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

[2022] AATA 2469

Jado and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2469 (24 May 2022)

AppID:  Jado and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

MatterType:   Migration

Division:GENERAL DIVISION

File Number(s):      2022/1863

Re:David Jado

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senor Member Linda Kirk

Date:24 May 2022

Date of written reasons:        18 July 2022

Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the decision under review is set aside and substituted with a decision to revoke the cancellation of the Class XB Subclass 202 Global Special Humanitarian visa.

...............................[SGD].........................................

Senor Member Linda Kirk

CATCHWORDS

MIGRATION – visa cancellation – Class XB Subclass 202 Global Special Humanitarian visa – substantial criminal record – robbery – kidnapping - driving offences – violent offending – drug and alcohol misuse – Direction No. 90 – primary considerations – moderate risk of reoffending – best interests of minor children –  expectations of the Australian community –  other considerations –  whether Tribunal required to consider non-refoulement obligations - non-refoulement obligations considered - where Applicant has strong ties to Australia –  where there are extensive impediments if returned – decision under review set aside and substituted

LEGISLATION

Crimes Act 1900 (NSW)

Migration Act 1958 (Cth)

CASES

CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69

FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775 [22].
FYBR and Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
Jal v Minister for Immigration and Border Protection [2016] AATA 789
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594.

SECONDARY MATERIALS

Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

WRITTEN REASONS FOR DECISION

Senor Member Linda Kirk

18 July 2022

1. Mr David Jado (‘the Applicant’) is a 22 year old citizen of Iraq who was born in Jordan.[1] He first arrived in Australia on 29 October 2003 when he was four years of age as the holder of a Class XB Subclass 202 Global Special Humanitarian visa (‘the visa’).[2]

   [1] Exhibit A3 [2].

   [2] Exhibit R1, G28, 101; G29, 102.

2. On 4 November 2019 the Applicant was convicted in the District Court of New South Wales for various offences, including Robbery in company (two counts), Take etc person in company with intent to commit serious indictable offence, Kidnap in company with intent to commit serious indictable offence occasioning actual bodily harm with two counts of Demand property in company with menaces with intention to steal with other offences taken into account on a Form 1, and others called up and disposed with under s10A of the Crimes (Sentencing Procedure) Act. The Applicant was sentenced to an aggregate head sentence of five years imprisonment.[3]

   [3] Exhibit R1, G6, 30-32.

3. On 26 February 2020 the Applicant was notified that his visa had been cancelled under sub-s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) (‘Mandatory Visa Cancellation Decision’) because a delegate of the Minister (‘the Respondent’) was satisfied the Applicant did not pass the character test in sub-s 501(6) of the Act as he was considered to have, pursuant to sub-s 501(7)(c), a ‘substantial criminal record’.[4] The letter invited the Applicant to make representations to the Minister about revoking the decision to cancel the visa within 28 days of receipt of the letter.[5] At the time the Applicant was serving a sentence of full-time imprisonment at the Goulburn Correctional Centre in New South Wales for an offence against a law in Australia.

   [4] Exhibit R1, G29, 102.

   [5] Exhibit R1, G29, 103.

4. On 4 March 2020, the Applicant made representations seeking revocation of the Mandatory Visa Cancellation Decision.[6]

   [6] Exhibit R1, G9, 60.

5. On 1 March 2022, a delegate of the Respondent decided, under sub-s 501CA(4), not to revoke the Mandatory Visa Cancellation Decision (‘the Reviewable Decision’).[7]

   [7] Exhibit R1 G4, 18.

6. On 5 March 2022, the Applicant applied to the Tribunal for review of the Reviewable Decision under sub-s 500(1)(ba) of the Act.[8]

   [8] Exhibit R1 G2, 3-8.

7. The matter was heard by the Tribunal on 3 and 4 May 2022. The Applicant attended the hearing by video-link from Christmas Island Immigration Detention Centre and was represented by counsel. The following persons gave oral evidence and were cross-examined at the hearing:

   • The Applicant
   • Mr MV
   • Mr GJ
   • Ms HY
   • Ms EY
   • Ms SJ
   • Mr AJ

8. The material before the Tribunal consists of:

   • Section 501G-Documents (G1- G30, pages 1-150) filed 21 March 2022 – Exhibit R1
   • Supplementary G-Documents (S1-S24, pages 1-76) filed 20 April 2022 – Exhibit R2
   • Further Supplementary Documents (FS1-FS10, pages 1-23) filed 28 April 2022 – Exhibit R3
   • Further Further Supplementary Documents (FFS1-FFS14, pages 1-102) filed 29 April 2022 – Exhibit R4
   • Applicant’s Tender Bundle – Exhibit A1
   • Applicant’s Supplementary Tender Bundle – Exhibit A2
   • Statement of David Jado Dated 2 April 2022 – Exhibit A3
   • Statement of SJ dated 1 April 2022 – Exhibit A4
   • Statement of HY – Exhibit A5
   • Statement of EY – Exhibit A6
   • Statement of GJ – Exhibit A7
   • Statement of AJ – Exhibit A8

9. The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.

   LEGISLATION

10. Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:

    (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

    (ii)    …; 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.

11. Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7) of the Act relevantly provides:

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

    (a)the person has been sentenced to death; or

    (b)the person has been sentenced to imprisonment for life; or

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

    (d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

    (e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or

    (f)the person has:

    (i)     been found by a court to not be fit to plead, in relation to an offence; and

    (ii)    the court has nonetheless found that on the evidence available the person committed the offence; and

    (iii)   as a result, the person has been detained in a facility or institution.

12. Section 501CA of the Act applies if the Minister makes a decision under sub-s 501(3A) to cancel a visa that has been granted to a person.

13. Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:

    (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.

14. Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under sub-s 501CA(4) not to revoke a decision to cancel a visa.

    MINISTERIAL DIRECTION NO. 90

15. The Minister is empowered by sub-s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, except for the Minister acting personally, such as the Minister’s delegates and the Tribunal.[9]

    [9] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).

16. On 8 March 2021, the Minister signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[10]

    [10] Direction [2-3].

17. The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:

    (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 risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non­citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non­citizens who have lived in the Australian community for most of their life, or from a very young age.

    (5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

18. A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.

19. Paragraph 8 of the Direction identifies the following as primary considerations:

    a)Protection of the Australian community from criminal or other serious conduct;

    b)Whether the conduct engaged in constituted family violence;

    c)The best interests of minor children in Australia; and

    d)Expectations of the Australian community.

20. Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:

    a)International non-refoulement obligations;

    b)Extent of impediments if removed;

    c)Impact on victims; and

    d)Links to the Australian community, including:

    (i)Strength, nature and duration of ties to Australia; and

    (ii)Impact on Australian business interests.

21. Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘information and evidence from independent and authoritative sources should be given appropriate weight.’

22. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[11] Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as Kenny and Mortimer JJ stated in their joint judgment in Jagroop v Minister for Immigration and Border Protection and Another: ‘the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501’.[12]

    [11] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).

    [12] (2016) 241 FCR 461 at [57].

    ISSUES FOR DETERMINATION

23. Before the power in sub-s 501CA(4) of the Act to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.

24. There is no dispute that the Applicant made the representations required by sub-s 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[13] the Full Court of the Federal Court of Australia made the following observations in relation to sub-s 501CA(4):

    there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view ...[14]

    [13] [2018] FCAFC 151.

    [14] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

25. The issues for determination are:

    1)whether the Applicant passes the ‘character test’; and

    2)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.

26. If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.

    EVIDENCE BEFORE THE TRIBUNAL

    Early years

27. The Applicant was born in Jordan in 1999 as the fourth child to Iraqi parents. His family left Jordan shortly after his birth, and they migrated to Australia in 2003 after approximately two years living in Lebanon. The Applicant and his parents and siblings follow the Christian faith that forms part of the Assyrian Church of the East. One of the primary reasons why the Applicant’s parents’ fled Iraq was their Christian faith.[15]

    [15] Exhibit A3 at [7].

28. The Applicant and his family lived in Melbourne and his early childhood was generally positive, with the exception of verbal conflict between his parents. His parents separated in 2013 when he was in year 8, and he went with his mother to Sydney. The Applicant attended Ashcroft High School in Western Sydney. He started ‘hanging around with the wrong people.”[16] He left school in 2015 at the age of 16 years when he was in year 10 after he was expelled for fighting.[17]

    [16] Exhibit A4, 12.

    [17] Transcript of proceedings, 26.

29. The NSW Corrective Services pre-release report dated 21 June 2021, records that the Applicant joined the organised crime group, the ‘Assyrian Kings’ at the age of 14 years.[18] The Applicant started consuming alcohol and cannabis at around the same time, with Alprazolam 60 (Xanax) use developing at around the age of 17 years.[19] Following the death of his close friend who was murdered in late 2016, the Applicant’s drug use increased significantly, and he started using cannabis and Xanax on a daily basis.[20] He told the Tribunal that he would sometimes ‘black out not knowing what [he] was doing.’[21]

    [18] Exhibit R2, 49.

