In making a determination about the revocation of a visa cancellation, I must take into consideration the best interests of any children in Australia that are under the age of 18 years. Each child’s interests are to be considered individually to the extent that their interests may differ.

46.The following factors that I must consider and are relevant to this application include:

·the nature and duration of the relationship between the child and the applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;

·the extent to which the applicant is likely to play a positive parental role in the future;

·the impact of the applicant’s prior conduct and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

·the likely effect that any separation from the applicant would have on a child taking into account ability to maintain contact in other ways;

·whether there are other persons who already fulfil a parental role in relation to the child; and

·any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).

47.The applicant has two nephews, one from each of his sisters. In his written statement the applicant said:

I am still very close with my mum. She comes and visits me every second day in detention in Perth. My… [older sister]  has also visited me with her son... I also speak regularly to my… [younger sister]… and her son on the phone. I want to have a normal family relationship with them again. I want to be able to visit my sisters and spend time with them and their children.

48.The applicant’s younger sister lives in Saudi Arabia with her husband and 2 year old son. In her written statement she says they will move back to Australia to be with the family at some point. The applicant speaks to his younger sister’s son on Facetime and they have developed a relationship, but they have never met in person. She wants her son to continue with that relationship as he grows up.

49.The applicant’s older sister lives in Perth with her husband and 4 year old son. In her statement she says she has one son and is pregnant, and that she wishes the applicant to be available for them as her son loves the applicant very much, and he is upset and always asking why his uncle is not with them. The relationship of the applicant with his two nephews is very limited given their age and that they were both born while the applicant was in prison or in detention. There was no existing relationship with these children before the applicant was imprisoned. There has been limited meaningful contact mostly by Facetime although it is noted that one nephew has visited the applicant whilst in detention. The relationship with the applicant is non-parental and it would appear that both nephews have a mother and father playing a parental role. I do accept that the applicant is likely to play a positive role as an uncle in the future if he were to be released.

50.I note that one of the nephews lives in Saudi Arabia but that may only be a temporary arrangement, so I am prepared to take his interest into account together with the other nephew who lives in Perth. It would be in the best interests of the two nephews for the cancellation decision to be revoked but given the limited relationship with the applicant and the parental support being provided to the children currently, this is a factor to which I give very little weight.

Expectations of the Australian community – 13.3 of Direction 79

51.In YNQY v Minister for Immigration and Border Protection,[6] Mortimer J held that the expectations of the Australian community were inextricably linked to the other primary consideration about the protection of the Australian community, and that the expectations referred to in Direction 79 were those espoused in clause 13.3(1) rather than any objective expectations put forward by an applicant. This position has been affirmed by the Full Court of the Federal Court in FYBRv Minister for Home Affairs.[7]

[6] [2017] FCA 1466.

[7] [2019] FCAFC 185.

52.In exercising my discretion, I am also informed by the principle at paragraph 6.3(1) of Direction 79 that:

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.

53.The Australian community expects non-citizens to obey Australian laws while in Australia. This expectation has not been met with respect to the applicant in the past. The applicant has breached the trust that the Australian community placed in him. The applicant has also shown a disregard for authority by his negative interactions with the police and his offending whilst on bail. On the other hand, I take into account that for much of the time between the two series of offences the applicant held a steady job as a panel beater and was thereby making a positive contribution to the Australian community. A reference from his employer dated 5 August 2015 described the applicant as a dedicated, skilled and hard-working young man who had helped build the business and who held a trusted position in the day-to-day running of the business. This period of stability lasted about two and a half to three years with the only blemish being the offence of impersonating a police officer and attempting to pervert the course of justice in July 2013. It follows that the applicant has had a relatively long period of positive contribution to the Australian community which I take into account when assessing the expectations of the Australian community.

54.Having considered the expectations of the Australian community referred to in Direction 79, I conclude that the Australian community would expect that the applicant forfeit his privilege of remaining in Australia and that the cancellation decision would not be revoked. However, the Australian community would not consider that his offending was so serious that any risk of similar conduct in the future is unacceptable. On balance, this is a factor that weighs in favour of non-revocation of the cancellation decision.

Other considerations

55.In deciding whether to revoke the cancellation of the applicant’s visa, I must take into account the other considerations listed in Direction No. 79 but these are not exhaustive.[8]

[8] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395 [86].

