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

JHZB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 1266 (18 May 2023)
Division:GENERAL DIVISION
File Number: 2020/2220
Re:JHZB
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member

Date:18 May 2023
Place:Melbourne

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the
reviewable decision is set aside and in substitution, the Tribunal decides that under
s 501CA(4)(b)(ii) of the Act, the mandatory cancellation of the applicant’s Class BB subclass 155 Five Year Resident Return visa is revoked.
...............................[SGD].........................................
R Cameron, Senior Member
CATCHWORDS
MIGRATION -– non-revocation of a mandatory visa cancellation -– remittal -– citizen of Iran -– protection finding -– Class BB Subclass 155 Five Year Resident Return Visa -– where applicant does not pass the character test -– substantial criminal record -– whether ‘other reason’ to revoke mandatory visa cancellation -– consideration of Ministerial Direction No. 99 -– Decision under review set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
FYBR v Minister for Home Affairs [2019] FCAFC 185
Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463
XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74
SECONDARY MATERIALS
Direction No 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
INTRODUCTION

The applicant seeks review of a decision made on 16 April 2020 by a delegate of

the respondent, not to revoke the mandatory cancellation of the applicant’s Class BB subclass 155 Five Year Resident Return visa under s 501CA (4) of the Migration Act 1958 (Cth) (‘the Act’) (‘the reviewable decision’).
This matter has had an unfortunate procedural history. It is not necessary to delve into

this history in any detail for the purposes of these reasons. Suffice to say that there have been two previous Tribunal decisions which were quashed by subsequent rulings of

the Federal Court of Australia. The most recent decision of this Tribunal was made on

4 March 2022.
THE EVIDENCE BEFORE THE TRIBUNAL
There was both viva voce and documentary evidence before the Tribunal. The documentary evidence consisted of two volumes of a Joint Tribunal Book. Included in the contents of the Joint Tribunal Book were, amongst other things, a vast array of witness statements many of which were made by witnesses who did not give viva voce evidence at the hearing of the application. Additionally, there were a significant number of support statements and letters also produced by many people who did not give evidence. Several of those support letters and statements attested to various courses and programs that had been undertaken by the applicant which certified his satisfactory completion of them. There was also an array of certificates for educational courses and self-improvement programs that the applicant had undertaken whilst in custody and immigration detention. All of these documents have been read and considered by the Tribunal.
As is usually the case in applications of this kind, there was also before the Tribunal, a range of documents containing details of the applicant’s criminal offending that had been summoned from several organisations.
The following witnesses gave viva voce evidence:
(a)The Applicant;
(b)Rory Collings;
(c)Guy Coffey, a Clinical Psychologist;
(d)Eric Littman;
(e)Stephen McClean;
(f)The Applicant’s Sister ‘D’ in these reasons;
(g)The Applicant’s Uncle ‘M’ in these reasons; and
(h)The Applicant’s Uncle ‘F’ in these reasons
LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Act, the Minister (or his delegate) 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) paragraph (6)(e) (sexually based offences involving a child); 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.
The character test referred to in s 501(3A) is outlined in s 501(6) of the Act. Relevantly, s 501(6) of the Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by s 501(7) of the Act). For the purposes of s 501(6)(a) of the Act, and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[1]
[1] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is ‘another reason’ why the original decision should be revoked.
Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any
such direction cannot be inconsistent with the Act, but a decision-maker must, under
s 499(2) of the Act, comply with a relevant direction. Currently the applicable direction is Direction No 99 -Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA. (‘Direction 99’).
DIRECTION 99
Whilst it is not necessary for the purpose of these reasons to reproduce all or, extensive parts of Direction 99 it is useful nonetheless to refer to several of its sections.
Paragraph 4 ‘Interpretation’ contains a very broad definition of the term ‘family violence’. The term is defined to mean violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful. Examples of behaviour that may constitute family violence are referred to in that paragraph and include assault, a sexual assault or other sexually abusive behaviour, stalking and intentionally damaging or destroying property.
Paragraph 5.2 ‘Principles’ provides the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act. The contents of that clause are referred to in their entirety for the full force and effect. However, several of them should be specifically referred to. It is provided that:
(a)
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;
(b)non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia;
(c)the Australian community expects that the Australian government can and should cancel non-citizens’ visas if they engaged in conduct that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community; and
(d)
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 revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55 (2) ‘Expectations of the Australian Community’ is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 ‘Making a decision’ provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in ss 8 ‘Primary Considerations’ and 9 ‘Other considerations’ where relevant to the decision.
Paragraph 7 ‘Taking the relevant considerations into account’ provides that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[2]
[2] Direction 99 at paragraph 7.
Paragraph 8 ‘Primary considerations’ provides that in making a decision under ss 501(1), 501(2) and 501CA(4) the following are 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 strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
Paragraph 9 ‘Other Considerations’ provides that in making a decision under
ss 501(1), 501(2) and 501CA(4) the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(a)Legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims;
(d)impact on Australian business interests
ISSUES BEFORE THE TRIBUNAL
There is ample evidence to demonstrate that the applicant has made representations in accordance with s 501CA(4)(a) of the Act.
That leaves two issues for determination by the Tribunal:
(a)whether the applicant passes the character test; and
(b)if he does not, whether there is another reason why the decision to cancel the visa should be revoked.
THE CHARACTER TEST
The Tribunal did not understand the applicant to challenge that he does not pass the character test. In a Statement of Facts, Issues and Contentions previously lodged with the Tribunal, such a concession was apparently made.[3] He fails the character test because of the operation of s 501(6)(a) and s 501(7)(c) of the Act as he has been sentenced to a term of imprisonment of 12 months or more.
[3] Document G 25 at paragraph 5.
At the Magistrates’ Court in February 2019, the applicant was convicted on a charge of reckless conduct endangering serious injury and sentenced to a term of imprisonment of 12 months. On the same day in the Magistrates’ Court in February 2019, the applicant was also convicted of several other offences as follows:
failing to report to police an accident where persons were injured;
unlawful assault;
contravention of a family violence intervention order;
committing an indictable offence whilst on bail;
intentionally causing injury;
unlicensed storage of a firearm/ammunition in an insecure manner;
being a prohibited person in possession of a firearm;
possession of methylamphetamine (2 charges);
possession of GHB (2 charges); and
possess cartridge ammunition without a license or permit.
On that day the applicant was sentenced to a total term of imprisonment of one year and nine months. The presiding Magistrate set a non-parole period of 14 months.[4]
[4] Precise details of the offences for which the applicant was convicted are found in the National Coordinated Criminal History Check which is document G 3 pages 36–41 of the Joint Tribunal Book. Further details of the applicant's offending and sentences for which he was dealt with in February 2019 at the Magistrates’ Court are found in document G 4 pages 42–56 of the Joint Tribunal Book. This document is a transcript of proceedings before that court on that day.
BACKGROUND
The applicant is presently 32 years of age having been born in Baghdad. He is a citizen of Iraq. He was born a Sunni Muslim.
He arrived in Australia in December 2009 at the age of 18 years as an unauthorised maritime arrival. Save for several brief trips abroad, details of which are contained in the applicant’s Movement Records which were in evidence before the Tribunal, he has resided in Australia ever since.
After his arrival in Australia the applicant spent several months in immigration detention. Subsequently, he was granted a Protection visa on 10 March 2010. Upon grant
of the Protection visa, he initially stayed with his uncle ‘A’ his wife and their
children in a suburb of Melbourne. He also spent some time with another uncle ‘F’ in suburban Melbourne.
OFFENDING
Introduction to the applicant’s offending
As previously observed a summary of the applicant’s offending is contained in the National Coordinated Criminal History Check which was in evidence before the Tribunal. An examination of that Criminal History Check reveals that the applicant has been convicted of approximately 40 offences. Those offences range in seriousness from reckless conduct endangering serious injury, intentionally causing injury, contravening a family violence intervention order, trafficking methylamphetamine and possession of a firearm through to several convictions for possession of drugs. The accuracy of the contents of the National Coordinated Criminal History Check was not challenged by the applicant during the hearing of this matter.
The first conviction was recorded in April 2015, approximately five years after his arrival in Australia, and the final conviction is recorded in February 2019. It was a sustained pattern of offending that took place over a period of 4 years. Apart from the increasing frequency of the applicant’s offending, it is apparent that the offending was of increasing seriousness.
The applicant’s convictions between April 2015 and April 2016 resulted in various sanctions, the most serious of which was a conviction and fine. Several of these convictions related to the possession and use of drugs. The frequency of the applicant’s convictions on drug, and drug related charges is consistent with his evidence, which the Tribunal accepts, and about which more will be said later, that he was in the grip of a serious drug addiction. The drug that he mostly used during this time was methylamphetamine. There was also one count of committing an indictable offence whilst on bail.
In April 2016, the applicant was convicted of the charges of wilfully damaging property without authorisation or excuse, entering a private place, tampering with a motor vehicle and failing to answer bail (2 charges). The applicant was placed on a Community Corrections Order for 12 months.
The Tribunal should observe that the convictions on two charges of failing to answer bail revealed a propensity or tendency on the applicant’s part to show an absence of respect for Australia’s law enforcement framework. This was also manifested in his subsequent conviction for driving whilst disqualified, and also being a prohibited person in the possession of a firearm.
Not long after, in June 2016 at a Local Court, the applicant was convicted of dealing with property suspected to be the proceeds of crime and possess or use a prohibited weapon without a permit (2 charges). He was sentenced to 2 months’ imprisonment.
In September 2017 the applicant was found to have contravened a Community Corrections Order.
It is quite apparent, even from an examination of the relatively spartan material before the Tribunal concerning the applicant’s offending, that his frequent court appearances did not teach him a lesson. There can be little doubt that with a protracted history of offending
as revealed in the
National Coordinated Criminal History Check that he would have been frequently warned by sentencing Magistrates that with the increasing frequency of

his offending, not to mention seriousness, that he was facing the prospect of a term

of imprisonment were he to offend again. Probably, a significant term of imprisonment