    [19] Exhibit A4, 12.

    [20] Transcript of proceedings, 28.

    [21] Ibid.

30. After leaving school, the Applicant worked with his uncle as a diesel mechanic. He had a poor work ethic, and he did not stay long in the job. The Applicant then worked as a cabinet maker with his cousin. He told the Tribunal that he had talent and was a hard worker, but he did not stick at it. Both his uncle and his cousin were disappointed with his attitude to work at this time.[22]

    [22] Transcript of proceedings, 27.

    Criminal history in Australia

31. The Applicant’s National Criminal History Check dated 2 December 2019 records the Applicant’s convictions in Australia.[23]

    [23] Exhibit R1, G6.

    Early offending

32. The Applicant’s criminal offending commenced in 2017. On 12 July 2017 the Applicant was driving and collided with another car while he was using his mobile phone. At the time he held a learner’s permit. On 23 November 2017 the Applicant was convicted in the Local Court in New South Wales at Fairfield and was fined and disqualified for three months for three offences of Driving whilst suspended and one of Negligent driving.[24] On 1 November 2017, when his license was suspended, the Applicant drove through a stop sign without stopping and was detected by the police driving at 121 kilometres per hour in a 60 kph zone.[25]

    [24] Exhibit R2, S24, 75.

    [25] Exhibit R2, S1, 2–3.

33. On 9 July 2017 the Applicant stole eights sticks of cannabis from a person and was charged and convicted in the Parramatta Children’s Court on 15 March 2019 of Steal from a person and received a good behaviour bond for six months.[26] The NSW police facts sheet records that the stealing offence occurred in the company of other offenders, who inflicted violence upon the victim and stole other items from them. A charge of Failing to appear in accordance with bail acknowledgement was dismissed with a caution. In July 2019, the Applicant failed to appear again and was convicted, without penalty imposed.[27]

    [26] Exhibit R2, S18, 40-41.

    [27] Exhibit R1, G6, 32.

    Robbery and kidnapping offences

34. The Applicant’s most serious convictions were recorded on 4 November 2019. He was convicted by the Parramatta District Court of two counts of Robbery in company, Take etc person in company with intention to commit serious indictable offence and Kidnap in company with intention to commit serious indictable offence occasioning actual bodily harm, he was sentenced to an aggregate term of five years imprisonment. Also taken into account on a Form 1 were two counts of Demand property in company with menaces with intention to steal.

1. The details of the offending are described in the sentencing remarks of Judge Bennett SC dated 4 November 2019.[28] The Applicant had been associating with the organised crime group the “Assyrian King also known as the Last Hour”.[29] On the evening of 22 December 2017, the Applicant and two co-offenders, both of whom were minors at the time, went out in another person’s car. While driving in Fairfield Heights, they saw two men and decided to stop them. The Applicant and his co-offenders forced the victims into the boot of their car, before driving to a secluded street nearby, releasing them, then demanding their phone and cash. At one point, the Applicant struck one of the victims. One of the co-offenders produced a golf club from the car and struck one of the victims in the back. The same offender brandished a pair of scissors and used them to cut the neck of one of the victims. The Applicant and his co-offenders then took the victims back to the vehicle and ordered them to get money from their respective homes. At the home of one victim, he was instructed to bring out $300 or there would be problems. The victim asked his father for $300 cash and the Applicant told the victim’s father that his son was trying to buy drugs and owed people $300. The money was handed over and the victim’s father called the police. The Applicant’s offending occurred while he was subject to two good behaviour bonds imposed for his earlier driving offences.

   [28] see from Exhibit R1, G7, 38.

   [29] Exhibit R2, S19, 43.

2. Judge Bennett SC found that the Applicant’s role in the above offending was less than his co-offenders, but that in law he was jointly responsible for all that occurred. His Honour rated the objective gravity of the offending as ‘a little above half-way between the low range and mid-range’.[30]

   [30] Exhibit R1, G7, 42.

3. The Applicant was questioned about this offending at the hearing. He told the Tribunal that on the day of the offending he and his co-offenders had been drinking beer and smoking cannabis. They saw the victims walking along the street and they asked them to come to the back of the shops so they could talk to them. One of the victims ‘said the wrong thing’ and they asked them to get into the car and they went to a park. He agreed that he slapped one of the victims and took his wallet. During cross-examination, the Applicant accepted that a factor that contributed to his offending was his daily drug taking.[31] He told the Tribunal that he ‘wasn’t thinking’ and ‘it was just a stupid mistake.’[32] He accepted that the offending was serious and that it must have ‘been a most harrowing and traumatic experience for the victims.’[33]

   [31] Transcript of proceedings, 42.

   [32] Transcript of proceedings, 11.

   [33] Transcript of proceedings, 35.

   Responsibility and remorse for offending

4. The Applicant pleaded guilty to the charges and co-operated with the authorities. His Honour noted that the Applicant’s ‘participation in an interview with the police investigating the crimes and the provision of a statement confirming the essential facts which he admitted in that interview, all speak loudly of his contrition and remorse.’[34] His Honour stated that he was ‘confident [the Applicant] is truly remorseful’.[35] His Honour further observed that the Applicant:

   is attributed with accepting responsibility for actions and with not justifying or minimising his behaviour. Incarceration has given him the ability to reflect. He recognises that he deserves the consequences of his behaviour and as he said to me in the witness box he wants to serve the custodial component of his sentence and then restore himself to his family and his community.[36]

   [34] Exhibit R1, G7, 42.

   [35] Ibid, 44.

   [36] Ibid, 43

5. In his statement dated 2 April 2022, the Applicant expressed his remorse for his offending:

   In relation to my entire criminal history in Australia, I am extremely sorry for my offending. Ultimately, there are no excuses for my offending. I take full responsibility for my criminal offending. I have taken seriously my prison sentence and have no plans to ever go back to prison. [37]

   [37] Exhibit A3 at [24].

6. He acknowledged the seriousness of his offending:

   I accept that my criminal history, especially my most recent offending, was very serious. My offending and poor choices were directly related to my previous drug abuse, bad associations, and immaturity. I made significant errors of judgement that led to my criminal offending. I also think residing in Sydney away from my parents has not been positive.[38]

   …

   Overall, I am sincerely remorseful for the full extent of my criminal offending in Australia.[39]

   [38] Ibid at [26].

   [39] Ibid at [29].

7. The Applicant wrote that since he has been in custody, he has realised that it is ‘time to wake up to myself.’ He is aware that he is not just hurting himself, but also the people that care and love him.[40] He told the Tribunal that he is also appreciates the impact of his offending on his victims:

   The victim, the victim’s family what I put them through no family should - like no family should have went through that.[41]

   [40] Exhibit R1, G11, 80.

   [41] Transcript of proceedings, 8.

   Mental health condition and drug abuse

8. In his sentencing remarks, Judge Bennett SC noted that at the time of his offending, the Applicant ‘had been misusing cocaine, cannabis and Xanax, combined with alcohol, on a daily basis. He had been through some grief as a consequence of the loss of a friend, Antonio, in 2017, which led to greater drug and alcohol use and inability to control himself as a consequence’.[42] His Honour referred to a report authored by Dr Gerald Chew, Consultant General and Forensic Psychiatrist, dated 30 September 2019. Dr Chew reported that the Applicant has a history of depression and anxiety and diagnosed the Applicant with Polysubstance Use Disorder, Major Depressive Disorder and Generalised Anxiety Disorder.[43] Dr Chew considered that ‘there is a direct nexus between [the Applicant’s] mental health conditions and the offending behaviour and that his underlying conditions both contribute and perpetuate substance use and contributed to his offending behaviour.’[44] He recommended a treatment plan for the Applicant to address his Anxiety and Depressive Disorder and Substance Abuse Disorder.[45]

   [42] Exhibit R1, G7, 11.

   [43] Exhibit R4, FSS8, 31.

   [44] Ibid at [32].

   [45] Ibid, 31-32.

9. At the hearing, the Applicant was asked about whether he suffers from any mental health condition. He told the Tribunal that he has anxiety and depression and that he was suffering from these conditions in 2017. These conditions were one of the reasons he took drugs on a daily basis at this time. He did so to ‘block out’ and ‘shut down’ what he was thinking about. Currently his depression is not too bad, and he has anxiety in relation to having to leave Australia.[46]

   [46] Transcript of proceedings, 43.

   Rehabilitation

10. The Applicant was questioned about the courses he completed in gaol to address his drug addiction issues. He said that he took the EQUIPS drug and alcohol course but did not complete it as he failed to attend some classes due to an ear infection and he was excluded from continuing the course. As a consequence, he was ineligible to participate in the EQUIPS anger and aggression management program. He did however take maths and numeracy classes.[47]

    [47] Ibid, 45.

