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

JHZB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2165 (9 July 2020)
Division:GENERAL DIVISION
File Number(s): 2020/2220
Re:JHZB
APPLICANT

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

DECISION
Tribunal:Member Rebecca Bellamy
Date:9 July 2020
Place:Brisbane

The decision under review is affirmed.
............................[SGD]............................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Resident Return (Class BB) (Subclass 155) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – consideration of Australia’s international non-refoulement obligations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
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
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
9 July 2020
THE ISSUE BEFORE THE TRIBUNAL

JHZB (“the Applicant”) is a 29 year old citizen of Iraq. In December 2009 when he was 18 years old he arrived by boat at Christmas Island. He was granted a Protection (Class XA), (Subclass 866) visa in March 2010. The most recent visa granted to him was a Resident Return (Class BB) (Subclass 155) visa (“the visa”) in March 2016.
In May 2019 a delegate of the Respondent decided to mandatorily cancel his visa under

s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test due to criminal offending.
The Applicant subsequently made representations and provided supporting material as to why that decision should be revoked. In April 2020, the Respondent decided not to revoke its decision (“Decision under Review”) and the Applicant was duly notified.
The Applicant lodged an application with this Tribunal on 17 April 2020 seeking a review of the Decision under Review. The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
The hearing of this matter proceeded on 24, 25 and 26 June 2020. The Applicant, his father, his cousin, a friend and his sister, Ms A, gave evidence by video-link. His other sister, Ms B, his Uncle C and Dr Nina Zimmerman, psychiatrist, gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
THE APPLICANT’S BACKGROUND AND OFFENDING HISTORY
Before the Applicant came to Australia
According to information provided by the Applicant to the (then) Department of Immigration and Border Protection in 2016 and the Applicant’s evidence in the hearing:[1]
[1]     Exhibit R1, s 501 Supplementary G-Documents, volume 1, pages 11 to 18.
·     the Applicant was born in Iraq in an area where both Sunni and Shia Muslims lived;
·     he had an older brother and two older sisters;
·     his mother was Shia Muslim and his father was Sunni, hence he and his siblings are Sunni;
·     in around 1994 or 1995 the Applicant’s father disappeared. His mother later told him that his father had been taken by Saddam Hussein’s army;
·     in around 2004 to 2005, Shia Muslim militia groups began to target Sunni Muslims. Around 2007 or 2008, the Applicant’s mother moved the family to Karbala because she thought it would be safer there. She told the children not to tell people that they were Sunni Muslim, and to use her maiden name as their surname because her maiden name was associated with people of Shia religion;
·     the Applicant’s mother and sisters used to pray five times per day, and there was a time when the Applicant used to pray – by himself or with his brother - but they only prayed in private and did not go to the mosque. Praying at the mosque would have revealed that they were Sunni because of the way they prayed. The Applicant did not observe Ramadan although he pretended to his mother that he was fasting;
·     no-one in the Applicant’s family were ever threatened or harmed for not going to the mosque and showing that they were religious, although he said that if they were older they might have got into trouble;
·     the Applicant used to have a shop where he fixed phones;
·     the Mahdi Army, a Shia militia group, used to go to shops and demand money or a free phone recharge, and they used to stop people in the street and search them or demand to see their identification. They searched the Applicant although they never asked the Applicant for identification;
·     one day in late 2009, when he was at work, men wearing masks went to his home and demanded to know where he and his brother were. His mother said they were not home but they forced their way into the house and took his brother. His mother called him and told him to run away so he went to a hotel in Najaf and checked in under a false name;
·     when he called his mother there was no answer, so he asked a neighbour to check on her. The neighbour later told him that the men had come back to the house looking for him, and when his mother told them he was not there they handed her a bag containing his brother’s head. The Applicant’s mother had a heart attack and died;
·     the Applicant is 90% sure that his family were targeted because his brother, who could not keep a secret, told his friends that they were Sunni;
·     the neighbour met with the Applicant and gave him his mother’s valuables. Within a week he bought a fake passport and travelled to Malaysia, then Indonesia, then to Christmas Island;
·     both his elder sisters were married to Shia men and did not live in the family home. The Applicant tried to telephone them but there was no answer;
·     on Christmas Island he saw a psychologist who gave him medication which made him sleep. He felt like he had no life and was empty; and
·     while on Christmas Island, he logged into a computer and checked his Yahoo messages. There was an email from a friend in Iraq attaching a video file. The video showed footage of his brother’s head being kicked in the street.
The Applicant’s evidence about the murder of his brother was not challenged, and given the country information before me it does not seem inherently implausible. The only evidence before me about the reason for his brother’s abduction and murder is the Applicant’s belief that his brother told somebody that he was Sunni.
After Arrival in Australia
The Applicant was granted a Protection Visa in March 2010. He settled in Melbourne. According to a statutory declaration that the Applicant made on 28 February 2020 he lived with one of his father’s brothers and his family. He also spent time at the house of another uncle, Uncle C, although he did not know that family or their children well. He said:
“I eventually decided I couldn’t stay living with my Uncle as I was always upset. For example, when my cousins called my Uncle “Dad” or my Aunty “Mum” I would just start crying.”
There is no evidence before me from the uncle the Applicant claims to have lived with. The evidence before the Tribunal includes statutory declarations or statements from Uncle C, his wife, and their two sons. That evidence indicates that the Applicant stayed with Uncle C’s family when he first arrived in Australia, that the Applicant spent a lot of time with the two sons. Both sons described the Applicant as being like a brother. The Applicant ended up living by himself. In relation that, Uncle C’s said:
“After a little while I ended up moving house with my family and [the Applicant] did not move with us but I offered him a room. He still used to come over and have food with us. Every time I used to meet him, I told him to take care of himself, to keep being as good as he was being with me.”[2]
[2] Exhibit A1, Applicant's bundle, Document 5.
Uncle C’s wife said:
“I had a close relationship with [the Applicant] before we left Iraq about 20 years ago. We are family. He used to come to our house and stay with my children often. We would see him every few weeks at least. His house was a short drive from our house. He was young but I remember that he listened to other people and was respectful.
When he came to Australia, [he] lived with us for a short period. He also spent a lot of time with us, he was very close to our kids. I treated him as one of the boys, I didn’t differentiate between him and my own children. I wanted him to feel that our home was his home.”[3]
[3] Exhibit A1, Applicant's bundle, Document 6, paragraphs 3 to 4.
I find that when the Applicant first arrived in Australia he lived with Uncle C and his family, who he knew from Iraq, for a short time and that he continued to spend time with this family who were kind and supportive.
The Applicant had not been able to contact his sisters. He tried to locate them through the Red Cross. On 6 October 2010 he travelled to Syria in search of them. He returned on 31 December 2010.[4]
[4] Exhibit G1, s 501 G-Documents, G9; Exhibit R1, s 501 Supplementary G-Documents, volume 1, page 26.
In 2011 the Applicant incurred some traffic infringements: for “Overtake or pass improperly”, “Exceed speed limit by 15 KM/H or more but less than 25 KM/H” and “Fail to dip headlights”.[5]
[5] Exhibit R2, s 501 Supplementary G-Documents, volume 2, page 413.
On 21 November 2011 the Applicant travelled to Malaysia in search of his sisters. He returned on 8 December 2011. He told the Tribunal that he thought his sisters could be in Syria or Malaysia because a person with an Iraqi passport could travel to those countries.
In 2012, the Red Cross contacted the Applicant and told him that they had located his father. The Applicant’s father subsequently lodged a Protection Visa application and came to live in Australia. The Applicant’s father claimed to have been released by the American army in 2005, and while imprisoned suffered mental and physical damage. He has numerous physical and psychological ailments which are detailed in medical evidence that is before the Tribunal. When he gave evidence, it was apparent that he has some cognitive, emotional and physical difficulties. When the Applicant’s father arrived in Australia, he lived with the Applicant, and the Applicant took care of him.
In his statutory declaration the Applicant said that the first few years in Australia were very tough for him because of the trauma of what he had experienced in Iraq, his worry about his sisters, and the loss of a girl who he had fallen in love with, although he did make some friends and he started to learn English.
Uncle C’s wife described the Applicant as being very sad and stressed because of the loss of his mother and brother. She believes that he was traumatised by that. After the Applicant moved out, the family had less contact with him for a few years. She believes things were “tough” for him. She said he was mentally unwell and the stress and pressure affected him. She said:
“I used to try to talk to him about how it was tough losing loved ones and encourage him not to give up on himself, but I don’t think he was mentally ready for that. He didn’t want to or could not consider it.”
There is a document before the Tribunal that is entitled “GP MENTAL HEALTH TREATMENT PLAN (Assessment & Plan)”, from a medical clinic, dated 17 October 2012.[6] The patient is listed as the Applicant, with the Applicant’s date of birth. There is a diagnosis of two conditions, being “depression” and “panic disorders”. The medication Zoloft is prescribed with the reason stated as “Depression – Major”. The Applicant told the Tribunal that Zoloft made him more depressed and his sleep medication made his body tired while he remained awake so he did not follow up on the plan.
[6] Exhibit G1, s 501 G-Documents, G10, page 108.
In 2012, the Applicant incurred a traffic infringement for “Use hand held telephone when driving”, and in 2013 he incurred a traffic infringement for “Follow too closely”.
The Applicant said that in around 2012 to 2013, he briefly worked as a security guard. He said he did this for a few months.[7] He mainly worked at a suburban shopping centre, and did some shifts at a nightclub. There is a letter of support from a man who purports to have been a senior security guard at the shopping centre where the Applicant worked. He said he worked with the Applicant for around six months from 2011 to 2012.[8] Very little turns on the discrepancy in relation to the dates. For present purposes what matters is the length of time that the Applicant was gainfully employed and I find that it was around six months.
[7] Transcript, page 37, lines 15 to 32; Exhibit G1, s 501 G-documents, G10, page 92.
[8] Exhibit A1, Applicant's bundle, Document 8.
In August 2013 the Applicant changed his surname. He said he did this because the original surname revealed that he was Sunni, and he wanted to return to the Middle East to search for his sisters.[9]
[9] Exhibit R1, s 501 Supplementary G-Documents, volume 1, SG1, page 16.
In September 2013, the Applicant left Australia using a travel document in his new name. On his “Outgoing passenger card” next to “Country where you will get off this flight” it says “Iraq”. Next to “Country where you will spend most time abroad” it says “Iraq”. Next to “Intended length of stay overseas”, it says “03” months. The Applicant gave evidence that he got somebody to fill in the passenger card for him because his written English was poor. He said he did not enter Iraq by air, and that he flew into Syria, then travelled to Iraq by car.
During the hearing the Applicant gave evidence that there was nowhere in Iraq that he would be safe from the people who murdered his brother. He was then asked about the passenger card that indicated that he had travelled to Iraq. He said:
“…I went to Erbil. Erbil is not in Iraq, it’s [all Kurdish] people and the reason I went there is I was desperate. That’s when I first went to Damascus. I was looking for my sister… I went to Syria. Someone suggest that, ‘You know what, if they’re not in Syria they could be in Erbil’ and they said Iraqi people can’t go inside Erbil but if you have Australian passport then you go but then they looked at mine they said it’s a travel document, they can’t even tell if it’s Australian travel document so if you put $200 here and give it to the border they will let you in so I went to - yes, I went to in Kurdistan, Iraq for literally two days and half, no more than two days and a half and it was - it was crazy, a crazy time to be there…it’s even got different army who looks after them which is the Kurdish army. It’s far from Baghdad, far from the city where I’m from and they don’t even let Iraqi people there. Because I had a travel document, yes, they let me in.”[10]
[10] Transcript, page 41, lines 28 to 48.
When asked why he was allowed into the region, the Applicant said:
“Yes, because I had a travel document passport so they probably thought it was Australian passport. I didn’t have Iraqi passport. That was a passport that was issued by the immigration for travel document.”[11]
[11] Transcript, page 42, lines 1 to 6.
This evidence was in direct contradiction to the evidence he gave moments earlier that “they can’t even tell if it’s Australian travel document”. When asked about this inconsistency, he said:
“No, no, they couldn’t tell if it’s Australian passport or if it’s Australian travel document. That’s what I meant.”[12]
[12] Transcript, page 42, lines 37 to 39.
I do not accept that this is what the Applicant meant because it is not, in fact, what he said. What he said was that “they” said “it” was a travel document but they could not tell if it was an Australian travel document. There are more problems with the Applicant’s evidence about his trip into Iraq, discussed below.
First, as the passage quoted above indicates, the Applicant initially said he was told his sisters might be in Erbil when he was on his first trip to Syria. The Applicant was later asked why he thought his sisters would be in Erbil, to which he responded:
“Because when I was in – when I went to Damascus and it was my second time to try to find them there, because the closest country to Iraq and very easy to get there, so I thought they would probably be there unless I go and look again, and I went to some – there was like a family sitting in a park and I asked them, “Do you guys knows these names?” And I said my sisters’ names, and I said I’m looking for them, I’m coming from Australia, I haven’t – I’ve been looking for them a long time. They said have you thought about going to Erbil, and it comes in my head and I go oh yes, so I give it a try, but yes, it was – it was very tough, even thinking to go it, it was very hard, it was very scary as well.”[13]
[13] Transcript, page 83, lines 14 to 26.
The Applicant’s first trip to Damascus was in 2010. If he was told his sisters could be in Erbil on that trip, it calls into question why his next trip was to Malaysia and only Malaysia. If the Applicant only decided to go to Erbil during his second trip to Syria, then it follows that he had already planned to go elsewhere in Iraq when his Outgoing Passenger Card was completed (which was obviously before he arrived in Syria).
Second, the Applicant did not explain why he believed his sisters could be in Erbil when he also believed that a person could not enter that area using an Iraqi travel document.
Third, according to a map of Iraq contained in a report published by the Department of Foreign Affairs and Trade on 9 October 2018 (“DFAT Report”),[14] Erbil is in the Kurdish region in the north-east of Iraq. Syria is to the west of Iraq and Damascus is located in the far west of Syria. It appears that to enter the Kurdish region, one would have to travel through Turkey or Iraq. The Applicant said he did not know what route he took, whether he passed Mosul, or whether he crossed the Turkish border. He did say the journey took six to eight hours during the day and they stopped for food several times. I find it implausible that the Applicant had no knowledge of the route they took, especially if he feared harm in the non-Kurdish part of Iraq.
[14] Exhibit A1, Applicant's bundle of documents, Document 18.
Considering all the evidence in relation to this trip, I find that he intended to, and did, spend time in Iraq and not only in the Kurdish region.
At some time in 2013, the Applicant’s two sisters arrived in Indonesia. One sister, Ms A, was accompanied by her husband and two daughters. At first they were able to support themselves, and later they relied on support from their uncles in Australia, their father who was now in Australia, and the Applicant. They remained in Indonesia for around two and a half years.[15]
[15] Transcript, page 165, lines 35 to 41.
Between February and October 2014, the Applicant incurred several traffic infringements, being:
·     Exceed speed limit by less than 10 KM/H (x2);
·     Exceed speed limit by 10 KM/H or more but less than 15 KM/H (x3);
·     Exceed speed limit by 15 KM/H or more but less than 25 KM/H (x2); and
·     Disobeyed traffic control signal.
In December 2014 the Applicant started using methylamphetamine and ecstasy. He said these drugs were offered to him as a way to feel good and he was shocked at how happy he felt afterwards. He said “I had no stress or flashbacks, and it helped me not to think about my brother and my Mum, my sisters and all my worries”.[16] The Applicant told the Tribunal that from when he commenced using methylamphetamine he used it every day and him use was around 4-5 grams per day. Sometimes he also used GHB.
[16] Exhibit G1, s 501 G-documents, G13, Applicant page 205, paragraph 15.

