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

JHZB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 367 (4 March 2022)
Division:GENERAL DIVISION
File Number: 2020/2220
Re:JHZB
APPLICANT

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

DECISION
Tribunal:Senior Member
Date:4 March 2022
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 15 April 2020 to not revoke the cancellation of the Applicant’s visa.
..........................[SGD]............................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – Remittal – Non-revocation of mandatory cancellation of a Resident Return (Class BB) (Subclass 155) visa - where Applicant does not pass the character test – substantial criminal record – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – consideration of Australia’s international non-refoulement obligations – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar (2019) 272 FCR 589
PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235.
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
S270/2019 v Minister for Immigration and Border Protection (2020) 383 ALR 194
SECONDARY MATERIAL
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Direction 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA
Migration Amendment (Clarifying International Obligations for Removal) Bill 2021
Table of Contents
DECISION
CATCHWORDS
LEGISLATION
CASES
REASONS FOR DECISION
INTRODUCTION AND BACKGROUND
LEGISLATIVE FRAMEWORK
Does the Applicant Pass the Character Test?
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
The principles in paragraph 5.2
The Primary and Other Considerations

PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1.1(1)(a)(i)
Paragraph 8.1.1(1)(a)(ii)
Paragraph 8.1.1(1)(b)(i)
Paragraph 8.1.1(1)(b)(ii)
Paragraph 8.1.1(1)(b)(iii)
Paragraph 8.1.1(1)(b)(iv)
Paragraph 8.1.1(1)(c)
Paragraph 8.1.1(1)(d)
Paragraph 8.1.1(1)(e)
Paragraph 8.1.1(1)(f)
Paragraph 8.1.1(1)(g)
Conclusion about the nature and seriousness of the Applicant’s conduct

The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(b): the likelihood of the non-citizen engaging in further criminal or other serious conduct
(i) Information and evidence on the risk of this Applicant re-offending
(ii) evidence of rehabilitation achieved at the time of this decision
Conclusions about risk

Paragraph 8.1.2(c): does this matter involve a refusal to grant a visa to the Applicant?
An objection by the Applicant to the admission of a particular document into evidence
Conclusion: Primary Consideration 1
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Who are members of the Applicant’s family?
Did any of the Applicant’s conduct constitute family violence?
Does the Applicant’s conduct on 30 March and 9 June 2018 constitute ‘family violence’
Assessment of the seriousness of the Applicant’s family violence (paragraph 8.2(3))
Conclusion: Primary Consideration 2
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Identification of relevant minor children
The parties’ respective contentions
The Applicant’s Oral Evidence
Application of factors in paragraph 8.3(4) of the Direction to the relevant children
Conclusion: Primary Consideration 3
PRIMARY CONSIDERATION 4: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Conclusion: Primary Consideration 4
OTHER CONSIDERATIONS
Other Consideration (a): International non-refoulement obligations
Law
The Applicant’s claims – written
The Applicant’s claims – oral
Difficulties in the evidence
Further material sought to be relied upon by the Applicant
The Applicant’s stated fears of harm: analysis
Findings and Allocation of Weight to Other Consideration (a)

Other Consideration (b): Extent of Impediments if Removed
Findings and Allocation of Weight to Other Consideration (b)

Other Consideration (c): Impact on victims
Other Consideration (d): Links to the Australian Community
(1) Strength, nature and duration of ties
1. Impact of non-revocation on the Applicant’s immediate family
2. Strength, nature and duration of “other ties” – length of residence
3. Strength, nature and duration of “other ties” – family and other social links
(2) Impact on Australian business interests
Weight allocable to Other Consideration (d): links to the Australian community

Findings: Other Considerations
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
DECISION
REASONS FOR DECISION
Senior Member Theodore Tavoularis
4 March 2022
INTRODUCTION AND BACKGROUND

JHZB (“the Applicant”) is a 31-year-old former resident of Iraq. He is a maritime arrival who came to Australia on 10 December 2009 (aged 18) by boat at Christmas Island.[1] On 10 March 2010, the applicant was granted a Protection (Class XA) (Subclass 866) visa.[2] On 10 March 2016, he was granted a Resident Return (Class BB) (Subclass 155) visa (“the visa”).[3]
[1] A1, page 2, para [6].
[2] Ibid.
[3] G16, page 331.
On 3 May 2019 the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) made the decision to mandatorily cancel the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) was and subsequently hand-delivered notice of this decision to him on 11 May 2019.[4] This mandatory cancellation decision was based on the Applicant not passing the character test and on him then serving a full time custodial sentence.[5] On 29 May 2019, the Applicant made written representations to the Respondent requesting revocation of the cancellation of the mandatory cancellation decision.[6] On 15 April 2020, the Respondent’s delegate decided not to revoke the mandatory cancellation decision.[7] The Applicant was notified of this non-revocation decision on 16 April 2020.[8]
[4] G2, page 12, para [3].
[5]     G16, pages 331-332.
[6] G2, page 12, para [3]. See also G10. Pages 73-119.
[7]     G2, page 11.
[8]     G2, page 7.
The Applicant sought review of that aforementioned non-revocation decision made on 15 April 2020. That application was ventilated in this Tribunal, which, on 9 July 2020, duly affirmed the non-revocation decision of 15 April 2020. There followed an appeal of the Tribunal’s decision by the Applicant to a single judge of the Federal Court of Australia. By way of Consent Orders dated 30 March 2021, the Federal Court quashed the Tribunal’s decision, dated 9 July 2020 and remitted the matter for re-consideration and determination by this Tribunal according to law.[9]
[9] G58, pages 1739-1740.
The remittal hearing proceeded before me in this Tribunal on various dates, comprising 24 August, 26 August, 31 August and 15 October 2021. The hearing received both oral and written evidence. Oral evidence was given by: (1) the Applicant; (2) a friend of the Applicant whom he met through the rehabilitative process (“Mr NB”); (3) the Applicant’s sister (“Sister N”); (4) the Applicant’s other sister (“Sister D”); (5) the forensic psychiatrist, Dr Nina Zimmerman; (6) the Applicant’s cousin (“Cousin M”); (7) the Applicant’s father; (8) the Applicant’s uncle (“Uncle F”). The written evidence was particularised in an agreed Exhibit List, a true and correct copy of which is attached to these Reasons and marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[10]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[11]
[10] [2018] FCAFC 151.
[11] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
At the previous ventilation of this matter in this Tribunal, the Applicant readily conceded in his Statement of Facts, Issues and Contentions (“SFIC”) that he does not pass the character test under s 501(6)(a) of the Act and that he has a “substantial criminal record” within the meaning of s 501(7)(c) of the Act.[12] To the best of my recollection of the evidence, the Applicant has not changed his position with regard to the character test for the purposes of this remitted hearing.[13]
[12] G29, page 812, para [5].
[13] A1, page 1, para [1].
It suffices to say that even on a cursory review of his criminal history, the Applicant’s offending has attracted head custodial sentences of something in the order of 50 months, or just over four years.[14] For present purposes what matters is the term of imprisonment to which a person has been sentenced, not the time they have actually served.[15] Thus, it can be safely found that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[14] See G3, pages 36-38.
[15] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“Direction” or “Direction 90”) has application.[16] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[17]
[16] Direction 90 commenced on 15 April 2021. It revokes Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
[17] Direction, paragraph 6. See also Direction, paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to “provide the framework within which decision-makers should approach their task” under s 501 or 501CA, as the case may be. Summarised where appropriate, the principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the Primary and Other Considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” which I must be guided by in making my decision.
The Primary Considerations I must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[18]
[18] Direction, paragraph 8.
The Other Considerations which, where relevant, I must take into account “include but are not limited to”:
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests”[19]
[19] Direction, paragraph 9(1).
Paragraph 7 of the Direction also provides guidance as to how to take into account each primary and other consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)One or more Primary Considerations may outweigh other Primary Considerations.
The guidance in paragraph 7 of the Direction I have quoted above does not differ materially from the guidance which appeared in former directions.
I will now turn to addressing the abovementioned Primary and Other considerations.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the factors set out in paragraph 8.1.1(1) of the Direction. The Applicant has an offending history in Australia that, in terms of sentencing episodes, has run for a period of just under four years. He has been dealt with for the commission of some 41 separate offences across 11 separate sentencing episodes. While perhaps not the most significant criminal history in terms of its numerical scope – both in terms of offences committed and sentencing episodes – it is, nevertheless, a significant history in terms of: (1) the frequency of the offending relative to the timeframe in which the offending history has been compiled; and (2) the reality that it has been compiled by an offender who is only 31 years of age.
A consistent theme in the offending history is the Applicant’s adverse relationship with illicit drugs. His offending pattern seems predicated on him being apprehended for being in possession of such substances (and associated paraphernalia). His adverse relationship with illicit drugs has impaired his moral compass, capacity to respect boundaries as well as his ability to understand right from wrong. This has resulted in offending leading to convictions in the realm of property offences, weapons offences and serious unlawful conduct while purporting to operate a motor vehicle. Perhaps most concerningly, the latter phases of the Applicant’s offending history have seen convictions for very serious unlawful conduct in the realm of trafficking unlawful substances and the commission of equally very significant family violence offending.
Paragraph 8.1.1(1)(a)(i)
There is little to cavil with the proposition that this Applicant has committed offences which are viewed ‘very seriously’ by the Australian government and the Australian community for the purposes of sub-paragraph 8.1.1(a). While there are convictions for violent offending in his history, as best as I understood that history, he has not perpetrated violent offending against anyone other than his former domestic partner. Strictly speaking, this sub-paragraph 8.1.1(1)(a)(i) does not have application to the Applicant’s criminal history and cannot be utilised for the purpose of speaking to the nature and seriousness of his offending.
Paragraph 8.1.1(1)(a)(ii)
The sentencing hearing at the [redacted] Magistrates Court on 8 February 2019 dealt with four specific offences involving violence perpetrated upon a female. The auspices of this specific sub-paragraph are thus engaged. The Applicant was sentenced for three separate offences arising from his violent conduct upon a female victim. The offences and their corresponding sentences are described thus:
·intentionally cause injury: for which the Applicant was sentenced to a custodial term of 12 months’ imprisonment;
·unlawful assault, contravene family violence intervention order: for which the Applicant was sentenced to a custodial term of three months;
·reckless conduct endanger serious injury: for which the applicant was sentenced to 12 months’ imprisonment.[20]
[20] G3, p37.