11. The NSW Corrections pre-release report dated 22 June 2021 indicates that the Applicant did not engage in treatment when offered to him. It states that the total period for which he was offered treatment was less than two weeks during his imprisonment, after which he was informed that he was ineligible.[48] It also reports that the Applicant was offered a place in the EQUIPS Foundation, Aggression and Addiction Program on the 28 January 2020, but he was suspended on 7 February 2020 for non-attendance.[49] The report further states that the Applicant had been otherwise ineligible for treatment programs.[50]

    [48] Exhibit R2, S20, 50.

    [49] Ibid.

    [50] Ibid, 53.

12. In his report dated 21 April 2022, Matt Visser, Clinical Psychologist, noted that it appeared that the Applicant has not been prescribed any medication following the recommendations of the previous report provided by Dr Chew. Accordingly, Mr Visser was ‘reticent to support the assertion that [the Applicant] has not been treatment compliant during his time in custody.’[51] The Applicant told Mr Visser ‘he is both willing and able to engage in treatment were he to be released into the community.’[52] In Mr Visser’s opinion, the Applicant ‘appears more motivated for treatment than adults who are not being seen in a therapeutic setting’.[53]

    [51] Exhibit A2, 13.

    [52] Ibid.

    [53] Ibid, 20.

    Risk of re-offending

13. Judge Bennett SC found the Applicant’s risk of reoffending to be ‘medium’, but also found that he had ‘good prospects of rehabilitation’ provided he stayed off drugs and was properly managed in the community.[54]

    [54] Exhibit R1, G7, 45.

14. The Applicant’s risk of recidivism was assessed by a NSW Corrective Services Officer using the LSI-R on 1 November 2019 to be in the ‘medium range for reoffending.’[55] This level of risk was reiterated in the NSW Corrections pre-release report dated 22 June 2021. The author of the report observed that the Applicant stated that he is no longer in contact with any of his anti-social peers from the past and this was supported by his phone list, which did not show any contact made with criminal associates, including members of the Assyrian Kings.

    [55] Exhibit R2, S19, 44.

15. In his report, Mr Visser stated he agreed with the assessment of the Applicant’s risk in the pre-release report as ‘moderate’.[56] He noted that ‘there seems to be evidence that he has since separated himself from his previous associates, and appears to have refrained from drug use since his incarceration.’[57] In relation to managing the Applicant’s risk of re-offending, Mr Visser noted that there two relatively comprehensive treatment/management plans had already been prepared for the Applicant: one by Dr Chew and another as part of the pre-release report.

    [56] Exhibit A2, 17; Transcript of proceedings, 40

    [57] Exhibit A2, 12.

    Future plans

16. The Applicant’s evidence is that if he is permitted to re-enter the community he will initially live with his sister, EY, in Sydney. He wants to return to Melbourne where most of his family reside and live with his parents and surround himself with pro-social influences.[58] He acknowledges that he will need to obtain permission from the relevant parole authorities to relocate to Melbourne.[59] He also wants to spend time with his nieces and nephews and ‘provide them with practical and emotional assistance, not only to assist my sisters, but to take my uncle role seriously.’[60]

    [58] Transcript of proceedings, 20.

    [59] Ibid, 47.

    [60] Exhibit A3, 7 at [33(e)].

17. The Applicant plans to gain full-time employment with his brother’s employer in Melbourne. He told the Tribunal that his brother, GJ, has spoken to his supervisor and he will be able to arrange employment for him at his panel beating company.[61] He intends to ‘continue to avoid bad influences and bad associations’ and will attend his GP and make enquiries about obtaining a Mental Health Treatment Plan.[62] The Applicant told the Tribunal that he wants to see a GP and obtain mental health treatment. He will do whatever is recommended to him, including going to rehab.[63]

    [61] Transcript of proceedings, 49

    [62] Exhibit A3, 7 at [33(d)].

    [63] Transcript of proceedings, 21, 46.

    Impediments on return

18. In his statement, the Applicant outlined the impediments he would face on return to Iraq. He will suffer ‘[s]ignificant emotional distress at being permanently separated from [his] family in Australia.’ This ‘would have lifelong adverse consequences and cause [him] great trauma.’[64] As an Assyrian Christian, the Applicant fears being persecuted and otherwise subject to harm in Iraq on account of his religious status. He understands that ‘Christians are a minority group in Iraq and have suffered an horrific history of persecution and trauma in Iraq.’ He has seen various online media articles that have documented the persecution of Christians.[65]

    [64] Exhibit A3, 8 at [38(a)].

    [65] Ibid, at [38(b)].

19. The Applicant’s evidence is that it would be ‘almost impossible’ for him to obtain work in Iraq. He has no family or social contacts in Iraq, and he has never been there. Most of his family migrated to Australia and other family members migrated to other parts of the world. He is not familiar with the local cultural practices and norms in Iraq.[66] The Applicant is ‘troubled by the fact that most of Iraq is dominated by Muslims’. Assyrian Christians ‘have a completely different religious and cultural background to Muslim Iraqis.’ He would find it hard to establish social ties in Iraq. He cannot speak Arabic although he does speak the language of Assyrian Christians, namely neo-Aramaic.[67]

    [66] Ibid, 9.

    [67] Ibid.

20. The Applicant is very concerned that if he is removed to Iraq, he ‘would fall into deep depression that would crystallise in drug abuse again.’[68] Him being removed from his family ‘would be heartbreaking and destroy [his] spirit.’[69] He is concerned about the lack of proper treatment for substance abuse problems in Iraq, and that the Iraqi authorities could persecute him on account of him taking illicit drugs.[70] It is his understanding that there are no unemployment benefits in Iraq, and that COVID has impacted health care services for citizens. The Applicant concluded:

    Overall I would face insurmountable hardships if I was removed to Iraq. There is a real possibility that I could lose my life if I was removed to Iraq. It is a possibility that is real and extremely concerning to both my family and I. Contemplating a life in Iraq scares me greatly.[71]

    [68] Ibid at [38(f)]

    [69] Ibid.

    [70] Ibid.

    [71] Ibid at [39].

    Relationship with family members

21. The Applicant’s parents reside in Melbourne. He has a close relationship with his father, AJ, and he is a ‘good mate’.[72] He has stayed in contact with his father by telephone and video calls through Facetime at least several times per week. His father has some health issues and is ‘very stressed’ about the Applicant’s current immigration situation.[73] In his written statement dated 1 April 2022 and in his oral evidence at the hearing, AJ said that if his son were removed from Australia ‘it would be a great disaster for the family.’[74] It would be ‘an absolute death sentence’ for him and his wife and he is not sure how they would survive if their son was ‘permanently banished from the Australian community.’[75]

    [72] Ibid at [11].

    [73] Ibid.

    [74] Exhibit A8, at [13].

    [75] Ibid.

22. The Applicant’s evidence is that he has a very close relationship with his mother, HY, and they speak most days by video call and messages. His mother has a number of ongoing health issues. He deeply loves his parents, and this love is reciprocated. The cancellation of his visa has caused his parents ‘considerable emotional distress and sadness.’[76] In her written statement dated 1 April 2022 and in her oral evidence, HY confirmed that the Applicant will be able to live with her and her husband and son GJ if he returns to the community.[77] HY stated that if her son were returned to Iraq, ‘it would be absolutely devastating for both [their] family and [the Applicant]’.[78] She does not believe he would be able to survive in Iraq. He is a Christian and has never been to Iraq before, and has no family there. She would be extremely concerned for his mental health as he ‘would be heartbroken and lost if permanently separated from his family in Australia.’[79]

    [76] Exhibit A3, at [13].

    [77] Exhibit A5, at [8].

    [78] Ibid, at [20].

    [79] Ibid, at [21].

23. The Applicant’s evidence has a good relationship with his older brother GJ, and they have mutual respect and love for each other. He was particularly close to his brother when they were much younger. He keeps in touch with him via the telephone.[80] In his written statement dated 1 April 2022 and in his oral evidence, GJ confirmed that he will be able to find the Applicant a job with the company he works for. He has a good relationship with his employer and has no reason to doubt his ability to get his brother a job.[81] GJ stated that if the Applicant is removed from Australia it ‘will break [his] family apart.’ He will ‘forever be heartbroken that [his] dear brother is no longer near us.’[82]

    [80] Exhibit A3, at [14].

    [81] Exhibit A7 at [13].

    [82] Ibid at [18].

24. The Applicant is close to his older sister SJ whom he loves very much, and the feeling is mutual. She is married and the Applicant has a ‘decent and ongoing relationship’ with his brother-in-law. They have six children who they reside with their parents in Melbourne:

    ·GT – born May 2010, aged 11 years

    ·MT1 – born May 2012, aged 8 years

    ·LT – born December 2014, aged 6 years

    ·MT2– born May 2016, aged 5 years

    ·MT3 – born May 2018, aged 3 years

    ·NT – born November 2020, aged 1½ years.

25. Before the Applicant went to prison, he enjoyed a ‘very close’ relationship with GT, MT1, LT and MT2. He would see them at church, family events, his parents’ house and he would take them out socially. He would help his sister take care of the children, providing emotional and practical support. He has not yet physically met MT3 and NT as he has been in prison or immigration detention during their short lives. He has stayed in contact with SJ and the children via the telephone and Facetime on a weekly basis.[83]

    [83] Exhibit A3 at [15–17].