Around that time - it is not apparent whether it was before or after - the Applicant attempted suicide by drug overdose and was assessed at Footscray Hospital and referred to his GP for a further referral to a psychologist. However, he did not follow up on that referral.[17]
[17] Exhibit R2, s 501 Supplementary G-Documents, volume 2, SG2, pages 79 to 85 .Noted in the report of Dr Cidoni, dated 7 November 2018, and a “Chronology prepared on behalf of [the Applicant]”[17] that appears to have been filed in the County Court of Victoria for the purpose of the 2018 court proceedings.
On 30 December 2014, the Applicant travelled to Malaysia again in search of his sisters. He returned on 4 January 2015.[18]
[18] Exhibit G1, s 501 G-Documents, G9, page 71; Exhibit R1, s 501 Supplementary G-Documents, volume 1, page 29.
On 23 February 2015 the Applicant was notified that the department was considering cancelling his Protection Visa because of some information that he had provided that appeared to be inconsistent with the information provided by his father.[19] He explained these inconsistencies to the department, and I am satisfied with the explanation he gave. The cancellation process was ultimately stopped because the Applicant transferred to a Residential Return visa on 10 March 2016.[20]
[19] Exhibit R1, s 501 Supplementary G-Documents, volume 1, SG1, page 17
[20] Exhibit R1, s 501 Supplementary G-Documents, volume 1, SG1, page 18
Commencement of Offending
There is very little information about the Applicant’s early offending.
On 1 April 2015 the Applicant was sentenced in Melbourne for:
·impersonate authorised officer;
·use methylamphetamine commit indictable offence whilst on bail; and
·possess methylamphetamine (x2).[21]
[21] Exhibit G1, s 501 G-Documents, G41.
It is not apparent from the Applicant’s criminal history when these offences were committed, however the “Use methamphetamine commit indictable offence whilst on bail” must have been committed after he had been arrested, and granted bail, in relation to an offence. The Applicant was sentenced to an aggregate penalty of a $1,000 fine.
In December 2015, the Applicant’s two sisters came to Australia[22] and they all lived together for a time.
[22] Transcript, page 166, line 11.
On 26 April 2016, the Applicant was sentenced in Western Australia for:
·possessed drug paraphernalia in or on which there was a prohibited drug or plant (x2); and
·possess a prohibited drug (methylamphetamine).[23]
[23] Exhibit G1, s 501 G-Documents, G41.
The Applicant told the Tribunal that he was in Western Australia because he wanted to move there, and that the police had stopped his car and found those items. He was sentenced to an aggregate $800 fine.
On 29 April 2016, the Applicant was sentenced in Victoria for:
·wilfully damage property without authority/excuse and to enter private property;
·tamper with motor vehicle; and
·fail to answer bail (x2).[24]
[24] Ibid.
He was sentenced to a Community Correction Order (“CCO”) for 12 months.
There is a document before the Tribunal that is entitled “GP MENTAL HEALTH TREATMENT PLAN (Review)”, dated 6 June 2016, from the same medical clinic, and same doctor, as the document dated October 2012. This document lists the Applicant’s diagnoses as “mixed anxiety and depression” and “panic disorders”. It does not appear that the Applicant followed up on this plan. His failure to do so may be explained by the following evidence that he gave at the hearing, which appears to relate to these mental health appointments. He said:
“At the time I was - I was going to - before I took the drugs I went a couple of times to a psych doctor and all they were asking me was to repeat what I went through in Iraq. And it was killing me. Every time I go and I had a session I got back home, I tried to kill myself and I got crazy and I said I didn’t believe it. I thought you know what, there will be no doctor could help me, the medication. I don’t have headache to take medication. I didn’t even know that there was a medication for trauma, there was a medication for depression, I didn’t know anything about that and I didn’t even know what the drug was. I didn’t at that time I didn’t even smoke cigarettes or drink alcohol.”[25]
[Underlining added]
[25] Transcript, page 14, lines 15 to 24.
On 27 June 2016, the Applicant was sentenced in Albury, New South Wales, for offences that he committed before the imposition of the CCO:
·dealing with property suspected of being proceeds of crime; and
·possess or use a prohibited weapon without permit (x2).
He was sentenced to two months imprisonment, and was imprisoned between 21 June and 20 August 2016.[26]
[26] Exhibit R2, s 501 Supplementary G-Documents, volume 2, SG2, page 182.
The prohibited weapons were a knife and a taser. The Applicant said the knife was a present for the friend that he was travelling to visit, and that it had cultural significance. I am prepared to accept his evidence. He said he bought the taser, which also functioned as a torch, for around $50 from a person at his gym who had also sold him illegal bodybuilding substances. He said the taser part of it was broken but he thought he could fix it and he tried to fix it because he likes to fix things. He said he used the item as a torch while he was travelling, for example, if his dog needed to go to the toilet at night time. He said he had no intention of using it to harm anyone. I do not accept that the Applicant bought this illegal item simply because it was offered or because he likes to fix things. There is no evidence, except for the Applicant’s word, that the taser was in fact broken and could not be repaired. I find that he acquired the taser with the intention of possessing a working taser, whether or not that meant repairing it.
The Applicant said the proceeds of crime conviction related to $2,900 that he had withdrawn for his trip and a bottle of body building pills that he had.
On 4 November 2016, the Applicant was sentenced in Western Australia for two offences of driving with a prescribed illicit drug in oral fluid.[27] For each offence he was fined $400.
[27] Exhibit G1, s 501 G-documents, G41, page 41.
During 2015 and 2016 the Applicant incurred 11 speeding infringements, including one that involved exceeding the speed limit by 25 km/h, one that involved exceeding the speed limit by 30 km/h, and one that involved exceeding the speed limit by 40 km/h.
In addition due to an incident in 2016, he was convicted in October 2017 of “drive recklessly/furiously or speed/manner dangerous”.
Serious Offending
DFO Offences
On 4 February 2017, according to Victorian police records, the Applicant failed to stop at a red traffic lights and continued driving into the car park of a DFO. He collided with a stationary vehicle causing moderate damage to it and pushing it into a vehicle parked beside it causing moderate damage to that vehicle. He continued driving, without leaving his details and parked his car. He then passed out at the wheel. He was awoken by DFO security and, upon seeing security, he accelerated heavily and rammed into a stationary vehicle. He once again passed out. Police were alerted and attended the scene. They woke the Applicant and, upon seeing the police, the Applicant accelerated and rammed the vehicle forward. The police found the following items inside the vehicle: 63 g of methylamphetamine, a vial of GHB, $7320 in cash, several JB hi-fi gift cards, and some other items. On a phone that was found in the car police observed a number of text messages pertaining to the trafficking of drugs.[28] A blood test was performed on him which was positive for methylamphetamine. The Applicant told the Tribunal he had no recollection of the incident and only recalls lying on the ground surrounded by police and then waking up in a hospital. He does not dispute the police account.
[28] Exhibit R2, s 501 Supplementary G-Documents, volume 2, page 72.
The Applicant was remanded in custody, and subsequently granted bail on 29 March 2017.[29] According to the Applicant’s statutory declaration, he was required to undertake “drug detox and rehabilitation”.[30]
[29] Exhibit R2, s 501 Supplementary G-Documents, volume 2, page 27.
[30] Exhibit G1, s 501 G-Documents, G13, page 206, paragraph 27.
Residential Rehabilitation
The Applicant did undertake residential rehabilitation for two and a half months. He said he did not use drugs during that time. He said “they kicked me out” because he stopped going to Alcoholics Anonymous and Narcotics Anonymous meetings. He explained that:
“…when we usually go to the meeting there was a condition at the rehab that you have to share, if you don’t share you get in trouble, you got consequences for that. So you have to share every time you go to the meeting. And every time I was going there, as soon as I start talk I start crying, and I feel – I felt very ashamed and I felt very embarrassed, like every time I go there I’m old enough and I was crying and people were tapping on my shoulder and I felt that everybody was feeling sorry for me, like they just feel sorry for me, so I didn’t want to go there anymore, it was very hard to, first time, open up and talk about my trauma in front of say 50 to 80 people in the room, it was very, very tough.”
There is a letter before the Tribunal, dated 4 July 2017, from a Mr Thompson, clinical director of Recoveroz.[31] The letter purports to be in support of the Applicant and it appears as though it was provided for the purpose of the sentencing proceedings. Mr Thompson stated that the Applicant was in treatment for addiction to methylamphetamine from 29 March to 14 June 2017. Mr Thompson said, when asked why he initially used drugs, the Applicant said it was because it was like escaping from his body and not feeling anything. It “gave him the feeling that the bad things that happened in his life, either didn’t exist or happened to someone else.” Mr Thomson said this is all symptomatic of extreme trauma and said his drug use almost certainly stemmed from the background of violence against the Applicant and his family. Dr Thompson’s letter referred to the Applicant seeing his brother beheaded and his mother dying of shock in his company. According to the Applicant’s evidence, this is incorrect: the Applicant does not claim to have witnessed the death of either his brother or his mother. Dr Thompson reported that the Applicant did well in “rehab” however he added that:
“Right now, his sense of social disconnection is very pronounced, but this will start to dissipate as time goes on. This will happen with continued connection with people in recovery from addiction and will be absolutely vital, so that he can free himself from feelings of isolation that he is suffering from. I also support him continuing to see the psychiatrist and/or psychologist which I’m happy to arrange.”[32]
[31] Exhibit R2, s 501 Supplementary G-Documents, volume 2, SG1, page 98.
[32] Ibid.
Mr Thompson said “I am happy to consider mentoring him on a regular basis once he leaves the cloistered system of rehab.”[33]
[33] Ibid.
There is no suggestion in Mr Thompson’s letter that the Applicant was kicked out of the rehabilitation program, in fact Ms Thompson said he did well. I prefer the contemporaneous evidence of the Clinical Director of the program to that of the Applicant. I do not accept that the Applicant was forced to leave the program.
Immediately afterwards, the Applicant did a three week drug detox program. He told the Tribunal he did not use drugs during this time. However, he said he returned to using drugs afterwards.
When asked what triggers led him back into drug use after these interventions he said:
“… at that time I never, never – I didn’t even realise that I was being traumatised, the nightmare I have is because I’ve been traumatised and I needed help. So I feel like it was shocking when it was – the first time ever I’m sitting in front of the doctors in front of people and the doctor said to me, “Do you know you suffer from PTSD and trauma, you’ve got panic disorder.” And I said, “What the hell is that?” And they said, “This is – is trauma, it has been in your head and it will be in your head for the rest of your life.” It was a big shock, your Honour, well, now 2017 someone tell me that I have this problem, why someone didn’t tell me that before. It was like a shock, it was like wow, that’s why I was having the nightmare, I wish someone told me that earlier. They said, “Well, you didn’t talk. You didn’t tell people so of course we can’t help you until you said something.”[34]
[34] Transcript, page 114, lines 23 to 39.
I have difficulty making sense of this answer. The Applicant’s evidence is that when he arrived in Australia he was struggling with, among other things, the trauma from the deaths of his brother and mother. He was diagnosed with major depression and panic disorders as far back as 2012. The letter from Mr Thomson makes it clear that he considered the Applicant to have been suffering from trauma from the violence against his family in Iraq and that his drug use stemmed from that. I do not accept that, at the time the Applicant had completed residential rehabilitation and the detoxification program, his trauma based psychological condition had not been recognised and brought to his attention.
The Applicant’s Counsel recognised this when he asked him what help he felt was available to him after he had left rehab, with his conditions having been discovered or diagnosed at that time. The Applicant responded:
“At that time I didn’t get help but all the help was from the counsellor at that rehab but what I felt is I’m going to be….like, in some kind of a sanitorium, yes. Hospital. So I thought they were going to be put there one day because the way that the counsellor was telling me it’s like - I was like, ‘Wow, I have all these things and I didn’t’ so I felt my (indistinct) will be in a hospital where - yes, so I felt I’m gone, my life is finished but I didn’t - I remember even the counsellor when she said this she said that, ‘You should take medication’ and I was like, ‘Medication for what? I don’t have headache’. She said, ‘People take medication not because headache, because for (indistinct words) that stuff’…”[35]
[35] Transcript, page 131, lines 1 to 12.
There is no evidence, that in all the contact the Applicant had with doctors, mental health professionals and counsellors up to that time, anyone had ever suggested that he would be institutionalised. Rather, the evidence is that he was prescribed medication and encouraged to continue to engage in counselling. I do not accept that the Applicant eschewed treatment for his diagnosed conditions because he feared being placed in a mental institution.
Sentencing for the DFO offences and evidence about the cash found
On 4 September, 2017, the Applicant was sentenced for the following offences in relation to the DFO offending episode:
·drive under the influence of drug;
·drive while disqualified;
·drive in a manner dangerous;
·traffic methylamphetamine; and
·possess GHB.
The Applicant was sentenced to four months imprisonment with a CCO. The conditions of the CCO included: supervision, treatment and rehabilitation (drug, mental health, offending behaviour, any other treatment and rehabilitation as directed: road trauma awareness, regular and random drug testing, offending behaviour programs). The Applicant’s licence was cancelled and he was disqualified from driving in Victoria for four years. He subsequently lodged an appeal against his sentence and was granted appeal bail.[36]
[36] Transcript, page 21, lines 14 to 15; page 57, lines 11 to 1; and page 127, lines 1 to 2.
Causing a Head-on Collision and Leaving the Scene
On 17 October 2017, while the Applicant was disqualified from driving, he drove a car that he had purchased on finance and put in his partner’s name. He had been in a relationship with his partner, Ms Y, for eight or nine months, and he had Ms Y’s two daughters, aged eight and 11, in the car with him. He fell asleep at the wheel, veered into oncoming traffic and caused a head-on collision. At this time he was on bail, as he had lodged an appeal against the sentence of four months imprisonment that had been imposed the previous month for the DFO offences which included driving while disqualified and driving in a dangerous manner.
According to the police report,[37] the collision occurred around 5pm. The driver of the other vehicle was knocked unconscious for a short time and as a result of the injuries he sustained he was not able to exit the vehicle. His injuries included fractured ribs, multiple fractures to his pelvis, fractures to his back, and cuts to his right arm and right cheek that required stitches. He subsequently spent three weeks in hospital before being transferred to a rehabilitation hospital, and at that time he was not expected to return to work for at least six months and possibly 12 months.
[37] Exhibit R2, s 501 Supplementary G-Documents, volume 2, page 59.
I have viewed dash-cam footage taken by a car that was travelling behind the Applicant’s vehicle. It shows the collision, the Applicant getting out of his car, checking the boot, checking a door on the left-hand side of his vehicle, walking away from his vehicle and out of the camera range with a phone in his hand, walking back to his vehicle and then walking towards the victim’s vehicle. The Applicant was not using his phone to contact emergency services: he said he was looking for the phone number of Ms Y. While he was doing all this, the two girls who were his passengers were standing next to his vehicle, and other people were phoning emergency services and attending to the victim. When the Applicant walked over to the victim’s car he was told by those who were assisting the victim to move away.
A woman, Ms E, heard the crash and attended the scene. The police report details that the Applicant persuaded her to take him to Glenroy train station so he could get Ms Y to pick her children up. The Applicant left the children with a person at the scene who was not known to him or the children. The Applicant told Ms E that his name was James Peters or James Peterson. He left some blood in her vehicle which the police later tested against a DNA sample provided by the Applicant. The children’s mother, Ms Y, attended the scene at approximately 6.10pm. She falsely told police that the driver of her car was James Peter. She said she had met him via Uber as an Uber driver. She said she was not able to contact the person she claimed to be the driver.
The Applicant never reported the collision to the police. Nor did he attempt to give his details to the victim. When the Applicant was interviewed by the police he made a “no comment interview”. He did not to admit to being the driver or anything else in relation to the collision. He did agree to provide a DNA sample.
The Applicant did not dispute any of the above facts. He said he had picked up the girls from school, taken them to McDonald’s to cheer them up, and that he had fallen asleep at the wheel. He said that after the collision the two girls were frightened so he tried to open his boot to get some bottled water for them but he could not open the boot. When asked what he was using his phone for he said he was trying to find the phone number of his partner, however, that was his work phone and it did not have her number on it. He said the children were upset and wanted their mother. He admitted that he told Ms E his name was James Peters, and said he used that name because it was hard for people to remember his real name. He denied having told Ms Y to give that name to police. He does not claim that he has ever been an Uber driver.