56.The concerns that the applicant will face if removed are relevant to international non-refoulement obligations and the extent of impediments if removed. The level of detail necessary for these considerations will depend, among other things, on the likelihood of the applicant being removed and the level of generality or specificity of the information suggesting harm.[9] In addressing these considerations I must properly understand and consider the legal consequences of the decision being made (in particular detention and removal). What the legal consequences are is a question of fact. I must also consider the adverse impact of removal upon the applicant including the impact of harm which does not engage Australia’s non-refoulement obligations.[10]

[9] Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620 at [62].

[10] BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456.

International non-refoulement obligations

57.A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.[11]

[11] Direction 79 at 14.1(1).

58.The question before the Tribunal in considering any non-refoulement claims is a state of satisfaction as to whether there was “another reason” why the original decision should be revoked.[12] I am required to properly consider the claims being made and the factual material being relied upon by the applicant.[13]

[12] Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28].

[13] Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [27].

59.The applicant contends that he would face harm if returned to Iraq and that the Tribunal needs to consider Australia’s international non-refoulement obligations.

60.The respondent contends that I should give great weight to the decision of the Tribunal in the MRD decision, which found that the applicant did not meet the criteria for the grant of a protection visa. The applicant has applied to the Federal Circuit Court for review of that decision. I note that the consideration of non-refoulement as an exercise of the revocation power in s 501CA(4) of the Act is different to the exercise of power under s 65 of the Migration Act. In the discretionary exercise for which s 501CA(4) calls, the nature and quality of the risks which can permissibly be considered are much broader, and are not restricted to the risks comprehended by s 36(2)(a) and s 36(2)(aa).[14]

[14] BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 at [48] to [49]

61.There is no doubt that I am required to make my own assessment of non-refoulement obligations based upon the current representations and claims made by the applicant but I note that some, but not all, of those claims have been adequately addressed in the MRD decision. In addition, I accept the contention from the applicant that the situation in Iraq has deteriorated since the MRD decision dated 1 October 2019, so I need to take that into account.

62.In the applicant’s written statement at [39] – [46], he outlined his fears of returning to Iraq:

39I cannot go back to Iraq. I will not be able to live as a gay man in Iraq. I will have to hide who I am and would not be able to have a relationship with a man.

40My mum has siblings in Baghdad but we are not in close contact. My mother’s mother died a few years ago. Since then there has been a dispute about my grandmother’s inheritance. As a result, we are not in contact with them as much as we used to be and I don’t think they would support me back in Iraq.

41I have been following the news in Iraq and I can see it is a disaster. There are curfews and the government is falling apart. I have seen that people are being killed in the streets. I have seen that Iran is bombing army bases in Iraq. I am scared that a war has started. I am very scared about what would happen to me if I went back.

42In the past I was targeted and kidnapped by Sunni extremists who thought that I was Shia. I fear that this could happen again.

43I also fear that I will targeted [sic] by Shia people, because I am Sunni. I also fear that I will be targeted by many people in Iraq because I used to work with companies who were connected to the US Army.

44I also fear that I might be forced to join the Iraqi army and fight ISIS or similar groups.

45I do not strictly follow Islam. I don’t pray regularly. I fear that I might be targeted by fundamentalist Muslims because of this, and because I am gay.

46I have no idea what I would do if I went back to Iraq. I would have nowhere to live, I would have no support and would not be able to get a job. I think I would end up living on the streets. I would not be able to get the help I need for my mental health.

63.In particular the applicant feels at risk upon a return to Iraq for belonging to a particular social group of people namely: homosexuals in Iraq; returnees from a Western country; failed asylum seekers returning from a Western country; people suffering from mental health illnesses in Iraq; people affiliated with and who have worked for the United States and other Western contractors in Iraq; perceived Western collaborators; and people in Iraq who do not adhere to strict Islamic rules.  I accept from the country information about Iraq provided that there is a real risk of harm generally with respect to these groups. I also accept that the security situation in Iraq has deteriorated over recent months and that anti-government protests have increased resulting in injury and death to protesters.

64.At [44] of the applicant’s written statement, he fears he might be forced to join the Iraqi army to fight ISIS or similar groups. I am assisted by the MRD decision where at [139] Member Smolicz states:

Country information from the US Central Intelligence Agency indicated that military service in Iraq is voluntary for men aged 18-40 years of age and there is no conscription in Iraq at present. Having regard to the applicant’s profile as an ordinary civilian, non practicing Sunni who does not have a political profile and who is not suspected of cooperating with the Iraqi Security Forces or affiliated forces, the Tribunal also finds that the applicant’s fear of being forced to join the military and fight against religious extremists is speculative.