This violent offending was perpetrated upon one female victim (“Victim R”) with whom the Applicant had been in a domestic relationship at the time he offended. The first incident involved Victim R telling police that she and the Applicant had been in a domestic relationship since July 2017. The circumstances of the relationship had necessitated the making of a family violence intervention order in May 2018. A couple of months later this particular order was reduced to a safe contact order on 7 June 2018. On the following day, 8 June 2018, an argument ensued between the Applicant and Victim R. The argument is said to have had its basis about past relationships in which either or both the Applicant and Victim R had been involved.
The Applicant initially sought to resolve this domestic impasse by means of self-chastisement that saw him threatening to harm himself which, in turn, caused him to be admitted to the [redacted] hospital. He appears to have recovered as a result of this treatment but less than an hour later, on the way home from the hospital, he turned the violence upon Victim R. Upon their arrival home, a further argument ensued. This time, the Applicant sought to control the situation by violently dealing with her. The sentencing remarks disclose that:
‘He pulled the victim’s hair, pulled a charger cord around the neck of the victim tightening it whilst asking questions of the victim, tightening it and only releasing it to a degree if the victim answered in a manner acceptable to the accused. The victim was found by the police terrified and cowering.’[21]
[21] G4, p48.
The second instance of domestically violent offending against women again involved Victim R. On 30 March 2018, an argument ensued between them. Once again, an inability to resolve a domestic impasse about past or present inter-personal relationships was at the core of the Applicant’s offending. On this occasion, it was not what she may have told him about her past relationships, it was more about the extent to which he felt threatened by social media dating websites he suspected her of accessing via her mobile telephone device. To assuage his feelings of jealousy and insecurity, he took it upon himself to look through the viewing history on her mobile telephone.
Consequent upon what he gleaned after viewing that history, he became very violent towards her. The sentencing remarks reveal that he forced her to look at herself in the mirror and purported to demonstrate his displeasure with her by hitting her, spitting on her, pushing her onto the bed and continuing to punch her. The sentencing remarks then reveal the violent conduct taking a disturbing turn for the worse:
‘Choked her with both hands to the point where the victim lost consciousness. Victim sending SMS’s two parents in a panic. Accused, seeing what victim was doing, sent an SMS on the victim’s phone to the victim’s parents saying, “Sorry, by mistake.” Shortly after, parents arrived and found the victim in fear, swelling and bruising to the face.’[22]
[22] Ibid
It suffices to say the sentencing remarks describe the offending behaviour as ‘extremely serious and concerning.’[23] Taken in total, the abovementioned instances of violent offending against Victim R – when analysed through the lens of paragraph 8.1.1(1)(a)(ii) – clearly militate in favour of a finding that the Applicant’s offending has indeed been of a very serious nature.
[23] G4, p 49
Paragraph 8.1.1(1)(a)(iii)
It is not necessary to deal with the second part of this specific sub-paragraph which refers to whether or not a conviction was recorded and/or a sentence imposed for acts of family violence perpetrated by an Applicant. It is beyond argument that the Applicant’s very violent conduct towards Victim R resulted in the imposition of a sentence. These acts of violence were obviously perpetrated in a ‘family’ context in the sense that he was in a defacto relationship with Victim R at the relevant time. Later in these reasons, as part of my discussion around Primary Consideration 2, I will evaluate, in greater detail, whether these (and any other instances) of such violence constitute ‘family violence’ for the purposes of Primary Consideration 2. For the specific purpose of this sub-paragraph 8.1.1(1)(a)(iii), the Applicant’s convictions for his acts of family violence against Victim R do constitute ‘acts of family violence’ sufficient to characterise the totality of his offending as very serious.
Paragraph 8.1.1(1)(b)(i)
The next portion of Paragraph 8.1.1(1) relates to conduct referable to an Applicant that may be regarded as ‘serious’. This specific sub-paragraph 8.1.1(1)(b)(i) involves an inquiry into whether there is any conduct referable to this Applicant which had the effect of causing a person to enter into or become a party to a forced marriage, regardless of whether there is a conviction for such an offence or whether a sentence is imposed for it.
As best as I understood the material before the Tribunal, there is no reference to any such conduct having been committed by this Applicant. This sub-paragraph is not relevant to determination of the instant application.
Paragraph 8.1.1(1)(b)(ii)
This sub-paragraph looks for crimes committed by an Applicant against vulnerable members of the community (such as the elderly and the disabled) or against government representatives or officials in the performance of their duties. To the best of my understanding of the material, I cannot recall any of the Applicant’s offences involving elderly or disabled victims.
The criminal history discloses that on 1 April 2015, the Applicant was convicted for the offence of ‘Impersonate authorised officer’. During cross-examination, the Applicant explained that his commission of this offence involved him referring to himself as ‘Constable Jacob’ to a staff member at a hotel while instructing that staff member to call a taxi for him.[24] This is not offending against a government representative or official in the performance of their duties. The Applicant is not refusing the lawful direction of a police officer, for example. It is offending involving his unlawful assumption of the identity of a police officer.
[24] See Transcript, page 39, lines 27-47.
In these circumstances, the auspices of this sub-paragraph 8.1.1(1)(b)(ii) are not engaged and it is not relevant to determining this application.
Paragraph 8.1.1(1)(b)(iii)
This sub-paragraph is concerned with any conduct ‘that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent on the decision-maker’s opinion’. The Respondent makes no reference to this specific sub-paragraph in its written material. Neither party had anything to say about it at the Hearing before me. It is not relevant to determination of this application.
Paragraph 8.1.1(1)(b)(iv)
As best as I understood the material there is no reference to any crime committed by this Applicant while in immigration detention. There is no evidence about any escape by this Applicant from immigration detention, nor any evidence about him committing any other offence against s 197A of the Act. This specific sub-paragraph is not relevant to the determination of the instant application.
Paragraph 8.1.1(1)(c)
Prior to application of this specific sub-paragraph to the facts, it is important to note precisely which sentences are not to be taken into account as ‘the sentence imposed by the courts’ for the crimes of this Applicant. In particular, I am precluded from taking into account sentences imposed on the Applicant for: (1) any violent offending against women;[25] (2) sentences he has received for acts of family violence;[26] and (3) any sentence involving conduct by the Applicant whereby he caused another person to enter into (or become a party to) a forced marriage.[27]
[25]    Paragraph 8.1.1(1)(a)(ii).
[26]    Paragraph 8.1.1(1)(a)(iii).
[27]    Paragraph 8.1.1(1)(b)(i).
It is well established that terms of imprisonment constitute the last resort in the sentencing hierarchy. An imposition of a custodial term must be viewed as a reflection of the objective seriousness of the offence(s) being punished.[28] As I have earlier mentioned, the Applicant’s offending history has spanned an approximate period of four years, he has committed some 41 offences that have been dealt with across 11 sentencing episodes. As also mentioned earlier, his offending has attracted the imposition of 50 months of head custodial time.
[28] See PNLB and Minister for Immigration and Border Protection [2018] AATA 162 [20].
Be that as it may, not all of these 50 months of head custodial time can be taken into account in the assessment of weight allocable to sub-paragraph 8.1.1(1)(c). On 8 February 2019 at the Broadmeadows Magistrates Court, the Applicant received the following custodial terms for violent offending against women:
·Intentionally cause injury: 12 months’ imprisonment;
·Unlawful assault and contravene family violence intervention order: three months’ imprisonment;
·Fail report to police if person injured: two months’ imprisonment;[29] and
·Reckless conduct endanger serious injury: 12 months’ imprisonment.
[29] Strictly speaking, it may be accepted that this was not, per se, an actual offence committed by the Applicant upon a woman. I have included it in this dot point list because it is clear from the material that this charge and conviction has arisen from his commission of other violent offences against a woman.
Therefore in terms of sentences, some 29 of the 50 months’ worth of custodial time imposed upon the Applicant cannot be taken into account for the purposes of assessing allocable weight pursuant to this sub-paragraph 8.1.1(1)(c). That said, the offences that cannot be taken into account amount to approximately 10 percent of the totality of offences committed by this Applicant. Aside from those four abovementioned offences described in the immediately preceding paragraph, he has committed 37 other offences each of which have attracted various sentences. As mentioned, the balance of his 37 offences have attracted fines in excess of $9,000, custodial terms of imprisonment totalling some 21 months representing 42 percent of his total head custodial time, together with a range of other sentencing modalities such as the imposition of community service orders and disqualification of his driving privileges.
Allocating weight to this sub-paragraph 8.1.1(1)(c) is not a matter of merely looking at how much custodial time he has received for non-precluded offending relative to sentences for offending that can be taken into account. It requires a holistic approach to the totality of the Applicant’s offending history.
Taken in total, the sentences imposed on this Applicant for his commission of 37 out of the total of 41 offences described in the criminal history are indicative of persistent and repeated offending by an offender who failed to experience any kind of deterrent effect as the sentencing history evolved. I am satisfied that the sentences imposed by the courts for the crimes of this Applicant across his almost four-year offending history militate in favour of a finding that his offending has been of a serious nature.
Paragraph 8.1.1(1)(d)
Two enquiries are compelled by this sub-paragraph. First, it is necessary to assess the frequency of the Applicant’s offending. Second, it is necessary to assess whether there is any trend of increasing seriousness. The enquiry about frequency can, to my mind, be adequately addressed by reference to the relevant numbers. His criminal history runs for (in round figures) four years. He has convictions for the commission of 41 offences. This equates to the commission of 10 offences per year across the offending history, or, approximately one offence per month for the duration of that history.
The Applicant is now 31 years of age. He came to Australia as an 18-year-old which means he has been here for a period approaching 13 years. Discounting the approximately three years he has spent removed from the community, be it in criminal custody or immigration detention, his history of the commission of 41 offences equates to approximately four offences for each of the 10 years he has been in the Australian community. The totality of 50 months of head custodial time imposed upon him, equates to almost 42 percent of the 10-year period during which he was in the Australian community. There can be no finding other than that this Applicant’s offending has been of a frequent nature.
The next enquiry requires an assessment of whether there is an increasing trend of seriousness in the pattern of offending. Put most favourably for the Applicant, approximately the first quarter of his offending history (in terms of the number of offences committed) might be said to involve offending of an individual or singular nature more indicative of a person with an existing and unresolved addiction to illicit drugs. For the remaining three quarters of the history, the offending escalates into the realm of potentially or actually drawing other people and/or victims into its orbit.
For example, in November 2016 he has a conviction for driving while under the influence of illicit drugs. By the end of 2016 is convicted for ‘Drive recklessly/furiously or speed/manner dangerous’. He has a conviction for an identical offence in October 2017. His drug offending became exponentially more serious because he received a conviction in November 2017 for ‘traffic methylamphetamine, possess GHB’. The commercial nature of his relationship with illicit drugs can be further evidenced by convictions for ‘possess cartridge ammunition without licence/permit’ (convicted on 8 February 2019), and four charges for ‘possess methylamphetamine’ and ‘possess GHB’ (also sentenced on 8 February 2019). There are sentences for an additional two firearms offences, also sentenced on 8 February 2019.
Perhaps most concerningly are the Applicant’s convictions for the above-described very violent offences against Victim R. It is not at all a stretch of the evidence to suggest that the circumstances of the horrendous offending perpetrated upon Victim R could very well have resulted in a catastrophic outcome in either or both instances. It suffices to repeat that for this specific offending against a female victim, the courts imposed 29 months of head custodial time.
There can be no cavilling with the finding that the pattern of the Applicant’s offending readily demonstrates a discernible trend of increasing seriousness across its almost four-year duration. My respective findings about: (1) the frequency of his offending; and (2) its increasing level of seriousness across its duration strongly militate in favour of a finding that the totality of his unlawful conduct in this country has been of a very serious nature.
Paragraph 8.1.1(1)(e)
There are a number of cumulative effects resulting from the Applicant’s offending history. First, it is difficult to see how, if at all, he has experienced any deterrent effect from the sentences imposed upon him. For the commission of the first 18 of his total of 41 offences, he received non-custodial sentences in the form of: (1) fines; (2) a community correction order; and (3) a ‘convicted and discharged’ notation on his history. He apparently experienced no deterrent effect from these milder sentences such that his further offending (i.e. the remaining 23 out of 41 offences) was punished by: (1) custodial terms totalling 50 months; (2) the imposition of some $3,800 in fines; (3) the imposition of community correction orders for a cumulative period of six years; and (4) disqualification of his driving privileges for a cumulative total of eight years.
Second, his offending history demonstrates a failure to develop any measure of respect for the lawful authority governing the Australian community back into which the Applicant now seeks to be re-admitted. On 29 April 2016, he was convicted on two counts of failing to answer bail.[30] A grant of bail allows an accused person to return to the community (pursuant to the terms of the bail) pending finalisation of charges proffered against them. On 4 September 2017, he was convicted for contravening the terms of a community correction order.[31] He has respective convictions for weapons-related offences on 1 April 2016 (x 2), 27 June 2016 (x 2), and 8 February 2019 (x 3).[32] It is simply not credible for the Applicant to suggest he was not aware of at least some measure of lawful regulation around the ownership, storage and control or firearms.
[30]    G3, page 38.
[31]    Ibid.
[32]    Ibid, pages 27-38.
Third, a disturbing cumulative effect of the Applicant’s repeated offending is undoubtably his very violent offending against Victim R. He was part of the mainstream of the Australian community for the 10 years preceding his removal from it approximately three years ago. It is difficult to accept that he was not aware of government and other campaigns against violence perpetrated upon women, especially in a domestic context. Later in these reasons, when assessing his recidivist risk, I will deal with the issue of the credibility of his evidence around his apparently new-found understanding of the barriers precluding him from such violence. But for instant purposes, his above-described very violent offending against Victim R was truly horrendous and could quite conceivably prove fatal in either or both instances.
Fourth, and to some extent paralleling the immediately preceding cumulative effect, it can also be said that the Applicant’s repeated offending history is clearly demonstrative of unresolved addiction and abuse issues in relation to illicit drugs. Again, I will assess the Applicant’s now-claimed rehabilitation from that addiction as part of my commentary around his recidivist risk. That said, taking the criminal history on its face, little forensic analysis is required to arrive at an understanding that illicit drugs – more particularly an unresolved addiction to such substances – has been front and centre of this Applicant’s offending history. The need to satiate a physical requirement for illicit drugs was primarily behind perhaps half to the first three-quarters of his offending history. The latter stages of that history betray a wrongly held conviction by the Applicant that there was money to be made from the drug trade. This can be evidenced by his conviction for trafficking and for multiple firearms offences.[33]
[33] See also Transcript, page 58, lines 28-40.
Fifth, even though the Applicant’s offending history runs for barely four years, it has been intensely and consistently committed across its duration. It has consumed an inordinate amount of the community’s law enforcement and judicial sentencing apparatus. Those resources could quite conceivably have been applied to the detection and prosecution of other unlawful activity as well as towards alleviation of the all-too-familiar delays inherent in judicial administration. It can also safely be found that while perhaps not to the same extent, the Applicant’s cowardly and very violent attacks on his female victim have also consumed a not-insignificant portion of the community’s medical resources.
Paragraph 8.1.1(1)(f)
The Applicant’s Movement Records
There is some material before the Tribunal evidencing the Applicant’s movements in and out of Australia. In a document titled ‘Movement Details’, his ingoing and outgoing movements are summarised thus:[34]
[34] G9, pages 71-72.
·Arrived in Australia: 10 December 2009 (his initial arrival here);
·Departed Australia: 6 October 2010;
·Arrived in Australia: 31 December 2010;
·Departed Australia: 21 November 2011;
·Arrived in Australia: 8 December 2011;
·Departed Australia: 25 September 2013;
·Arrived in Australia: 21 December 2013;
·Departed Australia: 30 December 2014; and
·Arrived in Australia: 4 January 2015.