The version that he gave to Dr Zimmerman, psychiatrist, who gave evidence in this matter, was that he left the scene of the accident to get Ms Y because the children were upset and wanted their mother and when he got home he was in such pain he did not return to the scene. The version he gave in examination in chief was similar. He said that from Glenroy train station he caught the train and made his way to Ms Y. However, there are many problems with this explanation. First, it would seem obvious that if the children wanted to be with their mother, they should have been taken to their mother. However, Ms E drove the Applicant and left the children at the scene. Despite being asked about his reasons for leaving the scene, and leaving the children with a stranger, the Applicant did not volunteer an explanation as to why he did not take the children with him. Further, the Applicant gave evidence that he could not call Ms Y because the phone he was shown using in the dash-cam footage was his work phone and her number was in his personal phone. He said that phone was somewhere in the car but he could not find it. It makes a lot more sense to conduct a thorough search of the car in order to find the phone than to leave the children in the care of a stranger for over an hour. Alternatively, it would have made sense to wait for the police to arrive and ask the police to help unite the children with their mother.
When it was put to the Applicant that he had given Ms E a false name, left the scene and failed to return because he did not want to be held liable for the crash, he said that was part of the reason. I do not accept that it was merely part of the reason: given the implausibility of the other reasons he put forward, I find that unwillingness to be held accountable for the crash was his key motivating factor. I further note that he failed to give his details to the victim or any of the witnesses at the scene before he left, and he refused to admit to police that he was the driver.
The Applicant was charged with various offences arising from the collision and his conduct afterwards, and was subsequently granted bail.
On 9 November 2017, the Melbourne County Court set aside the sentence that had been imposed in September 2017 for the DFO offences, and instead sentenced the Applicant to a two-year CCO with the same conditions as before, plus 200 hours of community service.[38] The Applicant subsequently attended to CCO appointments.
[38] Exhibit R2, s 501 Supplementary G-Documents, volume 2, page 27.
The Search Warrant
According to records from the Victorian Police, on 30 November 2017, the Anti Gang Squad executed a search warrant at a car wash managed by the Applicant. Immediately on entry into the manager’s office, police observed a loaded 9mm Smith and Wesson’s semi-automatic pistol in the open safe located under the desk. The identifying marks and serial numbers had been removed. Also in the safe were several 9mm ammunition rounds, an additional magazine, what appeared to be a larger home-made magazine, 20g of methylamphetamine, a large sum of money ($10,000) and a swipe card to a hotel room. Police subsequently searched the hotel room and found a small quantity of methylamphetamine and a quantity of GHB. The Applicant did not dispute any of these alleged facts.
The Applicant was remanded in custody. On 8 February 2018 he was granted bail. [39]
[39] Ibid.
The Applicant denied that he had the gun and ammunition with the intention of hurting or threatening anyone. He said two women who he had met on a dating website were at the car wash and he left to get some food. When he returned there was a man with tattoos on his face and body talking on his phone in a threatening way and he had a gun on the desk. The Applicant was worried that the man would use the gun to hurt someone so he offered to buy it. When he was asked why he bought the ammunition too, given that buying the gun would have been enough, he said the man went to his car, brought back a magazine and ammunition and sold the whole lot to the Applicant. When probed further, he said:
“I bought everything, your Honour (sic), together. So I didn’t like chose one thing. And he gave me everything too, you know. Probably if I had the choice at that time I would have just got the gun, but he just gave everything. He put the gun and then when I gave him the money he went to the car and he got me the magazines and everything together, so he gave it to me all at once, so I didn’t think of getting one thing and – yes, didn’t think of that, or didn’t come in my head.”[40]
[40] Transcript, page 108, lines 33 to 39.
Later, the Applicant said:
“So he – when he put the gun and I said I will give you money for it, if you give it to me. He goes yes, how much? I said, I don’t know, what do you think, I don’t know the prices, you tell me. He said, that comes with another two magazines. And that’s how he give it to me all at once, I didn’t ask him to give me more magazines or (indistinct) or anything.”[41]
[41] Transcript, page 122, lines 1 to 5.
The Applicant’s evidence therefore is that he offered to buy the gun, invited the other man to name his price, and that the other man insisted on including items that the Applicant did not offer to buy. I find that aspect of his evidence implausible as there was no apparent benefit to the other man including the magazine and bullets effectively for free.
The Applicant gave evidence that he did not hide the gun and that anyone sitting near the desk could see it, stating “I didn’t hide it if I wanted to do something that it was there”.[42] When it was put to him that he had already been in trouble with the police for illegal possession of weapons, that this gun was an illegal firearm, and that he had it in an open safe at a business that has employees and serves the public, and asked why he took that risk, he said he could not explain and that he did not know what he was thinking. He had previously told Dr Zimmerman that he bought the gun because he liked the look of it, and he told the Tribunal that he wanted to look cool to women. The Applicant failed to give a coherent, plausible explanation for his acquisition and possession of the gun, magazine and ammunition. I am not satisfied that he bought the gun and other items to prevent their previous owner from hurting people or to impress women. In the absence of reliable evidence of his real motivation I am unable to make a finding other than he acquired a working illegal firearm and ammunition, knowing the firearm was illegal and that he did not have a firearms license, he had the gun loaded, and he did not store it securely.
[42] Transcript, page 21, lines 6 to 7.
The Applicant claimed that the money in the safe was given to him by his father after his father sold a car. His father corroborated this evidence.
First Domestic Violence Offence
On 30 March 2018, the Applicant was at home in Tarneit with his wife, Ms Z. According to the Applicant, they had not been married according to law, but in a religious ceremony the previous month which is why he referred to her as his wife.
According to records from the Victorian police, the Applicant suddenly started going through Ms Z’s phone, searched for the word “adventure” on Google, then began punching her in the face while saying to her “that’s what you want isn’t it, an adventure, you’re into that kinky shit”. The Applicant then accused Ms Z of having a profile on the Ashley Maddison dating website. Ms Z denied knowing about that website, and the Applicant continued to punch her in the face saying “stop you lying slut, you know what Ashley Maddison is”. The Applicant then walked into the ensuite and instructed Ms Z to look in the mirror while he continued to hit her in the face and spit on her. Ms Z had started to bruise and bleed around her eyes and cheeks.
They both returned to the bedroom, whereupon the Applicant pushed Ms Z onto the bed on her back and got on top of her. He continued to punch her in the face yelling things like “you going on a dating website behind my back you slut, are you serious?” He then started to choke her with both hands until she lost consciousness for a brief period. At this point Ms Z lied to the Applicant and told him she would give him her login details for the dating website. Instead she sent multiple SOS messages to her father and her mother telling them the Applicant was “bashing her” and she needed help. The Applicant realised what she was doing, took her phone and sent a message to each of her parents saying “haha sorry by accident”. Ms Z took her phone back and called her mother however the Applicant threatened her saying “if I go back to jail, I’m gonna send every person I know to come and get you and your parents”. The Applicant then left the home. Ms Z suffered bruising and swelling to her eyes and upper cheek, and a cut above her lip.[43]
[43] Exhibit R2, s 501 Supplementary G-Documents, volume 2, page 59.
Police spoke to the Applicant about this incident. He did not admit to having assaulted Ms Z. Instead he said “she was hitting herself to…get me in trouble”. When asked how she was hitting herself, he said “no comment”. After being shown photographs of Ms Z’s facial injuries, the Applicant said she had not been taking her regular anxiety and depression medication. When asked how this was linked to the incident, he said “she got problem…no one bashed themselves and get another person into trouble, that’s just not right”. The Applicant now concedes that the police facts are accurate although he says he does not recall much of the incident.
Between 24 April and 6 June 2018, the Applicant failed to attend for drug testing on two occasions and failed to attend for unpaid community service on four occasions.[44] On one occasion when he was contacted by Community Corrections about missing a drug test, he falsely told them that he had already attended and provided a urine sample.[45]
[44] Exhibit R2, s 501 Supplementary G-Documents, volume 2, page 27.
[45] Exhibit R2, s 501 Supplementary G-Documents, volume 2, pages 27, 35 and 37.
On 21 May 2018 the Applicant told Community Corrections that his relationship with Ms Z had broken down.[46]
[46] Exhibit R2, s 501 Supplementary G-Documents, volume 2, page 37.
A report from the Victorian Department of Justice and Community Safety[47] that is dated 30 July 2019 but relates to the period before the Applicant was remanded in custody (being 9 June 2018), addresses the Applicant’s repeated failure to comply with the conditions of the CCO. The report contains the statements:
“[The Applicant] stated he engaged in regular telephone and office-based appointments with his psychologist, Ms Denise Abadee. This service discussed a possible referral for [the Applicant] to attend Foundation House as they worked with people who have migrated to Australia from conflict zones. The benefits were discussed with [the Applicant], however he declined, stating he didn’t feel he had been negatively affected in anyway (sic).
[The Applicant] identified boredom as a precursor to his offending, this has been confirmed by Ms Abadee, she stated ‘boredom is the problem when drug use is in the background’. According to [the Applicant], Ms Abadee was also directing him to attend urinalysis screenings twice a week for him to be held accountable for any drug use. [The Applicant] appeared to be making a conscious effort at changing his pro-criminal lifestyle and presents as motivated to make positive lifestyle choices. He stated the reason for him moving to Tarneit was to avoid negative peers, as he recognised his previous lifestyle choices and associates were unhealthy.”
Discussions in [the Applicants]’s supervision appointments also surrounded the relationship between him and his wife. [The Applicant] accused his wife of infidelity and therefore often spoke about her in a negative manner. He alleged she reported to police a ‘made up’ family violence related incident and therefore an Intervention Order was put in place. Given the above, this service introduced the Healthy Relationships workbook into his supervised sessions … [The Applicant] was advised he was to complete the workbook and return it to this service to discuss his answers, he however failed to complete this task as directed. On 21 May 2018, [the Applicant] attended this service to advise his relationship with his wife had broken down and attributed this to police interference.”[48]
[47] Exhibit R2, s 501 Supplementary G-Documents, volume 2, pages 34 to 39.
[48] Exhibit R2, s 501 Supplementary G-Documents, volume 2, pages 36 to 37.
Under the heading “Treatment And Rehabilitation - Alcohol and Drug Treatment”, the report said:
“Upon his transfer to Werribee CCS, [the Applicant] disclosed being abstinent from drugs for a period of 90 days and was regularly attending Narcotics Anonymous (NA). He also advised he was linked with a dual clinician named Ms Denise Abadee whom (sic) was treating him for mental health and drug treatment…
On 11 April 2018, [the Applicant] advised this service his sessions with Ms Abadee were becoming expensive therefore he could no longer fund his engagement with her.”[49]
[49] Exhibit R2, s 501 Supplementary G-Documents, volume 2, page 37.
The report went on to say that alternative treatment was arranged but the Applicant was not able to commence treatment due to being incarcerated.[50]
[50] Ibid.
Under the heading “Mental Health Treatment”, the report said:
“Given the benefits of mental health treatment, this service advised [the Applicant] to attend his General Practitioner (GP) to complete an assessment for a Mental Health Care Plan (MHCP). If he were to be found suitable, he would be entitled to up to 10 bulk billed sessions with a psychologist. [The Applicant] was provided with a document to provide to his GP to fill out, however appeared reluctant to do so as he stated he did not believe he needed to see another mental health provider.”[51]
[51] Ibid.
Second Domestic Violence Offence
In the course of answering the question from his Counsel referred to above – regarding what treatment he thought was available to him after completing the residential rehabilitation program – the Applicant said the following:
“…when I was even in the community before I came to gaol I used this - I was on actually anxiety and depression medication and that’s when me and [Ms Z] we were together at the house and I remember I was taking that every day for, like, three months and - or I’d say three months and a half and the last two weeks before I get to gaol actually I didn’t have this medication and I didn’t have the money to actually pay for this medication. I don’t know but I went once to the chemist and that was like $50 or something I couldn’t pay and I was, like, ‘This $50 I’ll go by GHB with which will last me more’, that’s what I was thinking so that time I stopped my medication and that’s I feel the reason why I got to that stage and I got really - like, I got worse because I was coming down off I believe from the medication.”
The evidence about the Applicant’s financial situation during the period when he was using drugs is, at best, opaque. However, there was consistent evidence about his father’s financial support. The Applicant said his father had a house provided by the Government and did not need much money. He said his father gave him $10,000 from the sale of a car and that he gave him money on other occasions. His father gave evidence that he saved some of his own Centrelink pension for the Applicant and that he gave him $10,000 from the sale of a car. I accept that the Applicant’s father was in a position to assist the Applicant financially and that he did that. Accordingly, I reject the Applicant’s evidence that he stopped taking his medication because he could not afford it, as I find that he could have obtained money from his father. I find that the Applicant chose to stop taking it and take GHB for another, undisclosed, reason.
The Applicant and Ms Z subsequently reconciled. He said in order to be able to live together again, they told her father that they had re-married however they had not. According to the Victorian Police records,[52] on 8 June 2018 the Applicant and Ms Z attended the Magistrate’s Court for a final hearing of a family violence intervention order with the Applicant listed as the respondent. During this hearing the intervention order was varied to limited conditions including a condition not to commit family violence.
[52] Exhibit R2, s 501 Supplementary G-Documents, volume 2, page 58.
After the hearing, Ms Z and the Applicant returned to their home. At about 1.00am they both went to bed. The Applicant received a text message from his ex-partner, which Ms Z saw and she asked him why he had been talking to his ex-partner. The Applicant became angry and left the room. While out of the room Ms Z began texting the Applicant’s ex-partner. The Applicant re-entered the room and there was a verbal argument. Ms Z asked the Applicant to delete his ex-partner’s number and block her now that they were rekindling their relationship.
The Applicant became annoyed and threw his phone and SIM card to the ground. The Applicant went to the toilet and during this time Ms Z began going through his iPad, noting that he had been speaking to numerous women on a dating app. When the Applicant re-entered the room he grabbed his iPad back, and tried to pick a fight with Ms Z who refused to engage. The Applicant left the room while Ms Z remained there. Ms Z heard the Applicant yell out and went to where he was in the spare room, and saw him holding a razor blade to his cut wrist. The Applicant had caused several lacerations to his left wrist. Ms Z managed to take the razor blade from the Applicant, and she called 000. An ambulance took the Applicant to the hospital, and around an hour later Ms Z attended the hospital and saw the Applicant.
They both left the hospital together and on the journey home the Applicant confronted Ms Z about how long it took her to arrive at the hospital and he asked her what she had been doing in that time. Upon arriving home the Applicant went inside and Ms Z remained in the car knowing that there was going to be an argument. The Applicant came back to the car and said “I’ve got cameras in the house, so if you’ve got nothing to hide, come inside”. Ms Z felt compelled to follow him.
The Applicant said to Ms Z “you’re not going to get away with lying”. He jumped on top of her so that she was pinned to the bed. He began striking her in the face and he pulled her hair. He used a phone charger cord to wrap around Ms Z’s neck and strangle her. Ms Z tried to talk but the cord was too tight. The Applicant loosened the cord and Ms Z attempted to tell him the truth, that she had been home. The Applicant was dissatisfied with the answer and again tightened the court. Ms Z, fearing for her life, said to the Applicant “Please stop, I’ll tell you the truth. If I tell you the truth, do you promise not to hurt me?”. The Applicant agreed and Ms Z falsely told him that she had been to see a male friend. The Applicant asked if she had sex with him, which she denied. The Applicant again tightened the cord. To get him to stop, Ms Z falsely said that she had had sex with the male friend. The Applicant went on strangling her when she gave answers with which he was dissatisfied. Ms Z was forced to falsely admit to having anal sex with her male friend in the hour while the Applicant was in the hospital.
When the Applicant stopped strangling her, Ms Z asked if he wanted any food. With this she went downstairs and quickly left the home. During the incident, police had been called by the hospital to conduct a welfare check on the Applicant. When police arrived they intercepted Ms Z who they described as “pale”, “shaking extensively”, “extremely timid”, and “scared”. While police were speaking with Ms Z, the Applicant came out and Ms Z moved her arms in towards herself and positioned herself behind a police officer for protection. When the Applicant was interviewed by police he denied all allegations. The Applicant was remanded in custody.
Most recent period of incarceration