26. In her written statement dated 1 April 2022 and her oral evidence at the hearing, SJ confirmed that the Applicant has been part of four of her children’s lives since they were born, and they have a close relationship. He has not yet physically met the two youngest children as he has been incarcerated and in immigration detention since their birth. The Applicant was a good uncle to the children and would spend time with them at barbecues, and they would go fishing and to the park together. He would regularly check on the children’s welfare and showed a genuine interest in them. SJ confirmed that they live in Melbourne and that they would see the Applicant only when she and the children visited Sydney, which they would do several times a year and they would stay for an extended period of time.[84] The children ask her about the Applicant , but she has not been able to explain his current circumstances. They stay in contact with the Applicant by telephone and video calls.[85] In her statement, SJ wrote that if the Applicant does not have his visa reinstated, ‘whole family unit will suffer significant lifelong emotional distress.’ She is particularly concerned about her mother ‘dying of a broken heart.’[86]

    [84] Transcript of proceedings, 88-89.

    [85] Exhibit A4, at [11].

    [86] Ibid at [14].

27. The Applicant’s other sister EY is married and lives in Middleton Grange in Sydney. She and her husband have three children:

    ·YY1 – born May 2010, aged 12 years

    ·YY2 – born June 2012, aged 10 years

    ·YY3 – born June 2014, aged 8 years.

28. The Applicant’s evidence is that he has a ‘very good relationship’ with these children. Prior to him going to prison he was a ‘good uncle’ and he would see them at family events, his parents’ house, social events and church. In her statement dated 1 April 2022 and in her oral evidence at the hearing, EY stated that the Applicant has a ‘particularly good relationship’ with her children, and he has played a role in their lives since they were born. They love their uncle very much and he loves them, and they always enjoyed good times together in the past.[87] EY stated that if the Applicant were removed from Australia, she would be sad, and her parents and siblings would be ‘devastated’. Her children would lose an uncle and the whole family unit ‘would lose an important character in the family.’

    [87] Exhibit A6, at [8].

1. The Applicant’s evidence is that he would regularly take his nieces and nephews to the movies, the park, and they played games and spent valuable time together. If he is permitted to return to the Australian community, he wishes ‘to continue to play an important uncle role’ in their lives.[88] He knows that his sisters value his relationship with their respective children and support his bid to remain in Australia, especially so that he can to continue his relationship with their children.[89] If the Applicant were removed from Australia, this would significantly impact his ability to maintain and sustain a close relationship with his nieces and nephews in Australia.[90]

   [88] Exhibit A3, at [21].

   [89] Ibid at [22].

   [90] Ibid.

2. The Applicant has extensive extended family in Australia, including five aunties and six uncles and more than 20 cousins living in either Sydney or Melbourne. He has no extended family in Iraq, as they ‘all fled because of the war and persecution in that country.’[91]

   EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION

   [91] Ibid at [23].

   1)Does the Applicant pass the ‘character test’?

3. In the representations and documents that the Applicant submitted to the Department and the Tribunal he does not dispute the information in the National Criminal History Check report dated 2 December 2019 recording his criminal convictions and sentences. It records that on 4 November 2019 the Applicant was convicted in the District Court of New South Wales for various offences, including Robbery in company (two counts), Take etc person in company with intent to commit serious indictable offence, Kidnap in company with intent to commit serious indictable offence occasioning actual bodily harm, with other offences taken into account on a Form 1, and others called up and disposed with under s10A of the Crimes (Sentencing Procedure) Act. The Applicant was sentenced to an aggregate head sentence of five years imprisonment. The Tribunal is satisfied that the Applicant has a ‘substantial criminal record’ for the purposes of paragraph 501(3A)(a) and subsection 501(6) of the Act as he has been sentenced to a term of imprisonment of 12 months or more: paragraph 501(7)(c). The Tribunal is also satisfied, for the purposes of paragraph 501(3A)(b) of the Act, that on 26 February 2020 the Applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the state of New South Wales.

4. Having found that the Applicant does not satisfy the character test, the Tribunal finds that section 501CA(4)(b)(i) cannot be invoked to revoke the Mandatory Visa Cancellation Decision.

   2)Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?

5. In determining whether, pursuant to subparagraph 501CA(4)(b)(ii) of the Act, there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must, in accordance with paragraphs 8 and 9 of the Direction, take into account the relevant ‘primary considerations’ and ‘other considerations’.

   PRIMARY CONSIDERATIONS

   Primary Consideration 1 – Protection of the Australian community

6. Reiterating the general guidance and principles in the Direction, paragraph 5.2 states:

   (1)     …..

   (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 risk of causing physical harm to the Australian community.

7. Paragraph 8.1(2) states that in considering the need for protection of the Australian community, decision-makers should also have regard 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.

   (a)       Nature and seriousness of the Applicant’s conduct to date

8. Paragraph 8.1.1(1) sets out factors to be considered in determining the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Relevant to the Applicant’s conduct, the Tribunal must have regard to the following factors:

   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)    …

   (ii)  crimes committed against vulnerable members of the community …, or government representatives or officials due to the position they hold, or in the performance of their duties.

   (iii)  …

   (iv)  …

   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)   …

   g)    ...

9. The Applicant’s criminal offending commenced in 2017 with four convictions recorded in the Local Court on New South Wales at Fairfield for three offences of Driving whilst suspended and one of Negligent driving for which he was fined and disqualified for three months. He was also convicted in the Parramatta Children’s Court on 15 March 2019 for the offence of Steal from a person committed by him in July 2017 for which he received a six months’ good behaviour bond. The Applicant’s most serious offending, detailed in [34-37] above, occurred in December 2017 when he was subject to two good behaviour bonds for the earlier driving offences. He was convicted and sentenced in the District Court on 4 November 2019 to five years’ imprisonment.

10. Paragraph 8.1.1(1)(a)(i) of the Direction states that violent crimes are to be viewed very seriously. The Applicant was convicted of Robbery in company (two counts), Take etc person in company with intent to commit serious indictable offence, Kidnap in company with intent to commit serious indictable offence occasioning actual bodily harm. This offending, which was aggravated in its seriousness by the use of violence against the victims, including with weapons, and by the fact that the offending was done in company, was extremely serious. While the sentencing judge characterised the offending as ‘a little above halfway between the low and mid-range’ in objective seriousness, this must be considered in context of the seriousness of the offending, reflected in the maximum sentences available: the aggravated kidnapping offence carried a 25 year maximum sentence,[92] and the aggravated kidnapping offence,[93] and robbery in company offences carried 20 year maximum sentences respectively.[94]

    [92] s86(3) Crimes Act 1900 (NSW)

    [93] s86(2)(a) Crimes Act 1900 (NSW)

    [94] s97(1) Crimes Act 1900 (NSW)

11. Having regard to paragraph 8.1.1(1)(c) of the Direction, the Tribunal finds that the five year custodial sentence imposed on the Applicant by the District Court, notwithstanding his relatively young age, is an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved.[95]

    [95] Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50].

12. Having regard to paragraph 8.1.1(1)(d) and (e) of the Direction, the Tribunal notes that the Applicant was not deterred from further offending despite being convicted of multiple offences during 2017 prior to him committing the very serious offences in December 2017 for which he was sentenced to a term of five years’ imprisonment. It has further had regard to the frequency of the Applicant’s offending and the cumulative effect of repeated offending, and the trend of increasing seriousness in his offending during 2017. The Applicant’s offending during 2017 for which he was fined, disqualified and given a good behaviour bond, while not as serious as the violent offences he committed in December 2017, adds to the serious nature of his offending as it resulted in a cost to the community in terms of law enforcement and judicial resources.

13. On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant’s criminal offending is very serious in nature, and this weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.

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

14. Paragraph 8.1.2(1) of the Direction states:

    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.

15. Paragraph 8.1.2(2) of the Direction provides that in assessing the risk that may be posed 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 non-citizen re-offending; and

    ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …

16. Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to reoffend in accordance with paragraph 8.1.2(2)(a) of the Direction, the Tribunal finds that any future offending of a similar nature would have the potential to cause physical harm, psychological injury or financial loss to members of the Australian community. The Applicant’s criminal offending has included physical violence and deprivation of liberty, and if this were to be repeated, it would pose a significant risk of harm or worse to his victims as well as property damage or loss. In addition to the potential harm to the Applicant’s victims, there is the significant financial cost to the community associated with emergency services and law enforcement activities of any future offending by the Applicant. In addition, further resources from the criminal justice system, health system, and the Australian economy more broadly, would be directed to addressing the Applicant’s offending, including further arrests, court proceedings and rehabilitative programs. For these reasons, the Tribunal finds that the nature of the harm to individuals should the Applicant engage in similar criminal offences is serious.

17. Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 8.1.2(2)(b) of the Direction, the Tribunal accepts that the Applicant’s offending was contributed to by his abuse of drugs and alcohol. However, like Judge Bennett SC, the Tribunal tempers the weight of this factor in terms of mitigation of the Applicant’s offending for reason that it was the Applicant’s choice to use drugs and to not take steps to address his problem by seeking counselling or treatment. The Court found that after the death of his friend in December 2016, the Applicant increased his use of drugs, and this contributed to his criminal offending. There is limited information or expert opinion about the contribution of the Applicant’s distress and sadness following his friend’s death to his increased drug use in 2017. The Tribunal finds that the Applicant’s increased drug use in response to the friend’s death does not suggest that he may be susceptible to further criminal offending if he is placed under comparable personal pressures in future, in the context of adverse personal, family, or other circumstances.

18. The Tribunal notes that the Applicant pleaded guilty to his offending and co-operated with the administration of justice by participating in an interview with the police investigating the crimes, and providing a statement confirming the essential facts to which he admitted in the interview. It respectfully agrees with Judge Bennett SC that these actions ‘speak loudly of [the Applicant’s] contrition and remorse’ and supports a finding that he is remorseful for his actions. It further agrees with the Court’s observation that the Applicant accepts responsibility for his action and has not sought to justify or minimise his behaviour. It accepts the Applicant’s claims that his incarceration has allowed him to reflect on his actions and he accepts that he deserves the consequences of his offending, including the term of imprisonment he has served. The Applicant has further demonstrated insight into the seriousness of his offending and recognises that the kidnapping would have been a ‘harrowing experience’ for his victims.

19. The Tribunal concurs with the observations of Judge Bennett SC that the Applicant’s risk of reoffending is ‘medium’. This finding is supported by the conclusion of the author of the NSW Corrective Services report in June 2021 who assessed him as a ‘medium risk’ of re-offending. It also accords with the assessment of the Applicant’s risk as ‘moderate’ by Mr Visser in his psychological report.

20. The Tribunal also agrees with Judge Bennett that the Applicant has ‘good prospects of rehabilitation’ if he stays off drugs and is properly managed in the community. The Applicant’s evidence is that he no longer takes drugs, and he does not intend to resume drug taking when he re-enters the community. There is no evidence before the Tribunal from a medical doctor or other practitioner about the Applicant’s prospects of remaining drug-free. There also is limited evidence before the Tribunal about any remedial steps the Applicant has taken as a protective measure to ensure he does not fall back into drug abuse in the future. The evidence is that the Applicant failed to take full advantage of the courses that were available to him in prison, in particular the EQUIPS program from which he was excluded having failed to attend some classes. However, the Applicant expressed a firm commitment to take whatever steps are recommended to him by his GP to maintain his sobriety in the community including going to rehab.

21. In making its finding in relation the Applicant’s positive rehabilitation prospects, the Tribunal has had regard to the evidence that he will have stable accommodation at his sister’s, EY, house following his release and that he has good prospects of securing employment with his brother’s employer. He has the support of his family, including his parents, with whom he intends to reside when he returns to Melbourne. The Applicant will be on parole and subject to supervision requirements until March 2024. Corrective Services NSW has proposed a medium supervision level for parole requirements when the Applicant is released. The supervision plan includes excluding the Applicant from the city of Fairfield to limit the chance he may come into contact with ‘negative associates’.[96] The Applicant also expressed a firm commitment not to return to the parts of Sydney’s west where he previously resided and associated with criminal offenders, and instead surround himself with pro-social influences, particularly members of his immediate family.

    [96] Exhibit R2, S20, 47.

22. The Tribunal has noted that prior to his five-year term of imprisonment imposed for his most serious offending in December 2017, the Applicant had not previously been to prison. He is a young man without an extensive criminal history and the periods of incarceration in prison and immigration detention appear to have made him determined not to re-offend.

23. On the basis of the evidence before it and taking into account available information and evidence of the risk of the Applicant re-offending and his rehabilitation, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is moderate. However, in the context of the nature of the potential harm to the Applicant’s victims and the Australian community should he engage in the same or similar criminal conduct in the future, the Tribunal finds that this risk is not acceptable.

24. For the reasons above and applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, Primary Consideration 1 weighs against the revocation of the Mandatory Visa Cancellation Decision.

    Primary Consideration 2 – Family violence committed by the non-citizen

25. Paragraph 8.1.1(2) of the Direction prescribes that this consideration is relevant where the non-citizen has been convicted of an offence that involves family violence and/or there is information or evidence from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence. This consideration does not arise on the material before the Tribunal.

    Primary Consideration 3 – The best interests of minor children in Australia affected by the decision

26. Paragraph 8.3(1) of the Direction requires decision-makers to determine whether revocation is in the best interests of the child. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made: paragraph 8.3(2).

27. The evidence establishes that the following nine minor children are relevant to this primary consideration:

    ·GT born May 2010 - nephew

    ·MT1 born May 2012- nephew.

    ·LT born December 2014 - nephew.

    ·MT2 born May 2016 - niece.

    ·MT3 born May 2018 – niece.

    ·NT born November 2020 - nephew.

    ·YY1 born May 2010 - nephew.

    ·YY2 born June 2012 - niece.

    ·YY3 born June 2014 – niece.

28. The children are the Applicant’s nieces and nephews, six of whom are the children of his sister, SJ, and the other three, the children of his sister EY. Paragraph 8.3(3) of the Direction requires the Tribunal to give individual consideration to the children’s interests to the extent they may differ. The Applicant was taken into custody in connection with his serious criminal offending from 12 March 2019. At this time, he had eight nieces and nephews. He had not met  MT3 and NT was born after he entered gaol. The Tribunal has considered separately the interests of the seven children who were known to the Applicant prior to his Applicant’s incarceration (GT, MT1, LT, MT2, YY1, YY2 and YY3) and with whom he had an existing relationship, and the other two children whom he had not met prior to entering gaol (MT3 and NT). As the Applicant has never physically met MT3 and NT, their interests must be treated differently from those of the other seven children. The interests of the seven children can be treated on similar terms, bearing in mind that the older children had a greater opportunity to build a relationship with the Applicant prior to his incarceration.

1. Having regard to the factors in paragraph 8.3(4)(a), the evidence before the Tribunal is that the Applicant has a close, loving, and ongoing relationship with his nieces and nephews. The evidence of the Applicant’s sister, SJ, is that the Applicant has a close relationship with her four oldest children, that he has been a part of their lives since they were born, and that he was a good uncle. He would spend time with her children going fishing, going to the park together, and at barbecues, and he showed a genuine interest in the children. She states that the children ask about the Applicant, and she wants him to play an important uncle role to her six children in the future. He speaks to the children, including MT3 and NT, on the phone on a regular basis and shows a genuine interest in their respective lives. The evidence of the Applicant’s other sister, EY, is that prior to him entering gaol the Applicant would play with her four children, take them out socially, go to the movies and the park, and that they had a strong bond. They continue to speak on the telephone, and the children ask about the Applicant.

2. On the basis of this evidence, the Tribunal is satisfied that the Applicant has had a meaningful and loving relationship with the seven children with whom he had an existing relation prior to his  incarceration, and that they have a strong desire to re-establish contact with each other as soon as they are permitted to do so. The Tribunal is further satisfied, based on the evidence of SJ and the Applicant, that he has developed a relationship with the two younger children (MT3 and NT) whom he had not met prior to him going to gaol, through their telephone and Facetime contact.. Both the Applicant’s sisters’ evidence is that they want their brother to continue to play an important uncle role in the lives of their children. The Applicant is an important part of their close family unit. The Tribunal has taken into account the fact that the relationship between the Applicant and his nieces and nephews is non-parental, and that his relationship with them has inevitably been impacted by his period of imprisonment. It has accordingly attributed less weight to the interests of the Applicant’s nieces and nephews than had the relationship been parental and they had not been physically separated for a period of more than three years.

3. The Tribunal has taken into account, for the purposes of assessing the nature and quality of any future relationship with the children, that SJ and EY and their children reside in Victoria and New South Wales respectively. The Applicant’s evidence is that he intends to live with his sister EY in Sydney following his release from immigration detention and then relocate to Melbourne to live with his parents. The Applicant’s geographical location will affect his future relationship with both SJ’s and EY’s children depending on whether he is living in Victoria or New South Wales. However, given the Applicant and the children currently communicate by telephone and Facetime, the quality of the relationship between them should not be significantly affected by physical distance.

4. In relation to the factors in paragraph 8.3(4)(b), the evidence is that in the case of each child, there is a considerable period of time until they reach adulthood. Seven of the nine children are aged under 10 years, and the other two children are not yet teenagers. Accordingly, there is reasonable time available for the Applicant to play a positive role in each child’s life before they turn 18 years of age. The extent to which the Applicant will play a positive role in the children’s lives will depend on his ability to remain drug free, to address any mental health conditions, and to stay away from negative influences that in the past have led him to engage in very serious violent offending.