65.I find the comments by Member Smolicz apposite, particularly where there is no probative evidence raised before this Tribunal to the contrary.  I find the applicant’s fear is mere speculation and to the extent that the applicant purports to have that fear, I place no weight on it.

66.A significant amount of time at this hearing was devoted to the question as to whether the applicant is a homosexual. The applicant gave oral and written evidence that he was gay and that he had a previous homosexual relationship in Perth in 2013 and 2014. Photos of the applicant with his previous male partner from Facebook were provided which tendered to support the applicant’s claim to being a homosexual. Further support was provided from the written and oral evidence of two witnesses called for the applicant who were cross-examined. One of these witnesses knew the applicant from around 2013 and 2014 when they frequented the same nightclubs and she saw the applicant with his partner and saw them kiss. The other witness has known the applicant through Facebook since August 2018 and she gave evidence that he had told her he was gay and that he had spoken to her about his ex-partner.

67.The respondent contended that I should reject the applicant claims of homosexuality as a recent invention primarily because they were raised for the first time shortly before the hearing of the protection visa application.  The respondent also said the claims were inconsistent with the applicant getting married in Iraq in 2014. I note that the Tribunal in the MRD decision rejected his claims of being a homosexual on these grounds amongst others. 

68.I heard the oral evidence from the applicant in which he detailed his feelings and relationship with respect to his homosexual partner. I am prepared to accept this evidence and the evidence from the two witnesses. I consider that there is an adequate explanation for the matters that cast doubt as to the claims of being a homosexual. For example, it was an arranged marriage participated in unwillingly and which only lasted a matter of weeks. Further, the applicant considered that his sexual preference did not need to be disclosed in order for him to succeed in the proceedings before the Tribunal, and it was only when he had a trusted lawyer that he decided to disclose it as part of the protection visa application and these proceedings. The applicant did not want his family to know about his homosexuality (they still do not know), and he did not want his sexuality disclosed to anyone for fear of reprisal from other detainees.

69.Another contested issue was whether the applicant worked in Baghdad for a company that provided services to the US Army. The applicant gave oral evidence that he escorted drivers who were bringing supplies into Baghdad for the US Army. He said that at times he was called upon to act as an informal interpreter and that he did some jobs as a labourer in the Green Zone. The applicant’s mother gave consistent evidence that he did “some work connected to the US Army base near the airport in Baghdad.” I note that the Tribunal in the MRD decision rejected the applicant’s claims of association with the US Army primarily, it would seem, because the applicant gave false evidence with respect to a photo he said was taken in 2014 when working in Iraq, but it was found, and later conceded, that it was a photo taken in 2008 or 2009. The applicant repeated this concession in oral evidence before me and no longer sought to rely upon the photo. I heard the oral evidence from the applicant in which he provided some details about his work in the Green Zone.  He was cross examined on the topic and maintained a consistent story.  The mother’s evidence provides some support for the applicant. I am prepared to accept his evidence.

70.Subject to what I say about the deteriorating situation in Iraq in general, I am prepared to accept and adopt the findings made in the MRD decision with respect to a fear of harm arising from fear from the wife’s family in Iraq, tattoos in Iraq, the father’s employment under Saddam Hussein, kidnapping and shooting, religious beliefs, sectarian violence and failed asylum seeker from a Western country. The applicant gave no probative evidence at the hearing which contradicted those findings in the MRD decision.

71.I accept that being a homosexual in Iraq puts the applicant at risk of harm.  The country information about Iraq concludes that homosexuals face a high risk of official and societal discrimination and violence on the basis of their sexual orientation. The country information also provides that Iraqis who worked with the international community, in particular the US government, have faced recriminations and were at risk of being targeted.

72.The applicant provided journalist articles and information from the Department of Foreign Affairs and the US Department of State which document the escalating tensions, increasing violence and anti-Western sentiment in Iraq this year. I accept that there is a real risk of harm if the applicant returns to Iraq and that the applicant is owed non-refoulement obligations because of his homosexuality and his association with the West arising from his work with the U.S. Army and as a returnee from a Western country.