On 11 June 2018 methylamphetamine was found in the Applicant’s wallet upon him entering prison.[53]
[53] Exhibit R2, s 501 Supplementary G-Documents, volume 2, page 402.
On 25 October 2018 he provided a positive urine sample.[54] This was the same day that the Applicant was interviewed, by videoconference, by a Dr Cidoni, consultant psychiatrist, for the purpose of his upcoming legal proceedings. Dr Cidoni had previously provided a report on the Applicant on 12 March 2017.[55] During his interview in 2017,the Applicant told Dr Cidoni that since December 2014 he had used 3 to 4 grams of methylamphetamine per day, ceasing while he was imprisoned for two months in New South Wales. The Applicant reported significant withdrawal symptoms in custody during his previous incarceration, and that during his recent period out of custody his methylamphetamine use escalated to 4 to 5 grams per day. He said he had used Xanax (alprazolam) for two to three months, and also Valium (diazepam). He told Dr Cidoni that he had been depressed since childhood, and could recall sleeping every night with tears in his eyes. He describes significant depression from 2010 after his brother and mother died. He said since he started using methylamphetamine in December 2014 he would sometimes be awake for up to 3 days at a time. He told Dr Cidoni of multiple suicide attempts that includes attempted overdoses, trying to use an electrical cord to electrocute himself and trying to get out of a moving car.
[54] Exhibit R2, s 501 Supplementary G-Documents, volume 2, page 400.
[55] Exhibit R2, s 501 Supplementary G-Documents, volume 2, page 79 to 85.
Dr Cidoni reported that the Applicant had not received any medication or treatment for depression or anxiety, although he has taken alprazolam and diazepam himself. I note that there is evidence that the Applicant was prescribed Zoloft in 2012 for major depression and Dr Cidoni does not seem to have been aware of this. I also note that the Applicant denied at the hearing having taken Xanax as a medication, and he claimed to have only ever taken it in a suicide attempt.
Dr Cidoni reported that the Applicant had arranged and paid for rehabilitation and that he considered that to be the most important next step for him. He said it was also important that the Applicant get treatment in terms of psychological intervention and anti-depressant medication for his underlying mental health conditions. He concluded that:
“I believe that with appropriate treatment in place, [the Applicant] can be safely managed in the community and I believe that his prospects of rehabilitation are very good.
It is important that [the Applicant] does not revert to his previous patterns of trying to solve his problems himself and self-medicate with substances, and he engages in ongoing treatment.”[56]
[56] Exhibit R2, s 501 Supplementary G-Documents, volume 2, page 85.
It is concerning that the Applicant was assessed by an expert to have very good prospects of rehabilitation on the same day that he failed a drug test and it serves as a sobering reminder that risk assessments are not infallible.
The Applicant was on the methadone program between March and December 2019. He has not used illicit drugs since commencing the methadone program.
On 8 February 2019 the Applicant was sentenced for multiple offences that he had committed in multiple offending episodes as shown in the table. The total effective sentence was one year and nine months, with a non-parole period of 14 months