5. Having regard to the factors in paragraph 8.3(4)(c) of the Direction, the Tribunal notes that the Applicant, by his own admission, spent time with the children when he was taking and affected by drugs. There is no evidence that the Applicant’s drug-taking or criminal offending has directly had a negative impact on his nieces and nephews.

6. Having regard to the factors in paragraph 8.3(4)(d), (e) and (f), the evidence demonstrates that a decision to not revoke the cancellation decision is likely to cause the children to suffer emotional distress. They will be denied the opportunity to rebuild and develop a close relationship with their uncle. The Tribunal has had regard to the fact that all the children are currently in the joint care of their biological parents who meet their daily needs and provide them with care. Given their young ages there is no evidence from the children themselves about their relationship with the Applicant, however their respective mothers gave evidence about each of the children’s bond with their uncle.

7. There is no evidence before the Tribunal relevant to the factors in paragraphs 8.3(4)(g)-(h) of the Direction.

8. Applying the guidance in paragraph 8.3(4) of the Direction, the Tribunal finds that this primary consideration weighs heavily in favour of revocation of the Mandatory Visa Cancellation Decision as it is clearly in the best interests of the seven older children, and preferable for the two youngest children, for the Applicant to have his visa reinstated and be permitted to remain in Australia.

   Primary Consideration 4 – The expectations of the Australian community

9. Paragraph 8.4 of the Direction states:

   (1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

   (2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

   (a)  acts of family violence; or

   (b)  …

   (c)   commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature …

   (d) commission of crimes against government representatives or officials due to the   position they hold, or in the performance of their duties;

   (e)  …

   (f)  …

   (3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

   (4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

10. The Direction states that the Australian community expects that the Minister can and should cancel a visa if the holder raises serious character concerns through certain kinds of conduct. Relevantly in the case of the Applicant, those specified kinds of conduct include violence against persons manifested by Robbery in company, Kidnapping in company with intention to commit a serious indicatable offence occasioning actual bodily harm and Demand property in company with menaces with intention to steal. As the Applicant has engaged in this violent offending, the Tribunal finds that the community expectation is that the Applicant’s visa should remain cancelled.

11. The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 8.4 of the Direction, in FYBR and Minister for Home Affairs (‘FYBR’).[97] The majority (Charlesworth and Stewart JJ) concluded as follows:

    ·Paragraph 11.3 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[98] It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations.[99]

    ·However, the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[100] It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of ‘appropriateness’.[101]

    [97] [2019] FCAFC 185

    [98] Charlesworth J at [66]; Stewart J at [91].

    [99] Charlesworth J at [67]; Stewart J at [104].

    [100] Charlesworth J at [76].

    [101] Stewart J at [97].

12. The effect of paragraph 8.4 is that it imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. The question to be addressed does not involve an inquiry into what the Australian community does or does not expect, because that is normatively expressed in the terms of the consideration: paragraph 8.4(4). Rather, the relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed community expectation’ of non-revocation of a mandatory visa cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences’.[102] As a normative expression, this consideration indicates the likelihood that community expectation will in most cases lead to non-revocation, without dictating an inflexible conclusion. The question for the decision-maker is the weight to be attached to this consideration.

    [102] Charlesworth J at [77].

13. Having regard to the expectations of the Australian community as stated in paragraph 8.4 of the Direction, the Applicant has breached a number of Australian laws and committed serious and violent offences, which the community would generally expect to result in the cancellation of his visa. The Applicant arrived in Australia in October 2003 as a four year old child and has resided here for almost two decades. Having regard to the factors in principle 5.2(4) of the Direction, particularly the length of time the Applicant has been in Australia, this supports a finding that there is a higher level of tolerance by the Australian community for his criminal conduct than there would be for a non-citizen who has not lived in the community for an extended period of time.

14. Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account the nature, seriousness and impact of the Applicant's criminal offending, and the duration of his residency in Australia, the Tribunal finds that Primary Consideration 4 on balance weighs against revocation of the Mandatory Visa Cancellation Decision.

    OTHER CONSIDERATIONS

15. While the primary considerations carry particular weight, the Direction acknowledges at paragraph 9 that ‘other considerations’ must be taken into account by the decision-maker where relevant. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’

16. The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection (‘Suleiman’)[103]

    Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.

    [103] [2018] FCA 594 [23].

17. In FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[104] Wigney J held that this analysis ‘tends to overcomplicate or over intellectualise the issue’. His Honour held that the use of the word ‘generally’ in clause 8(4) of Direction 79 (the same wording is used in section 7(2) of Direction 90) ‘recognises that there may well be cases where the circumstances are such that one or more “other considerations” may be deserving of more weight than one or more primary considerations’.[105] His Honour also held that the formulation identified in Suleiman ‘is at least potentially problematic because it tends to suggest that a decision-maker cannot give greater weight to one or more of the “other considerations” in any given case unless they consider that the case is somewhat unusual or out of the ordinary’.[106]

    [104] [2021] FCA 775 [22].

    [105] Ibid at [23].

    [106] Ibid.

18. The ‘other’ considerations relevant to the Applicant’s circumstances are considered in the following paragraphs.

    International non-refoulement obligations

19. Paragraph 9.1 of the Direction relevantly provides:

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

    2)In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

    3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.

    4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

    5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.

    6)It may not be possible at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

    7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non-citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.

    8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non­ refoulement obligations.

20. The Applicant claims that he fears returning to Iraq where he does not know anyone and is a Christian in a country dominated by Muslims. He states that he fears harm if returned to Iraq because he is an Assyrian Christian. He also asserts that he could be persecuted in Iraq on account of taking illicit drugs in that country.[107]

    [107] Exhibit A3 at [38(f)].

    Citizenship

1. The Applicant and his family are Assyrian Christians from Iraq. He was born in Jordan when his parents and siblings were passing through Jordan on their way to Lebanon, having fled Iraq to escape persecution due to their Christian faith. The family travelled to Australia using documentation issued by Australia, which does not state their country of citizenship. The evidence shows that the Applicant’s parents are citizens of Iraq and are not citizens of Jordan.

2. The Applicant claims that there is no evidence to support a finding that he is a citizen of any country, including Iraq. He does not claim and has not submitted evidence to show that he is a citizen of Jordan simply by virtue of him being born there. The delegate accepted that the relevant country of reference is Iraq as this was the country of the Applicant’s citizenship identified when his family applied for a Class XB Subclass 202 Global Special Humanitarian visa before entering Australia.

3. There is no evidence before the Tribunal to support a finding that the Applicant is a citizen of Iraq, or to indicate that he has ever acquired citizenship of any other country, including Jordan. As the Applicant’s parents are citizens of Iraq, the country information establishes that he would be eligible for Iraqi citizenship.[108] The Respondent accepts, and the Tribunal finds, that the Applicant should be treated as a citizen of Iraq, and that Iraq is the country to which he would be returned if his application for revocation of the cancellation decision were unsuccessful. Iraq is therefore the country of reference against which his claims to be owed non-refoulement obligations should be assessed.

   [108] Exhibit A1, 65 at [5.47].

   Removal of unlawful non-citizens

4. The statutory consequence of a decision to not revoke the cancellation of the Applicant’s visa is that, as an unlawful non-citizen, he would become liable to removal from Australia under s 198 of the Act as soon as reasonably practicable. The requirement to remove the applicant under s 198 would not apply if he is granted another visa. If the Tribunal decides not to revoke the cancellation of the Applicant’s visa under s 501CA, he will be prevented by s 501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa (as prescribed by regulation 2.12A of the Migration Regulations 1994 (Cth)).

   Protection visa application

5. The Applicant states that if he were unsuccessful before the Tribunal, he will lodge an onshore protection visa application.[109]

   [109] Applicant’s supplementary contentions [20].

6. On 11 May 2022 the High Court delivered its decision in Plaintiff M1/2021 v Minister for Home Affairs (Plaintiff M1/2021).[110] The appellant in Plaintiff M1/2021, was a citizen of the Republic of South Sudan. Like the Applicant, the appellant in Plaintiff M1/2021 entered Australia as the holder of a Global Special Humanitarian visa, which is not a protection visa. In October 2017 the appellant’s visa was cancelled by a delegate. The appellant in Plaintiff M1/2021 sought revocation of that decision. He made representations that if he were returned to South Sudan he would face persecution, torture, and death, and he did not think it was possible to remove him to South Sudan due to ‘non-refoulment obligations’. In August 2018, the delegate decided not to revoke the cancellation decision. The delegate considered that it was unnecessary to determine whether non-refoulement obligations were owed because the applicant could make a valid application for a protection visa, and the existence or otherwise of those obligations would be fully assessed in the course of processing such an application. The primary question before the High Court in Plaintiff M1/2021 was whether a delegate, in deciding whether there was ‘another reason’ to revoke the cancellation of the applicant’s visa pursuant to s 501CA(4)(b)(ii) of the Act, was required to consider the representations which raised a potential breach of Australia's international non-refoulement obligations in circumstances where the applicant was able to make a valid application for a protection visa.