73.I now have regard to the legal consequences of a decision to not revoke the cancellation decision bearing in mind my determination that the applicant is a person in respect of whom non-refoulement obligations are owed.  Specifically, the applicant would be liable to be removed from Australia as soon as it is reasonably practicable for that to occur.[15]

[15] Migration Act1958 (Cth) s198.

74.The applicant is liable to be held in immigration detention until he is removed from Australia.  Given the obligation to remove as soon as reasonably practicable, his detention would not be indefinite.[16]

[16] See DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 at [26]-[30]; and PRHR v Minister for Immigration and Border Protection [2017] AATA 2782 at [158].

75.Given that the legal consequence is that the applicant would be returned to Iraq, it is my assessment for the reasons set out above that there is a very real risk the applicant will suffer significant harm if the cancellation decision is not revoked.  This factor weighs heavily in favour of revoking the cancellation decision.  I accept that regardless of whether the applicant’s claims are such as to engage non-refoulement obligations, the applicant would face significant hardship including a risk of violence in the event he were to return to Iraq.

Strength, nature and duration of ties

76.In making my decision, Direction 79 requires that I consider the following factors:

·how long the applicant has resided in Australia, including whether the applicant arrived as a young child (noting that less weight should be given where the applicant began offending soon after arriving in Australia, and more weight should be given to time the applicant has spent contributing positively to the Australian community); and

·the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

77.The applicant came to Australia aged 19 years old in March 2010 arriving as a refugee after an extremely unsettling period in the Middle East.  He was accompanied by his mother and his younger sister.  His older sister came to Australia in 2013.  The applicant has now lived in Australia for almost the entirety of his adult life. He commenced his offending soon after arriving in Australia, but after his first term of imprisonment there was a relatively stable period during which he worked for the same employer as a panel beater for about two and a half to three years.

78.The applicant’s mother, older sister and nephew live in Perth. The mother, an Australian citizen, has had some health issues and would benefit from the support the applicant could provide her if released and living with her, which is his intention. The older sister, an Australian permanent resident, is very close to the applicant and she wants him to play a role in the life of her son. A letter of support from the older sister was tendered.  She is pregnant and would benefit from the support the applicant could provide upon being released. In turn, the older sister and her husband will also be able to play a role in providing support for the applicant if he were released.  The older sister has been visiting the applicant regularly whilst he has been in detention.  She is very concerned about what would happen to the applicant if he were returned to Iraq.  There is a close emotional and family attachment between the older sister and the applicant.  If the cancellation decision is not revoked, there will be a negative impact on the older sister and the mother.

79.The younger sister is an Australian citizen.  She lives in Saudi Arabia with her husband and son.  They moved there in 2017. She is very close to the applicant and has a good relationship with him.  She provided a written statement to the Tribunal.  She speaks to him almost every day on Facetime.  She is very concerned about what would happen to the applicant if he were returned to Iraq.  She is aware of the dangerous situation in Iraq and says she would not be able to visit him if he were returned there.  She is worried about the impact on her mother if he is returned to Iraq. She says that she and her family will move back to Australia at some point and she wants the applicant to play a role with her family. There is a close emotional and family attachment between the younger sister and the applicant.  If the cancellation decision is not revoked, there will be a negative impact on the younger sister and her family.

80.I consider that the applicant has strong ties to Australia due to his previous period of employment and his family members living in Australia. The members of his family would be adversely impacted if the applicant were not released.

Impact on Australian business interests

81.No evidence or argument was advanced with respect to any impact on Australian business interests.

Impact on victims

82.Paragraph 14.4(1) of Direction 79 provides that I must consider the impact of a decision not to revoke on members of the Australian community, including victims of the applicant’s criminal behaviour, and the family members of the victim or victims where that information is available and the applicant being considered for revocation has been afforded procedural fairness.

83.I have not received any direct evidence with respect to the impact non-revocation would have on the victim of the applicant’s criminal behaviour and family members. In the absence of such evidence, I cannot find this other consideration weighs in favour of, or against, revocation of the cancellation decision. 

Extent of impediments if removed to home country

84.Direction 79 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to Iraq in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country) taking into account:

·The applicant’s age and health;

·Whether there are substantial language or cultural barriers; and

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

85.The most significant impediments that would be faced by the applicant if removed to Iraq are those raised above with respect to non-refoulement obligations. These impediments on their own would make it difficult for the applicant to find work or to obtain social and economic support.

