Jubraeel and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 2

Jubraeel and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2 (4 January 2023)
Division:GENERAL DIVISION
File Number: 2022/8693
Re:Marwan B Jubraeel
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member A. Nikolic AM CSC
Date:4 January 2023
Place:Melbourne

The Tribunal affirms the decision under review.
....................[sgd]....................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION – Mandatory visa cancellation – citizen of Iraq – Global Special Humanitarian (Class XB) (Subclass 202) Visa – failure to pass good character test – substantial criminal record – murder conviction – robbery and weapon possession offences – drug offences – visa cancellation warning in 2009 – persistent misconduct while imprisoned – expectations of the Australian community – non-refoulement obligations – strength of ties to Australia – whether another reason to revoke the mandatory cancellation – Ministerial Direction No. 90 applied – decision affirmed
LEGISLATION
Migration Act 1958 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
CASES
AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
Beezley v Repatriation Commission (2015) 150 ALD 11
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294
Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67
Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 158
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCATrans 56
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
JJNY v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1239
Minister for Home Affairs v Omar (2019) 272 FCR 589
Nathanson v Minister for Home Affairs (2022) 96 ALJR 737
Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
Shiv Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 180
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
YKSB v Minister for Home Affairs [2020] FCAFC 224
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Sentencing Advisory Council, “Imprisonment,” < FOR DECISION
Senior Member A. Nikolic AM CSC
4 January 2023
INTRODUCTION

The Applicant, Mr Marwan Jubraeel, has asked the Tribunal to review the Respondent’s decision not to revoke the mandatory cancellation of his Global Special Humanitarian (Class XB) (Subclass 202) Visa (“the visa”). The hearing was held on 12 and 13 December 2022. The Applicant appeared by video and was self-represented. The Respondent was represented by Mr Adam Cunynghame, a solicitor from Sparke Helmore Lawyers.
For the following reasons, the Tribunal affirms the reviewable decision.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) obliges the Minister to cancel a visa granted to a non-citizen if the Minister is satisfied the person does not pass the character test (“cancellation decision”). This includes if the person is sentenced to 12 months or more imprisonment, which is being served on a full-time basis.[1] Under s 496 of the Act, the Minister may delegate these powers. Notice of the cancellation decision must be provided as soon as practicable and the affected person invited to respond.
[1] Section 501(3A) of the Act, read in conjunction with s 501(6)(a) and s 501(7)(c).
Section 501CA(4) of the Act confers a discretionary power on the Minister or their delegate to revoke the original decision if satisfied the person passes the character test, or there is another reason why the original decision should be revoked. Non-revocation decisions by ministerial delegates are reviewable by the Tribunal.[2]
[2] Section 500(1)(ba) of the Act, read in conjunction with s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
BACKGROUND
The Applicant is a 34-year-old citizen of Iraq[3] who migrated to Australia on 9 July 2004 with his parents and three older siblings.[4] He was 16 years old on arrival in Australia.
[3] Exhibit R1, 121.
[4] Ibid 101, 110.
A Criminal History Check discloses multiple convictions recorded against the Applicant between 2008 and 2016 for possessing weapons, drugs, and offences that involve violence or the threat of violence.[5] In May 2009, following a conviction for Robbery while armed with dangerous weapon,[6] consideration was given to cancelling the Applicant’s visa (“2009 Notice”).[7] On 29 June 2009, a delegate decided not to cancel the visa but issued a warning as follows:[8]
‘Please note that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered.’
[5] Ibid 32-33.
[6] Ibid 41 [46].
[7] Ibid 92-97.
[8] Ibid 98-99.
On 23 July 2011, approximately two years after receiving the 2009 Notice, the Applicant was involved in an attempted ‘break, enter and steal’ at a residential premises with two co-offenders.[9] One of the co-offenders, who has never been identified or charged, shot and killed the homeowner. The Applicant was arrested approximately six months later and held on remand. After a 13-day jury trial in February 2014 he was found guilty of murder under the principle of ‘extended joint criminal enterprise’[10] and received a 17-year sentence of imprisonment. This conviction remained undisturbed on appeal.[11]
[9] Ibid 37 [12].
[10] Ibid 37 [14].
[11] Ibid 43-55.
On 18 September 2018, a delegate of the Minister cancelled the Applicant’s visa.[12] This decision was subsequently found to be defective,[13] requiring the Applicant to be re-notified in March 2022.[14] The Applicant made representations to revoke the cancellation decision,[15] but on 7 October 2022 a delegate of the Minister declined to do so.[16] On 20 October 2022 the Applicant asked the Tribunal to review the non-revocation decision.[17]
[12] Ibid 72-91.
[13] Pursuant to the decisions in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 158 and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 180.
[14] Exhibit R1, 77.
[15] Ibid 121-134.
[16] Ibid 14.
[17] Ibid 3-8.
The Tribunal must decide this application within 84 days of the Applicant being properly notified of the reviewable decision.[18] This falls on 5 January 2023, which is ten working days after the hearing. These reasons are provided within the permissible 84-day period.
[18] Section 500(6L) of the Act.
ISSUE TO BE DETERMINED
Because of the Applicant’s 17-year sentence of imprisonment, his failure of the character test arises as a matter of law. The issue to be determined is whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ to do so.[19] The Tribunal must make ‘the correct or preferable decision’ on the material currently before it,[20] guided by principles summarised by the Full Court about how ‘another reason’ is determined:[21]
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
[19] The Act, s 501CA(4)(b)(ii); Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[20] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]–[98] (Hayne and Heydon JJ); Nathanson v Minister for Home Affairs (2022) 96 ALJR 737; AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175, [25] (Wigney, Abraham and Rofe JJ); Beezley v Repatriation Commission (2015) 150 ALD 11, [68]
[21] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294, [27], reflecting with approval on the approach taken in Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
More recently, in Plaintiff M1/2021,[22] the plurality of the High Court stated how representations made by an applicant should be considered:
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations…the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
(Citations omitted).
[22] Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (Plaintiff M1/2021), [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ).
DIRECTION 90
In making its decision, the Tribunal must comply with a ministerial direction, made under s 499(1) of the Act, and known as ‘Ministerial Direction 90’ (“the Direction”).[23] The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
[23] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 497, [4] (Rares, O’Callaghan and Jackson JJ); Nathanson, 2 [4].
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision. Clause 8 of the Direction identifies the following primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia;
(d)Expectations of the Australian community.
Clause 9 of the Direction sets out a non-exhaustive list of other considerations:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Links to the Australian community, including: (i) Strength, nature and duration of ties to Australia; and (ii) Impact on Australian business interests.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations’. This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[24]
[24] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’. The weighing process, however, is left to individual decision-makers.[25]
EVIDENCE
[25] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57].
Documentary evidence
The Applicant did not initially submit any materials within the timeframe directed by the Tribunal’s scheduling orders. A Telephone Directions Hearing was conducted on 25 November 2022 to determine the reason for non-compliance. The Applicant advised he had withdrawn instructions from his lawyer and it was noted his lawyer lodged a Notice of Ceasing to Act with the Tribunal on 23 November 2022. The Applicant told the Tribunal he ‘let [his] lawyer go’ because he ‘wasn’t happy with him’.
The Tribunal issued amended scheduling orders that gave the Applicant an additional two weeks from the previous submission date to file materials. He subsequently provided a statement, bundle of reports and articles relating to non-refoulement, medical records relating to his parents, and supportive letters from family members, a priest, and several business owners. The following materials were taken into evidence at the hearing:
(a)G-Documents numbering 158 pages;[26]
[26] Exhibit R1. G documents are so named because they are provided under s 501G of the Migration Act. They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision.
(b)Tender bundle numbering 1333 pages;[27]
[27] Exhibit R2.
(c)Applicant’s five-page undated statement titled: ‘Submission (Including Facts and Contentions)’;[28]
[28] Exhibit A1.
(d)Undated two-page statement of the Applicant’s mother;[29]
[29] Exhibit A2.
(e)Undated three-page statement of the Applicant’s father;[30]
[30] Exhibit A3.
(f)Undated three-page statement of the Applicant’s older sister;[31]
[31] Exhibit A4.
(g)Undated three-page statement of the Applicant’s brother-in-law;[32]
[32] Exhibit A5.
(h)Letter dated 7 November 2022 from a Company Director offering the Applicant employment in the construction industry;[33]
(i)Letter dated 8 November 2022 from another Company Director offering the Applicant employment as an apprentice painter;[34]
(j)Undated two-page statement of the Applicant’s other sister;[35]
(k)Undated two-page statement of the Applicant’s brother;[36]
(l)Letter dated 7 November 2022 from the Applicant’s priest;[37]
(m)Letter dated 3 November 2022 from a company offering the Applicant employment in the construction industry;[38]
(n)Letter dated 3 November 2022 from another company offering the Applicant employment as a driver;[39]
(o)Medical records dated between March 2013 and November 2022 relating to the Applicant’s parents;[40]
(p)Three certificates dated between 2007 and 2009;[41] and
(q)A bundle of documents comprising reports and online news stories about the treatment of Iraq’s Christians.[42]
[33] Exhibit A6.
[34] Exhibit A7.
[35] Exhibit A8.
[36] Exhibit A9.
[37] Exhibit A10.
[38] Exhibit A11.
[39] Exhibit A12.
[40] Exhibit A13.
[41] Exhibit A14.
[42] Exhibit A15.
Applicant’s evidence