as it turned out to be the case. He was more probably than not, also warned by lawyers retained by him to appear on his behalf from time to time of the dangers of reoffending. Despite these warnings, they did not seem to have a deterrent effect upon him. This is probably indicative of the degree to which the applicant’s life had descended into one of hopeless drug addiction.
Unfortunately, as noted earlier, the Tribunal for the purposes of the hearing of this application, on this occasion appears to have less material concerning the precise circumstances of the applicant’s offending than on the previous occasions when this matter was heard by other Tribunal members.[5] Given the limited material available to the Tribunal concerning the precise details of all of the applicant’s offending it will briefly recount this with some particularity the more serious of his offences.
[5] For instance, the Joint Tribunal Book only appears to contain a selection of the G documents. Whereas an examination of the reasons of the two previous occasions that this matter was before the Tribunal there is reference to ‘Supplementary G Documents”. It appears that the Supplementary G Documents probably contained far more extensive material concerning the applicant's prosecution in the relevant courts concerned.
February 2017 Essendon driving offences
There was in evidence before the Tribunal, a Preliminary Brief-Statement by the Informant concerning these offences. When he was in the witness box the applicant readily conceded the elements of these offences. He explained that these offences occurred when he had taken a bigger amount of the drug GHB (which was described as a depressant) than he was intended to take. He stated he fell asleep whilst under the influence of that drug and woke up later on handcuffed to a hospital bed.
The Preliminary Brief reveals that at approximately 10:47 am on a Saturday in February 2016 the applicant was driving a vehicle north along Bulla Road, Essendon. He was, as already observed, heavily under the influence of illicit drugs. He failed to stop for a red light at the intersection of Bulla Road, and the Tullamarine Freeway. After failing to stop for the red light he continued driving north into the car park of the DFO shopping precinct in the area known as ‘Essendon Fields’.
The applicant drove around the northern side of the DFO car park and collided with the front driver’s side of a stationary and legally parked BMW vehicle. The impact caused moderate damage to the front of that vehicle. The force of the impact however, pushed the BMW vehicle into a Chrysler sedan which was parallel parked. The impact caused moderate damage to the front driver’s side of the Chrysler sedan.
Notwithstanding the initial impact, which damaged the BMW and the Chrysler vehicles, the applicant without stopping to exchange details, or making any enquiries of the owners of the damaged vehicles, continued driving. He continued driving to the rear Eastern car park of the DFO and parked his vehicle, before passing out at the wheel. He was noticed by the DFO security who woke him up. Once awaking and seeing the security guards the applicant started the vehicle and accelerated with considerable force and rammed into another stationary, and legally parked Volkswagen. Upon colliding with the Volkswagen, the applicant passed out again.

Shortly after colliding with the Volkswagen police arrived. They observed the applicant had still passed out with his vehicle still in contact with the Volkswagen. They woke the applicant again. Upon seeing the police officers, the applicant attempted to start his vehicle again. The police moved swiftly, removing the applicant from his vehicle and effecting an arrest.
At the time of his arrest several items were located by the police in the applicant’s vehicle. They included a black satchel which contained, amongst other things, a clear zip
lock containing approximately 63 g of methylamphetamine, a plastic vial containing GHB, $7,320 in assorted banknotes and 12 Sandoz tablets. A mobile phone was also recovered from the vehicle.
The police were able to access the applicant’s mobile phone. In doing so, they observed a high number of SMS text messages relating to the trafficking of drugs.
Apparently, the applicant was remanded in custody by an after-hours bail justice. Eventually he was granted bail in March 2017.
In September 2017, the applicant was sentenced for the February 2017 Essendon driving offences. He successfully lodged an appeal to the County Court, and in November 2017 on the charges of trafficking methylamphetamine, possession of GHB, driving whilst disqualified, driving in a manner dangerous and driving under the influence of drugs, he was convicted and placed on a Community Corrections Order for 2 years and ordered to perform 200 hours of unpaid community work. All licenses and permits that he had to drive a motor vehicle were cancelled, and he was disqualified from obtaining a further license for a period of 4 years.
October 2017 Strathmore driving offences
Once again with respect to these offences, the applicant did not deny both the offending and the gravity of his offending when he was in the witness box. He explained that this offending occurred in the context of him using drugs. He had not slept for three or four days before the accident concerned. He readily conceded that he should not have driven. He stated that all he was thinking about on that day was about his next high. It was also explained by him that overall, he was trying to avoid responsibility for that incident when he left the scene.
Concerning the precise particulars of the October Strathmore driving offences, once again, the Tribunal has the benefit of a Preliminary Brief-Statement by Informant as well as the transcript of proceedings before the sentencing Magistrate in February 2019.[6]
[6] The transcript of proceedings at the Magistrates’ Court in] February 2019 are at page 42 of Volume 1 the Joint Tribunal Book, document G 4 of the G documents.
At approximately 5.00 pm on a day in October 2017, the applicant was driving south along Pascoe Vale Road, Strathmore. In the car with the applicant were two children aged 8 and 11. The mother of those children was the owner of the vehicle. The victim was driving north along Pascoe Vale Road. The applicant’s vehicle crossed the centreline of the road heading towards the vehicle driven by the victim. The applicant did not take any evasive action or apply his brakes. The victim swerved to his left in an attempt to avoid the applicant’s vehicle. Unfortunately, the applicant’s vehicle collided with the front driver’s side of the victim’s car at approximately the windscreen point. The victim’s vehicle was propelled to the rear and to the west and came to rest partly on the nature strip and partly on the left-hand northbound lane facing east.
As a result of the impact the victim was knocked unconscious for a short time. Due to his injuries, he was not able to get out of the vehicle. He was pinned inside the vehicle. He was assisted by witnesses until the arrival of an ambulance.
Following the collision, the applicant got out of his vehicle. He did not show any apparent concern for either the victim in the other vehicle, or the two children in his car. He retrieved some items from the car and then moved one child from the road whilst the other child walked off the road herself. A witness attended the scene after hearing the noise from the collision. The applicant convinced that witness to take him to Glenroy in an apparent attempt to locate the children’s mother. He then left the two children at the collision scene with persons unknown to him. Following his arrival at Glenroy, the applicant parted company with the witness after giving them a false name. He did not report the collision to police or exchange his details with the victim or the police who attended at the collision scene.
When interviewed by police concerning the accident, the applicant made a no comment record of interview. He did not admit to being the driver of the vehicle or to anything else concerning the collision including his involvement in it.
The victim was seriously injured as a result of the collision. He received fractures to his ribs, multiple fractures to his pelvis, fractures to his back, right arm and cheek that required stitches. He was in the Royal Melbourne Hospital for 3 weeks before being transferred to a rehabilitation facility. It was anticipated that he would have approximately six months off work and rehabilitation took approximately 12 months. The sentencing Magistrate described the victim as suffering ‘severe fractures’.
Possession of a 9 mm loaded semiautomatic handgun in November 2018
Once again, the applicant did not dispute the facts and circumstances surrounding this offending. He did explain it yet again, in the context of his drug addiction. At this time, he was managing a car wash in Fletcher Street, Essendon. He explained that he had met two girls via a dating website on the internet. These girls were present at the car wash when someone they knew arrived in possession of the firearm. The applicant stated he wanted to look ‘cool’. In this context he asked the visitor if he wanted to sell the firearm. An agreement was struck between them, and the applicant bought the gun. The applicant said in evidence to the Tribunal, “I bought the gun to look cool, hopefully those girls would like me. I wanted to look cool. I had the gun in an open safe where people usually go to in that place. I wanted to look like that cool guy. I wanted to look like a tough person.”
In November 2018, Echo Taskforce Anti-Gang Squad detectives obtained a warrant from the Magistrates’ Court to search the premises on which the Fletcher Street car wash was situated. The detectives arrived at the car wash at approximately 11:30 am on that day to execute the search warrant. The applicant was present on the premises.
Detectives then entered the manager’s office and immediately observed a loaded 9 mm Smith and Wesson semiautomatic pistol in an open safe located under a desk. In addition to the magazine loaded into the handgun there were two additional magazines containing ammunition, adjacent to it. All identifying marks and serial numbers had been ground off the firearm. When questioned by the Tribunal, the applicant readily acknowledged that the firearm was loaded, and that the magazines were present when it was seized by the police. In addition to the loaded firearm, police seized 20 mg of methylamphetamine and approximately $10,000 in cash.
A swipe card belonging to the Summer Inn Holiday Apartments in Keilor Road, Essendon North was also located by the detectives at the Fletcher Street car wash. The detectives obtained an additional search warrant for the relevant room at the Summer Inn Holiday Apartments. When that room was searched a small quantity of methylamphetamine and a quantity of GHB was also recovered.
Following these events, the applicant was arrested and taken to the City West Police Station where he made a no comment record of interview. It appears that he was remanded in custody and eventually bailed in February 2018.
March 2018 domestic violence offending