86.Further similar impediments would arise due to the lack of family support in Iraq. The mother explained that she has fallen out with her remaining siblings in Iraq due to a dispute over inheritance.  The applicant said that they do not return his calls.  No support would be provided by them.

87.The applicant’s homosexuality would provide a significant cultural barrier and so too would the fact that he has become westernised since being in Australia.

88.The applicant is 29 years old and in good physical health. However, his mental health is not good and has deteriorated in detention.  While in Perth during 2012 and 2013, the applicant received counselling from the Association of Services to Torture and Trauma Survivors (ASeTT) because of the trauma he had experienced in Iraq and his subsequent diagnosis with PTSD. The applicant spent five months at the psychiatric ward at Graylands Hospital in 2012 after he was transferred there from prison. While in detention he swallowed razor blades in October, November and December 2017.  The threats of self-harm continued and he swallowed another razor blade in January 2019 and was admitted to a psychiatric unit from 12 January to 16 January 2019. He was diagnosed with a situational crisis with depressive features and suicidality. He swallowed a battery in a suicide attempt and was admitted to hospital from 16 to 18 December 2019. Over the years he has been prescribed with numerous antidepressants. In the three-week period leading up to the date of the report on 9 January 2020 the applicant has been seen by a mental health nurse twice a week.

89.It is apparent from the above that the applicant requires ongoing treatment with respect to his mental health issues. Whilst mental health services are available in Iraq they do not compare favourably to Australia and there are far fewer psychologists. Dr. Zimmerman concludes that the opportunity to receive treatment for his PTSD would be drastically reduced by a return to Iraq. She also expressed concern about the impact on his mental health if returned to Iraq. She said in her written report at [93]:

Removal to Iraq is likely to cause profoundly emotional distress in a man who experienced life-threatening violence there as a young man. This trauma is at the core of his PTSD and returning there will trigger a significant deterioration in his mental health. Separation from family will mean removal from his major support system.

90.I do not consider that the applicant will receive adequate mental health support in Iraq.

91.The applicant’s mother and sisters have all provided evidence of the difficulties and dangers that the applicant would face if he were returned to Iraq. I consider that there would be very significant impediments if he were removed and that this is a very strong factor in favour of revoking the cancellation decision.

Conclusion as to whether there is another reason to revoke the original decision

92.I have considered the specific circumstances relating to the applicant as part of my consideration whether to revoke the cancellation decision. I am now required to weigh up those considerations.

93.The primary considerations relating to the protection of the Australian community and the expectations of the Australian community weigh in favour of not revoking the cancellation decision. The primary consideration of the best interests of minor children weighs in favour of revocation and so too do the other considerations of non-refoulement obligations, strength, nature and duration of ties and the extent of impediments if removed.

94.Given the low risk of further offending and the predominantly non-violent nature of the offending, the protection and expectations of the Australian community are not significant factors in the weighing up exercise. I have placed considerable emphasis on the expert evidence from Dr Zimmerman who represents an independent and authoritative source. Her evidence is very relevant to, and provides support for, the limited weight to be accorded to the protection and expectations of the Australian community (due to the low risk of re-offending) and the significant weight to be accorded to the extent of impediments if removed (due to his PTSD). The applicant, as a homosexual man with a western history and suffering mental health issues, would be placed in a very difficult and dangerous position in Iraq. In the circumstances of there being a low risk of further offending, the applicant should not be put in this position. I have not placed any significant weight on the interests of minor children but that is a factor that also weighs in favour of revocation. The applicant has relatively strong ties to Australia as a result of his employment and family.  He would receive no family support in Iraq.  I note that primary considerations should generally be given greater weight than the other considerations but this is a case where the cumulative weight of the other considerations is greater than the weight to be accorded to the primary considerations of the protection and expectations of the Australian community.

95.It follows that there is another reason to revoke the cancellation decision.

DECISION

96.The decision of the Tribunal is to set aside the delegate’s decision and to substitute a decision to revoke the cancellation decision.

I certify that the preceding 96  paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.  

…………[Sgnd]…………………

Administrative Assistant Legal

Dated:  12 February 2020                   

Dates of hearing:  3 and 4 February 2020  

Applicant’s Representative:  Ms Julia Davey of Counsel on instructions from Refugee Legal

Respondent’s Representative:  Ms D Watson, Australian Government Solicitor