Later in the material, there is reference to four separate ‘Outgoing [as opposed to incoming] Passenger Cards’.[35] Those four outgoing passenger cards are dated:
·6 October 2010;
·21 November 2011;
·25 September 2013; and
·30 December 2014.
[35] G15, pages 327-330.
Each of the departure dates recorded in the four outgoing passenger cards match the four departure dates recorded in the movement details. The outgoing passenger cards do not require the Applicant to make any disclosure about any material fact (such as any criminal history he may have in Australia) at the time of his departure. The position is, of course, different in so far as incoming passenger cards are concerned. In the latter, a returnee must make a disclosure about any criminal history that person may have in Australia at the time of return. I have looked carefully through the totality of the material and cannot locate any reference to an incoming passenger card.
Based upon the above movement records the Applicant should have completed and submitted at least four such cards upon returning to Australia on 31 December 2010, 8 December 2011, 21 December 2013 and 4 January 2015. No such incoming passenger cards appear in the material. Accordingly, the subject incoming passenger cards cannot be safely relied upon as a means of allocating weight to this sub-paragraph 8.1.1(1)(f).
Application for Resident Return Visa
When the Applicant applied for a class BB subclass 155 Resident Return visa, his application (lodged on 9 July 2015) compelled him to disclose whether he had ever been convicted for an offence in any country. He replied ‘No’.[36] The relevant document comprises a Record of Decision from the Respondent Minister’s Department about whether or not to cancel the Applicant’s Resident Return visa under s 109 of the Act. That Decision Record relevantly records the following:
‘On 9 July 2015 the visa holder lodged an application for a class BB subclass 155 Resident Return visa via the department’s online lodgement facility. As part of this application the visa holder completed the electronic lodgement form - ‘Resident Return Visa’. At page 3 of the Resident Return visa form under the heading ‘Character declarations’ the visa holder provided the following information (in italics):
Has the applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?
No
Based on this information, and meeting all other relevant criteria the visa holder was granted the Resident Return visa on 10 March 2016.
Information before the Department indicates that on 1 April 2015, prior to the lodgement of the application for the Resident Return visa, the visa holder was convicted of a number of offences at the Melbourne Magistrates Court.’[37]
[36] G15, page 324.
[37] Ibid.
At the hearing before me, the above-quoted portion of the Decision Record was read to the Applicant. He accepted its truthfulness and provided an unconvincing reason for giving the ‘No’ answer.
‘Mr Hawker:               And you accept that’s true?
The Applicant:          That’s true.
Mr Hawker:               And what’s your explanation for answering ‘No’ to that question on the application for a visa?
The Applicant:         I don’t know why I put no. I mean I don’t want to give any excuse or reason. I mean it’s like for this visa by accident, or if I didn’t meant to, then I probably didn’t just pay attention but not real explanation why or, at that time, I probably lied and I have no idea, I just can’t remember.’[38]
[38]    Transcript, page 42, lines 36-43.
I am of the view (and I find) that this sub-paragraph 8.1.1(1)(f) strongly militates in favour of a finding that the Applicant’s offending in this country has been, at least, of a serious nature.
Paragraph 8.1.1(1)(g)
This specific sup-paragraph looks for evidence about whether the Applicant has re-offended since being formally warned or otherwise made aware, in writing, about the consequences of further offending on his migration status to remain in Australia. By letter dated 16 March 2016,[39] the Applicant was referred to the successful grant of his Resident Return visa several days earlier on 10 March 2016. As part of that notification, he was also referred to the Respondent’s Department’s previously-held intention to cancel his Protection visa that was granted to him on 10 March 2010, shortly after his arrival in Australia in the latter part of 2009.
[39] G15, page 311.
This letter of 16 March 2016 also explained to the Applicant that the Respondent’s Department could no longer pursue cancellation of the Protection visa because he no longer held that specific class of visa. Be that as it may, this letter (of 16 March 2016) also made it clear to the Applicant that the Respondent Department’s discontinuance of any cancellation procedure involving the Protection visa did not preclude consideration of a future cancellation of the Resident Return visa.[40] Looking at the terms of sub-paragraph 8.1.1(1)(g), it would not be safe to find that this letter of 16 March 2016 necessarily constitutes a written warning to the Applicant that his visa status could be imperilled consequent upon any future offending history he may compile in Australia. In this letter, the Applicant is told that the Department was considering cancellation of his Protection visa due to issues of ‘non-compliance’ arising from inconsistences between what was recorded on his Protection visa application compared to his father’s application for a similar visa regarding things such as the Applicant’s date of birth, his surname and religion. Therefore, it would be unsafe to find that this letter of 16 March 2016 made the Applicant aware that any ‘future offending’ (post-dating the grant of the Resident Return visa) could similarly imperil that second visa.
[40] G15, page 319.
I am therefore not satisfied that the above-mentioned letter dated 16 March 2016 from the Respondent’s Department to the Applicant constitutes a formal warning, in writing, about the consequences of ‘further offending’ in terms of the Applicant’s migration status to remain in Australia.
This is a fortunate finding for the Applicant because were the situation otherwise such that he had been warned that ‘further offending’ would imperil his visa status, the next question would become whether he had offended subsequent to receipt of that letter. He most certainly has. Since the date of that letter, the Applicant compiled the following criminal history:
·He committed 37 offences;
·Those 37 offences were dealt with at 10 separate sentencing episodes;
·Those 10 separate sentencing episodes imposed 50 months of head custodial time and approximately $7,000 worth of fines.
That said, despite this subsequent offending, it would be, for the reasons I have outlined in paragraphs [61] and [62] of these Reasons, unsafe to make an adverse finding against the Applicant and to otherwise find that his receipt of the letter dated 16 March 2016 causes this sub-paragraph 8.1.1(1)(g) to militate in favour of a finding that the totality of his offending has been of a very serious nature.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have had regard to each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to the relevant sub-paragraphs to which I have referred, I am of the view that the totality of this Applicant’s offending can be characterised as ‘very serious’.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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 of it being be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(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 the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Paragraph 8.1.2(a): the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
This enquiry, pursuant to sub-paragraph 8.1.2(2)(a) of the Direction, involves an assessment of the nature of the harm to which the Australian community would be exposed in the event the Applicant re-committed all or part of his very serious criminal conduct. There can surely be no cavilling with the proposition that were he to re-commit his offences of violence, victims would quite conceivably suffer and experience physical harm and damage, including a quite conceivable possibility of a catastrophic outcome. Were he to re-commit his property offences, victims of that offending would experience materially quantifiable loss and damage. Were he to again assume control of a motor vehicle while impeded by the influence of illicit substances, he would similarly represent a risk of physical and material damage to other road users.
Were he to re-engage in the commercial aspects of the drug trade, the Australian community would again experience, at a multitude of levels, the adverse personal and societal impact that the scourge of illicit drugs has had on our community. Re-commission of this type of offending would again consume a disproportionate level of our community’s law enforcement, medical and judicial resources. The same finding can be made in the event he again ignores lawfully made instruments seeking to curb and control his propensity to offend and otherwise compelling him to comply with the laws of this country.
Having regard to each of the aspects of the Applicant’s offending history, there is little to cavil with the proposition that, in the event this Applicant re-engaged in the commission of the very serious conduct currently described in his criminal history, it would result in physical, psychological, materially quantifiable and quite conceivably, catastrophic harm to individuals or the Australian community. I so find.
Paragraph 8.1.2(b): the likelihood of the non-citizen engaging in further criminal or other serious conduct
This specific paragraph compels an assessment of the Applicant’s recidivist risk upon a return to the community. It is, to my mind, important to note that assessment of risk under the Direction is a different exercise to that performed by, for example, a Parole Board (or equivalent) when considering release of a prisoner. In that example, offenders are quite often granted parole on specific terms involving compliance with certain directions and/or the meeting of specific requirements. Here, a decision-maker is required to assess risk on the basis that an Applicant, currently in the closed confines of either criminal custody or immigration detention, will be released – on an entirely unfettered and unregulated basis – back into the Australian community.
This exercise does, to my mind, become exponentially more difficult when a decision-maker acting under the auspices of the Direction does not have guidance from an expert and suitably qualified clinician who provides evidence about an Applicant’s recidivist risk. In the instant case, this hearing has the benefit of the expert and independent clinical opinion of the forensic psychiatrist, Dr Nina Zimmerman. There is also the evidence of the Applicant and his supporters (predominantly comprising his family) which predictably carries a flavour that: (1) all is well with the Applicant in terms of his past addiction to illicit drugs; and (2) that all is well in terms of his representing little or no recidivist risk should he be returned to the community.
The assessment of recidivist risk for the purposes of the Direction requires an examination of the ‘information and evidence on the risk’ of the Applicant re-offending. It also requires an examination of any evidence around rehabilitation that can be demonstrated to have been reliably achieved by the Applicant at the time of this decision. I will address each of these aspects of the evidence in turn.
(i) Information and evidence on the risk of this Applicant re-offending
The Applicant’s evidence: in his oral evidence the Applicant spoke of being confronted with a significant trauma he had experienced during his time in Iraq. He told the hearing that he commenced taking drugs as a means of self-medicating against the trauma he had experienced in Iraq. He expressed an intention to remain drug-free upon a return to the community which, of course, will be a significantly less-regulated environment than what he has experienced in both criminal custody and immigration detention.
While expressing confidence in his capacity to remain drug-free upon a return to the community, that evidence should, to my mind, be received with caution. It is plain from his criminal history that the Applicant’s involvement with illicit drugs has doubtless brought with it a correspondingly increased risk of criminal offending, anti-social behaviour and criminal elements. The reason the Applicant’s now-claimed confidence about remaining drug-free should be received with caution is because, on his own evidence, drugs have been a first port of call to relieve the trauma he says he experienced in Iraq. That trauma has not necessarily disappeared and while it remains a factor in his psychopathology there is a corresponding challenge to his professed confidence in adopting and maintaining a drug-free future.
His past attempts at dealing with his propensity to have recourse to illicit drugs while in the community have been demonstrably unsuccessful. This is so even in circumstances where, prior to his removal from the community some three years ago, he did have some measure of involvement with the rehabilitative process and otherwise received the benefit of lenient sentences that, in turn, afforded him an opportunity to once and for all overcome his difficulties with illicit drugs. The suggestion from both the Applicant and his family members that they represent some type of preventive and inhibitory bulwark against another return to his abuse of illegal drugs can be safely rejected. The totality of both the Applicant’s and the family’s evidence about what they knew of the Applicant’s drug-taking was both inconsistent, unreliable and lacking in credibility.
It would be unsafe to conclude that either the Applicant’s evidence and/or that of his family constitutes any sort of reliable indicator about the level of his recidivist risk. Across the term of his involvement with illicit drugs, his currently-professed drug-free state has only occurred for a relatively short period of time. It remains untested in the community and does not facilitate any safe finding of a low recidivist risk in the event of the Applicant’s return to the community.
The evidence in chief of Dr Nina Zimmerman: the evidence of Dr Zimmerman comprises three written reports, respectively dated 10 February 2020,[41] 14 June 2020[42] and 19 August 2021.[43] Dr Zimmerman assessed the Applicant on the one occasion on 4 February 2020 when he was in immigration detention in Melbourne. That assessment was conducted in pre-pandemic times and was done in person. Dr Zimmerman has not since re-examined the Applicant. Dr Zimmerman also gave oral evidence at the hearing before me.
[41]    G13, pages 214-227.
[42]    G48, pages 1176-1189.
[43]    A4, Annexure 62, pages 141-145.
In terms of methodology applied to assess the Applicant’s risk, Dr Zimmerman used the HCR-20 version three testing tool. She described this tool as a means of specifically assessing a person’s recidivist risk in terms of committing violent offences in future. She told the hearing that this testing methodology looks at risk factors drawn from studies of populations. Those risk factors are informative of a person’s increased risk of violent offending and are grouped into three sub-categories comprising: (1) historical risk factors; (2) clinical or current risk factors that are involved with a person’s current use of illicit substances that could be ameliorated with clinical intervention; and (3) factors relating to future needs that would militate in favour of reduced recidivist risk.
Following assessment of these factors relative to the Applicant’s circumstances, Dr Zimmerman then produced a structured professional judgment. She described this process as:
‘Dr Zimmerman: … an evaluative process.
…
It’s a matter of looking at, like I said, the risk factors that are present, but how many of them are actually relevant to the person; and the fit between those needs that are identified and the availability of services to meet those needs; and you form then an evaluation of whether someone is going to be a high risk, a medium risk, or a low risk of violent reoffending in the future.’[44]
[44] Transcript, page 149, line 3; lines 6-11.
Dr Zimmerman identified five specific historical risk factors relevant to this Applicant. They comprise:[45]
(1)his history of violence but also including his non-violent offending;
(2)his history of substance abuse, of trauma and of mental illness;
(3)his significant problems in his intimate relationships, specifically comprising the two instances of what she described as ‘significant domestic violence’;
(4)his lack of any history of sustained employment; and
(5)his past difficulties with supervision involving breaches of community correction orders.
[45] See generally Transcript, page 149, lines 15-25.
Dr Zimmerman was of the view that ‘…all of those areas…need addressing in order to reduce his risk of future offending.’[46] With specific reference to the Applicant’s history of violence, Dr Zimmerman noted that the Applicant’s violent conduct occurred at a relatively late age of onset which she thought ‘…is a protective factor.’[47] She noted that the Applicant’s history of violence:
‘…coincided with the onset of his use of the drug ice in particular. There’s also I think GHB was another drug he was using at the time and so there’s a close mix between his substance misuse and his offending. So, again, that time was when both of those things appeared and so straight away you have a very clear, very relevant risk factor in [the Applicant’s] case that of substance misuse.’[48]
[46]    Transcript, page 149, lines 24-25.
[47]    Transcript, page 149, line 30.
[48]    Transcript, page 149, lines 36-41.
Dr Zimmerman was asked about the second of the identified elements in relation to historical risk factors, that is, the Applicant’s history of substance abuse, trauma and of mental illness. She spoke of ‘cumulative stressors’ associated with the Applicant’s early life in Iraq:
‘Dr Zimmerman: So he had, I guess, cumulative stressors starting off with, obviously, the stressors associated with his early years back in Iraq and then, you know, such that when he first came out he was assessed very early on as having significant symptoms of PTSD and he was then in a situation where he was living with his uncle and found that to be further - for a further stressful situation for him in that he was placed into a family where there was a mother and a father, a relatively coherent family grouping, that reminded him of his own lack of a mother and father. When his father did come out, he became aware of how he had been tortured. He was quite disabled as a result of his experiences and it was within that context, around that time, that he moved out and began using drugs around that time in the context of all of those stressors.’[49]
[49] Transcript, page 150, lines 4-15.