The relevant parts of the sentencing Magistrate’s description of the applicant’s offending in March 2018 were read to him whilst he was in the witness box. He readily agreed with that description of the offending. He stated he did not recall all of it. However, he further stated that he accepted the description of his offending because it had been described in that way by the court, he also stated he accepted it because he had been convicted of those things. He also readily conceded in his evidence to this Tribunal that his ex-partner was telling the truth. Whilst not offering it as an excuse, the applicant stated that when he was talking to his ex-partner on that day, he felt jealous and insecure, and started taking GHB. It was whilst under the influence of that drug that his offending occurred.
Apart from the sentencing Magistrate’s reasons, the Tribunal also has for this offending,
the Preliminary Brief-Statement by Informant prepared by the police. There was no challenge made to the accuracy of this document at the hearing of the application. The Tribunal has no reason to doubt its accuracy and will briefly recount the circumstances of the applicant’s offending.
Apparently, the applicant and the victim had known each other since approximately July 2017. They had been living together since approximately February 2018. They resided at an address in Tarneit. The offending occurred at approximately 2.00 pm on a date in March 2018 when they were both at home.
The applicant suddenly started examining the contents of the victim’s mobile phone. After searching for the word ‘adventure’ on the Google search engine in her phone he began punching the victim in the face whilst making various derogatory comments to her. He then accused her of having a profile on an internet dating website. She denied the accusation. Following the denials, the applicant continued to punch her in the face making further derogatory comments to her. The applicant then walked the victim into their ensuite telling her to look in the mirror, whilst continuing to strike her to the face and spitting on her. The victim then started to bruise and bleed from cuts around her eyes and cheeks.
They both then walked into the bedroom. The applicant then pushed the victim onto the bed and as she lay there on her back, he got on top of her. He continued to punch her to the face and made further derogatory comments to her. At this point the applicant started to choke the victim with both of his hands applying such force and pressure until she lost consciousness for a brief period. As a means of placating the applicant the victim told the applicant untruths, and that she would give him her login details for the dating website. She then sent multiple ‘SOS’ messages to her mother and father telling them that the applicant was ‘“bashing her”, and that she “needed help”. Shortly after this the applicant realised what the victim was doing, seized her phone and sent a message to her parents insinuating that the messages were accidental. The victim then managed to retrieve her phone from the applicant and called her mother. Whilst this occurred, the applicant made a threat to her to the effect that if he were sent back to jail, he would send every person he knew, ‘to come and get you and your parents’. He then left the premises.
Shortly after the applicant left their residence, the victim’s parents arrived and took her to a nearby police station. Police took photographs of the victim’s injuries. They observed bruising and swelling to her eyes and upper cheeks and a cut above her lip.
June 2018 domestic violence offending
With respect to this incident, the applicant did not dispute the essential facts that were before the Tribunal in the materials contained in the Joint Tribunal Book. Yet again, he explained that this offending occurred in the context of him taking drugs. He recalled being present at the premises when he was taking both methylamphetamine and GHB. They were talking about his ex-partner. The applicant stated that he felt he had had enough and decided to go to another room and cut himself and end his life. He started to cut his wrists and an ambulance was called which conveyed him to hospital. As soon as he
got home following treatment, he said he, “took a big amount of GHB”. He then recalls being handcuffed and at a police station. He stated that he agreed with the sentencing remarks of the Magistrate. In his words, it was a disgusting and cowardly act of which he was ashamed.
In May 2018, a family violence intervention order was made and served on the applicant. In June 2018, the victim and the applicant attended at the Magistrates’ Court in relation to the final hearing of such family violence intervention order. On that day the existing order was varied to what was described as a “limited contact order”, and a condition not to commit family violence.
Following the hearing at the Magistrates’ Court the victim and the applicant went to bed. Apparently, the applicant received a text message from his ex-partner. This prompted the victim to ask the applicant why he had been speaking to his ex-partner. This caused the applicant to become angry. The victim then texted the applicant’s ex-partner. An argument ensued. The victim requested the applicant to delete the ex-partner’s number and block her from his phone. The applicant became annoyed and threw his phone and SIM card to the ground. The applicant left the room which the victim was present in. She began examining the contents of the applicant’s iPad. When conducting this examination, she noted the applicant had been speaking to several women on a dating app. The applicant returned to the room at which the victim was present and seized his iPad from her. A brief argument developed between them. This prompted the applicant to leave the room.
Shortly afterwards, the victim heard the applicant yell out and walked into the spare room where he was. She observed him holding a razor blade to his wrist. The applicant had several lacerations to, and was bleeding from, his left wrist. The victim was able to seize the razor blade from the applicant, called 000 and followed directions to arrest the bleeding from the applicant’s wrist. The ambulance arrived and the applicant was conveyed to Hospital. Approximately an hour later, the victim attended the Hospital to check up on the applicant.
After being treated at the Hospital, the applicant and the victim returned to their residence in the victim’s vehicle. Initially, on arrival at their residence the victim was reluctant to enter the premises as she foreshadowed that there was likely to be an argument. The applicant applied considerable pressure on the victim to follow him inside. She reluctantly complied with these demands made by him. When inside, the applicant confronted her about what she had done during the hour that he wasn’t with her whilst he was in hospital. He then accused her of lying.
The applicant then jumped on top of the victim, so she was pinned to a bed. He began striking her to the face and pulled her hair. He then took a phone charger cord and wrapped it around the victim’s neck. The applicant pulled the phone charger cord tightly to strangle the victim. She was unable to talk because the cord was pulled too tightly around her neck. The applicant then loosened the cord around her neck, and she attempted to explain to him that she had been at home when he left for hospital. The applicant was dissatisfied with the response, and again tightened the cord around her neck.
At this time the applicant feared for her life and said words to the effect that if he stopped strangling her, she would tell him the truth. The victim said to the applicant that if she told the truth, she wanted him to promise not to hurt her anymore. The applicant agreed to the victim’s pleas and upon doing so in order to appease him, she gave a false explanation to the applicant about seeing another male. The applicant asked her if she had engaged in sexual congress with the other male, which the victim denied. Immediately upon denying the suggestion the applicant again tightened the phone charger cord around her neck. Solely in order to induce the applicant to cease strangling her with the phone charger cord she yet again falsely explained that she had sexual congress with the male concerned. The applicant, despite this admission, continued strangling the victim as he was dissatisfied with her answers. This appalling treatment of the victim continued to the point where she falsely admitted having sexual congress with the person concerned in the hour whilst the applicant was being treated at the Hospital.
Eventually, the applicant ceased strangling the victim. She then left the premises. As she was leaving the premises police, who had been requested by staff at the Hospital to conduct a welfare check on the accused, arrived and observed and spoke to the victim. They described the victim as “pale”, “shaking extensively”, “extremely timid” and “scared”. They also described the victim as terrified of the accused and detailed how she positioned herself behind one of the police constables for protection. The applicant was then arrested and conveyed to the police station. He denied all of the allegations. He was remanded in custody.
PRIMARY CONSIDERATION 8.1 OF DIRECTION 99 — PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1(1) of Direction 99 provides that when considering the protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction 99 further states:
(2) Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 8.1.1 of Direction 99 — The nature and seriousness of the applicant’s conduct
Paragraph 8.1.1(1) of Direction 99 identifies several factors that a decision-maker must have regard to when considering the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. The range of factors enumerated in that paragraph is not exclusive.
Paragraph 8.1.1(1)(a)(i) of Direction 99 provides that, without limiting the range of conduct that may be regarded as very serious, violent and/or sexual crimes, crimes of a violent or sexual nature against women or children regardless of the sentence imposed and acts
of family violence, regardless of whether there is a conviction for an offence, or a
sentence imposed are viewed very seriously by the Australian Government and the Australian community.
Paragraph 8.1.1(1)(b)(ii) of Direction 99 also provides that, without limiting the range of conduct that may be considered serious, crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties are considered by the Australian Government and the Australian community to be serious.
Additionally, Direction 99 also provides in considering the nature and seriousness of the non-citizen’s criminal offending, decision makers must have regard to the following additional matters:
(a)The sentence imposed by the courts for a crime or crimes;[7]
(b)The frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;[8]
(c)The cumulative effect of repeated offending;[9] and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
[7] Paragraph 8.1.1(c) of Direction 99.
[8] Paragraph 8.1.1(d) of Direction 99.
[9] Paragraph 8.1.1(e) of Direction 99.