Offence Date Penalty

Reckless conduct endanger of serious injury
17.10.2017
12 months imprisonment

Fail report to police if person injured Two months imprisonment

Possess cartridge ammunition without licence/permit
30.11.2017

aggregate sentence of $500 fine

Unlicensed store firearms/ammunition

Prohibited person possess a firearm 10 months imprisonment

Possess methylamphetamine

109.    One month imprisonment

Possess GBH

Intentionally cause injury 30.3.2018 12 months imprisonment

Commit indictable offence while on bail
110.

111.    9.6.2018
One month imprisonment

Unlawful assault contravene family violence intervention order Three months imprisonment

The learned sentencing Magistrate made the following comments:
“One doesn’t need to hear the victim impact statement to be well aware of the extended victims there are in road trauma such as this. The injuries sustained by the victim are including (sic) severe fractures. Remarkably, the [Applicant] suffered no such injury, and not only did he not suffer injury he managed to have a witness drive him home to where his wife was and, in the most cowardly way possible, left his two vulnerable children, eight years and 14 years, with an unknown person at the accident scene. The victim was pinned.
[In relation to the execution of the search warrant] In possession of the [Applicant], a loaded pistol was located in an open safe. All the identifying marks normally found on such a weapon had been removed. Ammunition and magazine were also located…
[In relation to the June 2018 domestic violence] …the victim was pinned to the bed and the [Applicant] began striking her to the face. 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 [Applicant]. The victim was found by the police terrified and cowering.
[In relation to the March 2018 domestic violence]… [The Applicant] forced victim to look at herself in the mirror, hit her and spat on her, pushed victim on the bed and continued to punch her. Choked her with both hands to the point where the victim lost consciousness. Victim sending SMS’s (sic) to parents in a panic. [The Applicant], seeing what victim was doing, sent an SMS on the victim’s phone to the victim’s parents saying, “Sorry, by mistake”(sic). Shortly after, parents arrived and found the victim in fear, swelling and bruising to the face.
… I have read the statement from the [Applicant] that is provided - a letter by the [Applicant] that is provided to the court this morning - and much of it repeats what was in fact the essence of the plea, and the sad life that the [Applicant] has had to endure. But, on the plea, there was an acceptance of the offending behaviour being extremely serious and concerning, but the [Applicant] as being unwell, having suffered trauma, and I accept that, and mental illness which led to drugtaking. …
A very helpful folder was provided… to the court which contains, amongst other things, a chronology prepared on behalf of [the Applicant], a report from the forensic and psychiatry treatment, notification of prisoner of (sic) urine results, the Anglicare Victoria Family Violence Program attended by the [Applicant], and many certificates of completion of his time whilst in custody.
The plea focused on, and it is accepted, that the [Applicant] has suffered a background of exceptional trauma which has had a profound impact on him. He has been diagnosed and continues to suffer as in the report. [He] suffers from major depressive disorder, post-traumatic stress disorder, methamphetamine use disorder, which were all active throughout the time of the offending. It also was part of the plea, and I accept that, given someone like the [Applicant] who has mental health issues and is facing the prospect of being held in detention, post period of incarceration with the possibility of deportation to the place which is the seed of many of his mental health issues, has a degree of punishment in itself.
… The aggravating factors of this offending must be abundantly clear and obvious to anyone who is familiar with the circumstances. The nature and gravity of the offending, in particular, the coldness and cruelty of the offending… which include degrading the victim in her own home, a place where any person deserves to feel safe. The lack of remorse indicated by the behaviour immediately after the offending… And also the severe impact on the victim. I also refer to the prior history of the [Applicant].
There are factors which mitigate some aspects of what has occurred. There have been entered pleas of guilty, which is enormous utility for the system. It does not require evidence to be given by witnesses, it does not further traumatise witnesses not only to give evidence but be cross-examined about the events. The horrific personal circumstances to which I have already referred of the [Applicant]. The courses undertaken whilst in custody all point towards, to some degree, remorse and rehabilitation, and, at this stage, I refer also to the letter written to the court.”[57]
[57] Exhibit G1, s 501 G-Documents, pages 46 to 50.
Visa cancellation
On 6 May 2019 the Applicant received notification that his visa had been cancelled.[58] On 13 May 2019 the Applicant made a written request for revocation of that decision.[59]
[58] Exhibit G1, s 501 G-Documents, page 59; Exhibit G1, s 501 G-Documents, G10, page 75.
[59] Exhibit G1, s 501 G-Documents, G10.
By way of explanation of his, the Applicant wrote “the reason for my offending at the time was that I was on drugs to cope with the pain and traumer (sic) from the loss of my 2 family members. I attempted to take my own life 7 times and I did not recieve (sic) any help that was available.”[60]
[60] Ibid, page 91.
The Applicant claimed to have engaged in drug and alcohol programs, a men’s behaviour change program, a respectful relationships program and some other courses with respect to workplace skills. He said he was on the methadone program and although he was frequently offered drugs in prison, he refused.
In terms of contributions to the Australian community, he claims to have adopted animals from the RSPCA and to have donated “a large amount of money” to that organisation.[61]
[61] Ibid, page 93.
There is a section on the revocation request form that relates to health information. It asks about any diagnosed medical or psychological conditions, and what treatment the non-citizen is receiving. The Applicant disclosed that he suffered from PTSD, depression, anxiety and panic attacks. Under “Medication” he listed:

Name of medication Condition (prescribed for)

ZOLOFT (50 mg) Hydrochloride Major deppression (sic)

OLANZAPINE 7.5mg NIGHT 2mg MRON
ESCITALOPRAM 20mg ANTIPSYCOTIC (sic)
DEPPRESSION (sic)

Zoloft is the medication that the Applicant was prescribed in 2012 and which he said made him more depressed.
The Applicant served the entirety of his sentence and is now in Immigration Detention.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
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:[62]
“…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…”[63]
[62] [2018] FCAFC 151.
[63] 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.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[64] I will address each of these grounds in turn.
[64] Ibid.
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”.
The Applicant was sentenced to aggregate terms of 21 months imprisonment - that included two terms of 12 months imprisonment - with a non-parole period of 14 months. Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test.[65] He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[65] Exhibit A1, Applicant's bundle of documents, Document 1, paragraph 5.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
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 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
(1) Informed by the principles in paragraph 6.3 above, a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[66]
[66] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provides for the decision-maker to take into account “Primary Considerations”[67] and “Other considerations”.[68] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
[67] The Direction, paragraph 13.
[68] The Direction, paragraph 14.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[69]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[70]
[69] [2018] FCA 594.
[70] Ibid, [23].
The principles set out in paragraph 6.3 of the Direction, that should inform the decision-maker’s application of the primary considerations and other considerations are summarised as follows:
(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)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(1)The nature and seriousness of the non-citizen’s conduct to date; and
(2)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date

I am not satisfied that, if the Applicant were returned to Iraq, there is a real chance that he would suffer harm for the purposes of assessing whether he meets the description of refugee for the purposes s 36(2)(a) of the Act for any of the reasons I have addressed so far in these reasons separately or cumulatively. In the context of protection claims, real chance has the same meaning as real risk. Consequently, I am not satisfied that, if the Applicant returned to Iraq, there is a real risk that he would suffer significant harm within the meaning of s 36(2A) of the Act for any of the reasons I have addressed so far in these reasons separately or cumulatively.
Mental health
It was contended that the Applicant’s mental health would suffer in Iraq. Two essential grounds were put forward. First, some witnesses said that being in Iraq would remind the Applicant of the traumatic events that happened there which would make his mental health deteriorate. I reject this ground for the reason that the Applicant has never forgotten the events. On the contrary, he has been living with the memory of those events throughout his time in Australia. The second ground is that due to inadequate mental health services, the Applicant’s mental health will worsen to the point where his capacity to subsist will be threatened and that he will suffer denial of services as a result of discrimination due to the stigmatisation of people with mental health problems.
In support of this submission, the Applicant cited a UNHCR report, that states:
“Over the past decades, Iraq’s public health care system has seen a steady decline as a result of cycles of conflict, years of economic sanctions, funding shortfalls, corruption and neglect.[ The conflict against ISIS severely damaged or destroyed many healthcare facilities and despite the rehabilitation of part of these facilities, capacity has not yet reached pre-war levels.
…
The conflict against ISIS resulted in many individuals becoming physically and mentally traumatized or disabled. However, significant gaps in the provision of mental health and psychosocial support have been reported, including, inter alia, as a result of an acute shortage of psychiatrists and mental health professionals. [97]
[97] Exhibit A1, Applicant’s bundle of documents, Document 20, page 235 to 236.
I note that the DFAT reports that:
“Iraq has a mixture of public and private hospitals, and primary health care is provided by both private and public clinics. Health infrastructure has suffered from decades of conflict. Even before the rise of ISIL, many primary health care facilities were under-resourced and many skilled health care workers had moved abroad or to safer areas of Iraq. Health services are limited, particularly in areas affected by conflict, and areas with large numbers of internally displaced people (IDPs). The United Nations Office for the Coordination of Humanitarian Affairs (OCHA) estimates 7.3 million people who need health services lack access to them.[98]
…
… Some people may not receive the benefits they are entitled to because of an unwillingness to report their disability. In-country contacts report that war-injuries are less stigmatised while psychological and intellectual disabilities are highly stigmatised and are underreported
DFAT assesses that people with a physical disability are at low risk of official or societal discrimination. People with psychological or intellectual disabilities face a low risk of official discrimination and a moderate risk of societal discrimination.”[99]
[98] Exhibit A1, Applicant's bundle of documents, Document 18, paragraph, 2.20.
[99] Ibid, paragraph 3.87.
I accept that mental health services in Iraq are inadequate, and there is a substantial risk that the Applicant would not receive the treatment he requires if he is returned to Iraq. I further accept that persons with intellectual or psychological disabilities face stigmatisation, and that they face a low risk of official discrimination and a moderate risk of societal discrimination.
The Applicants psychological condition is not such that he is unable to take care of himself or that he displays outwardly inappropriate behaviour. To my mind, this would tend to limit the risk of stigmatisation and societal discrimination. I find, in accordance with the country information, that there is a low risk that he would be denied basic services by the government on the basis of his psychological condition, and moderate risk that he would encounter some societal discrimination in terms of access to employment or housing as a result of his psychological condition.
According to the DFAT Report, in 2016 the unemployment rate in Iraq was estimated to be 16.9 per cent. The public sector is by far the largest employer, employing around 40 per cent of the Iraqi workforce.[100] The Applicant worked in a shop before he left Iraq. Further, he held gainful employment for as period in Australia at a time when his psychological condition was untreated and he was not using drugs, and based on that, I find that his condition does not preclude him from employment even if it is untreated. The Applicant is young and in good physical health. He is literate in Arabic and English.[101] I do not accept that there is real risk that the Applicant’s capacity to subsist would be threatened because of the inadequacy of mental health services and the stigmatisation and discrimination surrounding mental health in Iraq.
[100] Ibid, paragraph 2.25.
[101] Transcript, page 36, lines 40 to 42.
Overall, I find that there is a real chance that the Applicant would face some forms of discrimination on the basis of his mental health and that he would not be able to access appropriate mental health treatment which would make it harder for him to cope with the demands of daily life. However, I am not satisfied that such harm would constitute “serious harm” or “significant harm”.
I am not satisfied that Australia would be in breach of its international non-refoulement obligations if the Applicant were to be returned to Iraq.
Both the Applicant and Respondent submitted that the Applicant is statute barred by s46A of the Act from applying for a Protection Visa as he was an unlawful maritime arrival. The Minister may lift the bar on persons in Applicant’s position making an application. However, such a possibility is speculative. As matters stand, the Applicant cannot apply for a Protection Visa.
Harm and/or Hardship
Sectarian and Terrorist Violence
According to the DFAT Report, the US State Department estimates the population of Iraq to be around 39 million. Based on government data from 2010, Shia Muslims comprise 55 to 60 per cent of the population while Sunni Arabs comprise around 24 per cent and Sunni Kurds comprise around 15 per cent. “Before the 2003 war, different religious and ethnic communities lived together side-by-side relatively peacefully, at least in urban areas… The bombing in 2006 of a Shi’a shrine in Sammara, north of Baghdad, presaged an escalation of sectarian tensions that split the population along religious lines. More recently, the rise of ISIL has led to Shi’a and Sunni militias being organised along sectarian lines.”[102] The report further states that “While the government has worked hard to protect civilians in the fight against ISIL, it has at times failed to respond firmly to acts of retribution against Sunnis by the Iraqi Security Forces (ISF) or the PMF.”[103]
[102] Exhibit A1, Applicant's bundle of documents, Document 18, paragraph 2.11.
[103] Ibid, paragraph 3.35.
According to the DFAT Report, violence against Shias reduced in 2018 following the defeat of ISIL, however isolated incidents of violence claimed by ISIL continue to occur in Shia dominated areas. There is also violence between rival Shia militias, and those involved in a Shia militia face a greater risk of intra-Shia violence than normal civilians.[104] Sunnis report that PMF groups harass them, accuse them of supporting ISIL and physically harm them. Outside of areas recently controlled by ISIL, Sunnis face a low risk of societal violence on the basis of their religion.[105] DFAT reports that ISIL will likely to indiscriminately target Iraqi civilians as a small scale insurgency.[106]
[104] Ibid, paragraph 3.33.
[105] Ibid, paragraphs 3.36 to 3.37.
[106] Ibid, paragraph 2.34.
It was contended on the Applicant’s behalf that:
“The complex and evolving picture painted by such reports indicate that the security situation in Iraq is dangerously unstable. It is submitted that ongoing sectarian violence and weak state apparatus in Iraq increase the risk posed to the Applicant given his personal attributes and circumstances.”[107]
[107] Exhibit A1, Applicant's bundle of documents, Document 21, paragraph 77.
I accept that there is sectarian violence and small scale terrorist activity in Iraq. The Applicant’s uncle, Uncle C, gave evidence to the effect that it is safe to visit Iraq for a short period but for a longer period it is not safe. He said he has not visited since 2016 because it is not safe. Iraq has regions that are Sunni dominated, regions that are Shia dominated and regions that are mixed. I am satisfied that it would be open to the Applicant to live in an area that is relatively stable. In that way, the Applicant can avoid areas with higher rates of violence. While I find that the risk of violence that would face the Applicant in Iraq would be random and remote, I accept that it is greater than the risk he faces in Australia.
Mental Health
I note that the Applicant reported that he had made several suicide attempts since arriving in Australia – by taking Xanax, taking medication he found at someone else’s home, cutting his writs, trying to exit a moving car, and trying to pull an electrical cord off a kettle to use it to electrocute himself. With respect to some attempts he said he heard voices telling him to kill himself. At least one of these coincided with the period when he was using methylamphetamine. He also gave evidence that talking about his trauma made him want to kill himself. However, overall there was insufficient evidence about what triggered the Applicant to attempt suicide and no psychiatric analysis of these attempts. On the state of the evidence I am unable to determine whether inadequate mental health services in Iraq is likely to precipitate further suicide attempts. I do, however, consider there to be sufficient evidence that the limited mental health services available in Iraq could well result in psychological hardship.
These two matters combined weigh heavily in the Applicant’s favour, with respect to Other Consideration (a).
(b) Strength, nature and duration of ties
The Applicant has lived in Australia since the age of 19 and he is now 29 years old.
Apart from some traffic infringements, the Applicant commenced offending five years after his arrival. He has had very limited employment and his involvement in the car wash is unclear. He has not done any voluntary work, although he has also donated to the RSPCA. Therefore, he is entitled to a very slight measure of weight under paragraph 14.2(1)(a) of the Direction.
With respect to paragraph 14.2(1)(b), the Applicant has ties to his immediate family who all live in Australia, and Uncle C’s family who live in Australia. He has a handful of good friends in Australia. These people will all be saddened, and worried for the Applicant, if he is returned to Iraq. The Applicant’s father gave evidence that he needs the Applicant to take care of him. He said the Applicant used to help him by shaving him, cutting his hair, helping dress him etc.[108] The Applicant currently sends his father text messages reminding him to take his medicine. The Applicant’s sister, Ms A, is currently their father’s carer. The Applicant’s other sister, Ms B, told the Tribunal that their father needs someone living with him to care for him 24/7. She said on many occasions, she and her sister had tried to talk to him about moving in with one of them but he wants to live on his own. I am satisfied that the Applicant’s father has the help he needs already available to him, and that the Applicant’s sisters could assist their father with his medicine. I do not accept that the Applicant’s father is reliant on the Applicant.
[108] Transcript, page 186, lines 4 to 7.
Ms A has some long-term psychological problems and is on medication. She told the Tribunal that she struggles as a single mother, and that she is lonely. She said she needs the Applicant’s support. She said she knows that Uncle C’s family will help her - she described them as “very loving, very compassionate”[109] - but she feels a “little bit shy and embarrassed to ask anything from them”.[110] Uncle C said that Ms A has the support of friends, family and the government. I am satisfied that, like the Applicant’s father, Ms A is not without support if she chooses to accept it.
[109] Transcript page 181, line 25.
[110] Transcript, page 181, line 42.
Ms B gave evidence that she needs the Applicant with her for her baby. She said this in the manner of a desperate plea at the conclusion of her evidence. I take it that she does not only want the Applicant to remain here for her baby but for herself too. I note the Applicant has never helped Ms B with her baby as the baby was born after when he was incarcerated. It is evident that Ms B loves the Applicant and will be adversely impacted if he is deported.
As discussed above, all members of the Applicant’s immediate family and Uncle C’s family fear for the Applicant’s life or wellbeing if he is returned to Iraq, although I found those fears to be exaggerated.
I am satisfied that the Applicant has strong ties to his immediate family and his two nieces, and that he has recently re-established his connection to Uncle C’s family and a handful of friends who he sees as positive influences. I am satisfied that his immediate family and nieces will suffer emotional hardship if he is returned to Iraq. The Applicant is entitled to a significant measure of weight under paragraph 14.2(1)(b) of the Direction.
Given the Applicant’s age when he arrived, his very limited contribution to the community and his limited, but strong ties to the Australian community, the strength, duration and nature of ties to the Australian community warrants the allocation of a moderate level of weight in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (d), is therefore neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) 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 Applicant is young, able bodied and does not report any current medical conditions (apart from his mental health conditions with have already been addressed). The Applicant worked in Iraq before arriving in Australia and I am satisfied that he has income earning potential. Further, the Applicant’s father has been providing financial support to him and there is no suggestion that he would not continue to do so if the Applicant was in Iraq.
The Applicant lived in Iraq until the age of 18. He speaks, and is literate, in Arabic and he knows the culture.
The Applicant will not enjoy the standard of living and access to services that he has available to him in Australia. However, I am obligated to consider his ability to establish himself and maintain basic living standards in the context of what is generally available to other citizens of Iraq. The Applicant will broadly be in the same position as the general population in terms of living standard once he establishes himself. He will face the same challenges as the general population does in terms of securing accommodation and gaining employment. However, he will not have an existing familial or social network to assist him in that. I do not consider that these challenges, even in the context of his psychological condition, will preclude him from successfully re-settling in Iraq, however it may well be a difficult, unpleasant process. I have taken account of the safety risks in Iraq and the impact of the Applicants psychological condition in in Other Consideration (a) and I need not canvass those matters again.
This Other Consideration (e) weighs moderately in favour of revocation of the reviewable decision.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: weighs heavily in favour of revocation;
(b)strength nature and duration of ties: weighs moderately in favour of revocation;
(c)impact on Australian business interests: not relevant;
(d)impact on victims: neutral; and
(e)extent of impediments if removed: weighs moderately in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s visa?
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 find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration B weighs slightly in favour of revocation;
Primary Consideration C weighs heavily in favour of non-revocation; and
·To the extent that Primary Consideration B and Other Considerations (a), (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 261 (two hundred and sixty-one) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