   [110] [2022] HCA 17

7. The High Court in Plaintiff M1/2021, by majority, found that:

   a)the delegate was required to read, identify, understand, and evaluate the applicant’s representations that raised a potential breach of Australia's international non-refoulement obligations;[111]

   b)Australia's international non-refoulement obligations unenacted in Australia were not a mandatory relevant consideration;[112] and

   c)to the extent Australia's international non-refoulement obligations are given effect in the Act, one available outcome for the delegate was to defer assessment of whether the applicant was owed the non-refoulement obligations on the basis that it was open to the applicant to apply for a protection visa.[113]

   [111] At [24] per Kiefel CJ, Keane, Gordon and Steward JJ.

   [112] At [20], [29].

   [113] At [30].

8. The majority held in that the delegate's reasons recorded that they had read, identified, understood, and evaluated the applicant’s representations. Their Honours held that, having proceeded on the basis that non-refoulement obligations could be assessed in accordance with the specific mechanism chosen by Parliament for responding to protection claims in the form of protection visa applications, it was reasonable and rational for the delegate to not give weight to potential non-refoulement obligations as ‘another reason’ for revoking the cancellation decision.

9. The majority found that:

   For the reasons explained above, the delegate was not required to determine whether the plaintiff was owed non‑refoulement obligations (by conducting an assessment of the merits of the plaintiff's claim) in the same manner, or to the same extent, as would be called for by a direct application of the international instruments to which Australia is a party or by reference to the domestic implementation of those obligations.

   … The Delegate's reasons convey that the Delegate had read and understood the plaintiff's claim and proceeded on the basis that non‑refoulement obligations could be assessed to an extent and in a manner that they considered appropriate and sufficient to deal with the claim, namely in accordance with the specific mechanism chosen by Parliament for responding to protection claims in the form of protection visa applications. That provided a reasonable and rational justification for not giving weight to potential non‑refoulement obligations as "another reason" for revoking the Cancellation Decision. Consequently, the Delegate did not fail to exercise the jurisdiction conferred by s 501CA(4) of the Migration Act or deny the plaintiff procedural fairness.[114]

   [114] At [37]-[38]

10. In Plaintiff M1/2021, the majority made clear that even where a decision-maker may permissibly defer consideration of non-refoulement obligations, ‘it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of their being “another reason” why the Cancellation Decision should be revoked’.[115] In the present case, the Applicant relies upon the facts underpinning his non-refoulement claims as providing ‘another reason’ why the cancellation decision should be revoked.

    [115] at [39] per Kiefel CJ, Keane, Gordon and Steward JJ

11. The hearing and submissions in this matter occurred prior to the decision in Plaintiff M1/2021. Both parties made submissions in relation to whether the Applicant is owed non-refoulement obligations and if so, the relevance of such a finding for the exercise of the discretion to revoke the cancellation decision. Whilst it is not obliged to do so, the Tribunal has considered the Applicant’s claims that he is owed non-refoulement obligations which may provide ‘another reason’ why the cancellation decision should be revoked.

    International non-refoulement claims

    Christianity

12. The substance of the Applicant’s claim concerning the engagement of the international non-refoulement obligations consideration is that he fears being persecuted in Iraq on account of his status and practice as an Assyrian Christian. The Applicant is aware that his family fled Iraq before he was born for reason of their fear of religious persecution.

13. According to the DFAT Country Information Report - Iraq (‘DFAT report’) dated 17 August 2020, the Assyrian Christian religious group is recognised by the personal status law in Iraq and registered with the government.[116] This permits individuals within such groups to appoint legal representatives and to perform legal transactions such as buying and selling property.[117] There is an endowment fund for Christians that operates to disburse government funds to maintain and protect religious facilities.[118] Non-Muslims are not required to participate in Islamic instruction in public schools, and Christian religious education is required in some public schools in certain regions in the country.[119] Article 2 of the Iraqi Constitution guarantees the right to freedom of religious belief, among other constitutional protections for people of non-Muslim faith.[120]

    [116] Exhibit A1, Annexure A at [3.34].

    [117] Ibid.

    [118] Ibid at [3.36].

    [119] Ibid at [3.37].

    [120] Ibid at [3.33].

14. The DFAT report details the treatment of non-religious minorities in Iraq:

    ·There have been ongoing reports that non-Muslim minorities feel pressured by the Muslim majority to adhere to certain Islamic practices, such as wearing the hijab (traditional Islamic clothing) or fasting during Ramadan. Christians in the south and in PMF-controlled towns on the Ninewah Plain have reported that they avoid celebrating their religious festivals when they coincide with Islamic periods of mourning, such as Ashura (a day of historical significance and mourning for Shi’a, marking the murder of the Prophet Mohammed’s grandson Hussein).[121]

    ·A number of religious minority communities (including Turkmen, Sunni and Shi’a Arabs, Yazidi, Shabak and Christians) have reported cases of discrimination from KRG authorities in territories claimed by both the central government and KRG, particularly in relation to land and property disputes.[122]

    ·The general decline in tolerance towards ethnic and religious minorities from majority communities in Iraq since 2003 has significantly affected Christians. Local sources report increased harassment and violence in areas where Christians are a minority, including Shi’a areas of Baghdad or in Basra. The Christian population has declined considerably since the March 2003 US led invasion from a pre-2002 population estimate of between 800,000 and 1.4 million persons.[123]

    ·According to Christian leaders, there are now fewer than 250,000 Christians remaining in the country, with the largest population – at least 200,000 – living in the Ninewah Plain and the KRI. According to estimates provided by Christian groups, the number of Christian families leaving Iraq daily ranged from 10 to 22 in 2018.[124]

    ·Despite having permits, Christians involved in the alcohol business report regularly receiving threats from some PMF groups and individuals opposed to the alcohol trade. In February 2018, several gunmen shot and killed a Christian man in front of his home in Baghdad.[125]

    ·Like other minorities, Christians face a moderate risk of societal discrimination and violence in areas where they are a minority. Those involved in the alcohol trade face a high risk of societal violence. Christians living in areas controlled by PMF groups are likely to keep a low profile to avoid negative attention, including through adopting hijab. Those living in areas where violence continues or who have been displaced face a risk of societal violence similar to that faced by other groups living in those areas or situations.[126]

    ·DFAT assesses Christians belonging to recognised denominations face a low risk of official discrimination.[127]

    [121] Ibid at [3.40].

    [122] Ibid at [3.41].

    [123] Ibid at [3.46].

    [124] Ibid.

    [125] Ibid at [3.49].

    [126] Ibid at [3.51].

    [127] Ibid.

15. Whereas the number of Christians have declined, there remains something of a stronghold of Christmas in Ninewah Plains and the KRI. While there is a moderate risk of societal discrimination and violence in areas where Christians are a minority, this does not appear to include the Ninewah Plains or the KRI.[128]

    [128] Ibid.

16. An Open Doors article dated 3 April 2022 indicates that the persecution level of Christians in Iraq is ‘very high’.[129] It reports that Iraq remains plagued by conflict, despite the recent territorial losses of the Islamic State group, and this continues to gravely affect the country’s minority Christian population. In June 2020, Christian villages were bombed in Turkey’s largest operation in the area since 2015, forcing many Christians to flee. In May 2021, Christian villages were evacuated following Turkish bombing in the region. Christians were not protected by the local government.

    [129] Exhibit A1, Annexure B, 70.

17. The same article reports that many Christians are also seriously affected by intolerance and persecution. This is perpetuated mostly by militant Islamic groups and non-Christian leaders. They also face discrimination from government authorities. The article states that in central and southern Iraq, Christians often do not publicly display Christian symbols (such as crosses) as this can lead to harassment or discrimination at checkpoints, universities, workplaces, and government buildings. Outspoken believers in the region have frequently become targets. Blasphemy laws can be used against Christians suspected of carrying out outreach among Muslims.[130]

    [130] Ibid, 72.

18. An AP News article dated 5 March 2021 stated that two decades of back-to-back conflicts in Iraq have left ancient Christian communities that were once a vibrant and integral part of the landscape scattered and in ruins.[131] The article states that many of those who remain in Iraq feel abandoned, bitter, and helpless, some wary of neighbours with whom they once shared feasts and religious celebrations, Muslim and Christian alike. The Vatican for years has voiced concern about the flight of Christians from the Middle East, driven out by war, poverty, persecution, and discrimination.[132]

    [131] Ibid, Annexure C, 81.

    [132] Ibid.

19. A BBC News article dated 23 May 2019 reported that since the US-led invasion toppled the regime of Saddam Hussein in 2003, the Christian community had dwindled by 83%, from around 1.5 million to just 250,000.[133] The article stated that Christianity in Iraq is perilously close to extinction. It reported that churches, monasteries, and homes belonging to Christian families have been decimated and thousands of families have not returned.[134]

    General security situation

    [133] Ibid, Annexure D, 86.

    [134] Ibid.