The applicant conceded that his offending was very serious within the meaning of

Direction 99.[10]
[10] The concession is contained at paragraph 24 of the applicant's Statement of Facts, Issues and Contentions dated 10 February 2023.
Viewed objectively, the applicant’s offending is very serious. There are several reasons for this. There are the family violence offences committed by the applicant, details of

which have been referred to above. They were particularly objectionable criminal acts committed by the applicant who was clearly in a position of dominance over his victims. Such criminal offending was also at a most severe level as the victims in both instances were subjected to humiliating and life-threatening behaviour whilst the applicant was obviously in a drug-addled state. Such family violence offences are, as has been recorded already, pursuant to paragraph 8.1.1(1)(a) of Direction 99 viewed very seriously by the Australian Government and the Australian community.
The applicant’s victims in these circumstances must have held terrible concerns for their safety, and the fate that may have awaited them. The fact that one of his victims was rendered unconscious by being choked is particularly disturbing. It was possible, in the circumstances, that had the applicant not released his grip when he did, that his victims may have suffered more serious injuries (for instance due to oxygen deprivation to the brain), or even potentially death. In a sense, the applicant is fortunate given the way his family violence offending unfolded that his victims were not more severely injured.
It should also be recalled that with respect to the applicant’s June 2018 domestic violence offending, he was breaching a family violence intervention order. This showed
an absence of respect for important institutions such as the courts and Australia’s law enforcement framework and the laws of this country.[11] It was a blatant disobedience of
[11] Paragraph 5.2(1) ‘Principles’ of Direction 99 is referred to again.
the law.
With respect to the applicant’s driving offences, they also must be viewed as very serious. There are several reasons for this. Starting with the October 2017 Strathmore driving offences, the applicant’s conduct on that day was outrageous. Not only did he drive whilst under the influence of drugs, but he did so also not having slept for three or four days previously. To compound the matter even further, was the fact that he had two young and vulnerable children in the car with him. His behaviour was callous and indifferent when he abandoned them and fled the scene of the accident. This appalling behaviour was also amplified by his failure to render assistance to the other driver who was seriously injured. Lest it needs to be repeated, the victim was hospitalised for three weeks and underwent rehabilitation for many months. One can only speculate whether he has fully recovered from the trauma he experienced that was all completely caused by the applicant.
The February 2017 Essendon driving offences also must be regarded very seriously. Of particular concern with respect to the applicant’s behaviour on the roads that day is the sustained pattern of dangerous driving that he embarked upon. He posed a significant risk to innocent members of the community using the roads on that day. Yet again, the applicant did so whilst he was heavily drug affected. He drove for some distance on a main road disobeying traffic control signals prior to his arrival at the DFO car park. The applicant also, it will be recalled caused his vehicle to strike two vehicles, and he attempted to ram another vehicle after the police arrived and woke him up. It was a reckless disregard for the road traffic laws of the State of Victoria. His failure to comply with the police when they woke him up is also concerning, and similarly reveals a lack of respect for authority. It was a reckless disregard for the community. The applicant is indeed fortunate that on this occasion, he did not injure an innocent third party or parties. It was outrageous conduct.
As for the applicant’s possession of a 9 mm loaded semiautomatic handgun in November 2018, there is little more that needs to be said about the seriousness of his offending. There was material in evidence before the Tribunal that describes the illicit movement, trafficking and use of firearms as a serious national threat and a significant safety concern for the Australian community.[12] Semiautomatic handguns are used by criminals to protect their interests and commit violent acts. The fact that the applicant was in possession of the handgun loaded with two additional magazines only amplifies the gravity of his offending in this instance.
[12]
There was no possible need for the applicant to be in possession of such a quantity of ammunition stored in magazines. Handguns are lethal weapons that can be used to kill. There is simply no excuse for their possession. The Tribunal should observe that someone in possession of a handgun does not look “cool” (as the applicant stated in his evidence), more accurately, such an individual looks a fool. A further dimension to the applicant’s possession of a handgun, that also emphasises its seriousness, is that the applicant possessed this lethal semiautomatic weapon, which is concealable, whilst he was frequently under the influence of drugs and more prone to behave irrationally. In such a setting, the potential for misuse of the handgun was very high, particularly if the applicant had some kind of disagreement with another.
Unfortunately, there are limited sentencing remarks available to this Tribunal with respect to the applicant’s offending. The sentencing remarks of the presiding Magistrate on in February 2018 also demonstrate the seriousness of the applicant’s offending. The Magistrate observed that the applicant’s offending behaviour was extremely serious and concerning.
The Sentencing Magistrate with respect to the two domestic violence offences and the October 2017 Strathmore driving offences stated that the aggravating factors of the offending must be abundantly clear and obvious to anyone who is familiar with the circumstances. He emphasised the nature and gravity of the offending, in particular the coldness and cruelty of the offending. In the domestic violence matters, he also emphasised the degrading of the victim in her own home, a place where any person deserves to feel safe. This is particularly relevant to women. He also identified the applicant’s lack of remorse indicated by his behaviour immediately after the offending. Additionally, the severe impact on the victims was referred to.
As required by paragraph 8.1.1(1)(c) of Direction 99, the sentences imposed by several courts assume significance when assessing the nature and seriousness of the applicant’s offending. As has been frequently observed in many decisions of this Tribunal, imprisonment is the last resort in the sentencing hierarchy, and obviously reflects the seriousness of a party’s offending in an objective sense.
What is apparent from an examination of the limited material before the Tribunal is that the applicant has been sentenced to a term of imprisonment on several occasions. The terms of imprisonment to which the applicant was sentenced progressively increased over time as is apparent from an examination of the National Coordinated Criminal History Check that was in evidence. As observed earlier, on the last occasion the applicant was sentenced to a term of imprisonment in the Magistrates’ Court in February 2019, a total term of one year and nine months with a non-parole period of 14 months was imposed. This is a significant term which also reflects the gravity of the applicant’s offending.
Another observation should be made concerning the several terms of imprisonment imposed on the applicant. That is that the term of imprisonment imposed on him increased over time, and it appears that he did not learn his lesson. The Tribunal acknowledges that the overwhelming evidence indicates that this is probably indicative of the terrible effect that the applicant’s drug dependency had upon him. It is more probable than not that he was significantly impaired by reason of his drug addiction, and therefore, the imposition of a custodial sentence upon him did not have a deterrent effect. His mind was so impaired by the taking of drugs that he did not think rationally.
Also as noted, paragraph 8.1.1(d) of Direction 99 requires the decision-maker to have regard to the frequency of the non-citizen’s offending and whether there is a trend of increasing seriousness. These questions have already been addressed in these reasons. There is really no need to repeat them. However, the number of offences committed by the applicant as revealed in the National Coordinated Criminal History Check, which as noted earlier was not disputed, indicates a disturbing frequency. As is also apparent from the previous narrative, there was a trend of increasing seriousness that led to the imposition of a significant term of imprisonment by the Magistrates’ Court in February 2019. Such term of imprisonment, it will be recalled, was a total of one year and nine months of the non-parole period of 14 months. The increasing seriousness of the offending was reflected in the four significant crimes that the Tribunal has provided details of earlier in these reasons namely the February 2017 Essendon driving offences, the October 2017 Strathmore driving offences, the possession of the 9 mm loaded semiautomatic handgun in November 2018 and the two domestic violence offences in March and June 2018. The Tribunal considers that this trend of increasing seriousness in the applicant’s offending was yet again a demonstrable manifestation of how out-of-control the applicant’s drug addiction had become.
As for the cumulative effect of the applicant’s repeat offending that the Tribunal is obliged to consider under paragraph 8.1.1(1)(e) of Direction 99, there are several dimensions

to it.
There has been the cost to the community of keeping the applicant incarcerated. It is well-known that there is a significant cost to keeping a person imprisoned.
With respect to the applicant’s driving offences there have been several cumulative effects. First and foremost, there have been the serious injuries caused to the victim of his October 2017 Strathmore driving offences. The impact on the victim of this offending is demonstrably profound. He suffered significant injuries that resulted in him being hospitalised and having to undertake rehabilitation for a long time. The applicant’s appalling driving record has clearly put innocent people’s lives at risk of serious injury or even death.
Given the extremely severe nature of the injuries suffered by the victim of the applicant’s October 2017 Strathmore driving offences it is inevitable that the Victorian Transport Accident Commission would ultimately have had to have bear from the victim a significant personal injuries claim at common law, consisting of damages for pain and suffering and loss of earnings. This would be in addition to the substantial sums of money that organisation would have paid for the victim’s medical treatment and subsequent rehabilitation. Ultimately, these forms of compensation will be borne by other law-abiding motorists when they are levied third-party insurance premiums at the time of renewing the registration of their vehicles. It is common knowledge that third-party insurance claims are a significant drain on these transport accident compensation schemes throughout the Commonwealth of Australia.
Further with respect to both the driving offences identified earlier in these reasons there has been significant damage to innocent parties’ property. This no doubt will have ultimately been born by several insurance companies. Insurance companies will inevitably factor such losses into the premiums they charge policyholders, who predominantly obey the law and have an accident-free motoring record.
An additional effect of the applicant’s several driving offences has been the diversion of police and emergency services. There was both a significant police and ambulance presence at both the February 2017 and October 2017 driving offence locations. This unfortunate diversion of resources could have significant consequences. If these accidents caused by the applicant had not occurred, the ambulances would not have been called, and more probably than not, they could have responded more promptly to other requests for emergency attention. One has to ask the question of what might have happened if at the time an ambulance had been called to one of the accidents caused by the applicant, a law-abiding elderly citizen had suffered an emergency medical event requiring immediate ambulance attendance? It could have been the difference between life and death. Significant police resources were tied up in processing, prosecuting and detaining the applicant. Also, in at least in one instance the police had to guard the applicant whilst he was in hospital. There can be no doubt that they had more productive things

to do.
With respect to the applicant’s domestic violence offending, first and foremost, the impact on his victims cannot be overemphasised. This was acknowledged by the sentencing Magistrate. There were both the physical and psychological injury that they must have inevitably suffered. Also, it should be emphasised that violence directed towards women degrades and dehumanises them. It is individually and systemically intolerable. It can have the effect of normalising gender imbalances that can be socially enforced by such behaviour. Domestic violence degrades its victims.
Another cumulative effect of the applicant’s offending that should also be mentioned relates to his convictions for various drug offences. The drug trade is insidious. There was material before the Tribunal that indicates that particularly with respect to methylamphetamine trafficking and consumption, that organised crime groups are thriving on the profits generated through such trade.[13] It is said to pose the highest risk to the Australian community. Methylamphetamine abuse destroys lives and causes significant cost to the Australian community. The applicant’s drug offending contributed to this insidious trade.
[13] Australian Crime Commission, "The Australian Methyl Amphetamine Market-The National Picture". Document G 26 of the G documents.
Finally, with respect to the significant array of other offences that were committed by the applicant as revealed in the National Coordinated Criminal History Check in evidence before the Tribunal, which have not been the subject of individual detailed assessment above, there was a significant diversion of resources in the courts, policing, corrections and probably healthcare systems. There is a significant opportunity cost attached to this diversion of resources that has been directly caused by the applicant’s offending.
For the sake of completeness, the Tribunal does not consider that there is any evidence before it applicable to the matters contained in sub-paragraphs 8.1.1(1)(f), (g) and (h) of Direction 99.
It was submitted by the respondent, and put to the applicant in cross examination, that a letter dated March 2016, ‘Notification of Decision not to Cancel Under Section 109 of the Migration Act 1958’ constituted a warning.[14] In particular, it was suggested that this letter constituted a formal warning after receipt of which the applicant reoffended. Therefore, it was contended that it is a relevant consideration for the Tribunal was required to have regard to pursuant to paragraph 8.1.1(1)(g) of Direction 99. The Tribunal cannot agree with this submission. When one examines the language of this sub-paragraph of Direction 99, the letter does not use any words that could properly be construed as constituting a warning, nor alternatively, does it convey a meaning that the applicant was being made aware of the consequences of further offending in terms of his migration status.
[14] Page 311 of the G documents.
The Tribunal acknowledges nonetheless, the proviso contained in paragraph 8.1.1(1)(g) of Direction 99 that the absence of a warning should not be considered to be in the applicant’s favour.
In conclusion, with respect to the nature and seriousness of the applicant’s offending, by reason of the matters articulated above, individually and collectively, it must be categorised as very serious. There are several reasons for this. There is of course the fact that he has been sentenced to several terms of imprisonment. The last term of imprisonment was well over a year before he was eligible for parole. As noted, prison is the last resort in the sentencing hierarchy and reflects the views that the sentencing court had with respect to the applicant’s offending. Additionally, there is the frequency of the applicant’s offending in which he was convicted of approximately 40 offences over a comparatively limited four-year period. There is the cumulative effect of the applicant’s offending which has been, amongst other things, at a significant cost to the Australian community.
As the Tribunal has found that the nature and seriousness of the applicant’s offending is very serious, significant weight must be placed upon this primary consideration against revocation of the mandatory cancellation of his visa.
Paragraph 8.1.2 of Direction 99 — The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction 99 relevantly provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the 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).
The nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct
In undertaking the assessment required of this primary consideration, paragraph 8.1.2(2)(a) of Direction 99 requires the Tribunal to assess the nature of the harm should the applicant engage in further criminal or other serious conduct.
To some extent, the nature of the harm to individuals or the Australian community that would occur in the event of the applicant reoffending, or engaging in other serious conduct, has been touched on earlier in these reasons. There are several categories of readily identifiable harm that would occur in the event that the applicant reoffended.
With respect to the applicant’s domestic violence offences, there is both the physical and psychological injury that would be suffered by his victims. Frequently, this species of harm can have long-term and devastating effects. Depending on the degree of physical harm, there is the attendant possible hospitalisation, treatment, convalescence and rehabilitation that potential victims experience. Sometimes, they may never recover. With respect to psychological harm, victims of domestic violence frequently descend into significant bouts of a variety of mental impairments. Depending on the seriousness of the violence inflicted upon the victim, it can range from several known psychiatric conditions including acute depression, anxiety, PTSD, mood swings, psychosis or even trigger such conditions as bipolar syndrome. Once again, victims of severe domestic violence quite often in a mental health sense, never fully recover. It effectively becomes a lifetime sentence. The other dreadful effects of domestic violence were also touched on earlier in these reasons when addressing the cumulative effect of the applicant’s offending. Those observations are referred to and repeated.