With reference to the element of the Applicant’s history of substance abuse, Dr Zimmerman spoke of: (1) the Applicant’s abstinence from using illicit drugs in prison and immigration detention; and (2) of his motivation levels in terms of having a demonstrated resilience towards resisting an impulse to return to illicit drug abuse:
‘Mr Kenneally:          Dr Zimmerman, in terms of the risk of substance abuse going forward, what factors, if any, have affected that risk factor?
Dr Zimmerman:       So, firstly, we know from - well, based on his report, but also on serial UDSs that were conducted over his time in prison, he has the - has not used drugs and, obviously, there’s drugs available both in prison and in detention centres and I have no evidence that he’s used and, in fact, I have those results suggesting that he has not used drugs. So, we’ve got a period now of some years of abstinence and that is associated with a good prognosis in terms of future relapse. On top of that, he’s taken part in drug and alcohol courses when he was in the prison and that, obviously, has helped him to develop some skills. He was able to reflect on those and talk about those when I met with him and that’s positive in terms again of his ability to remain drug-free in the future. His motivation level can only be said to have increased having spent this time in detention and has been facing a potential forced return to Iraq, so his motivation levels are high to stay off drugs. So, there’s a number of things that have - actually since he was last in the community that means he’s at a decreased risk of relapsing into (indistinct).’[50]
[50]    Ibid, lines 22-38.
With further reference to this second element of the historical risk factors, Dr Zimmerman was taken to the evidence of the extent to which the Applicant has engaged with the counselling and rehabilitation process. The level of his engagement with this process does, according to Dr Zimmerman, stand the Applicant in good stead in terms of maintaining a low recidivist risk upon a return to the community:
‘Mr Kenneally:          And, Dr Zimmerman, I note in your most recent letter that it’s relative that he has now engaged in counselling with Foundation House, how does that affect your opinion that he has now had that counselling?
Dr Zimmerman:       So, when I first met with him, he was certainly insightful as to the role that trauma had played in his life and the need to deal with that and, since that time, he’s actually been assessed by them and has been engaged in sustained psychological counselling sessions since June, I think it was, last year. So over a year and the professional who works with him noted that he had turned up to 21 sessions and has only missed two and on both occasions notified the counsellor that he was not well on that occasion and offered his apology. So, it’s a very positive time and a good engagement, a sustained engagement, and that he has learnt some strategies according to the person who is working with him in terms of dealing with his nightmares, his hyperarousal, the sorts of symptoms of PTSD. So, that’s very positive. It’s also positive that he has indicated that he would like to continue that work but also that the server [sic] has indicated that they are available and keen to continue working with him. So, that’s all positive.’[51]
[51]    Ibid, lines 40-47, and page 151, lines 1-9.
As best as I recall the cross-examination, Dr Zimmerman was not asked any questions about the significant problems the Applicant has had in his intimate relationships, in particular, the two above-described very serious domestic violence incidents. This was something I took up with Dr Zimmerman during her cross-examination. I referred her to a specific portion of her latest report, where she spoke of an “inherent” risk of violence in this Applicant:
‘Senior Member:       Dr Zimmerman, just a question from me, if I could. In your latest report at paragraph 27 you talk about an inherent risk of violence. I understand what the word ‘inherent’ is?
Dr Zimmerman:        Yes.
Senior Member:      But what do you mean by inherent risk of violence in this applicant?
Dr Zimmerman:       So - yes, so what I mean is that if [the Applicant] were in a relationship and he was using drugs I believe there would be that risk, that inherent risk if you like. It’s there in that situation in that specific scenario. So, yes, it’s inherently risky for him to be using drugs and in an intimate relationship at the same time.
…
Now as you said, there are stressors in a relationship but I would suggest that there are also significant stressors being in the detention environment that frequently people do end up in violent altercations and I have no evidence that this has been the case with [the Applicant].
…
Senior Member:      So, you have that dimension and then you have the dimension of the family violence committed by this applicant, which is very physical, very direct, more than threatening. You have violence which puts the other person at a clear and obvious physical risk. Is one dimension, or type of family violence, more likely to reveal itself in the future of an applicant like this? In other words, I suppose boiling it down, my poorly put question is this, if he has committed the more physically dangerous aspects of family violence, does that make him more likely to do it again if the cocktail of factors presents itself to him and he fails to manage it?
Dr Zimmerman:       Yes. I think it’s very clear from the literature, and in my experience if someone does reengage in offending behaviour, it tends to mirror the sorts of behaviours and offending that they have been engaged in in the past. So as you correctly note, these were serious examples of domestic violence, and if he were to be affected by ice or GHB in the future and was in a conflicted relationship, then it is not unreasonable to conclude that he would be engaging in significant domestic violence again.’[52]
[52]    Ibid, page 157, lines 35-43, page 159, lines 10-14 and 35-47, and page 160, lines 1-3.
The fourth element of the historical factors involves the Applicant’s lack of history of sustained employment. Dr Zimmerman was asked about what she made of the Applicant’s future plans in terms of employment. As best as I understood her evidence, she spoke of the Applicant’s employment prospects in the realm of barbering. In the same vein, Dr Zimmerman spoke of the importance of the Applicant having a stable living situation upon a return to the community:
‘Mr Kenneally:          And finally, Dr Zimmerman, in both of your reports you refer to having realistic plans to work as a barber, as well as realistic plans to - sister - live with his sister. How does that affect your assessment of risk?
Dr Zimmerman:       It’s very important when you’re looking at risk that someone is not going into an unstable living situation, and that could be because there’s violence or drug use occurring in the accommodation; it could be because it’s unstable, where some might be couch surfing rather than having a stable address. So it would appear that in his sister’s home those are not the sort of situation - that’s not the sort of situation he would be going into. So having some stable accommodation is very important for someone’s stability in the community, and ability to then get work and stay on track with counselling.’[53]
[53]    Ibid, page 152, lines 24-34.
With reference to the fifth element of the historical risk factors – the Applicant’s past problems with supervision that have manifested in repeated breaches of community corrections orders – Dr Zimmerman had little to say about it during her evidence in chief, but she did say it was one ‘…of the areas [arising from the historical risk factors] that need addressing in order to reduce his risk of future offending.’[54]
[54] Ibid, page 149, lines 24-25.
Dr Zimmerman was then taken to the Applicant’s clinical or current risk factors and said the following:
‘Mr Kenneally:          Turning, Dr Zimmerman, to the clinical current risk factors, what are those current risk factors at the moment?
Dr Zimmerman:        Look he’s actually got no current risk factors of a concern. When I first met with him, I was concerned about a fragile mental state. At that time, he had moved across from prison into detention and that was associated with a lot of stress for him and he - I think he talked at that time about being surrounded by people who’d been stuck in detention for a number of years and how that was very frightening and re-traumatising for him. When I next saw him in June last year that had settled.[55] He was much more settled compared to how he had been when I initially saw him and there’s nothing to suggest in the more recent material that I’ve been provided with this month that his mental state has deteriorated again. So, with the current risk factors of the last six months, and there’s really nothing that would suggest to me that he’s had an unstable mental state other than that. There weren’t areas under that risk - across the risk factors that I was concerned about. So, he’s actually doing very well in terms of current risk factors.’[56]
[55]    This is somewhat at odds with Dr Zimmerman’s earlier evidence that she had only seen the Applicant – in terms of a physical consultation – on just the one occasion, specifically, on 4 February 2020. See paragraph [78] of these Reasons.
[56]    Transcript, page 151, lines 11-26.
Dr Zimmerman was asked about the Applicant’s future needs with regard to moderating and controlling his recidivist risk upon a return to the community. She spoke of his involvement with rehabilitative processes to address his risk of the commission of further domestically violent offending. She also spoke of the Applicant’s involvement with a counselling service to deal with his trauma and future rehabilitative involvement to minimise the risk of him returning to the abuse of illicit drugs and/or alcohol:
‘Mr Kenneally:          And, finally, what are the future risks of [the Applicant] focussing, in particular, if he were to be in the community?