The Applicant speaks Arabic, Assyrian, English, and gave his evidence in English. He adopted his statement as true and correct. The Tribunal has considered other documentary evidence from him.[43]
[43] Exhibit R1, 103-126.
Life in Iraq, Jordan, and Lebanon
The Applicant spoke of a difficult life for his family in Iraq because of their Assyrian Christian beliefs. He said that he attended school in Iraq for about five years before his family moved to Jordan for about six or twelve months, then to Lebanon. He did not attend school in Jordan or Lebanon.
The Applicant claimed his father served in the Iraqi Army for 13 years while Saddam Hussein was in power and said his family’s left Iraq for two reasons: the Applicant being shot in the leg by ‘Islamic militia’ when he was a child; and his older brother wanting to avoid mandatory conscription. The Applicant’s oral evidence about the shooting incident is inconsistent with other evidence before the Tribunal and is discussed later.
Life in Australia
The Applicant said an uncle living in Australia sponsored his family’s migration here. They lived with this uncle for a time before finding their own accommodation. The Applicant said he attended an intensive English course in Western Sydney for about six months but got expelled for fighting.[44] He also referred to attendance at a vocational college where he studied bricklaying and welding but said he did not complete these courses. He also claimed to have worked as a spray painter, builder’s labourer, and in other roles.
[44] Exhibit R2, 1122, 1128, 1206.
The Applicant said his closest relationships in Australia are with his parents and three older siblings, whom he talks with ‘every second day’. His parents are now separated. Until recently his mother lived in Queensland with his two sisters, while his father and brother lived in New South Wales. The Applicant said his mother recently relocated to Sydney, but his sisters, one of whom is married and has four children, continue to live in Queensland.
The Applicant invoked the interests of his sister’s four children, who are between four and eleven years of age. When asked when he last saw them, the Applicant stated: ‘I’ve never seen them in person’. He was unable to recall their birthdays and consulted a written document before answering questions about their names. He claimed to talk with the children regularly by telephone, during which he encouraged them to be ‘good boys’. The Applicant wants to play a more prominent avuncular role if released and asked for a ‘second chance’ to live, work, get married, buy a house, and raise his own family in Australia.
The Applicant said he has a close relationship with a priest he met while imprisoned. They read the Bible together and the priest has rekindled his Assyrian Christian faith. The Applicant said he prays twice a day and wants to become a priest. When asked about positive contributions in Australia, the Applicant claimed to have ‘helped around churches’.
Addictions, offending, and other conduct
Much of the Applicant’s evidence and cross-examination centred on his criminal history and other misconduct. He did not dispute the contents of his Nationally Coordinated Criminal History Check dated 19 February 2020.[45] When asked about the events in 2011 that resulted in his murder conviction, the Applicant agreed a person died during this incident, but stated: ‘We were just there to talk to him…I can’t accept that I killed him’. He understood, however, that his conviction resulted from participating in a joint criminal enterprise, which he explained as: ‘Even if you’re at the scene, you’re just as guilty as the person who killed him’. The Applicant cavilled with aspects of the sentencing remarks, claiming: ‘I wasn’t aware of the gun at all’. He also disputed the Court’s reference to him being dressed in dark clothing, claiming he wore a ‘red jumper and white pants’. He accepted, however, that he and his co-offenders wore balaclavas and gloves to conceal their identity. The Applicant agreed that the person who fired the pistol has not been identified or prosecuted by authorities and said he decided to ‘accept [his] jail sentence’ rather than cooperate with police. The Applicant explained he did not want to ‘put [his] family in danger’.
[45] Exhibit R1, 32-33.
The Applicant attributed his offending to mixing with bad friends and a worsening drug habit from the age of 17. He recalled that his addiction commenced with cannabis, involved cocaine use ‘now and then’, methylamphetamine, and drugs like Buprenorphine while imprisoned.[46] After being given a verbal warning about his privilege against self-incrimination, which the Applicant said he understood, he agreed that references to him previously selling drugs in the community were accurate.[47] He insisted, however, that he never did so while imprisoned: ‘I gave it to other inmates, they helped me out, I helped them out, but not selling’. The Applicant attributed his drug-taking in prison to ‘a hard time coping’ but claimed to have been abstinent from illicit drugs since commencing monthly injections of a treatment for opioid dependence in or about mid-2021.[48]
[46] Exhibit R1, 38 [22]; Exhibit R2, 1122, 1128, 1195, 1208.
[47] Exhibit R2, 1207, 1212, 1244.
[48] Ibid 1152.
The Applicant agreed he was subjected to multiple disciplinary proceedings in prison for fighting, possessing illicit drugs and weapons, passing / receiving contraband, failing to attend muster, and defacing prison property.[49] He agreed most of the reported incidents occurred, but disputed allegations of sexually assaulting his cellmate.[50] He agreed that an incident occurred in July 2018 where he was found with an 18cm sharpened metal spike and 15cm ‘shiv’ during a fight with another inmate, who sustained a puncture wound to his neck (“spike – shiv incident”). The Applicant claimed he was ‘jumped by four boys’ and acted in self-defence, which conflicts with the incident report that only refers to two participants. He claimed that the puncture wound sustained by the victim must have occurred when he ‘swung [his] hand around’ after being ‘jumped’. It remains unclear to the Tribunal, despite the Applicant’s explanations, why he was holding homemade weapons during a purported surprise attack. The Applicant agreed this incident required the intervention of the prison’s Immediate Action Team. He also agreed that the most recent adverse incident recorded against him related to non-compliant behaviour on 10 August 2022.[51] This related to a prisoner placement issue, which the Applicant said he regretted becoming involved in, causing him to be taken off ‘buy-up’ privileges for 28 days.
[49] Ibid 867-1153, 1194-1196, 1200-1202.
[50] Ibid 17-18.
[51] Ibid 994.
When asked about any past incidents of family violence, the Applicant claimed there were none. When referred to evidence suggesting otherwise,[52] he claimed that during a past relationship in 2010 and 2011, a former partner slapped him, and he pushed her shoulder in self-defence: ‘I’ve not hit her – I pushed her on the shoulder…to get her away from me…Every couples gonna fight and scream at each other. I’ve never hit or punched her. When I pushed her on the shoulder of course I regretted it.’
[52] Ibid 1212.
Previous warning
The Applicant agreed he was convicted of armed robbery in 2008 but claimed to have used a ‘fake gun’. He also agreed that he received a formal warning from immigration authorities in 2009 but reoffended after this. He stated: ‘I should have thought more’ about the consequences, but claimed he was ‘young’ and not ‘in the right state of mind’.
Recidivism risk
The Applicant was asked about reports he was easily influenced by other inmates,[53] to which he replied: ‘I might have followed other inmates out of fear – because I have to, not because I want to’. He was also asked about expert assessments that his recidivism risk was between ‘low and moderate’ in 2014,[54] while his risk for both general and violent reoffending in November 2018 was assessed as ‘high’.[55] The Applicant disagreed with both assessments, claiming that the 2018 assessment occurred relatively soon after the spike – shiv incident. He also opined that the psychologist who undertook the 2018 assessment may have disliked him because he declined to take the medication she recommended. The Applicant claimed he had not shown ‘any indication that [he will] harm anyone’ and his current risk of reoffending was ‘slim to none…it’s very low’. This included because of the salutary experience of prolonged imprisonment, and protective factors such as stable accommodation, family support and employment prospects. The Applicant claimed he previously ‘didn’t have the support [he] needed’ but felt his current mindset and the support available to him is different.
[53] Ibid 992.
[54] Exhibit R1, 39 [30].
[55] Exhibit R2, 1221; 1229; 1240-1241.
Rehabilitation and protective factors
The Applicant was asked about references to persistent anger issues,[56] which he said are ‘close to resolved’. He claimed to have learned to walk away from conflict or talk with others when stressed, which reflected greater maturity, insight, and rehabilitative progress. The Applicant claimed to have used his time in prison ‘in a constructive way’, referring to participation in a year-long Violent Offenders’ Therapeutic Program since April 2022. When asked by Mr Cunynghame why he did not commence this course earlier, the Applicant said this was at the recommendation of prison authorities. The Applicant also referred to attendance at 20 sessions of an ‘Equips Foundations’ course in 2019.[57] He explained this course involved ‘one-on-one sessions with a psychologist’ focussing on emotional control. When asked about any attendance at alcohol and drugs (“AOD”) rehabilitation, the Applicant claimed this was covered under the Violent Offender’s Therapeutic Program: ‘It covers everything – drugs, anger, relationships’. Apart from the Applicant’s assertions, however, there is little corroboration for what this course encompasses or the Applicant’s progress. When asked to give an example about what he learned from the AOD component of this course, the Applicant responded:
‘If you’re stressed talk to someone first. Don’t get mixed up with others on drugs…try your best not to put yourself in stressful situations. If suffering an injury, don’t turn to drugs…[The course] gives you a way of dealing with it. There’s heaps more things I’m going through…Go do activities – train, play sport, keep yourself busy. Otherwise it can lead to drug taking.’
[56] Ibid 1128.
[57] Including at Exhibit R2, 1149-1150.
The Applicant said the computer, literacy, and other vocational courses he completed while imprisoned had resolved his past learning issues, which were language-based rather than an inability to learn. This contrasts with the claim in his application and recent statement that he suffers an ‘intellectual disability’.[58] When asked about this, the Applicant responded: ‘nah, I’m past all that…Before I used to struggle…but now I’m ready to study and make sure I’ve got a good life’. He said that passing computer and English courses would enable him to complete welding and bricklaying courses he commenced in 2005.
[58] Exhibit R1, 5; Exhibit A1, 3 [23].
In terms of protective factors, the Applicant said he had matured and developed while imprisoned and could rely on support from family and friends in Australia. When asked about letters from people offering him jobs, the Applicant said he never worked for these employers and his brother-in-law had organised these offers to assist him. He also referred to the protective effect of ‘five years supervision’ upon release, claiming that any breach of conditions would immediately result in him being re-imprisoned. There is no corroboration, however, about what conditions may be imposed on the Applicant if he is released.
Non-refoulement claims
The Applicant said he fears harm if returned to Iraq because of his Assyrian Christian faith. He claims to have a ‘big cross tattooed on [his] back’, which means there is no way to conceal his Christianity. He initially stated he heard about these risks from cousins in Iraq, but later said he has no relatives in Iraq. He instead claimed that family members in Australia told him that his ‘aunties, uncles, nephews, nieces, had all either run away, disappeared, or been killed’. When asked who told him this, he could not recall. When asked which of his family members had the closest connection to Iraq, the Applicant said it was his mother.
When asked about a report in evidence dated 6 May 2021, which stated: ‘Marwan has resigned himself to the fact that he will be returned to Iraq at the completion of his custodial sentence…He will have some familial support (cousins) when he arrives back in Iraq.’[59] The Applicant claimed at the time of this report 18 months ago he did have an uncle (his mother’s brother) and several cousins living in Iraq, but they left in 2021 and relocated to Lebanon. This was later directly contradicted by the Applicant’s mother, who stated she was the last of her siblings to depart Iraq in 2003.
[59] Ibid 1152.
The Applicant said he fears ‘ISIS will chop [his] head off’ and does not wish to ‘die young’. He claimed that his father served for 13 years in Saddam Hussein’s Army, from 1981 until 1993; and both he and his older brother would have been expected to undertake compulsory national service if they remained in Iraq. He thought past failure to complete national service might draw him to the attention of Iraqi authorities. The Applicant recounted an incident at around ten years of age, when he claimed to have been shot in the leg by ‘Islamic militia’. He also claimed there had been an incident of harassment against one of his older sisters, which resulted in a confrontation between his father and the harassers, who ‘came out with a gun and started shooting straight away’. He said the shooting incident caused his family to flee Iraq ‘nearly straight away’ but could not remember when this occurred. Neither of his older sisters referred to this incident in their statements; and the purported sibling who was harassed could not be contacted to give oral evidence by telephone, despite the Applicant calling her as a witness.
The Applicant was asked about a report prepared by psychologist Ms Kari McGuinness in November 2018, which noted he was ‘shot in the leg whilst in a crowd’ in Jordan during celebratory shooting at a soccer game,[60] rather than as a child in Iraq. Ms McGuinness said this conflicted with other information about him being shot by a neighbour in Iraq. The Applicant became agitated and said he could not recall how old he was: ‘I believe I was 10, but 5, 7, 10 – it doesn’t matter…That psychologist hated me – I don’t know why’. When asked if he was suggesting some information in the psychologist’s report was fabricated, the Applicant replied: ‘I’m not saying that…I believe I was shot in Iraq’.
[60] Ibid 1224.
The Applicant said he did not know what a Protection Visa is. When explained to him by Mr Cunynghame, who asked whether the Applicant would consider applying for recognition as a refugee, the Applicant responded: ‘I’ll do anything not to return to that country.’ He also claimed that the prospect of non-revocation and being returned to Iraq was effectively punishing him a second time for his crimes.
Evidence of the Applicant’s mother
The Applicant’s mother adopted her statement as true and correct. During cross-examination, she referred to two brothers and five sisters, with one of her brothers passing away in 1994. Her other siblings now live in different countries. She claimed to have no family in Iraq and, in contrast with the Applicant’s evidence, said she was the last sibling to leave Iraq in 2003.
Evidence of the Applicant’s father
The Applicant’s father adopted his statement as true and correct. During cross-examination he claimed to have served in the Iraqi Army for 13 years. He said that all his siblings had fled Iraq and now live in Turkey, Lebanon, and Jordan. He does not remember when they left or when his wife’s family members left Iraq. He thinks his wife has relatives living in America. The witness said he left Iraq because of ‘problems being a Christian’. When asked if any particular incident precipitated his decision to leave, he stated inter alia:
‘I was waiting for my daughter. A car came and they were threatening me and a tribe with their cousins and brothers they were holding guns and knives. There was injury and someone was treated.’
When asked who was injured and treated, the witness stated: ‘They were holding guns and knives and [the Applicant] was shot in the leg’. When asked how old the Applicant was, the witness could not recall but thought it may have been six or seven. When asked if anything happened to the daughter he was waiting for, the witness responded: ‘No’. This contradicted the witness’s written statement.[61]
[61] Exhibit A3, 1-2 [6]-[8].
Evidence of the Applicant’s sister
The Applicant’s sister adopted her statement as true and correct. When asked about her family’s last relative leaving Iraq, she ‘wasn’t sure exactly’, but thought it may have been her mother’s brother in or about 2020. She claimed to have heard this from a ‘first cousin’ who lives in Australia and contacts this uncle, who may live in Lebanon.
The Applicant’s sister said the Applicant has been punished for his ‘mistake’ and his conduct arose from ‘mixing with the wrong people’. She considers it unfair he was punished with visa cancellation and faces the prospect of return to Iraq.
Evidence of the Applicant’s brother-in-law
The Applicant’s brother-in-law, who is married to the immediately preceding witness, adopted his statement as true and correct. He said that a fulltime job could be made available to the Applicant upon release, as well as practical support like stable accommodation and financial assistance. The witness claimed the Applicant would be paid ‘$50,000 or $100,000’ annually and be with him ‘24/7’, which would enable close supervision of his activities.
Other statements
There were several other statements relied upon by the Applicant, who wanted all witnesses called. Attempts to contact the Applicant’s brother and other sister on the telephone numbers provided were unsuccessful, despite the Applicant claiming they were available by telephone and did not need to be interposed at specific times. His sister’s and brother’s brief statements were taken into evidence without objection from Mr Cunynghame. Of the four statements lodged from prospective employers, two answered the Tribunal’s calls and adopted their statements as true and correct. Their evidence is now summarised:
(a)Employer 1 is a Company Director. He was initially unaware of the Applicant and could not recall offering him a job. After making further enquiries, he confirmed that he did not know the Applicant personally but accepted his ‘manager’s recommendation’ to offer the Applicant employment. He was unaware of the Applicant’s offending but said this did not bother him, because his company was short of workers and a manager told him the Applicant had ‘changed his life’.
(b)Employer 2 is a Company Director, who said he would give the Applicant work as a painter upon release. He claimed to have met the Applicant ten years ago and provided a statement at the request of the Applicant’s brother-in-law. When asked if he knew about the Applicant’s crimes, the witness said he was imprisoned for ‘some murder thing or some bullshit’ but was happy to assist him.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct

Under cl 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)   crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)    causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)   crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
The Tribunal has considered the Applicant’s criminal history, 2009 Notice, sentencing remarks from his murder trial,[62] and New South Wales Court of Criminal Appeal outcome.[63] The Applicant’s offending and other misconduct in Australia spans almost a decade. His first convictions were on 12 February 2008, when he was 19 years old. His most recent conviction for Possess prohibited drug was when he was 28 years old.
[62] Exhibit R1, 36-42; R v Marwan [2014] NSWSC 838.
[63] Ibid 43-55; Jubraeel v R [2015] NSWCCA 131.
The Applicant has convictions for significant violent offending. This includes in February 2008 for Robbery while armed with a dangerous weapon, which was ‘committed in circumstances of joint criminal enterprise’. [64] His conviction for Murder also related to offending in company with others. The Court noted murder ‘is the most serious of offences’,[65] although the Applicant’s involvement was held to be ‘at the lowest end of culpability within the very serious range…’. The Applicant participated in an attempted home robbery with two co-offenders on 23 July 2011. They wore balaclavas, gloves, and one co-offender was armed with a pistol. When the homeowner drew a curtain to investigate the noise at his door, he was shot through in the chest and died at the scene. Justice Stephen Rothman was satisfied the Applicant ‘was aware of the gun at a time that would have allowed him to withdraw from the original crime, which he did not’.[66] The Court noted aggravating features were commission of the crime in company, use of a weapon, and ‘some limited planning…e.g. disguise and obtaining the car’.[67] The Court noted the Applicant’s ‘continuing attitude of disobedience to the law’.[68] It is noteworthy the Applicant continues to cavil with some Court findings, including that he and his co-offenders ‘just wanted to talk to’ the victim. It remains unclear to the Tribunal why the Applicant and his co-offenders wore a balaclava and gloves to conceal their identities, if only a discussion was intended. The Tribunal prefers the Court’s findings to the Applicant’s revisionist claims.
[64] Ibid 41, [46].
[65] Ibid 40 [38].
[66] Ibid 36 [3]-[4].
[67] Ibid 37 [16].
[68] Ibid 41 [50].
In addition to the Applicant’s criminal history, the Tribunal is must consider if there is any ‘other conduct to date’.[69] This includes prison records, some of which refer positively to the Applicant as ‘polite’, ‘punctual’, ‘well accepted’, compliant with routine, involved in some self-development modules, and seeming ‘to get along with others’. Many records, however, refer to prolonged misconduct.[70] These include the Applicant’s participation in assault with a weapon, participating in or inciting riots,[71] and other violent or intimidating conduct, causing him to be segregated. He has been found in possession of illicit drugs, ‘shivs’, and a smuggled mobile telephone. He reportedly hid illicit drugs in his body, refused to provide urine samples for drug testing, failed drug tests, handled contraband, defaced prison property, failed to attend muster, and other non-compliant behaviours. On 5 February 2018 he was issued with an ‘Extreme Threat Inmate Verbal Warning’ because of participation in conduct constituting ‘an extreme threat to…good order and security’.[72] A Serious Offender Risk Assessment Report states in part:[73]
Mr Jubraeel has received 25 institutional charges for a variety of problematic behaviours during the six years he has been incarcerated. This includes drug use, drug trafficking (19/03/2016), non-compliance of correctional routines and more serious behaviours such as possession of a mobile phone and offensive instruments. Mr Jubraeel reported that the mobile phone and gaol made shiv found in his cell which he shared with another inmate did not belong to him (12/03/2014). Mr Jubraeel has been placed in segregation on a least four occasions, three of which appear to relate to incidents of violence.
The first instance of segregation (13/03/2014-26/03/2014) occurred subsequent to the discovery of a mobile phone and related appliances, a USB, a quantity of drugs and a gaol made shiv. He was again placed on segregation after he was accused of sexually assaulting a cell mate (27/02/2017-26/05/2017). During this period of segregation he was found to write the words 'Assyrian Power’ and Code of Silence' (26/03/2017), although he was otherwise described at this time as being compliant whilst on segregation (20/04/2017). The third period of segregation related to Mr Jubraeel’s involvement in the assault of a number of inmates and inciting others to work slow (19/01/2018-20/06/2018). His most recent period of segregation related to the possession of a weapon and stabbing of another inmate (22/07/2018- 21/10/2018). As it was unclear if Mr Jubraeel would be receiving further charges pertaining to his most recent incident, this was not explored in detail. However, Mr Jubraeel acknowledged the incident occurred in front of officers, stating his behaviour was in self-defence.
Mr Jubraeel has presented with periodic instances of negative behaviour towards staff, including aggressive and resistant behaviours (06/01/2014; 12/02/2015; 18/02/2015; 06/03/2015; 18/11/2017), however his primary problematic behaviours appear associated with his interactions with other offenders and drug use. Mr Jubraeel also has a number of non-associations placed against him by other inmates who claim to be victims of assault or intimidation. Mr Jubraeel acknowledged that following accusations of sexual assault he became suspicious of future cell mates and would often warn them to leave as they would likely end up fighting. It is possible these non-associations are in relation to these behaviours. He also reported speaking to a psychologist in an attempt to gain a one-out placement (31/07/2017), though admitted in recent interviews that he was advised by other inmates to fabricate symptoms of PTSD to increase this chance.
Case notes pertaining to his participation in education and employment are mixed, with some suggesting a positive work ethic whilst others suggest disengagement and minimum effort. He has most recently been working in industries for CSI, with a case note confirming this on the 22/10/2018. There has been no updated information relating to his productivity or behaviour in this position.
[69] Clause 8.1.1(1) of the Direction.
[70] Exhibit R1, 58-60; Exhibit R2, 867-1153; 1194-1196; 1200-1202.
[71] Ibid 1007.
[72] Exhibit R2, 1028.
[73] Ibid 1227-1228.
The custodial records referred to above routinely form part of the evidence in non-revocation cases. They are usually obtained under summons and do not assume the status of evidence until tendered and admitted. Their value is frequently tested during questioning. The Tribunal is not bound by the rules of evidence;[74] and, although such records may not have been substantiated in court, there is nothing preventing the Tribunal from considering them within the meaning of cl 8.1.1(1) of the Direction. Witnesses must be afforded procedural fairness, however, by having the records put to them for response. As Kenny J has pointed out, the Tribunal should treat contemporaneous police and custodial records carefully and acknowledge the ‘limits to the material…said to evidence such conduct, including its cogency and reliability’.[75] Anastassiou J has similarly expressed the need for care about ‘reaching a view that criminal conduct has occurred, absent a prosecution and conviction’.[76]
[74] AAT Act, s 33(1)(c).
[75] CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101, [98]-[100].
[76] QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394, [74], citing Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67, [85] (Edmonds J) and echoed by the Full Court on appeal in Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113, [128] (Nicholas J, with whom Moore and Rares JJ agreed).
The Tribunal has only placed weight on custodial records where the Applicant agreed the incidents occurred. He agreed many did occur, although he denied sexually abusing a cellmate, or that a mobile telephone in a shared cell was his.
