Khalili and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 4211

Khalili and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4211 (5 December 2023)

Division:GENERAL DIVISION

File Number(s):      2023/6895

Re:Mohsen Khalili

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:5 December 2023

Date of written reasons:         19 December 2023

Place:Sydney

The reviewable decision made on 11 September 2023 not to revoke the mandatory cancellation of Mr Khalili's Class AH Subclass 101 Child Visa is set aside. In substitution the decision to cancel Mr Khalili's visa made on 18 January 2021 is revoked.

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

Mr S Evans, Member

CATCHWORDS

MIGRATION – visa cancelled under subsection 501CA(4) of the Migration Act 1958 (Cth) – where the applicant has a substantial criminal record – where the applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation of visa - Direction No. 99 considered – reviewable decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth)

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17

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

SECONDARY MATERIALS

Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

Department of Foreign Affairs and Trade, DFAT Country Information Report Iran (Report, 24 July 2023)

REASONS FOR DECISION

Mr S Evans, Member

19 December 2023

1. The Applicant, Mohsen Khalili, seeks review of a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) made on 11 September 2023 not to revoke the mandatory cancellation of his Class AH Subclass 101 Child visa (the visa) pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (the Act). 

2. Mr Khalili was born in Iran and is a citizen of that country. He migrated to Australian on 31 May 2003 when he was aged 16.[1] On 18 January 2021,[2] Mr Khalili’s visa was mandatorily cancelled pursuant to subsection 501(3A) of the Act because he had a ‘substantial criminal record’ having been sentenced to a term of imprisonment of 12 months or more and serving a term of imprisonment on a full time basis in a custodial institution for an offence against a law of the Commonwealth, a state or territory (the mandatory cancellation).

   [1] G8, 298.

   [2] G2, 158.

3. On 9 February 2021, Mr Khalili made representations to have the cancellation decision revoked under section 501CA of the Act. On 12 September 2023, Mr Khalili was informed of the decision of the Respondent not to revoke the mandatory cancellation of the visa (the reviewable decision).

4. For the reasons that follow, the reviewable decision was set aside on will be set aside.

   RELEVANT LAW AND MINISTERIAL DIRECTION

5. Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

6. Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of paragraphs 501(6)(a) and 501(7)(c).

7. Paragraph 501(6)(a) provides that a person does not pass the character test if they have a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.

8. The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:

   (4)The Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitation; and

   (b)the Minister is satisfied:

   (i)     that the person passes the character test (as defined by section 501); or

   (ii)    that there is another reason why the original decision should be revoked.

9. Subsection 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.

10. The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 99).

11. Paragraph 5.2 of Direction 99 provides overarching principles which I have considered when reviewing Mr Khalili’s application. It relevantly provides:

    (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 non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    (6)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 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

12. Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more primary consideration may outweigh other primary considerations. However, other considerations should not be considered ‘secondary’ or of inherently less importance than primary considerations, and in certain circumstances one or more other considerations may outweigh primary considerations.[3]

    [3] Suleiman and Minister for Immigration, and Border Protection [2018] FCA 594, [23] per Colvin J.

13. The primary considerations in the Direction are:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)strength, nature and duration of ties of the non-citizen to Australia;

    (4)best interests of minor children in Australia affected by the decision; and

    (5)expectations of the Australian community.

14. The other considerations set out in Direction 99 which must be taken into account where relevant include but are not limited to:

    a)legal consequences of the decision;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)impact on Australian business interests.

    ISSUE TO BE DETERMINED

15. The issue for the Tribunal to consider is whether to revoke the original decision to cancel Mr Khalili’s visa pursuant to subsection 501CA(4) of the Act.

16. Paragraph 501CA(4)(b) of the Act provides that the Tribunal may revoke the original decision if it is satisfied:

    (a)that the Applicant passes the character test; or

    (b)that there is another reason why the original decision should be revoked.

17. On 6 December 2018, Mr Khalili was convicted in the District Court of New South Wales at Campbelltown of Robbery armed with offensive weapon-SI and sentenced to five years and six months imprisonment. On the basis of his criminal convictions and sentences, I am satisfied that Mr Khalili does not pass the character test under paragraph 501(6)(a) of the Act. This is not disputed by the parties.

18. As Mr Khalili does not pass the character test, the sole issue for determination is whether there is another reason to revoke the mandatory cancellation of Mr Khalili’s visa.

    EVIDENCE

19. The following account of Mr Khalili’s background and offending is based on a statutory declaration dated 8 November 2023.[4]

    [4] ATB, 236-244.

20. When his father, stepmother and sisters left Iran, Mr Khalili was age ten and was placed in the care of his mother. He had a ‘terrible childhood in Iran’,[5] during which he was abused by his uncles. He told his mother about the abuse and she slapped him in face. He frequently ran away from home and eventually confided in his grandmother about the abuse he was experiencing. His grandmother contacted his father and arrangements were made for him to leave Iran. 

    [5] ATB, 237.