Dr Zimmerman:       Again, there’s been an improvement over time specifically in that areas that he had appreciated he need to address. There are now specific services that have been identified and indicated that they would be available to work with him or, as in the case of Foundation House, that’s already happening. He’s - in terms of, obviously, domestic violence has been a problem for him in the past and he’s been assessed now by the Link Health and Community’s Men’s Behaviour Change Program and they’ve indicated that he can do that in the community, or if he wasn’t in the community there’s an online program, and I would imagine with COVID restrictions probably all their counselling at the moment is online. So, there’s that identified service who have assessed him, accepted him and are ready to work with him now. So, we’ve got something - a service working with him on trauma already. We’ve got that service ready to go and he has a drug and alcohol service, which, for the moment - he’s already been working with QuIHN, which is fantastic. I think he has a drug and alcohol service available, and I’m just having a look at my report for the name of that.’[57]
[57]    Ibid, page 151, lines 41-47 and page 152, lines 1-10.
In terms of a diagnostic opinion about the state of the Applicant’s addiction to illicit drugs, Dr Zimmerman noted that the ‘Odyssey House’ facility ‘…were happy with the progress that he had made, and they didn’t feel that he was in need of support from them at the moment.’[58] Dr Zimmerman also referred to the Applicant’s prolonged period off drugs and she thought that this meant that ‘…he, by the most conservative understanding, is in remission currently.’[59] However, she cautiously added that:
‘Obviously there’s always a risk of relapse, but he’s currently in remission to the point where drug and alcohol service and (indistinct) drug and alcohol service like Odyssey House doesn’t feel that he needs intervention at the moment. But he has been engaging regularly with Narcotics Anonymous as well, and that’s something that he will continue to do, and that’s another means of helping him to remain in remission.’[60]
[58]    Ibid, page 152, lines 13-15.
[59]    Ibid, line 16.
[60]    Ibid, lines 17-22.
Finally, Dr Zimmerman particularised the basis upon which she had reached her conclusion that the Applicant represents a low risk of violence:
‘Mr Kenneally:          Taking that altogether, if you could just summarise, Dr Zimmerman, how do you then come to the conclusion that you do at paragraph 27 that he’s a low risk of violence?
Dr Zimmerman:       So we’ve got someone who [1] has a stable place to move into in the community; [2] he has specific professional services to address his three main areas of concern, which are his trauma, his substance use, and his domestic violence; they’re all identified and in place, if not already happening; [3] he has the non-professional broader supports of his family, who he for the first time talks about having been open and frank with about his life and his offending in the past. [4] There’s no current disturbances of mental state, such as a significant depression or anxiety. So overall I would have to say he’s currently posing a low risk of future reoffending.’[61]
[61]    Ibid, page 152, lines 34-46. Note: the numbers in square brackets are my insertions for ease of reference for the reader.
The cross-examination of Dr Nina Zimmerman: As an initial question, Dr Zimmerman was asked about the three elements she utilises in formulating an opinion. She agreed they comprised: (1) the history that she relies on provided to her by the Applicant, (2) her mental state examination of the Applicant and the testing methodologies performed on him, and (3) documentation that has been provided to her. She further agreed that she puts each of these three elements together with her professional judgment and, in the final analysis, this becomes the basis of her stated opinion.
She was taken to the forensic history she took from the Applicant in the course of preparing her report specifically dated 10 February 2020. Significantly, it transpired that the Applicant had not told her about his very serious offending in the realm of trafficking in methylamphetamine. She sought to assuage the impact of this nondisclosure by suggesting that it is something she may not have asked him about:
‘Mr Hawker:               I had a look through the history that you took from him, or he volunteered to you in terms of his offending there. And although I can see the trafficking of methylamphetamine mentioned when you looked at the documentation at paragraph 65, which is over the page on page 9, it doesn’t seem to me, on reading your report, that he volunteered a history to you that he had been involved in trafficking methylamphetamine. Is that a correct reading of your report?
Dr Zimmerman:       I’m just going through to have a look at 2017. Yes, I don't think that he puts that forward…. So I guess what I’m saying is it’s not necessarily because he withheld information on specific areas, but that he responded to specific questions that were put to him.’[62]
[62]    Ibid, page 153, lines 40-47, and page 154, lines 5-7.
Next, Dr Zimmerman was asked about what the Applicant told her about the extent of his past use of methylamphetamine:
‘Mr Hawker:               Did he volunteer to you how severe it was in terms of how many grams per day he was using of methylamphetamine?
Dr Zimmerman:       He certainly indicated to me that it was significant and that it was escalating from the time that he started using. I’m not sure that he gave a specific gram amount.
Mr Hawker:               Okay?
Dr Zimmerman:       I’m just having a look at my report, but I don't think that I got a specific gram amount from him. Yes, no.
Mr Hawker:              But your time dealing with people in rehabilitation and hospitals, if someone said to you that they were - their use was up to something like three to four grams per day, that’s really - that’s quite a severe, significant level of use to your knowledge?
Dr Zimmerman:       That is significant. It also depends on how frequently they’re using. Usually with ice you will have periods when you use, you’re up for, you know, up to two weeks at a time, and then you crash; and you have a period of time off, you’re using downers to get through those periods. So yes, it also depends on how long that sort of very high use is sustained for. But a habit of 3.5 grams on several days a week is significant.’[63]
[63]    Ibid, page 154, lines 17-33.
The following question in cross-examination involved what the Applicant did or did not disclose to Dr Zimmerman about the circumstances of the motor vehicle accident in October 2017. She was taken to the specific part of her report that recorded the history he provided to her about what was the primary causative factor of that accident. In particular, she was taken to the words in her report (i.e. the one dating from 10 February 2020) where she recorded ‘He told me that he was exhausted from working hard and fell asleep in the car while he was driving.’[64] There followed the following exchange between Dr Zimmerman and the Respondent’s representative:
‘Mr Hawker: Did he volunteer any history that the accident was associated with drugs at all, whether on the day or the day before?
Dr Zimmerman: I don't think he volunteered that information. I would assume if he’s driving around, falling asleep in the car - I can’t assume it, but I would not be at all surprised if there were drugs being used around that time. As I talked about, people often crash for a number of days in a very sleep deprived state when they’ve been using ice, so that wouldn’t surprise me.’[65]
[64] G47, page 1169, para [55].
[65] Ibid, page 154, lines 46-47, and page 155, lines 1-5.
Dr Zimmerman agreed that Methylamphetamine is a powerful, highly addictive stimulant that affects the central nervous system.[66] She also agreed that once a person has developed a drug or alcohol dependence, they are always at risk of a relapse:
‘Mr Hawker: And I think you mentioned this earlier, I just want to confirm, once a person has developed a drug or alcohol dependence, I think you were saying earlier there’s always a risk relapsing. Is that correct?
Dr Zimmerman: Yes, I think it would be reckless to say there is no way this person is ever going to touch this drug again. I don’t think you can say that.’[67]
[66] Ibid, page 155, lines 20-22.
[67] Ibid, lines 28-32.
Dr Zimmerman also agreed that, in the instant case, it is really important that the Applicant continues to engage with counselling.[68] She was taken to her most recent report where, although opining that the Applicant represented a low recidivist risk, she nevertheless noted scenarios in which the Applicant would pose an increased risk of violence. In particular, she referred to the following part of her report: ‘The scenario that remains one with an inherent risk of violence is one where he is abusing substances and is in an intimate relationship. In this situation, I believe that [the Applicant] would pose an increased risk of violence.’[69] The following exchange then ensued between Dr Zimmerman and the Respondent’s representative:
‘Mr Hawker:              Are you able to explain a little bit more about why that’s the case to the tribunal?
Dr Zimmerman:       Certainly. So in the HCR-20 one of the things that’s very important is that they don’t ask for just a simple low, medium, high, and that’s the end of the report; it’s very important to consider what the sort of interventions are that could assist in reducing a person’s risk. But also they specifically asked for a scenario which is the most high risk of violence so that future - and it’s really aimed at future clinicians, but also tribunals and courts to know what is the sort of situation where this person is most likely to engage in violence. So I think for [the Applicant] the area that would be of most concern is if he was in an intimate relationship, and it was in that context that he started using, and let’s say ice because that’s probably the most likely drug for him to relapse onto. If he was using ice and was in an intimate relationship, that would be the sort of scenario where he would be most likely to resort to violence in the future, and that’s precisely why assessing his risk of using drugs, and looking at interventions that have been or are going to be done in the area of domestic violence are so important. And we talked about the fact that those are in place. Yes.’[70]
[68] Ibid, lines 34-35.
[69] A4, page 144, para [27].
[70]    Transcript, page 156, lines 31-47.
(ii) evidence of rehabilitation achieved at the time of this decision