Imprisonment is a sentence of last resort and the most severe sanction available to our courts.[77] The Applicant’s sentences are routinely below the statutory maximums available, including his 17-year sentence for Murder, which has a maximum sentence of life. Nevertheless, a 17-year prison sentence reflects the objective seriousness of the Applicant’s conduct. The Court considered his offending to be ‘at the lowest end of culpability,[78] while making clear this did not ‘underestimate the enormity of the loss…to the deceased’s family and friends’.
[77] See for example: Sentencing Advisory Council, “Imprisonment,” <
[78] Exhibit R1, 41 [49].
The Applicant’s conduct is aggravated by the persistence of his offending and other misbehaviour since the 2009 Notice. His crimes have increased in seriousness, and he has failed to change the course of his life despite rehabilitative opportunities. The 2009 Notice made it clear to the Applicant over a decade ago that his ability to remain in Australia was at risk if he reoffended. He ignored this warning by committing even more serious offences. His conduct reflects a persistent disregard for Australian laws. The Tribunal does not accept the Applicant’s reliance on youth and immaturity. He was 19 years old when convicted of his first offence in 2008, 23 years old at the time of the murder, and 28 when convicted of his most recent drug possession crime while imprisoned.
The totality of the Applicant’s offending and other misconduct is extremely serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction provides:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Clause 8.1.2(2) of the Direction states that in assessing the risk non-citizens pose to the Australian community, decision-makers must take into account, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The harm from any repeat of the Applicant’s violent offending could result in the death or serious injury of another person, or adverse psychological effects.
The Applicant referred to several factors, including drug use and adverse peers as reasons for his persistent offending and other misconduct. This is corroborated by reports dating back to 2008.[79] A 2014 psychologist’s report assessed his recidivism risk as ‘between low and moderate’,[80] conditioned by the following observations:
‘If he continued to abstain from alcohol and drugs and from associating with anti-social peers post release his risk level would be expected to remain at its present level and diminish further with time. When he committed the Index offence it is likely his drug use and associated social network and activities would have equated to a diagnosis of Substance Dependence Disorder.’
[79] Exhibit R2, 49.
[80] Exhibit R1, 39 [30].
The 2014 sentencing remarks include a psychologist’s assessment that the Applicant ‘was well above the threshold for a diagnosis of Substance Dependence Disorder’.[81] Reference is made to him having ‘sound prospects of rehabilitation, particularly if he continues to remain drug free’.[82] It was noted at the time that he was ‘clean of drugs since his arrest’,[83] although his Honour noted that rehabilitation needed to be ‘confirmed in custody and…a longer period of supervision in the community is necessary’. A November 2018 risk assessment refers to the Applicant’s belief system as encompassing loyalty to certain negative ‘friendship groups’, and that ‘criminal peers and substance abuse remain an area of risk’.[84] A prison report dated 15 August 2022 stated that because of the Applicant’s ‘significant misconduct history’, tendency ‘to be a follower and easily led by other inmates,’ and becoming ‘less compliant’ since 14 March 2022, he was recommended for ‘regression in classification’ and relocation ‘to an alternate centre.’[85]
[81] Ibid 38 [26].
[82] Ibid 39 [33].
[83] Ibid 38 [22]
[84] Exhibit R2, 1231.
[85] Ibid 992-993
The Tribunal considers that the Applicant remains highly suggestible and has not persuasively severed ties with negative peers. His poor conduct in custody over a significant period diminishes the persuasiveness of claims about maturity, insight, and rehabilitative progress. Any capacity he has developed to remain abstinent from illicit drugs, avoid negative peers, and comply with prison rules / laws, is relatively short-lived and untested outside of a strictly controlled and supervised prison environment.
The Tribunal has considered materials relevant to the Applicant’s self-development and rehabilitation.[86] There is a dearth of evidence, however, about specific rehabilitation linked to drug dependence or anger issues.[87] A 2014 psychologist’s report stated that his violent upbringing caused him ‘to see the world as a more hostile place and violence itself as a currency for conflict resolution’.[88] Despite the Applicant’s reliance on the Equips Program in 2019,[89] he continued to act violently, aggressively, and use illicit drugs in the years after completing this Program. There is little persuasive evidence about how he is progressing on the rehabilitative program commenced in early 2022,[90] or how he would address his unmet rehabilitative needs if released.
[86] Exhibit R1, 129-134; Exhibit R2, 1154-1191.
[87] Exhibit R1, 39 [29].
[88] Ibid 39 [27].
[89] Ibid 129.
[90] Ibid 127-128.
The Applicant’s persistent efforts to deny aspects of his offending, despite a jury’s rejection of his alibi defence, are not to his credit.[91] A prison record dated March 2020 noted he continued to: ‘deny his conviction and state that he had no involvement. He displays no remorse towards the victim or the victim’s family, nor does he display any thoughts feelings or emotion towards the crime its self (sic).’[92] In a handwritten statement in July 2020, the Applicant claimed to be ‘doing time for something [he] didn’t do’, while concurrently claiming to take ‘full responsibility’.[93] The Applicant’s revisionist claims at the current hearing continue to raise doubts about the extent of his insight, remorse, and rehabilitative progress.
[91] Ibid 44.
[92] Exhibit R2, 1151.
[93] Exhibit R1, 124.
A November 2018 risk assessment by psychologist Ms Kari McGuinness stated that the Applicant was in the ‘High risk range for violent reoffending’.[94] She noted this could be even higher if his ‘dynamic risk factors are not well managed’.[95] After applying the Wechsler Abbreviated Scale of Intelligence II (WASI-II) methodology, the Applicant was placed in the ‘borderline’ range of intellectual ability, although it was noted ‘his scores may have been affected by cultural and experiential reasons’.[96] The Court has previously noted that notwithstanding the Applicant’s low scores in verbal comprehension and perceptual reasoning tests, which ‘may have been affected by the fact that English is not Mr Jubraeel’s first language’, he has a ‘concrete approach to problem solving compared to his age group’.[97] The Court determined that the ‘lack of access and collateral information and testing prevents a classification of the disability…’[98] Based on the currently available evidence, the Tribunal does not accept the Applicant suffers an intellectual disability.
[94] Exhibit R2, 1221.
[95] Ibid, 1240.
[96] Ibid 1236.
[97] Exhibit R1, 38.
[98] Ibid.
In terms of protective factors, the Applicant invokes factors such as stable accommodation, prospects of employment, family support, the salutary experiences of prolonged imprisonment, and a five-year parole supervision order upon release. Although the Tribunal accepts the Applicant has continuing support from family and others, similar protective factors did not previously motivate meaningful changes in his life. The Applicant said he would live in Sydney with his mother, whereas his older sister and her husband, who said the Applicant would be with them ‘24/7’, live in Queensland. Notwithstanding the Applicant’s claim that parole supervisory conditions and the risk of future visa cancellation reduce his recidivism risk, the Tribunal finds this unpersuasive. Past conditional liberty provisions and a 2009 warning from immigration authorities were followed by more serious offending and misconduct while imprisoned.