As for the driving offences, there are the personal injuries suffered by the victims. Also, as noted earlier, there is the significant risk of property damage both the vehicles driven by other road users and property adjacent to the roads in the event that the applicant were to inappropriately navigate a motor vehicle off the road. These significant consequences for transport accident compensation insurers not to mention, property insurers have also been touched on. Ultimately, other road users, and even the taxpayers who obey the law, will end up shouldering the burden of this type of offending.
Were the applicant to reoffend by being in possession of loaded firearms, as he did on in November 2018, there is a significant risk of potential serious injury, or even death to victims of such firearms’ misuse. Misuse of firearms, even if they do not cause serious injury or death, have the potential to cause trauma to innocent victims who happen to be in the neighbourhood when a firearm is misused. Also, the fact that the applicant kept a loaded 9 mm semiautomatic pistol in his possession, whilst he was frequently under the possession of drugs, poses a distinct and real risk of it being accidentally discharged with whatever consequences may follow. This represents a significant risk of harm. Trafficking of illegal firearms is a significant national threat.
The applicant was convicted of several offences concerning both drug trafficking and drug taking. Little more needs to be said as the nature of harm to individuals and the Australian community from consumption and trafficking of drugs is well-known. People’s judgement is impaired when they are under the influence of drugs. There are numerous long-term and significant detrimental health effects from the consumption of drugs. Drugs can ruin lives. To some extent, the applicant himself is an example of what drugs can do to individuals when they are misused. Frequently, drug takers would not know what the actual constituents, or make up of the drugs that they take. This significant risk to the community has been highlighted by several cases of young people consuming drugs at ‘rave parties’, the chemical composition of which they clearly did not know about and dying. This harm, namely the death of young people with their futures ahead of them, was heartbreaking for the families and friends of the deceased. The trafficking of drugs spawns a multi-million-dollar trade that only benefits criminal syndicates, organised crime groups and

the underworld.
The other harm that would be caused to the Australian community were the applicant to engage in further criminal or other serious conduct is the diversion of police, emergency services, the health care system, courts and correctional systems. This has the potential for significant harm in terms of what those organisations have to bear, and of course in terms of ultimate cost to the taxpayers.
The likelihood of the applicant engaging in further criminal or other serious conduct
There was a significant body of evidence adduced by the applicant in support of his contention that he was a low risk of reoffending or engaging in any other serious misconduct. There was an array of witnesses from the applicant’s family and friends, several of whom, as noted above, gave viva voce evidence.
Additionally, there was expert evidence from Mr Coffey, a Clinical Psychologist. He gave evidence by video link, and there were also two reports prepared by him dated 28 February 2023 and 3 March 2023. Further expert evidence was adduced from Dr Nina Zimmerman a Consultant Psychiatrist.[15] There was a report from her dated 14 June 2020 and a further report of 19 August 2021.[16] Unfortunately, Dr Zimmerman was not available to give evidence at the hearing of the application before this Tribunal. However, a transcript of her evidence given to the Tribunal as previously constituted on 26 August 2021 was tendered.[17]
[15] Mr Coffey’s report of 28 February 2023 is at page 184 of Volume 2 of the Joint Tribunal Book and his supplementary report is at pages 222 of Volume 2 of the Joint Tribunal Book.
[16] The report of Dr Zimmerman of 14 June 2020 is at page 1176 of Volume 1 of the Joint Tribunal Book. The report of Dr Zimmerman of 19 August 2021 is at page 2120 of Volume 1 of the Joint Tribunal Book.
[17] The transcript of Dr Zimmerman's evidence given on 26 August 2021 is at pages 261 of Volume 2 of the Joint Tribunal Book.
The applicant gave evidence concerning this primary consideration both from the witness box, and through a significant number of witness statements that were lodged with the Tribunal and contained in the two volumes of Joint Tribunal Book. Several things emerge from his evidence. First and foremost, the Tribunal accepts that all of the applicant’s offending which it will be recalled, occurred over a period of three years, took place whilst he was in the grip of a significant drug addiction. Primarily, the drugs that he was addicted to were methylamphetamine and GHB.
Coupled with the applicant’s significant drug addiction, there was also evidence before the Tribunal that he has had a history of significant mental health issues. More will be said about these mental health issues later in these reasons. However, the material, especially the expert evidence from Dr Zimmerman and Mr Coffey, reveals that he has experienced a history of major depression and post-traumatic stress disorder (‘PTSD’).
The applicant contends, and the Tribunal agrees, that a critical issue for consideration in this application is whether or not the applicant is likely to relapse into the use of or addiction to drugs. It was contended on his behalf that the Tribunal can be confident that the applicant will not relapse into the use and misuse of drugs. After considering all the evidence the Tribunal has reached the conclusion, that it is more probable than not, that the applicant is unlikely to relapse into the use of and addiction to drugs, and is therefore, a very low risk

of reoffending.
There were several aspects of the applicant’s evidence that warrant mention. The applicant in his evidence demonstrated to the satisfaction of the Tribunal that he has gained an in-depth understanding, and insight into his offending, and the causes of his offending. He expressed remorse and shame for what he did over several years in terms of offending. These expressions of genuine remorse for his prior offending were also corroborated by several counsellors whose reports were in evidence, and by the evidence of Mr Littman and Mr Collings. Although it was apparent to the Tribunal that the applicant’s offending occurred in the context of a significant drug addiction, he did not whilst in the witness box, attempt to hide behind that fact or explain his offending away by reference to his use of drugs. He acknowledged he had a problem with drugs and appreciated his addiction.
Another feature of the applicant’s evidence, which is accepted by the Tribunal, is that the applicant also demonstrated that he has a deep understanding of the mental health issues that he suffers from. Although, more probably than not, such mental health issues are

in remission, in no small way due to the very positive steps that the applicant has taken

to address them, he is acutely alive to the risk that not managing such mental health

issues pose to him in terms of a potential relapse into drug use, and possible future

criminal offending.
Another reason why the Tribunal considers that the applicant is a low risk of reoffending is that he has not used drugs for many years. This is despite the fact that it is common knowledge that drugs are readily available both in prison and immigration detention.[18] There were in evidence before the Tribunal several negative urine test results. It is fair to say that he has been a model prisoner and detainee. Whilst it may well be argued that the applicant’s abstinence has not been tested in the unregulated environment outside of prison and immigration detention, the fact that he has been abstinent for a long time must be highly relevant. It is a clear indicator of the applicant’s commitment to remain abstinent.
[18] To confirm the point that drugs are readily available at Immigration Detention Centres, there was in evidence before the Tribunal and extract from a report produced by the Australian Human Rights Commission, Inspections of Australia's Immigration Detention Facilities-December 2020. It recorded that immigration detention facilities staff continued to report concerns about the presence of illicit drugs within immigration detention facilities. The extract from that report is at page 244 of Volume 2 of the Joint Tribunal Book.
There was some further corroboration of the applicant’s abstinence over many years from a letter dated 1 June 2020 written by Mr Birtles, a Senior AOD Outreach Clinician, at Odyssey House Victoria.[19] In that letter it recorded that the applicant had completed a course of treatment at that program over five sessions. He also expressed the opinion that the applicant did not need further support at that time from an AOD provider. Dr Zimmerman in her evidence also confirmed that drug and alcohol treatment services would normally discharge a person who had attended the courses after about six months of not using.
[19] The letter from Mr Birtles of 1 June 2020 addressed to the Tribunal is at page 866 of the Joint Tribunal Book. It is document G 41 of the G documents.
On that note, the applicant has also successfully undertaken a number of other drug and alcohol rehabilitation courses. There was evidence before the Tribunal from Caraniche Drug and Alcohol Services, verifying several courses undertaken by the applicant with that organisation whilst he was in prison.[20] They include 24-hour Drug and Alcohol Treatment Program (Level III); 44-hour Closed Semi Intensive Drug Treatment Program (Level IV); Individual Counselling; 6-hour AOD and Depression Program; and 3-hour Relationships Program.
[20] There were two letters from Ms Talbot, a Clinician from Caraniche Drug and Alcohol Services, dated 29 April 2019 and 29 May 2019 verifying the several courses undertaken by the applicant with that organisation whilst he was incarcerated at Loddon prison. Those letters are at pages 96–97 of Volume 1 of the Joint Tribunal Book. Amongst other things, Ms Talbot observed in her letter of 29 April 2019 that the applicant with respect to the 44-Hour Closed Semi-Intensive Drug Treatment Program, Level IV, "…has, and is proving to be a very committed and engaged participant within the program."
Additional courses were undertaken through Turning Point, Foundation House and Latrobe Community Health Service in which he completed a 20-session Men’s Behavioural Change Program.[21] There was a letter from an AOD Clinician at Turning Point in evidence before the Tribunal.[22] The author of the letter confirmed that the applicant was attending Turning Point for treatment to address his previous drug misuse. It recorded as at the date of that letter namely 11 June 2020 the applicant had attended 13 counselling sessions. He had stated to the author his desire to continue with counselling during his detention, or in the community, to maintain his commitment to abstinence from all drug use. The letter also noted that the applicant had consistently stated during such AOD intervention a serious desire to develop and employ behavioural changes to address previous issues of drug use and associated inappropriate behaviour.
[21] There were several letters in evidence before the Tribunal concerning the assessment of the applicant's suitability for treatment at Foundation House. There was a letter of 8 June 2020 from Ms Hannan, the applicant's treating counsellor, to the Tribunal. This letter verified that the applicant over four sessions had completed a comprehensive intake and assessment on his suitability to engage in counselling at Foundation House. This letter is at page 1205 of Volume 1 of the Joint Tribunal Book. There was a Health Assessment Summary Report also prepared by Ms Hannan and dated 6 December 2021. The contents of that report are referred to in their entirety. However, they reveal that the applicant was fully committed to counselling and had worked hard to achieve his goals. She recommended that should the applicant be released into the community he would be welcome to again engage with Foundation House with appropriate counselling. That letter is at page 39 of Volume 2 of the Joint Tribunal Book. Finally, there was a letter of 3 March 2023 from Ms Sebire a counsellor at Foundation House confirming that the applicant had been assessed as eligible for its service. It also confirmed that should the applicant be released into the community he would receive further assessment and therapeutic intervention as a high priority client. That letter is at page 240 of Volume 2 of the Joint Tribunal Book.
[22] The letter is at page 1206 of Volume 1 of the Joint Tribunal Book and is document G 51 of the G documents.
Also, the applicant has undertaken courses concerning drinking and drug affected driving. In particular, he successfully completed an Intensive Drink/Drug Driver Behaviour Change Program which consisted of over nine hours of group participation, as well as a one-on-one counselling session.[23] The counsellor who conducted that course in a letter to the Tribunal observed that the applicant was extremely remorseful, had learned from his past offences and is committed to his long-term recovery.
[23]
Other courses that the applicant has done include those relating to sleep, relationships and drug use. There have been vocational courses in the construction field also undertaken by him. Such courses included Control Traffic, Working Safely in The Construction Industry, Workplace Safety and develop study skills. Other practical courses undertaken by him include a Certificate II in Furniture Making, Spoken and Written English, Cleaning and Spills Management and Certificate II in Kitchen Operations – Prepare & Serve Espresso Coffee. These have been undertaken with a view to providing him with significant vocational guidance should he be released into the community. It is fair to say that he has been a diligent and active participant in any course that he has undertaken.
The applicant also trained and worked as a prison barber whilst in Loddon Prison. A glowing written report was in evidence concerning his skills and application as a hairdresser. The applicant was described as well presented, well-spoken and polite. There was evidence before the Tribunal from a proprietor of a barbershop in Glenferrie Road, Hawthorn who is prepared to offer the applicant employment as a barber should were he to be released into the community. He stated he had been aware of the applicant’s substance abuse and criminal offending. Such offer was for either part-time, or full-time employment as the applicant sees fit. The purpose of the offer of a part-time position is so that it affords the applicant, if necessary, the ability to gradually adapt to a return to the workforce.
Another reason why the Tribunal considers the applicant is a low risk of reoffending is due to the fact that for over two years he has been an active member of an organisation known as Narcotics Anonymous (‘NA’). NA is an organisation that assists recovering drug addicts maintain a life of sobriety. It involves a 12-step process undertaken in conjunction with assistance from a sponsor and attending regular meetings. At the meetings, recovering drug addicts talk openly about their experiences and enable those attending to share their experiences and obtain direction on how to avoid a relapse into drug taking. Participants are encouraged to apply each of the 12 steps to all aspects of their lives.
The program also aims to assist recovering drug addicts to understand the disease of addiction and how to make permanent lifestyle changes to avoid relapse. The applicant has been a very active member of NA since he joined it. For some time, he chaired a nightly meeting of the “Maroubra” group. There was evidence before the Tribunal that this group meets every night and has over 100 members. Presently, he is secretary of that group. He explained in his evidence that as a secretary his role is to help, make sure the meetings run smoothly and to contact people who it is apparent are struggling with their addiction and offer whatever assistance he can by way of support.
Since August 2021 the applicant has been assisted by a ‘sponsor’ in NA, Mr Littman. He, along with several other witnesses gave evidence to the Tribunal. Amongst other things,