.............................[SGD]...........................................
Associate
Dated: 9 July 2020
Date of hearing:  24, 25 and 26 June 2020
Applicant:  By video
Counsel for the Applicant:   Mr Greg Hughan
Representative for the Respondent:         Mr Adam Cunynghame
ANNEXURE A – EXHIBIT REGISTER

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (pages 1-301)

R

-

4 MAY 20

R1

Section 501 – Supplementary G Documents, volume 1 (pages 1-36)

R

-

26 MAY 20

R2

Section 501 – Supplementary G Documents, volume 2 (pages 1-421)

R

-

26 MAY 20

R3

Respondent’s Statement of Facts, Issues and Contentions (pages 1-15)

R

12 JUN 20

12 JUN 20

R4

The Australian Crime Commission, The Australian Methylamphetamine Market – The National Picture (pages 1-23)

R

2015

12 JUN 20

R5

The Australian Criminal Intelligence Commission, Illicit Firearms in Australia (pages 1-27)

R

2016

12 JUN 20

R6

Dash cam footage

R

17 OCT 17

12 JUN 20

A1

Applicant’s bundle of documents (pages 1-849)

A

-

5 JUN 20

8 JUN 20

19 JUN 20

[2020] AATA 2165

9 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Offence	Date	Penalty
Reckless conduct endanger of serious injury	17.10.2017	12 months imprisonment
Fail report to police if person injured	17.10.2017	Two months imprisonment
Possess cartridge ammunition without licence/permit	30.11.2017	aggregate sentence of $500 fine
Unlicensed store firearms/ammunition		aggregate sentence of $500 fine
Prohibited person possess a firearm		10 months imprisonment
Possess methylamphetamine		109. One month imprisonment
Possess GBH		109. One month imprisonment
Intentionally cause injury	30.3.2018	12 months imprisonment
Commit indictable offence while on bail	110. 111. 9.6.2018	One month imprisonment
Unlawful assault contravene family violence intervention order	110. 111. 9.6.2018	Three months imprisonment

Name of medication	Condition (prescribed for)
ZOLOFT (50 mg) Hydrochloride	Major deppression (sic)
OLANZAPINE 7.5mg NIGHT 2mg MRON ESCITALOPRAM 20mg	ANTIPSYCOTIC (sic) DEPPRESSION (sic)

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (pages 1-301)	R	-	4 MAY 20
R1	Section 501 – Supplementary G Documents, volume 1 (pages 1-36)	R	-	26 MAY 20
R2	Section 501 – Supplementary G Documents, volume 2 (pages 1-421)	R	-	26 MAY 20
R3	Respondent’s Statement of Facts, Issues and Contentions (pages 1-15)	R	12 JUN 20	12 JUN 20
R4	The Australian Crime Commission, The Australian Methylamphetamine Market – The National Picture (pages 1-23)	R	2015	12 JUN 20
R5	The Australian Criminal Intelligence Commission, Illicit Firearms in Australia (pages 1-27)	R	2016	12 JUN 20
R6	Dash cam footage	R	17 OCT 17	12 JUN 20
A1	Applicant’s bundle of documents (pages 1-849)	A	-	5 JUN 20 8 JUN 20 19 JUN 20