The Tribunal finds that the Applicant continues to have considerable unmet rehabilitative needs requiring extensive case management. Decisions should not be delayed, however, for rehabilitation to be undertaken.[99]
[99] Clause 8.1.2(2)(b)(ii) of the Direction.
The Applicant’s recidivism risk is high and unacceptable. When coupled with the extremely serious nature of his past conduct and significant risk of harm from any repeat, this primary consideration weighs very substantially against revocation.
Family violence committed by the non-citizen
Clause 8.2(1) of the Direction reflects the Australian government’s concerns about conferring on non-citizens who commit acts of family violence the privilege of coming into or staying in Australia. Clause 8.2(2) provides that this consideration is relevant where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
The Tribunal has considered the Respondent’s submissions and the Applicant’s explanations about past conflict with an intimate partner. In the absence of any charges or convictions, and given the Applicant’s denials, the Tribunal does not accept the evidence persuasively discloses family violence within the meaning of the Direction.[100] This primary consideration carries neutral weight.
[100] Respondent’s Statement of Facts, Issues, and Contentions, 13 [33].
Best interests of minor children in Australia
The Applicant did not refer to his nephews in his latest statement. His oral evidence about the role he plays in their lives was also expressed at a high level of generality. The children are currently 4, 7, 9, and 12 years of age. They live in Queensland and the Applicant stated he has ‘never seen them in person’. When asked their names he referred to a written document and stated he could not recall their birth dates. The Applicant claimed he talks with the children by telephone about their experiences at school, what video games they play, and encourages them to be ‘good boys’. He aspires to play a more prominent avuncular role if released.
The Applicant’s brother-in-law makes no reference in his statement to the Applicant’s relationship with his children, while the Applicant’s sister writes at paragraphs 13 and 14 of her statement:
‘My kids love their uncle Marwan very much they speak to him over the phone and see him on video visits they can’t wait to see him face to face and spend time with him after he will be released
It will be a significant break created between the uncle from his nephews…not being able to build a family atmosphere with their uncle they will be very sad if their uncle Marwan deported from Australia.’
The evidence about ‘video visits’ somewhat contradicts the Applicant’s evidence, who said he only ever spoke with the children by telephone, because he did not want them to see him in prison.
On current evidence it is not possible to differentiate between the interests of these children. The Applicant’s relationship with them has always been at a distance and there have been long periods of absence and limited meaningful contact. They live in Queensland, whereas the Applicant plans to live in Sydney if released. There is a possibility the Applicant could play a meaningful role in the children’s lives in future if able to remain abstinent from drugs and law-abiding. For the reasons expressed earlier, however, the Tribunal has little confidence of this. There is no evidence any impact on the children in the event of non-revocation is more than emotional. There is also no evidence the Applicant could not maintain contact with them by telephone as he has done since their birth.
There is some prospect that as the children get older, they may want a closer relationship with the Applicant, which would be more difficult if he was removed. On balance, the Tribunal accepts that revocation is in the best interests of the Applicant’s nephews, but this primary consideration only carries slight weight in favour of revocation.
Expectations of the Australian community
Clause 8.4 (1) of the Direction identifies the expectations of the Australian community:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Clause 8.4(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
(a) …;
(b) …;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature…;
...
Clause 8.4(3) provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. As per cl 8.4(4), this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in a particular case.
Clause 8.4(4) of the Direction correlates with the reasoning in FYBR.[101] Notwithstanding the different pathways in judicial reasoning, the plurality held that this primary consideration is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government. The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[102] The High Court refused an application for special leave to appeal from the orders in FYBR.[103]
[101] FYBRv Minister for Home Affairs (2019) 272 FCR 454, at 471–2 [66] (FYBR) (Charlesworth J), and 476 [91] (Stewart J).
[102] Ibid at 473 [75]–[76] (Charlesworth J).
[103]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
The Applicant has not obeyed Australian laws and his most serious offending raises serious character concerns within the meaning of cl 8.4(2) of the Direction. The Australian community would expect, as a norm, that the Government would not allow him to remain in Australia. He should expect to forfeit the privilege of remaining in Australia.[104]
[104] Clauses 5.2(1)-(2) of the Direction.
This primary consideration weighs very substantially against revocation.
OTHER CONSIDERATIONS
International non-refoulement obligations
Clause 9.1 of the Direction provides:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
(2) In making a decision under section 501 or 501 CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197 AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
(4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501 CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6) It may not be possible at the section 501/section 501CA stage to consider nonrefoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of nonrefoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
(7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501 CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the noncitizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
(8) If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501 CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international nonrefoulement obligations.
Section 5 of the Act defines ‘non-refoulement obligations’ as including Australia’s obligations as a party to the Conventions, Protocols and Covenants listed at cl 9.1(1) of the Direction, and ‘any obligations accorded by customary international law that are of a similar kind to those mentioned’ in those treaties. As held in Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 at 35 [103]: ‘the term “non-refoulement obligations” is not confined to the protection obligations to which s 36(2) refers’.
The Tribunal must give active intellectual consideration to the Applicant’s clearly articulated representations about risk of harm, regardless of characterisation.[105] Engagement with such claims under s 501CA(4) of the Act, however, ‘does not require the same analysis’ applied under a protection visa process where s 36 of the Act is invoked.[106] The Tribunal’s ability to assess the Applicant’s claims turns on factors like the probative value of evidence presented and the limited statutory timeframe to decide applications under s 500(6L) of the Act. That said, the Applicant is not required to meet any predetermined benchmarks and consideration of his non-refoulement claims can be less categorical than under a s 36(2) process. If the Tribunal finds that non-refoulement obligations are engaged, this favours revocation. The Tribunal must also ‘carefully weigh any non-refoulement obligation against the seriousness of the [Applicant’s] criminal offending or other serious conduct’.[107]
[105] YKSB v Minister for Home Affairs [2020] FCAFC 224, 5; Minister for Home Affairs v Omar (2019) 272 FCR 589, [34]–[44] (‘Omar’).
[106] Plaintiff M1/2021, [34]; JJNY v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1239, [57] citing Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, [28]; Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28].
[107] Direction, cl 9.1(2).
In Plaintiff M1[108] the High Court said decision-makers are required to ‘read, identify, understand and evaluate” any non-refoulement representations and:
‘…bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate.’
[108] Plaintiff M1/2021, [9]; [24].
The Court held it was permissible to defer assessment of non-refoulement obligations, even if the circumstances suggest these may be owed, providing the Applicant is eligible to apply for a protection visa:
‘Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4), but one available outcome for the decision- maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.[109]
[109] Ibid [30].
The Applicant lodged the following documents in support of his non-refoulement claims:
(a)Fifteen-page report from the United States Department of State titled: ‘2021 Report on International Religious Freedom: Iraq’.
(b)Three-page extract from a report by the European Agency for Asylum titled: ‘2.15.3 Christians’.
(c)Five-page online article from the Arab Daily News dated 20 June 2022 titled: ‘New report on Christians in Iraq shows desperate situation and needs’.
(d)One-page online article from Persecution.org dated 26 November 2022 titled: ‘New Report Shows Iraqi Christians Are Suffering’.
(e)Undated five-page online article from English.alarabiya.net titled ‘Iraq's Assyrian Christians, Yazidis face extinction if Biden pulls US troops’.
(f)Six-page online article from BBC News dated 23 May 2019 titled: ‘Iraq's Christians close to extinction’.
(g)One-page undated document titled: USCIRF – Recommended for Special Watch List.
(h)Five-page report from the CATO Commentary Institute dated 13 July 2022 titled: ‘The Destruction of Iraq's Christian Community: Another Legacy of George W. Bush’s Invasion’.
Neither the Applicant, nor his witnesses, made any direct reference to these documents during oral evidence. The Applicant’s evidence centres on the following fears:
(a)Being persecuted because of his Assyrian Christian heritage and his father’s past service in Saddam Hussein’s Army. He refers to the possibility of being ‘raped, enslaved and tortured before being killed’ and, absent any familial support in Iraq, being unable to provide for his needs.[110] The Applicant stated during the hearing he fears ‘ISIS will chop [his] head off’ and he does not wish to ‘die young’.
(b)Concerns about being denied access to health services.
(c)Land expropriation and forced emigration to the West for Assyrian Christians.[111] There is no evidence the Applicant has any land holdings, however, nor explanation about why he might be immediately returned to the West.
(d)Continuing instability in Iraq as conveyed by his family members in Australia. He claims that all other family in Iraq have either died, disappeared, or departed.
(e)Being ‘targeted and killed by Islamic extremists’ as a returnee from the West, who may be perceived as ‘wealthy’.[112]
(f)His brother’s and his own failure to complete national service, which may draw him to the attention of Iraqi authorities.
[110] Exhibit A1, 3 [24]-[27].
[111] Exhibit A1, 4 [35].
[112] Exhibit A1, 4 [34].
The Applicant and his father gave evidence about an incident when the Applicant was between five and ten years of age, when he was purportedly shot in the leg. The circumstances of this shooting are somewhat opaque given unreconciled inconsistencies in the evidence. This includes between the Applicant’s evidence, that of his father, and the report of psychologist Ms Kari McGuinness. Ms McGuinness wrote in her November 2018 report that the Applicant told her he was ‘shot in the leg whilst in a crowd’ in Jordan during celebratory firing of weapons at a soccer game.[113] There are also inconsistencies about what if any relatives the Applicant may have in Iraq. For example, the Applicant’s mother said she was the last of her siblings to leave Iraq in or about 2003, whereas the Applicant claims his mother’s brother and several cousins only left Iraq about a year ago in 2021. Another unexplained inconsistency relates to the circumstances of the family’s departure from Iraq. The Applicant claimed at the current hearing the shooting incident was the catalyst for his family to flee Iraq ‘nearly straight away’. Ms McGuinness recorded the Applicant’s claim, however, that his mother and older brother left Iraq first to avoid his brother being conscripted, then the Applicant and his mother moved to Lebanon where they worked to send money to his brother who was then living in Jordan, then his father and sisters relocated to Lebanon when the Applicant was 12, where the family reunited.[114]
[113] Ibid 1224.
[114] Ibid.