It is thus not inconceivable that, provided he can re-establish himself in Erbil with employment and lodgings, the Applicant will be able to safely reside in Iraq (in Erbil) and would not, by virtue of any such return, be exposed to undue risk or danger.
Findings and Allocation of Weight to Other Consideration (a)
I do not think the Applicant has adequately articulated and propounded precisely identifiable or verifiable fears of harm he may face upon a return to Iraq. Those claims are generally and broadly stated with a purported reliance on material providing generic information which is difficult to individually attach or attribute to the Applicant. I am consequently not of the view that his claims are sufficiently advanced to reach the threshold of engaging Australia’s non-refoulement obligations.
Overall, I am of the view (and I find) that the actual or possible cruel and/or degrading and/or discriminatory treatment the Applicant may experience upon a return to Iraq are factors that attract a certain, but not determinative, level of weight in favour of revocation.
Other Consideration (b): Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Respondent makes the following concession:
‘While the applicant may face initial difficulty re-establishing himself in Iraq, the evidence does not demonstrate that the impediments would be insurmountable. The respondent accepts that this consideration may weigh in favour of revocation, but contends that it does not outweigh the considerations favouring non-revocation.’[170]
[170] R1, page 16, para [56].
Sub-paragraph 9.2(1)(a): the Applicant has just turned 31 years of age. The PCF is silent about any physical conditions adversely affecting the Applicant. As a relatively young man, he appears to be in robust physical health. However, and consistent with the available medical evidence, the Applicant’s PCF contains a reference to him having mental health difficulties. The material defines those conditions to comprise depression, anxiety, substance misuse disorder, and Post-Traumatic Stress Disorder.[171] There is a ready concession by the Respondent that the limited health facilities in Iraq would impact on his ability to properly access treatment in Iraq. It is also acknowledged by the Respondent that mental health facilities in Iraq are not as established as what is available in Australia.[172]
[171] G10, page 93.
[172] R1, page 15, para [53].
That said, the Applicant will have available to him such facilities for the care and management of his mental health symptoms as would be available to other citizens of Iraq.
Sub-paragraph 9.2(1)(b): the Applicant born in Baghdad, Iraq.[173] He lived in Iraq until the age of 18. He completed year 12 in Iraq and also obtained a certificate in computing in that country. While in Iraq, he held employment with a concern involved with mobile telephone repairs. That concern also sold mobile telephone handsets as well as mobile telephone credit.[174] To whatever extent the Applicant may face language and/or cultural barriers upon return to Iraq, such barriers are more than adequately overcome by virtue of: (1) the Applicant being born, educated, working and living in Iraq until the age of 18 years (representing almost 60 percent of his life); and (2) the Applicant maintaining ties with members of his family in Australia who also arrived here from Iraq and for whom the Iraqi language would have remained their mother tongue.
[173] G10, page 82.
[174] See generally, Transcript, page 30, lines 22-37.
Sub-paragraph 9.2(1)(c): I have earlier referred to the melange of mental health symptoms confronting the Applicant. Consistent with the concession made by the Respondent it can be fairly acknowledged that the level of governmental medical and/or economic support available to him in Iraq will not be at the same level to which he has become accustomed in Australia. In the material, there is a reference to an article dated 16 March 2013 which deals with the then-capacity of the Iraqi mental health system. This article should be approached with caution given it is almost a decade old, however, this is what the material disclosed:[175]
‘In a March 2013 article the medical journal The Lancet notes the significance of mental health problems among the many adult survivors of trauma in both Iraqi Kurdistan and southern Iraq. In both regions most participants described substantial symptoms of depression, anxiety, and post-traumatic stress. The Lancet reports that the Iraq mental health system is unable to meet these needs:
“The system is hospital-based and relies on psychiatrists providing inpatient and outpatient services even though there is only one long-term care hospital in the country—the Al Rashid Hospital in Baghdad. Previous reports have estimated that there are fewer than 100 psychiatrists in all of Iraq and most of them have little formal training in child and adolescent mental health. Other mental health professionals, such as clinical psychologists or social workers, do not exist at levels of any significance in the mental health care system. Psychiatrists in both regions report that treatment is limited almost exclusively to drugs, partly because of drug-focused training and partly because other therapies are too time consuming.”’
[Internal citation omitted]
[175] G56, pages 1403-1404.
It would be unsafe to find that Iraq is totally devoid of a social security system. People with accepted disabilities can qualify for monthly government payments. In that regard, the material says the following:
‘Persons with disabilities can get an allocation of USD 35 per month. If the impairment is acquired as a result of previous or current conflicts, the disability pension ranges from USD 250 to USD 750 per month. Persons who acquired their disability as a result of terrorist attacks are eligible to receive a lump-sum payment of USD 3 500, in addition to a USD 350 monthly payment.’[176]
[176] G56, page 1403.
However, the material goes on to note:
‘USAID notes that persons with disabilities encountered obstacles to obtaining cash transfer benefits. These obstacles include difficulties obtaining the required documentation (including a medical assessment report) and the accessibility and the bureaucratic processes of government offices and services. The social security pension can be inadequate as a sole income and as a consequence many people with disabilities do not see the point in applying.’[177]
[177] Ibid.
With specific reference to social support available to him in Iraq, the Applicant has acknowledged in both written[178] and oral[179] evidence that he does have two cousins currently living in Iraq. However, it is difficult to cavil with his evidence to the effect that he has never met those cousins, has no relationship with them and only got to hear about them via his uncle. The Applicant also said in his oral evidence that there is no one in Iraq with whom he is currently in contact.[180]
[178] A3, page 10, para [56].
[179] Transcript, page 74, lines 34-41.
[180] Ibid.
Findings and Allocation of Weight to Other Consideration (b)
Having regard to my cumulative findings about the extent to which impediments to the Applicant’s removal are affected by: (a) his age and state of health; (b) any substantial; or cultural barriers to him re-settling in Iraq; and (c) available social, medical and/or economic support available to him in that country, I have concluded that this Other Consideration (b) is of a certain, but not determinative, weight in favour of the revocation of the mandatory cancellation of his visa.
Other Consideration (c): Impact on victims
Paragraph 9.3(1) directions decision-makers to consider the impact of a s 501 or 501CA decision on members of the Australian community, specifically, victims of the non-citizen’s criminal behaviour and the family members of the victim(s), where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
To the best of my understanding of the material, the Respondent has not called any evidence relating to any impact that the Applicant’s continued presence in Australia would have on any victim of his offending. Without such evidence, it would be irresponsible to enter the realm of mere conjecture and guess as to the impact that restoration of the Applicant’s visa status to remain here would have on any of his victims. Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa.
Also, I cannot find any reference to a statement from a victim speaking favourably about the Applicant remaining in Australia. Such a statement could attract discussion pursuant to the authority of PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235. However, no such discussion is required for present purposes.
This Other Consideration (c) is neutral.
Other Consideration (d): Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision-makers must have regard to an Applicant’s links to the Australian community.
There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here. I will consider each in turn.
(1) Strength, nature and duration of ties
This first part of this Other Consideration requires analysis of three elements. First, it is necessary to have regard to the impact of any non-revocation decision on the Applicant’s ‘immediate family’ where those people have a right to remain in Australia indefinitely. Second, it is necessary to consider the impact of a non-revocation decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to assess the strength, nature and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia. I will address each component in turn.
1. Impact of non-revocation on the Applicant’s immediate family
The Applicant’s immediate family comprises his father; Sister N; and Sister D. There is little to cavil with the proposition that both the Applicant and members of his immediate family have suffered a not insignificant measure of personal loss as a result of their experiences in Iraq. The Applicant’s mother and brother are said to have died in Iraq. Sister D is said to have lost her first husband in a sectarian conflict in Iraq. It is contended on behalf of the Applicant that because the family members are said to have suffered such loss in Iraq, the Applicant’s ties to his immediate family in Australia ‘should be given more weight than is ordinarily is as [sic] another consideration’.[181] The argument seems to be that the ties between the Applicant and his immediate family are stronger in this case than other comparable cases because of the extent of their loss in Iraq.
[181] Transcript, page 236, lines 42-43. Note: this quoted portion of the closing submissions of the Applicant’s closing submissions have been mis-transcribed.
As was the case with much of the evidence given by and on behalf of the Applicant, the evidence given in relation to the extent of his ties with his immediate family members also seemed opaque, exaggerated and inconsistent. It would not be incorrect to observe that, for example, the extent of his father’s needs were often exaggerated or were otherwise described in extreme and unreliable terms. The extent of care required by and provided to the father was initially stated as him requiring hospital visits every day when, in fact, he had received support from an aged care worker/provider who visited him. There were similarly varying and inconsistent versions about the respective levels of care provided by the Applicant and his sisters to their father.
It cannot be denied that the Applicant’s father is an elderly gentleman who no doubt requires a level of care and support in his twilight years. However, the confused and inconsistent state of the evidence from the father, the Applicant and the two sisters about the level of care they (the siblings) provided to the father rendered the evidence opaque and difficult to follow. It is likely the Applicant will provide a measure of support to his father if returned to the community. He had an opportunity to do that before his removal from the community and, while he may have provided some support to his father then, the reality is that the predominance of his activities involved his participation in unregulated consumption of illicit substances and unlawful activity around such substances.
A similar finding can be made in relation to the Applicant providing some measure of support for his two sisters. As was the case with the father, the evidence from the sisters, particularly Sister N, was often mired in exaggeration, inconsistency and, sometimes, hysteria. The evidence of Sister D was more measured compared to that of Sister N. This is most probably attributed to Sister D’s very understandable preoccupation with the significant health issues confronting her two-year-old child. Both sisters did not have domestic partners (at the time of the hearing) and it is only logical to infer that they would reach out to their brother for at least some measure of domestic assistance and support were he to returned to the community.
I presume that the Applicant’s father and two sisters are either Australian citizens, Australian permanent residents or people who have a right to remain here indefinitely.The state of the evidence surrounding the Applicant’s immediate family in Australia leads me to a finding that the strength, nature and duration of the Applicant’s ties to those immediate family members carries a moderate level of weight in favour of revocation.
2. Strength, nature and duration of “other ties” – length of residence
The first enquiry relevant to determining the extent of the Applicant’s ‘other ties’ involves the question of how long he has resided in Australia and whether he came here as a young child. He arrived in Australia as an 18-year-old in 2009. He has exclusively resided in Australia since the time of his first arrival some 12-13 years ago.
It is necessary to make reference to the two tempering sub-elements in paragraph 9.4.1(2)(a). With reference to the first of those tempering sub-elements appearing at paragraph 9.4.1(2)(2)(i), I note that the Applicant’s earliest conviction in Australia dates from 1 April 2015. This is about five and a half years after his arrival in Australia. It would therefore be unsafe to find that he began offending ‘soon after arriving in Australia’. It is thus not possible to apply this tempering sub-element against the Applicant.
The second tempering sub-element appears at 9.4.1(2)(2)(ii). It compels an enquiry about the Applicant’s positive contributions to the Australian community. In his PCF the Applicant speaks of:
‘… being a positive role model for other younge [sic] in prison and in the community. I hope to continue to do this upon my release to the community. I have also adopted animals from the RSPCA to provide them a good home. I have also donated a large amount of money to this organisation to help animals.’[182]
[182] G10, page 93.
It is therefore safe to find that the Applicant has made some measure of contributions to the Australian community prior to his removal from it. His contributions via any engagement in remunerative employment are significantly more limited. The PCF only recalls him being involved in remunerative employment from 2012 to 2013.[183]
[183] Ibid, page 92.
There is also the evidence about the Applicant becoming a manager of a carwash which was the subject of the execution of a search warrant by the police. The level of any income derived by the Applicant was something ventilated with him in cross-examination.
‘Mr Hawker:               Had you been a manager of a carwash and did you see – I’ll start with that question first? Before going to jail, had you been the manager of a carwash?
The Applicant:         Yes, I have.
Mr Hawker:              And were you deriving a source of income from being a manager of the carwash?
The Applicant:         I was losing money, I was not making any money.
Mr Hawker:              Is there any reason why you didn’t include it in your employment history table in your personal circumstances form?
The Applicant:         I don’t remember why I did not do that but or it’s because I probably – probably I think I just (indistinct) there’s two – the questions a little bit wrong because I thought that if I work in a company or if I work where they pay me but then yes, I should’ve listed, you’re right, I have not listed – I think it’s because I wasn’t making (indistinct) I would just keep losing money and of course, I should’ve list it [sic].’[184]
[184] Transcript, page 37, lines 34-47.
To my mind, this second tempering sub-element only assists the Applicant in a very marginal way and only on the basis that he has made some slight contribution to the fabric of the Australian community. Taken in total, the combination of these two sub-elements very minimally work in the Applicant’s favour in terms of weight allocable to this Other Consideration (d).
3. Strength, nature and duration of “other ties” – family and other social links
In his PCF, under the heading of ‘close family members including in-laws, cousins, grandparents, uncles/aunts’ the Applicant lists two uncles and five cousins.[185] Also in his PCF under the heading ‘state how many other relatives you have in Australia or overseas’ the Applicant responded thus:
‘Number of uncles/aunts:       4
Number of nieces/nephews:   3
Number of cousins:                7
[185] G10, page 90.
[186] Ibid.
Number of grandparents:       0’[186]
At the hearing before me, as will be recalled, Uncle F and Cousin M gave evidence on behalf of the Applicant. In the second of his two written statements, Uncle F said that in the event of the Applicant’s removal ‘I would struggle without him, along with the rest of our family. I would be very upset and said because we would lose him for good and not see him again if he was sent back to Iraq.’[187] In the first of his two written statements he said the following about the Applicant’s possible removal from Australia:
‘I am not happy because [the Applicant] is not outside with us. I feel that if we lose him, it will be as if I have lost one of my children. I would like to take him on the path of Allah and I would like him to be working with me so I can teach him a trade, that he will remember all the time.’[188]
[187] A3, page 114, para [15].
[188] A3, page 119, para [18].
In the second of his two written statements, Cousin M said the following about the impact on him in the event of the Applicant’s removal:
‘[the Applicant] and I are really close. I feel isolated in my life and really rely on [the Applicant] for emotional support and friendship. It would be so hard for me to be separated from him permanently and to lose him all together if he was sent back to Iraq.’[189]
[189] A3, page 131, para [15].