21. Mr Khalili arrived in Australia and learned English. He found it difficult to fit in at school and was anxious. He fought regularly with his father. He turned to alcohol to deal with his past trauma and moved out of the family home. He started a business with his father’s help in 2011 and moved back home. He maintained the business for approximately two years.

22. Mr Khalil started using drugs in his early twenties, and methamphetamine or ‘ice’ in 2013. His drug use led to him making poor choices.

    Statements in support

23. Mr Khalili’s father, Mahmoud Khalili, writes in a statement dated 9 February 2020 that he left Iran in 1994 to provide a better life for his family.[6] Mr Khalili was born to Mr Mahmoud Khalili’s first wife and when he, his second wife and their two daughters left Iran, he was unable to bring his son with him as his first wife would not allow it. 

    [6] G2, 122.

24. Mahmoud Khalili believes his son had a difficult childhood in Iran ‘because of a lot of things that happened to him’.[7] He continued to work on arranging for his son to join him in Australia. When Mr Khalili was 16 years old, his mother allowed him to leave Iran to join his father, stepmother and sisters in Australia.

    [7] G2, 122.

25. Mahmoud Khalili believes he bears some responsibility for the difficulties his son has experienced in his life. He acknowledges Mr Khalili’s offending but believes he has learnt from his mistakes and is not a bad person. Should his son be returned to Iran, Mahmoud Khalili would not be able to live with himself.

26. Should he be released back into the community, Mr Khalili’s stepmother, Saeideh Mokhtare, will provide him with accommodation and support in any way she is able. Mr Khalili can also rely on the support of his younger sisters, Sonia Khalili and Sara Khalili. 

    Mr Khalili’s offending and other conduct

27. Mr Khalili’s criminal history is set out in an Australian Criminal Intelligence Commission report dated 5 August 2022.[8]

    [8] G2, 32-34.

28. Mr Khalili appeared in the Downing Centre Local Court on 16 December 2009 and was sentenced to a two-year section 10 bond following convictions for steal from the person.

    Domestic violence offences – March 2015

29. There is no evidence of further offending until his appearance in the Fairfield Local Court on 24 April 2015 where he was sentenced to a 12-month section 10 bond for Destroy or damage property (DV), Common assault (DV)-T2, and Stalk/intimidate intend fear etc harm (domestic)-T2.

30. The victim of the offending was Mr Khalili’s father. The police facts sheet relating to the incident state that the offending followed a disagreement about Mr Khalili’s small transport business. According to the police facts, Mr Khalili’s father was at home with his wife and daughter when he was awoken by loud banging at the door. Mr Khalili’s father was summoned to the front door where he was confronted by Mr Khalili who asked him to come outside. Mr Khalili accused his father of ruining his business and then punched the front lounge room window, causing it to smash. Mr Khalili also pushed his father and threatened him.[9]

    [9] G2, 92-95.

    Reporting offences

31. On 9 August 2016, Mr Khalili was convicted and fined for Cth – company officer fail to help liquidator and Cth – Fail to report a Company’s affairs to liquidator for which he was fined a total of $3,000.[10]

    [10] G2, 33-34

    Common assault

32. On 15 September 2016, Mr Khalili appeared in the Liverpool Local Court where he was convicted of Common assault and Contravene prohibition/restriction in AVO (Personal) and sentenced to seven months imprisonment, suspended upon entering a section 12 bond for seven months.

33. On 8 December 2016, Mr Khalili appeared in the Liverpool Local Court and convicted of Assault occasioning actual bodily harm (DV)-T2 for which he received a section 9 bond for 12 months and was required to attend counselling, educational development and drug or alcohol rehabilitation.[11]

    [11] G2, 33.

    17 October 2016 robbery in company  

34. On 25 May 2022, Mr Khalili was sentenced to seven years and nine months imprisonment for robbery in company in circumstances of special aggravation, namely while armed with an imitation firearm. The facts of the offending are set out in the sentencing remarks of her Honour Judge Yehia SC.[12]

    [12] G2, 39.

35. Mr Khalili was one of a group of people who were consuming drugs in the during the night of 16 October 2016. They were discussing how to obtain money to buy more drugs. During the early hours of 17 October 2016, they decided to commit a break and enter at what was thought to be a drug dealer’s house. The five offenders drove to the victim’s property. After they had turned off the electricity to the victim’s house, Mr Khalili and the co-offenders broke into the rear of the home. The victim and her two daughters were home at the time.  

36. The victim woke to find three males inside her house with their faces covered. One of the intruders was holding a firearm. The intruder with the firearm demanded to know where the victim’s money was and struck her in the face with the butt of the firearm. One of the intruders spoke to the victim in Vietnamese and she told him she did not have any money. The victim’s youngest daughter was crying. The victim told her daughter that her wallet was in her bag and to give it to the intruders.

37. Her Honour described the offending as ‘very serious’[13] and noted the offence was committed in the presence of the victim’s children. Her Honour was unable to make a positive finding as to which of the offenders was armed. She noted that each was a participant in a joint criminal enterprise in which the level of threatened and actual violence was substantial.