Mr Littman who has been a very long-term member of NA stated that through the 12 steps the applicant had held himself accountable for his past actions and behaviour. He also stated that the applicant has also reflected deeply upon his drug addiction and through such reflection has come to fully appreciate that he can never safely use any substance again. Also, Mr Littman stated in his evidence that the applicant understands that he needs to avoid placing himself in risky situations, in particular, he needs to be alive to the dangers of being in stressful situations and facing adversity and the potential that poses for him to relapse into drug taking.
The other two witnesses who gave evidence supporting the applicant’s active participation in the NA program include Mr Mclean and Mr Collings. Their evidence was to the effect that the applicant, in addition to being a very active member of NA, had assisted several other members in addressing their addictions. Both Mr McLean and Mr Collings, gave viva voce evidence in addition to their witness statements, and stated that their recovery from addiction had been very much assisted by the support and contribution made by the applicant. The applicant has been a ‘sponsor’ in the NA program for both Mr McLean and Mr Collings. He is also a sponsor for Mr Hartgrove, who filed a statement with the Tribunal but did not give viva voce evidence. It is fair to say their evidence was quite impressive. They, along with Mr Littman were aware of the applicant’s prior criminal history, as he had quite openly informed them of his past. They also corroborated that the applicant had gained an insight into his offending and his drug dependency. There are also several other witnesses who know the applicant from his activities in NA and they gave evidence about the positive contribution he has made to that organisation and the assistance he has given them and others for some time.[24]
[24]
It is not unreasonable to conclude that the evidence given by these witnesses concerning the applicant’s involvement in NA was impressive. There were two dimensions to this evidence. Firstly, those witnesses explained how the applicant had come to terms with his own history and worked very diligently to address his addiction by applying the 12-step process. Secondly, there was the evidence from those witnesses as to the positive contribution he has made to the NA program. This included being a ‘sponsor’. It also included his contribution to daily meetings, together with the guidance and support he gave to many participants in the program. Many of these witnesses stated that the applicant was always available for them to speak to them at all times of the day to assist them.
It should also be observed that NA meetings are usually in an online format via such platforms as ‘Zoom’. It was through this portal that the applicant and Mr Littman met. As a consequence, the applicant explained, as did Mr Littman, that a member of NA can access a meeting at virtually any time of day or night. It was explained in the evidence for instance, that if the applicant was travelling on the train to work, he could access and participate in a meeting whilst doing so.
There was, as noted above, the expert evidence provided by Dr Zimmerman, a Forensic psychiatrist and Mr Coffey, a clinical psychologist.

Accordingly, by reason of the foregoing analysis, this consideration weighs neutrally.
PARAGRAPH 8.3 OF DIRECTION 99 — THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Under paragraph 8.3(1) of Direction 99 decision-makers must consider any impact of the decision on the applicant’s immediate family members in Australia. The respondent accepts that the applicant’s immediate family reside in Australia and that an adverse decision in this application would have an adverse impact on his immediate family members. Significantly, in closing submissions, counsel for the respondent conceded that heavy weight would be given to this primary consideration in favour of the applicant.
The applicant has lived in Australia since he arrived here in 2009 at the age of 18 years.
There was significant evidence before the Tribunal both in terms of witness statements and viva voce from several members of the applicant’s extended family. In terms of his immediate family, his father and two sisters reside here. There are four nieces and nephews. His mother and a brother died in unfortunate circumstances as a result of sectarian violence in Iraq.
In addition to his immediate family, also present in Australia are two uncles, an aunt and several cousins. The Tribunal should observe that it is apparent that the applicant’s extended family are close to him. Indeed, his uncle and cousin in addition to lodging witness statements with the Tribunal, also gave impressive viva voce evidence.
The Tribunal accepts that the applicant has a close relationship with his father. Whilst

he has been in immigration detention, the applicant’s father telephones him several times

a day.
There was significant medical evidence before the Tribunal including reports from the father’s treating doctors, an occupational therapist and a community and housing support organisation, concerning the range of afflictions from which he suffers. He suffers from several conditions including diabetes, hypertension, high cholesterol, pain in a variety of reasons, impaired mobility together with PTSD, anxiety and depression. He has been prone to falling over. He has also previously suffered a stroke. Consideration was given for referral to orthopaedics and neurosurgery if necessary. A comparatively detailed report of