In his first statement, he said the following about how he would be impacted by the Applicant’s removal: ‘it would really upset me if he is removed from Australia, he is like a brother to me.’[190]
[190] A3, page 138, para [27].
Mr AS is a close friend of the Applicant. In his first written statement made in June 2020, he says ‘I loved [the Applicant] as a brother and he loved me like a brother too’. In his first written statement he said the following about how he would be impacted by the Applicant’s removal:
‘I don’t want to think about [the Applicant] being deported to Iraq – it will make me feel really upset. I can’t imagine how it will be for his family. It will be a very bad day for his family if [the Applicant] is sent back to Iraq.’[191]
[191] A3, page 98, para [16].
In his second written statement made on 23 July 2021 Mr AS said
‘It would really impact me if [the Applicant] was not able to get his visa back and was sent back to Iraq or remained in detention indefinitely. I have known him for so long, for over 15 years, and I know that he has a good heart. He is a lovely man who is fun and happy and full of life. I know that that would be take away from him if he wasn’t allowed to be in the Australian community. I really rely on [the Applicant] for support and I need him to be there for me in the same way I am there for him.’[192]
[192] A3, page 93, para [13].
Mr AS was not called to give oral evidence and his evidence was not the subject of testing in cross-examination.[193]
[193] Note: the Respondent’s representative told the hearing that he did not require Mr AS for cross-examination. See Transcript, page 177, lines 27-28.
Mr AAS is the Applicant’s cousin. He has provided two written statements. The first is dated 5 June 2020. In terms of the impact on him were the Applicant to be removed, he said this:
‘[15] [The Applicant] has a lot of family here – his dad, sisters, uncles, cousins. We all love him and we will all be really affected if he is sent back to Iraq.
[16] I know for a fact I will be very, very upset if he goes. I am very close to him. Just him being there, his good energy, it is an advantage to have him around.’[194]
[194] A3, page 89.
In his second statement, made on 22 July 2021, Mr AAS said the following in terms of impact on him in the event of the Applicant’s removal:
‘It would impact me so much if [the Applicant] didn’t get his visa back. He is like my older brother and the prospect of losing him and our relationship is very overwhelming and breaks my heart.’[195]
[195] Ibid, page 84, para [16].
Mr AAS was not called to give oral evidence and his evidence was not the subject of testing in cross-examination.[196]
[196] Note: the Respondent’s representative told the hearing that he did not require Mr AAS for cross-examination. See Transcript, page 177, lines 35-42.
Mr MN is a friend of the Applicant and has provided two written statements. In the first of those statements, made on 28 January 2020 there is no comment from him in terms of any adverse impact(s) he may experience as a result of the Applicant’s removal from Australia. In the second of his statements, dated 23 July 2021 he says the following:
‘I have known [the Applicant] since he was 17 years old, so for about 13 years. I see him as my younger brother. I love him like a brother. I would be devastated if he had to leave Australia and I didn’t have him here with me. I rely on him for support and I need that to continue.’[197]
[197] A3, page 122, para [14].
Mr MN was not called to give evidence and his evidence was not the subject of testing in cross-examination.
There is another group of statements at Exhibit A3 in the material. Mr AASh is the Applicant’s uncle. The first of his two statements is dated 18 June 2020. He says the following about the impact he would experience in the event of the Applicant’s removal.
‘To be honest, it would very hard for me if he is sent back to Iraq. It would hurt me psychologically. It would really hurt. He is like my son, the son of my brother.’[198]
[198] A3, page 80, para [18].
In the second of his statements, made on 23 July 2021, Mr AASh said the following about the impact not just on him but on the broader family in the event of the Applicant’s removal:
‘It has been really hard for our family for [the Applicant] to be away from us and in detention. We had been very hopeful that [the Applicant] was going to come home after his last Tribunal hearing. We have already lived through the devastation of [the Applicant] not coming home and the anxiety of thinking he may be sent to Iraq. This was very hard for the family.’[199]
[199] Ibid, page 75, para [11].
Mr AASh was not called to give evidence and his evidence was not the subject of testing in cross-examination.
Ms ZAS is the Applicant’s aunt. The first of her two written statements was made on 5 June 2020. She speaks of being ‘very worried about [the Applicant] being deported.’[200] She says it will be ‘very painful for…us all, as a family, if he is deported to Iraq.’[201]
[200] A3, page 45, para [13]. Note: both quotations in this specific paragraph are from para [13] of Ms ZAS’s statement.
[201] Ibid.
In her second statement made on 23 July 2021, she says the following about adverse impacts resulting from the Applicant’s removal:
‘12. It has been really hard for our family for [the Applicant] to be away from us and in immigration detention. We had been very hopeful that [the Applicant] was going to come home after his last Tribunal hearing.
13. Our entire family would suffer if he did not get his visa back but it would be very bad for his father and his sisters. His dad needs his support as his health continues to deteriorate. His dad would be so devastated if he didn’t have his son by his side. [the Applicant’s] sisters would be so upset if they didn’t have their brother by their side. [the Applicant] is very close to his sisters.’[202]
[202] A3, page 141.
Ms ZAS was not called to give evidence and her evidence was not the subject of testing in cross-examination.
There is a group of statements at Exhibit A4 in the material[203] from co-attendees of the Applicant at Narcotics Anonymous (“NA”) meetings. I have looked through each of these statements and, while they speak positively of the Applicant in terms of his personal demeanour and about the nature of his involvement in the NA process, there is little or no reference to how these people will be impacted in the event of the Applicant’s removal. It goes without saying – and this goes to the credit of the Applicant – that almost every one of these people speak positively of the Applicant’s administrative role he has played as secretary of his NA chapter (or equivalent).
[203] See for example statements at annexures 38, 39, 40, 41, 42, 44 and 45 of exhibit A4.
For the purposes of this component of Other Consideration (d) I have assumed that the oral and/or written deponents of the above evidence are either Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia. Having regard to the totality of both written and oral evidence provided by those with whom the Applicant has non-immediate family ties and/or other social links in Australia, I am the view (and I find) that a certain, but not determinative, level of weight is attributable in the Applicant’s favour for the purposes of this Other Consideration (d).
(2) Impact on Australian business interests
Paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on “Australian business interests”. I am of the view (and I find) that this component of Other Consideration (d) is not relevant.
Weight allocable to Other Consideration (d): links to the Australian community
Referring firstly to the first part of this Other Consideration (the strength, nature and duration of the Applicant’s ties to Australia), I am of the view – after having analysed its three specific elements – that the totality of the evidence points to the allocation of a moderate level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant. Overall, the Applicant’s links to the Australian community carry a moderate level of weight in favour of a finding that his visa status to remain here should be restored to him.
Findings: Other Considerations
With reference to the Other Considerations contained in the Direction, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations 1, 2 and 4, the cumulative effect of which is to result in very heavy and determinative weight in favour of non‑revocation. The weight allocable to the Other Considerations (nominated in the Direction) relevant to the present matter can be summarised as follows:
(a)international non-refoulement obligations: carries a certain, but not determinative, weight in favour of revocation;
(b)extent of impediments if removed: carries a certain, but not determinative, weight in favour of revocation;
(c)impact on victims: this Other Consideration is not relevant; and
(d)links to the Australian community: carries a moderate level of weight in favour of revocation.
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1 carries a very heavy level of weight against revocation;
·Primary Consideration 2 weighs moderately against revocation;
·Primary Consideration 3 weighs moderately in favour of revocation;
·Primary Consideration 4 carries a very heavy weight against revocation; and
·I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of weight attributable to the relevant Other Considerations (a), (b) and (d), even when combined with the moderate weight I have allocated to Primary Consideration 3, outweigh the significant, combined and determinative very heavy weights I have respectively attributed to Primary Considerations 1 and 4, plus the moderate weight I have allocated to Primary Consideration 2, against revocation;
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.
·Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 15 April 2020 to not revoke the cancellation of the Applicant’s visa.