In terms of his eligibility to apply for a Protection Visa, the Applicant stated he would: ‘do anything not to return to [Iraq].’ The Tribunal inferred he would apply for a Protection Visa, which means he would not be removed while this was considered.
The Tribunal has considered the Department of Foreign Affairs and Trade Country Report for Iraq dated 17 August 2020 (“DFAT Country Report”), which includes references to:
(a)Iraq being an overwhelmingly Muslim country (97%), having large numbers of internally displaced persons due to persistent internal conflict, and other socio-economic disruption. This has been exacerbated by economic contraction from the COVID-19 Pandemic, causing high unemployment.
(b)A fractious security situation, although the DFAT report refers predominantly to events between 2017 and 2019.
(c)Chronic underinvestment in health, resulting in health indicators that are generally poor, and severe shortages in medication and other treatment. This would likely include treatment for those suffering from drug addiction.
(d)The legislative branch of Iraq’s federal parliamentary republic has seats reserved for minorities like Christians and Iraq’s Constitution contains numerous commitments to human rights.
(e)Article 4(1) of the Iraqi Constitution enshrines the right of citizens to educate their children in their mother tongue, including Assyrian. The section on religion refers to constitutional articles guaranteeing freedom of religion and mentions Assyrian Christians. Religious minorities, however, report underrepresentation in national institutions and there are plentiful references to minorities feeling pressured by the Muslim majority to adhere to certain Islamic practices.
(f)A section on Christians refers to a ‘general decline in tolerance towards ethnic and religious minorities [which] since 2003 has significantly affected Christians’.[115]
(g)A section on Persons with Links to the Ba’ath Party’ states that the ‘passage of time and the turbulence of recent years has also reduced the level of societal hostility against Ba’athists, with many Iraqis too young to remember the Saddam era’.[116]
(h)Part 4 of the DFAT Country Report refers to incidents of extrajudicial killings, enforced or involuntary disappearances, and deaths in custody, with prison conditions described as ‘harsh and life-threatening’.[117] A following section refers to ‘consistent reports’ of ‘government forces from a range of agencies and PMF groups regularly abuse and torture individuals’ from certain groups,[118] and arbitrary arrest and detention of suspects.[119]
(i)A section on Treatment of Returnees, states that returnees are only arrested ‘if they had committed a criminal offence and a warrant had been issued for their arrest. Others, even those who had left illegally, would not be subject to arrest on arrival’.[120]
(j)In terms of Conditions for Returnees, the DFAT Country Report states:[121]
Conditions for Returnees
The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted among Iraqis, as evidenced by the large numbers of dual nationals from the US, Western Europe and Australia who return to Iraq. There is considerable evidence that Iraqis who are granted protection by western countries often return to Iraq, sometimes only months after securing residency abroad, to reunite with families, establish and manage businesses or take up or resume employment.
Large numbers of Kurds (mainly single males) return voluntarily to the KRI, particularly from the UK and European Union countries. The region’s relative security compared to other areas of Iraq has encouraged returns. As with other areas of Iraq, familial connections are important in the KRI for economic and social engagement. Reintegration, and particularly access to employment and housing, is easier for those who have maintained connections in the region.
DFAT has limited evidence to suggest that voluntary returnees face difficulties in assimilating back into their communities. However, local sources have reported that returning to Iraq can be difficult, particularly if the individual does not return to their original community. Integration within new communities is complicated by the influence of patronage and nepotism on many aspects of life.
Iraq has a large population of former IDPs who have returned home. In its most recent Humanitarian Response Plan, issued in January 2020, the UN reported that 2.8 million internal returnees were in need of humanitarian assistance, of which 1.2 million were in acute need. The high level of vulnerability among internal returnees is closely linked to delays in reconstruction and recovery in areas of return, as well as lack of progress on large-scale social cohesion programs, provision of services and security.
[115] Ibid 1295 [3.46]-[3.51].
[116] Ibid 1301 [3.79].
[117] Ibid 1316-1317; 1327-1328.
[118] Ibid 1319.
[119] Ibid1320.
[120] Ibid 1329 [5.38].
[121] Ibid 1330.
Although DFAT is a reliable and authoritative source of information, the Country Report is now almost two-and-a-half years old and may not reflect the current situation. Several of the reports and articles filed by the Applicant are more recent, but of uncertain provenance, reliability, and relevance. One report from the US State Department that is likely reliable highlights continuing challenges to religious freedom, while concurrently stating:
‘Iraqi law characterises crimes committed by ISIS against Christians as crimes of genocide and crimes against humanity; Christians are entitled to restitution for damages and access to social and medical services, including services that provide for the rehabilitation and integration of victims into society; and that the central government did not generally interfere with religious observances and provided security for churches, although local authorities in some regions verbally harassed Christians.’
It remains difficult to understand from the available evidence whether the adverse security situation invoked by the Applicant reflects the current situation, or affects him individually, or Iraqi society more broadly. It also remains uncertain where the Applicant would live. It seems illogical, for example, that he would choose to live in areas controlled by extremists or where anti-Christian sentiment may be more prominent, rather than in areas where there is a higher population of Christians. Although his father may have served in Saddam Hussein’s Army, there is no evidence his father was a Ba’athist or would be considered as such. Moreover, some of the documents relied upon by the Applicant refer to different sorts of discrimination against Christians than those he invokes. For example, in the European Union Agency For Asylum Report he filed, it states at page 123:
‘Although one of the representatives of the Christians in the Iraqi Parliament signalled an improvement of the situation of Christians in 2020, the Christian community complained about the general treatment by Shia militias that disadvantaged them in terms of real estate purchases, trade opportunities and free movement’.
The Applicant’s non-refoulement claims are made at a high level of generality and contain unresolved inconsistencies. There is no evidence, for example, to support the claim that: ‘The Iraqi Government wanted to kill [his] family’.[122] It is also not possible on current evidence to link an incident where the Applicant claims he was inadvertently shot in the leg as a young child, or the family’s decision to leave Iraq, with the claim that he would be raped, enslaved, tortured, or subject to ‘degrading, inhuman and cruel treatment’.[123]
[122] Exhibit A1, 3 [24].
[123] Ibid, [24]-[26].
Although the Tribunal can positively assess the Applicant’s non-refoulement claims at the revocation stage, the available evidence, or lack thereof, is insufficient for reliable judgements to be made about the current treatment of Assyrian Christians, including those with the Applicant’s specific circumstances. Having sifted and weighed the Applicant’s claims, the Tribunal accepts he may be owed non-refoulement obligations. It is appropriate, however, to defer consideration and conclusive determination of this to a protection visa process, which is specifically designed for considering such claims.
Based on the possibility that international non-refoulement obligations may be owed to the Applicant, some weight is placed on this consideration in favour of revocation.
Extent of impediments if removed
Clause 9.2 (1) of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)        The non-citizen’s age and health;