8 February 2023 from his treating General Practitioner was in evidence.[30] The general practitioner advised that the applicant’s father has multiple chronic conditions, trauma history, ongoing medical management and takes a vast array of medication, he concluded that the applicant’s father requires ongoing long-term support and assistance in his daily living. It was observed in one report that there is a lack of formal support. He clearly requires ongoing assistance. An Occupational Therapy Report prepared following an assessment 15 November 2022 was in evidence.[31] That report reiterated that the applicant’s father required significant assistance with a variety of routine daily tasks and is a high risk of falling. Another report from Northern Community Housing & Support prepared by an Outreach Case Manager stated that the applicant’s father had no informal supports and requires intensive case management in care coordination to enable him to live independently and safely.[32] That report also recorded that the applicant’s father is mainly housebound and withdrawn, and dependent on others for care and support. It did express the view that his son (the applicant) if released, would be of considerable assistance to him. More recently he has received assistance from an aged care support worker. However, he expressed the opinion that if the applicant were returned to the community could help him with his needs.
[30] The report from the applicant's Father's treating General Practitioner of 8 February 2023 is at page 98 of Volume 2 of the Joint Tribunal Book.
[31] The report prepared by Mr Blank is at page 100 in Volume 2 of the Joint Tribunal Book.
[32] The report prepared by Ms Yildiz and dated 24 January 2023 is at page 103 of Volume 2 of the Joint Tribunal Book.
It is acknowledged that the applicant’s father does receive assistance from at least one of his two daughters who reside in Australia. The applicant’s sister ’D’, gave evidence both from the witness box, and in a witness statement. She stated she tries to visit her father every Sunday, or second Sunday, if at all possible. Another sister, ‘N’, who apparently has mental health issues, of some proportion, and is a single mother of three children, has apparently stopped talking to members of her family save and except for the applicant.[33]
[33] There were several medical reports in evidence from N’streating doctors. They indicate that she has been referred for special medical assessment and treatment for, depression, anxiety, family violence and trauma. One report indicates that she is not fit to give evidence at the hearing of this application in support of her brother. Those documents are found at pages 156, 157, 159 and 160 of Volume 2 of the Joint Tribunal Book.
In his witness statement, his father stated that if the applicant was removed, he did not think he could survive it. He recounted losing one son in Iraq. The Tribunal finds that if the mandatory cancellation of the applicant’s visa is not revoked, it will have a significant impact on his father. It is also satisfied that if the applicant were released into the community, he would provide considerable support and assistance to his father.
Both his sisters gave evidence that they are close to him and would be profoundly affected if he were to be removed from Australia. They also emphasised that the applicant’s continued incarceration and immigration detention has had a profound effect upon them, their children, their father, and the extended family unit as a whole. The Tribunal accepts this evidence.
As noted above, the applicant has four nieces and nephews present in Australia. It is apparent from the evidence before the Tribunal including from both of his sisters that notwithstanding his recent incarceration and immigration detention, he has managed to maintain a comparatively close relationship with them. This relationship is amplified by the fact that both of his sisters are single mothers. His sister, D’s son has special needs and is currently a participant in the NDIS program. She has proposed that the applicant, if he is released into the community, he can come and live with her. She has set aside a bedroom in the house that she owns in Kalkallo that the applicant could reside in. Additionally, she stated that the applicant would be of considerable assistance to her in managing her son and the demands that he makes upon her. She also stated that she would be prepared to drive him to a nearby railway station on a daily basis if need be so he can travel to work when he commences a job.
The applicant’s other sister, N, as previously noted, is also a single mother with three children who suffers from significant mental health issues. Her two-year-old son is currently the ‘subject of Child Protection Involvement’ due to her mental health conditions.[34] He is the only member of the extended family who appears to have maintained contact with her. He has offered to support her and her family to the maximum extent possible. Given the evidence before the Tribunal of the significant mental health challenges that she faces, and the difficulties this poses for her and her three children, whatever contribution the applicant may make to assist her will probably be of significant assistance.
[34] A letter signed by a Child Protection Practitioner of the Victorian Department of Families, Fairness and Housing dated 15 November 2022, at page 158 of the Joint Tribunal Book, provides details of the circumstances surrounding the child protection measures that have been made with respect to the applicant's two-year-old nephew.
Finally with respect to the strength nature and duration of ties to Australia, the applicant points to his involvement with NA details of which have been articulated previously in these reasons. He has sponsored Mr McLean, Mr Collings and Mr Hartgrove in the NA program. They all gave evidence of the contribution he has made to their rehabilitation from drug and substance addiction. There were, as also noted previously, the significant number of glowing references and statements provided by an array of members of NA about the applicant’s qualities as a member, and his contribution to it. There was also the evidence of the applicant’s involvement as the chair, and later secretary, of an NA group. His contribution to that organisation as a participant and a sounding board for its members from time to time is notable. It is, as his counsel contended, a positive contribution to the Australian community and significant weight must be placed upon it. The Tribunal is satisfied that were the applicant to be removed from Australia, there would be a significant impact on NA.[35]
[35] The applicant in his Statement of Facts, Issues and Contentions dated 10 February 2023 at paragraph 62 contends that the contribution the applicant has made through NA to help the members of the Australian community cease drug use, and his intention to continue assisting on release, should in effect be treated as a separate, or other consideration for the purposes of the application of Direction 99. The Tribunal considers that the applicant’s involvement and participation in the NA program is more appropriately addressed in the primary consideration of the strength, nature and duration of ties to Australia. The language used, in particular in paragraph 8.3(4)(a)(ii) of Direction 99 which directs the decision-maker’s attention to any positive contribution made by the non-citizen to the Australian community during their time here, is apposite. The applicant's active involvement in NA as described is unquestionably a positive contribution to the Australian community as contemplated by this sub-paragraph of the Direction.
When one assembles all the evidence concerning the strengths, duration, and nature of the applicant’s ties to Australia, significant weight must attach to it. The Tribunal cannot accept the contention of the respondent that because of the applicant’s lack of engagement with the broader Australian community, limited weight should be placed on this primary consideration. The Tribunal acknowledges that there was a period of significant offending. However, there is substantial evidence concerning his family ties, his extensive efforts towards rehabilitation (from both from lay and expert witnesses) and his significant contribution over several years towards NA. Collectively, these factors justify placing significant weight on this consideration.
PARAGRAPH 8.4 OF DIRECTION 99 — BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.4(1) of Direction 99 requires decision-makers to determine whether cancellation is, or is not in the best interests of the child affected by the decision. The consideration applies to a child under 18 years of age at the time when the decision is to be made. If there are two or more children, the interests of each child should be given individual consideration.
Some aspects of the applicant’s relationship with his nieces and nephews have been touched on in a consideration of Primary Consideration 8.3 ‘The strengths, nature and duration of ties to Australia’. They are referred to and repeated.
Paragraph 8.4 (4) of Direction 99 specifies eight factors that must be considered by the decision-maker where relevant.
There are, as noted, four nieces and nephews to whom this consideration applies. A niece born in August 2006, another niece born in July 2007, a nephew born approximately two years ago, and another nephew born in May 2019.
There were statements in evidence from the two eldest nieces (the daughters of his sister ‘N’) deposing to the relationship that they have with the applicant which is apparently close. They also emphasised how they do look up to him and try to maintain contact as best they can in the circumstances. There was also evidence from their mother which indicated the contribution that the applicant has made towards her children, both before, and after his incarceration. Also, she described her daughters as having a special relationship with their uncle. She described him as influential in their lives. She is as noted earlier, she is a single mother. Apparently, her former husband makes little contribution to the lives of his children as he now lives in Sydney. Prior to his incarceration, the applicant frequently would take his eldest nieces to and from school. It appears that he did spend considerable time with them. When he was in prison, and whilst he has been in detention, she has with her children endeavoured to visit the applicant as much as possible. The eldest niece is 17 years old, pregnant and presently living with her partner. The applicant has expressed a desire to offer whatever support he can to her in the circumstances.
Obviously, the two younger nephews are not of an age where their views are capable of being expressed with respect to this consideration.
His sister N’s youngest child, the two-year-old son, is apparently involved with child protection due to her mental health challenges. It is contended that the son would benefit from the applicant’s release into the community in two ways. Firstly, such release would probably assist with N’s mental health challenges. Secondly, the applicant would be able to assist with an active role in his nephew’s life. One can see how this is the case. This is particularly given that the child’s father is not present.
Whilst the Tribunal acknowledges that the applicant has not recently fulfilled a parental role with his nieces and nephews, it is apparent that if he is released into the community, he would make a positive contribution to their lives in several different ways as contended for. Given the Tribunal’s observations about the close-knit nature of the applicant’s broader family, it is more probable than not, particularly given the absence of their fathers, that the applicant would make not only a positive contribution, but a significantly greater contribution to the minor children’s lives than might otherwise be the case for an uncle in a conventional setting. This contribution is more likely than not to be a positive one. It also seems to the Tribunal that the applicant is very determined to try and do his best with the children.
The Tribunal should observe, as it is obliged to do, that there was no evidence that the impact of the applicant’s prior conduct, including his offending and drug use, had any effect on the children concerned.
When all these factors are considered, the Tribunal considers that significant weight should be placed on this primary consideration in favour of revocation of the mandatory cancellation of the applicant’s visa.
Paragraph 8.5 of Direction 99 —Expectations of the Australian Community.
Paragraph 8.5(1) of Direction 99 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. It also provides that 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 not to allow such a person to remain in Australia.
This clause has been included in several previous versions of this Ministerial Direction. Its construction and application have been the subject of several decisions of the Federal Court of Australia.
For instance, it was considered in the often-cited case of FYBR v Minister for Home Affairs (‘FYBR’).[36] In that case, at paragraphs [75] – [77] Justice Charlesworth found amongst other things that the paragraph of the applicable Direction, ‘“…should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused”. She also found that, “[t]he 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”.
[36] [2019] FCAFC 185.
Justice Stewart in FYBR observed at [102], amongst other things:
“In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances.”
Paragraph 8.5 (2) of Direction 99 identifies several categories of offending which, if engaged in by a non-citizen, raise serious character concerns by reason of which non-revocation of the mandatory cancellation of a visa may be appropriate. Included in these categories of offending are acts of family violence or commission of serious crimes against women. In that context ‘serious crimes’ include crimes of a violent nature.
Paragraph 8.5(3) of Direction 90 provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The applicant contends that the relative weight given to the expectation should be limited given countervailing considerations. The countervailing considerations relied upon that go to weight to be applied include the impact of revocation on the applicant’s family, that he is a refugee, the strength of his rehabilitation and his contribution to NA.
On the other hand, the respondent contends that collectively when one observes the norm stipulated in paragraph 8.5(1) and the Principles in paragraphs 5.2(2)-(4) of Direction 99 the Australian community would expect that the applicant should not hold a Visa due to his serious criminal offending. Additionally, the respondent relies upon the potential harm that would be caused should the applicant further engage in violent offending. Such potential harm it asserts is sufficiently serious that the countervailing considerations relied upon by the applicant do not justify revocation. Therefore, this primary consideration weighs heavily against revocation.
As observed in Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, individual circumstances, or as they are sometimes called ‘countervailing factors’, are brought to account when deciding what relative weight to give community expectations.[37] As Justice Stewart in FYBR observed above, the decision-maker must assess what is appropriate in the particular circumstances.
[37] [2022] FCA 396.
The Tribunal considers in the circumstances, that little weight ought be attached to this expectation. It has found the evidence of in particular, the applicant’s rehabilitation to be significant, if not compelling. It does so for several reasons.
Firstly, it has accepted the expert evidence of Dr Zimmerman and Mr Coffey. They were impressive witnesses who gave their evidence in a fair and impartial manner. They were clearly witnesses of vast professional experience who have assessed many people over many years who have committed a variety of offences and been in the grip of drug addiction. They have exercised their professional judgement in reaching the conclusions and expressing the opinions that they did. There was no real challenge to the opinions that they expressed. Those opinions should not be dismissed lightly.
Secondly, there was significant evidence from an array of witnesses about the applicant’s contribution to NA. He seems to have genuinely taken every step possible in that program to address his substance abuse issues. The Tribunal accepts the applicant’s evidence of the contribution that his involvement with NA has made towards his rehabilitation. Not to mention the rehabilitation of others who have battled drug addiction.