I certify that the preceding 311 (three hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

..................[SGD]................
Associate
Dated:   4 March 2022

Date of hearing: 24, 26 and 31 August and 15 October 2021

Counsel for the Applicant:

Solicitors for the Applicant:

Mr Mathew Kenneally

Carina Ford Immigration Lawyers

Solicitor for the Respondent
Mr Matthew Hawker (Partner)

Sparke Helmore

Annexure A – List of Exhibits

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents
(remittal bundle)
(paged 1–1740)

–

30 June 2021

R1

Respondent’s Statement of Facts, Issues and Contentions
(17 pages, 60 paragraphs)

10 August 2021

10 August 2021

R2

Respondent’s Written Closing Submissions (paged 1–9)

6 October 2021

6 October 2021

A1

Applicant’s Statement of Facts, Issues and Contentions
(15 pages, 54 paragraphs)

23 July 2021

23 July 2021

A2

Applicant’s Reply and Annexures
(7 pages, 13 paragraphs)

19 August 2021

19 August 2021

A3

Applicant’s First Bundle of Supporting Documents (paginated)
(paged 1–176)

–

23 July 2021

A4

Applicant’s Second Bundle of Supporting Documents (paginated)
(paged 1–152)

–

19 August 2021

A5

Acknowledgment letter from Mobile Forensic Mental Health Service and Patient Medication Order (3 pages)

–

19 June 2020

A6

Applicant’s Bundle of Country Information (Annexures 1–13) (paged 1–1449)

–

6 September 2021

A7

Applicant’s additional information comprising:

-    Alaraby.co.uk News Article titled ‘Mayor of Iraq’s Karbala assassinated by gunmen’ (2 pages) dated 11 August 2021

-    Syria Smart Traveller Guide (16 pages) retrieved 1 September 2021

-    Australian National Security declared area offence (3 pages) retrieved 1 September 2021

–

10 September 2021

A8

Applicant’s second Bundle of Country Information (Annexures 14–17)
(paged 1–230)

–

15 September 2021

A9

Applicant’s Written Closing Submissions with acronym lookup appendix
(paged 1–19)

17 September 2021

17 September 2021

A10

Men’s Behaviour Change Program letter (1 page)

15 September 2021

11 October 2021

[2022] AATA 367

4 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Remedies

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (remittal bundle) (paged 1–1740)	–	30 June 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (17 pages, 60 paragraphs)	10 August 2021	10 August 2021
R2	Respondent’s Written Closing Submissions (paged 1–9)	6 October 2021	6 October 2021
A1	Applicant’s Statement of Facts, Issues and Contentions (15 pages, 54 paragraphs)	23 July 2021	23 July 2021
A2	Applicant’s Reply and Annexures (7 pages, 13 paragraphs)	19 August 2021	19 August 2021
A3	Applicant’s First Bundle of Supporting Documents (paginated) (paged 1–176)	–	23 July 2021
A4	Applicant’s Second Bundle of Supporting Documents (paginated) (paged 1–152)	–	19 August 2021
A5	Acknowledgment letter from Mobile Forensic Mental Health Service and Patient Medication Order (3 pages)	–	19 June 2020
A6	Applicant’s Bundle of Country Information (Annexures 1–13) (paged 1–1449)	–	6 September 2021
A7	Applicant’s additional information comprising: - Alaraby.co.uk News Article titled ‘Mayor of Iraq’s Karbala assassinated by gunmen’ (2 pages) dated 11 August 2021 - Syria Smart Traveller Guide (16 pages) retrieved 1 September 2021 - Australian National Security declared area offence (3 pages) retrieved 1 September 2021	–	10 September 2021
A8	Applicant’s second Bundle of Country Information (Annexures 14–17) (paged 1–230)	–	15 September 2021
A9	Applicant’s Written Closing Submissions with acronym lookup appendix (paged 1–19)	17 September 2021	17 September 2021
A10	Men’s Behaviour Change Program letter (1 page)	15 September 2021	11 October 2021