b)        Whether there are substantial language or cultural barriers; and

c)        Any social, medical and/or economic support available to them in that country.
The Applicant is 34 years of age. He receives a monthly opioid replacement injection for his drug addiction, but otherwise reports being in good health. He also claims to have been abstinent from illicit drugs for approximately 18 months and expresses a desire to return to work. There are references in the evidence to him experiencing traumatic circumstances in Iraq, although for the reasons previously discussed, some of this is inconsistent. During sentencing in 2014 the Applicant was found to meet the diagnostic criterial for Substance Abuse Disorder. The Tribunal is satisfied this condition continues. The currently available evidence, however, does not persuasively establish he suffers an intellectual disability.
The Applicant speaks Arabic, Assyrian, English, and the Tribunal does not discern any substantial language barriers. By virtue of having lived in Australia since the age of 16, however, coupled with an extended period of imprisonment since 2012, the Tribunal accepts he would be confronted by significant impediments and cultural re-adaptation as an Assyrian Christian and returnee from the West. This includes because of separation from his main sources of support in Australia and absence of familial support in Iraq. That said, the Applicant’s brother-in-law refers in his statement to a ‘friend’ who was deported to Iraq in 2022, and to whom he ‘transferred money…when he was undergoing financial hardship’.[124] He also expressed a willingness to employ the Applicant in his company at a salary of up to $100,000 per annum if released. It appears the Applicant may be able to rely on some financial support from family members in Australia if removed.
[124] Exhibit A5, [13].
The Tribunal accepts that having lived in Australia since the age of 16, and given the specific circumstances of his case, the Applicant would be confronted by significant impediments if removed. This consideration weighs very substantially in favour of revocation.
Impact on victims
Clause 9.3 (1) of the Direction states:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There are victims of the Applicant’s past offending, most notably the family of the murder victim. There is no evidence, however, from any victim or victim’s family member about the impact of a decision in this matter. This consideration therefore carries neutral weight.
Links to the Australian community
Clause 9.4 provides that a decision-maker must have regard to cl 9.4.1 to 9.4.2 of the Direction, which includes consideration of the strength, nature, and duration of any ties the non-citizen has to the Australian community and the impact on Australian business interests if the non-citizen is not allowed to remain in Australia. In terms of the latter, there is no evidence that Australian business interests are enlivened within the meaning of the Direction. Clause 9.4.2 of the Direction therefore carries neutral weight.
The strength, nature, and duration of ties to Australia
Clause 9.4.1 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant arrived in Australia in 2004 when he was 16 years old. His offending and other misconduct commenced relatively soon after arrival. Most of his time in Australia has been spent under some form of conditional liberty or imprisoned. Having spent around half his life in Australia, he may be afforded a higher level of tolerance for his crimes, although the persistence of his offending and other misconduct has undoubtedly eroded this.
The Applicant’s closest family relationships are with his mother, siblings, and brother-in-law. He has undertaken some limited work prior to arrest in early 2012. In terms of positive contributions, the Applicant claims to have ‘helped around churches’, although there is no corroboration from any individual or organisational beneficiary. The Applicant’s evidence about relationships outside of immediate family is scant at best. He only met the priest who wrote a general reference letter for him while imprisoned, and there is no evidence to corroborate any specific ties to churches or other community organisations.
The Tribunal has considered supportive statements from the Applicant’s mother, siblings, priest, and four business owners. The latter offer him employment if released. The Tribunal has also considered a bundle of medical records relating to the Applicant’s parents,[125] some of which are quite dated. The Tribunal has no reason to doubt the diagnoses disclosed in these records but notes that other factors like separation of the Applicant’s parents and financial troubles may have contributed to their health issues. Others have largely attended to his parents financial, practical, and emotional needs since 2012.
[125] Exhibit A13.
Having spent almost 20 years in Australia, the strength of the Applicant’s ties is quite limited. What relationships he has, however, are predominantly here. The Tribunal accepts, from the heartfelt evidence of the Applicant’s parents and other relatives, who are Australian citizens or permanent residents, that they would experience considerable emotional hardship if he were removed. This may cause his parent’s depressive symptoms to worsen. On balance this consideration weighs very substantially in favour of revocation.
Additional considerations
The Applicant and his sister submitted that the visa cancellation process and potential removal from Australia constitute a second punishment.[126] The Tribunal notes, however, that powers in the Act are executive in nature and de-linked from judicial sanction.[127] In O’Keefe v Calwell,[128] Chief Justice Latham referred to action taken against a convicted immigrant as related to community protection and not further punishment. In Falzon,[129] Justice Nettle held that immigration detention is legal, non-punitive, and involves no exercise of judicial power or additional punishment.[130] More recent decisions have similarly held that the statutory purpose of the Act is ‘not to punish for past offending for which appropriate sentences are determined by the exercise of judicial power’.[131] No weight is therefore placed on the contention that the Applicant’s visa cancellation or prospect of non-revocation continues his criminal punishment.
[126] Exhibit A4, 2 [9].
[127] Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333, [29]; [88]; [93]–[94] (Falzon) (Nettle J); Al-Kateb v Godwin (2004) 219 CLR 562, [1] (Gleeson CJ).
[128] O’Keefe v Calwell (1949) 77 CLR 261, 278.
[129]Falzon, [96].
[130] See also Falzon at [48], which referred with approval to Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 610 [74].
[131] VNPC v Minister for Immigration [2022] FCA 921, [19].
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ for revocation, the Tribunal has applied the Direction to the specific circumstances of his case. The Tribunal sees no reason on these facts to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations than other considerations.
The Applicant has committed numerous offences since 2008. Some are violent and his most serious conviction is for murder. He has harmed multiple victims and the broader community through the costs and consequences of his conduct. He continues to advance implausible explanations seeking to diminish his culpability. The harm that might be caused by a repeat of the Applicant’s offending encompasses death or serious injury. Any capacity he has developed to abstain from illicit drugs, avoid negative associations, or comply with laws or custodial rules, is comparatively short when regard is had for his persistent drug use, past crimes, and misconduct.
The Applicant has unmet rehabilitation needs and his risk of violent reoffending is high. While he has undertaken some rehabilitation and self-development programs, there is a dearth of evidence about specific rehabilitation linked to drug dependence or anger issues. Moreover, despite undertaking rehabilitative opportunities like Equips in 2019, he continued to use illicit drugs and engage in other misconduct. There is little persuasive evidence about how he is progressing on the rehabilitative program commenced in early 2022 or how he would sustain or progress his unmet treatment needs if released.
The Applicant has shown a persistent disregard for Australian laws and should expect to forfeit the privilege of remaining in Australia. The Australian community would expect, as a norm, that the Government would not allow him to remain.
Although the Applicant has some support from close family and others offering him work, it is noteworthy that comparable protective factors were previously insufficient to motivate meaningful changes in his life. He has reoffended despite the Court’s non-custodial dispositions, past rehabilitative opportunities, and a formal warning in 2009.
The Tribunal accepts the Applicant aspires to play a more prominent avuncular role if released. But he has never met his nephews who have parents who care for them. By virtue of his circumstances, he has had limited meaningful contact with these children since their birth. There is no persuasive evidence that any impact on them arising from non-revocation is more than emotional, or that the Applicant could not continue to maintain contact by telephone as he has done their entire lives.

In terms of the Applicant’s non-refoulement claims, the available evidence, or lack thereof, is insufficient for reliable judgements to be made. Having sifted and weighed his claims, the Tribunal accepts he may be owed non-refoulement obligations. It is appropriate, however, to defer consideration and conclusive determination of this to a protection visa process, which is specifically designed for considering such claims.
The evidence discloses considerable impediments if the Applicant is returned to Iraq, including because he has lived in Australia since the age of 16; coupled with factors like a lengthy period of imprisonment, unmet rehabilitative needs, Substance Abuse Disorder, absence of familial support in Iraq, and separation from his main sources of support. Notwithstanding approximately 18 years in Australia, the strength of the Applicant’s ties to this country is quite limited. That said, what relationships he has are here, particularly with his parents, siblings, and brother-in-law. They would experience considerable emotional hardship if the Applicant were removed.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the primary considerations Protection of the Australian community and Expectations of the Australian community considerably outweigh the combined weight given to the primary consideration Best interests of minor children and the other countervailing considerations.
DECISION
It follows that the Tribunal affirms the decision under review.

121. I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

……………[sgd]…………………….
Associate
Dated: 4 January 2023

Dates of hearing: 12 and 13 December 2022

Advocate for the Applicant:
Self-represented

Advocate for the Respondent: Mr Adam Cunynghame

Solicitors for the Respondent: Sparke Helmore Lawyers

Dates of hearing:	12 and 13 December 2022
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Mr Adam Cunynghame
Solicitors for the Respondent:	Sparke Helmore Lawyers