20. The Applicant also claims that he faces the real risk of generalised harm as a member of the community in Iraq. The DFAT Smartraveller advice dated 30 June 2022 states the following in relation to travel to Iraq: ‘Do not travel’.[135] It further states:

    The security situation throughout Iraq remains volatile. There has been an increase in protest activity following the parliamentary elections on 10 October. There's a risk the security situation could deteriorate further. Due to the volatile security environment and the ongoing threat of kidnappings, you should leave Iraq immediately by commercial means if it's safe to do so. If you're staying in Iraq, be alert and check media for updates on new threats.

    [135] Ibid, Annexure E, 103, accessible at <>

    The advice continues:

    Do not travel to Iraq, including the Kurdistan Region of Iraq, due to the volatile security situation and very high risk of violence, armed conflict, kidnapping and terrorist attack.

21. The advice confirms that the security situation in Iraq is unstable. It indicates that there is a very high, severe, and ongoing risk of kidnapping. Large, coordinated attacks by armed groups have killed and injured thousands of people. Terrorist attacks occur often and without warning. The report recommends travellers to avoid possible targets, crowded places and public spaces, including markets, transport hubs, places of worship and government facilities.

22. On the basis of the country information before it, the Tribunal concurs with the finding of the delegate that there is a possibility that Australia’s non-refoulement obligations are engaged in relation to the Applicant, with the country of reference being Iraq. Further, like the delegate, the Tribunal considers that a conclusive finding as to whether non-refoulement obligations are in fact owed in respect of the Applicant is not possible without a full and comprehensive assessment of his claims, for example through the protection visa application process. Nevertheless, the Tribunal finds that the possibility that the Applicant engages Australia’s non-refoulement obligations weighs in favour of the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.

23. In attributing weight to this consideration, the Tribunal has had regard to the fact that the Applicant is entitled to apply for a protection visa. Although non-refoulement obligations and the statutory criteria for the grant of a protection visa are not identical the Applicant’s fear of harm for reason of his religion if returned to Iraq is plainly within the terms of the Refugee Convention, as reflected in s5J of the Act.

24. For the reasons outlined above, the Tribunal finds that this other consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision.

    Extent of impediments if removed from Australia

25. The Direction states in paragraph 9.2:

    (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.

26. Having regard to the factors in paragraph 9.2(1)(a) and (c) of the Direction, the evidence before the Tribunal is that the Applicant is aged 22 years and has a history of depression and anxiety in the context of his drug use. Whereas the Applicant claims that he no longer has a drug and alcohol abuse problem, he continues to suffer from anxiety. As a citizen of Iraq, the Applicant would have the same access to any social, medical and economic support as other citizens, although such services are unlikely to be of the same standard as those available in Australia. The Direction provides that the extent of any impediments to an applicant in establishing themselves and maintaining basic living standards is to be considered in the context of what is generally available to other citizens of that country.

27. Guided by paragraph 9.2(1)(b) of the Direction, the Tribunal finds that the Applicant will face significant language or cultural barriers on his return, as he has never lived in or visited Iraq and does not speak Arabic. Whereas he speaks the language of Assyrian Christians he may not be returned to an area where this language is spoken. The Applicant has no family or friends in Iraq, and he will therefore face considerable hardship in settling in a country with a new socio-political and economic environment. Having regard to the Applicant’s history of drugs and alcohol abuse, he would be at risk of further drug and alcohol abuse if returned to Iraq due to the significant emotional hardship of being removed from his family in Australia.

1. The Applicant will face significant challenges in adjusting to life in Iraq and finding suitable accommodation and employment. The Applicant has limited work experience in Australia, and this lack of work skills combined with him not speaking Arabic will make it extremely difficult for him to find employment. There is no evidence that the Applicant will be entitled to unemployment benefits in Iraq. Nothing in the DFAT report expressly indicates otherwise. A Britannica article dated 11 January 2022 also does not indicate that Iraq has modern welfare and unemployment benefits. If the Applicant is unable to gain employment or access benefits, he will be unlikely to find secure and stable accommodation and may become homeless.

2. On the basis of the evidence before it, the Tribunal finds that this other consideration weighs very heavily in favour of revocation of the Mandatory Visa Cancellation Decision.

   Impact on victims

3. The Direction states in paragraph 9.3:

   (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.

4. There is no evidence before the Tribunal of the views of the Applicant’s victims and the impact on them of a decision to revoke the Mandatory Visa Cancellation Decision.

   Links to the Australian community

5. Paragraph 9.4 of the Direction requires decision-makers to have regard to paragraphs 9.4.1 to 9.4.2 below.

   Strength, nature and duration of ties to Australia

6. Paragraph 9.4.1 requires consideration of the strength, nature and duration of the Applicant’s family and social ties to Australia:

   (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.

   (2)   Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker 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)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

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

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

   a)    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.

7. Having regard to paragraph 9.4.1(1) of the Direction, the evidence before the Tribunal is that all of the Applicant’s immediate family members reside in Australia. These are:

   ·his father, AJ

   ·his mother, HY

   ·his two sisters, EY and SJ

   ·his brother, GJ

   ·his nieces and nephews.

8. The Applicant’s mother and siblings are citizens of Iraq and Australian permanent residents. His father is an Australian citizen.

9. The evidence before the Tribunal is that should the Applicant be returned to Iraq his immediate family members will be devastated as he is a central part of their family unit. The Tribunal has considered the impact of non-revocation upon the Applicant’s immediate family in Australia and find that those persons, especially his parents and siblings, will experience considerable emotional distress and practical hardship if he is physically separated from them.

10. The Applicant has other family ties to Australia, being five aunts, six uncles, nine nieces/nephews and more than 20 cousins. The Applicant provided letters of support from his relatives and friends, all of whom attested to his good general character and importance to them. The Tribunal finds that the non-revocation of the cancellation of the Applicant’s visa will have a negative effect on the Applicant’s other family members, including his nieces and nephews, friends, and community members in Australia, who will be upset or disappointed that he will be returned to Iraq.

11. The Applicant has resided in Australia for almost two decades, having arrived as a young child of four years and completed his schooling here. He completed his education up to Year 10 and then learned a trade as a cabinet maker for 13 months. His criminal offending commenced in 2017 when he was aged 18 years, some 14 years after his arrival. There is limited evidence that the Applicant has made any positive contribution to the Australian community. He does not have an employment history in Australia other than a few short periods working for family members.

12. The Applicant’s evidence supported by that of his brother is that he is likely to gain employment at the company at which his brother GJ works (RV Dynamics). The evidence of this prospective employment is limited, being a conversation GJ had with his supervisor. There is no supporting evidence from the proprietor of the business. There is a statement from the owner of a different company (Direct Reblocking and Underpinning) confirming an offer of work for the Applicant.[136] The Tribunal has given limited weight to the evidence in relation to the Applicant’s prospective employment opportunities.

    [136] Exhibit R1, G21, 90.

    Impact on Australian business interests

13. The Applicant does not claim that any Australian business interests would be affected by his removal to Iraq. Accordingly, the Tribunal has given the factors in paragraph 9.4.2(3) no weight.

14. On the basis of the evidence before it, and having regard to the factors in paragraph 9.4, particularly the length of time the Applicant has resided in Australia and the devastating impact of his removal on his immediate family members, the Tribunal finds that the Applicant’s links to the Australian community weigh heavily in favour of revocation of the Mandatory Visa Cancellation Decision.

    CONCLUSION

15. In summary, the Tribunal finds that Primary Consideration 1 weighs against revocation of the Mandatory Visa Cancellation Decision. The Applicant’s criminal offending is serious, particularly as it has included offences involving violence. The moderate risk of him committing future criminal offences coupled with the nature and seriousness of the harm this would cause to his future victims and the community is such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.

16. Primary Consideration 3 weighs heavily in favour of revocation of the Mandatory Visa Cancellation Decision. It is in the best interests of the Applicant’s nine nieces and nephews for him to remain in Australia. Primary Consideration 4 weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that the Applicant’s violent offences should cause him to forfeit the privilege of remaining in Australia, and this is not outweighed by his two decades as a resident of Australia.

17. In regard to the relevant Other Considerations, the possibility that the Applicant engages Australia’s non-refoulement obligations, the considerable impediments he will face on return to Iraq, and the devastating impact of his removal on his family members weigh strongly in favour of revocation of the Mandatory Visa Cancellation Decision.

18. The Tribunal is satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked and decides that the Reviewable Decision should be set aside.

    DECISION

19. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the decision under review is set aside and substituted with a decision to revoke the cancellation of the Class XB Subclass 202 Global Special Humanitarian visa.

I certify that the preceding 157 (one hundred and fifty -seven) paragraphs are a true copy of the reasons for the decision herein of Senor Member Linda Kirk

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

Dated: 18 July 2022

Dates of hearing:	3 & 4 May 2022
Counsel for the Applicant:	Dr J Donnelly
Solicitors for the Applicant:	Mr A Anoih, Eden York Lawyers
Counsel for the Respondent:	Mr G Johnson
Solicitors for the Respondent:	Ms J Strugnell, Minter Ellison