Thirdly, with respect to his rehabilitation there was significant evidence of the several courses that he has undertaken to address not only his substance abuse problems but also his mental health issues. Additionally, there were the several vocational courses that he has undertaken, which will assist with his reintegration into the community and maintaining a law-abiding pathway.
Fourthly, he has succeeded in undergoing appropriate treatment for those mental health issues which mean that a risk of a relapse and any subsequent offending is considered to be low.
Fifthly, the Tribunal has accepted his evidence about his endeavours for the future and his genuine desire not to relapse.
Sixthly, even though he has been in a regulated environment the applicant has clearly abstained from the consumption of drugs for several years. That is to his credit.
Finally, the impact on the applicant’s family and his sisters’ minor children must also carry some weight. The Tribunal considers that the close-knit family unit of which he is a part also provides a powerful incentive, or motive, for him not to reoffend. They are also very supportive of his attempts at rehabilitation.
Paragraph 9 of Direction 99 — Other considerations
Paragraph 9.1 legal consequences of decision
Paragraph 9.1(1) of Direction 99 prescribes that decision-makers should be mindful that unlawful non-citizens are, in accordance with s 198 of the Act, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under s 189, noting also that section 197C (1) of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
The respondent conceded quite properly, that the applicant has previously been found

to be owed non-refoulement obligations because he was granted a Protection visa on

10 March 2010. The consequence of this is that by application of s 197C(3) the applicant cannot be returned to Iraq.
As the applicant cannot be returned to Iraq then he will be held in indefinite detention with no definite end point unless he is granted either another visa or removed to a third country. The respondent also accepts that the administrative steps and enquiries to be undertaken in affecting the executive’s policy may take a long time and not have any clear outcome despite the provisions of s 197C. It is also conceded on the Respondent’s behalf that this may result in prolonged detention with no fixed chronological end point.
The respondent contends that the Tribunal should have regard to the applicant’s loss of liberty but balance it against the significant risk of harm to the Australian community if the applicant were to reoffend. The Tribunal cannot accept this contention. It refers to the portions of these reasons previously which have articulated why it considers that the applicant is a low risk of reoffending. Therefore, it does not consider that there is a significant risk of harm to the Australian community as contended for by the respondent.
It accepts that given the previous protection findings and the absence of any evidence of a third country willing to take him it is more probable than not that he would face an extremely lengthy term of indefinite detention. The applicant has been in immigration detention now for in excess of three years. It is apparent that the legal consequence of this situation is that he will continue to be held in immigration detention for a further period where the endpoint of such detention cannot reasonably be predicted or ascertained. The applicant referred to the decision of the Full Court of the Federal Court of Australia in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[38] In a joint decision of Kenny and Mortimer JJ observed as follows:
“The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter visa decision-makers should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law. As we explain below, for our own part, we see no difficulty in attaching the adjective ’indefinite’ to such further period of detention, in circumstances where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when he or she might regain his or her freedom.”
[38] (2021) 285 FCR 463.
Another concern about the prospect of immigration detention from the applicant’s perspective arises in the context of his mental health. Mr Coffey in particular gave evidence in some detail about this factor, both in his report of 28 February 2023 and from the witness box. He explained that the environment in an immigration detention centre produces many stresses and difficult human interactions frequently leading to a deterioration in the detainees’ mental health.
Mr Coffey explained that immigration detention in any event houses many unsettled and disturbed people. Frequently drugs are available. Most detainees share a small room with a stranger, often for months or years, which proves in many cases very difficult for them to get on. Detainees also experience difficulty occupying themselves, have a sense of life being taken away from them, or that they are losing time. He stated that on average, this leads to a deterioration in people’s mental health. In the case of people who are well, they frequently become unwell, and those who are unwell find that their conditions become worse. There is also violence to a not infrequent level. Collectively, these factors lead to an unsettling environment.
As observed, the applicant has already been in immigration detention for over three years. The prospect of indefinite detention would potentially place him under significant stress. This has the potential to undo the significant progress that the applicant has made both in terms of treatment of his mental health and addressing his drug addiction. It is preferable with this can be avoided.
Given the fact that the applicant faces the distinct and real prospect of a lengthy period of indefinite detention for the reasons given, the Tribunal accepts the applicant’s submission that significant weight must be placed on this other consideration in favour of revocation of the mandatory cancellation of the applicant’s visa.
Paragraph 9.2 of Direction 99 - Extent of impediments if removed
Paragraph 9.2 of Direction 99 provides:
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.
There is a threshold issue to address concerning this other consideration. It is premised on the basis of the potential removal from Australia of a non-citizen to their ‘home country’. For the reasons articulated above in the consideration of the legal consequences of the decision, the applicant cannot be removed to his home country, namely Iraq.
In his submissions, the applicant has contended that this consideration has ‘less immediate relevance’ because the applicant cannot be removed.
On the other hand, the respondent contends that an application or consideration of this paragraph of Direction 99 is not enlivened by reason of the fact that the applicant cannot be removed to his ‘home country’ of Iraq. In his reply submissions, the applicant’s counsel agreed with this contention.
The Tribunal agrees with the submissions of the respondent that because the applicant cannot be removed to his ‘home country’ of Iraq it is not possible to undertake an application of this consideration. Further, as it is impossible to speculate about the prospect of him being removed to a third country the consideration can have no application.
Accordingly, no weight will be placed on this other consideration.
PARAGRAPH 9.3 OF DIRECTION 99 — IMPACT ON VICTIMS
No evidence was placed before the Tribunal concerning the impact on victims of the applicant’s offending. Therefore, no weight will be placed on this other consideration.
PARAGRAPH 9.4 OF DIRECTION 99 — IMPACT ON AUSTRALIAN BUSINESS INTERESTS
No evidence was advanced with respect to this consideration and therefore no weight will be attached to it.
CONCLUSION AS TO WHETHER TO EXERCISE THE DISCRETION TO REVOKE THE MANDATORY CANCELLATION OF THE APPLICANT’S VISA
The exercise the Tribunal is required to undertake in deciding whether to exercise the discretion to revoke the mandatory cancellation of the applicant’s visa is finally tuned.
The Tribunal has applied different weightings to each of the constituent parts of Primary Consideration 8.1 of Direction 99 ‘Protection of the Australian community’.
With respect to paragraph 8.1.1 of Direction 99 ‘The nature and seriousness of the applicant’s conduct’, the Tribunal has found that he engaged in very serious offending. Therefore, significant weight is placed upon that primary consideration against the revocation of the mandatory cancellation of his visa.
As for paragraph 8.1.2 of Direction 99 ‘The risk to the Australian community’, the Tribunal has for the reasons articulated, concluded that there is a low risk of the applicant reoffending. For this reason, therefore, the Tribunal places limited weight on this primary consideration. In reaching this conclusion, the Tribunal wishes to emphasise that it considers that the applicant has come to terms with the nature and seriousness of his offending and certainly gained appropriate insight into it. The Tribunal is also cognizant of the fact that for the reasons explained the applicant has rehabilitated himself both in terms of his mental health issues and substance abuse. Both the expert evidence from Dr Zimmerman and Mr Coffey, together with the extensive evidence before the Tribunal about the applicant’s participation in NA provide a foundation for reaching this conclusion. This is not to mention the fact that the Tribunal has accepted the evidence given by the applicant concerning these matters.
For the reasons articulated, the Tribunal has attached significant weight in favour of revocation of the mandatory cancellation of the applicant’s visa with respect to paragraph 8.3 of Direction 90 ‘The strength, nature and duration of ties to Australia’.
The Tribunal has attached significant weight to paragraph 8.4 of Direction 99 ‘Best interests of minor children in Australia affected by the decision’. It refers to and repeats its reasons. Given the somewhat unique relationship that the applicant has with his minor nieces and nephews which is particularly amplified by the fact that they have largely lived in a single-parent environment Tribunal has attached significant weight in favour of revocation of the mandatory cancellation of his visa, to this primary consideration.
With respect to paragraph 8.5 of Direction 99 ‘Expectations of the Australian community’, for the reasons articulated the Tribunal has attached little weight against revocation of the mandatory cancellation of the applicant’s visa, to this consideration.
Finally, significant weight in favour of revocation of the mandatory cancellation of the applicant’s visa has been attached to the provisions of paragraph 9.1 ‘Legal consequences of decision’, because the reality is that the applicant if the decision is not revoked, faces the prospect of indefinite detention, more probably than not, over a lengthy period.
By reason of the foregoing analysis the Tribunal concludes that the significant weight it attaches to the several considerations in favour of revocation of the mandatory cancellation of the applicant’s visa outweigh collectively the weight that is attached to several considerations against revocation.
Therefore, for the reasons outlined above, the Tribunal is satisfied that under s 501CA(4)(b)(ii) of the Act there is another reason why the mandatory cancellation of the applicant’s visa should be revoked.
In conclusion, the Tribunal should observe that this matter has had a very long history. It wishes to emphasise that there was a significant body of evidence before it that was not adduced at the earlier hearings before the Tribunal, as then constituted. In particular, this evidence included that of Mr Coffey, who it will be recalled has had extensive consultations with the applicant and the commendable efforts that the applicant is made to rehabilitate himself through his involvement in NA. This additional evidence was for the reasons articulated above, critical to the findings that this Tribunal has made.
DECISION
Accordingly, Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975,
the reviewable decision is set aside and in substitution the Tribunal decides that under s 501CA(4)(b)(ii) of the Act, the mandatory cancellation of the applicant’s class BB subclass 155 Five Year Resident Return visa is revoked.

I certify that the preceding 236 (two hundred and thirty-six) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

...........................[sgd].............................................
Associate
Dated: 18 May 2023

Date(s) of hearing: 14 - 16 March 2023

Counsel for the Applicant: Mathew Kenneally

Solicitors for the Applicant: Asylum Seeker Resource Centre

Solicitors for the Respondent: Sparke Helmore Lawyers

Australian Criminal Intelligence Commission, ‘Illicit Firearms in Australia’, document G 27 of the

G documents.

The letter dated 7 June 2021 from a VicRoads -Approved Provider certifying that the applicant

had successfully completed the Intensive Drink/Drug Driver Behaviour Change Program is at page 1849 of Volume 1 of the Joint Tribunal Book.

There were either letters of support or statements from other members of NA namely, Mr Hartgrove,

Mr Dunworth, Ms Johnson, Mr Bui, Mr Brittain, Ms Peek-Silva, Ms Casserley, Ms Hall, Mr Shephard, Ms Cowan and Ms Tannous. These witnesses also were aware of the applicant’s history of criminal offending and

drug addiction.

[2023] AATA 1266

18 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Date(s) of hearing:	14 - 16 March 2023
Counsel for the Applicant:	Mathew Kenneally
Solicitors for the Applicant:	Asylum Seeker Resource Centre
Solicitors for the Respondent:	Sparke Helmore Lawyers