    [13] G2, 43.

38. The incident took place over 30 minutes which her Honour observed was a not a short period of time. The Court found the offence fell just above the middle of the range of objective seriousness but not at the higher end of the range.

39. In sentencing, her Honour acknowledged Mr Khalili maintained a close relationship with his father and that he committed the offence to obtain money to support his drug addiction. She noted that the author of the sentencing assessment report regarded Mr Khalili to be a medium to high risk of further offending. 

    31 October 2016 - armed robbery and supply a prohibited drug

40. Mr Khalili appeared in the District Court of New South Wales on 6 December 2018, where he was sentenced to 12 months imprisonment for Supply prohibited drug >indict. quantity (not cannabis)-SI (Deemed supply = possess prohibited drug) and five years and six months imprisonment for Robbery armed with offensive weapon-SI.

41. Her Honour Judge English set out the details of the offending in her sentencing remarks.[14] In relation to the offence of armed robbery, Mr Khalili broke into the home of a 77-year-old woman who lived alone. At about 8:45pm on 31 October 2016, Mr Khalili armed himself with a carving knife he had taken from her kitchen. He held the knife to the victim’s throat and demanded her car keys and dragged her through the house which resulted in her falling twice and injuring herself. The victim gave Mr Khalili her keys and he drove off in the vehicle. The victim ran outside the front of her house calling for help.

    [14] G2, 70-84.

42. Judge English found herself unable to find that Mr Khalili was genuinely remorseful or contrite, noting he attempted to withdraw the plea in the armed robbery matter, which would have caused the victim anxiety and distress at the prospect of having to relive her experience at a trial. She also noted Mr Khalili blamed his bad friends and the ill health of his mother in part for his introduction to drugs and sought to minimise his criminality ‘in respect to the very serious armed robbery at knifepoint of an elderly woman in her home’.[15]

    Primary consideration 1 – Protection of the Australian community from criminal or other serious conduct

    [15] G2, 81.

43. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, Direction 99 requires decision-makers to have regard to:

    a)the nature and seriousness of the non-citizen’s conduct to date; and

    b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    The nature and seriousness of the Applicant’s conduct to date

44. Mr Khalili’s conduct to date is very serious. He has committed two armed robbery offences involving a weapon and numerous offences of common assault. Violent crimes should be considered very serious in accordance with paragraph 8.1.1(1)(a)(i) of the Direction.

45. The victims of Mr Khalili’s violent offending included women and children and therefore fall under very serious offending in accordance with paragraph 8.1.1(1)(a)(ii) of the Direction. 

46. Mr Khalili’s offending has been relatively frequent and increased in seriousness between his first offending in 2009 and 2016 when he last offended. Overall, I find that Mr Khalili’s offending to date has been very serious.

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

47. Subparagraph 8.1.2(1) of Direction 99 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. Subparagraph 8.1.2(2) provides that in assessing the risk posed by a non-citizen to the Australian community, I should consider, 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 available information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending. 

1. Should Mr Khalili engage in further offending similar to that which he has engaged in the past, there would be a significant risk of harm to the Australian community including physical, psychological and financial harm. I find that the harm to the community would be substantial. 

   The likelihood of Mr Khalili engaging in further criminal or other serious conduct

2. In sentencing Mr Khalili on 25 May 2022, Judge Yeiha SC stated that Mr Khalili had been assessed as a medium to high risk of reoffending.[16] For his part, Mr Khalili submits he has changed significantly since that assessment.  

   [16] G2, 48.

3. Mr Khalili has been seeking treatment from NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) since June 2023. STARTTS have provided a report dated 4 July 2023 by psychologist S Momartin which is in evidence.

4. Mr Khalili has also been treated by psychiatrist Dr Philip O’Rouke while being held in immigration detention. Dr O’Rourke’s reports[17] are in evidence and he confirms a diagnosis of complex post traumatic stress disorder (PTSD) with dissociative symptoms. Dr O’Rourke reports Mr Khalili demonstrates remorse and regret for his actions which have caused him to harm others. He writes that Mr Khalili ‘accepts his responsibility for his actions and the consequences of his substance use’.[18]

   [17] ATB, 17-21.

   [18] ATB, 20.

5. It is not in dispute that Mr Khalili has struggled with drug addiction or that his drug use has been a significant factor in his most serious offending. His evidence was that he commenced using ‘ice’ in 2013 and it quickly developed into an addiction and daily use of the drug. In 2013 to 2015 he began to use heroin in order to sleep and had become addicted to both substances.

6. Regarding substance abuse, Dr O’Rourke writes that Mr Khalili described a determination to avoid substance use and engage with medical and psychological therapy for PTSD. He considers that Mr Khalili has demonstrated an increased psychological awareness which he says commenced over a period while in custody and detention. He considers that if Mr Khalili continues to work on his past trauma and the factors contributing to his criminal offending and substance use, along with abstaining from substances, participating in recovery programs for substance misuse and ongoing psychological therapy he is ‘likely to continue to develop the strengths to manage his distress’[19].

   [19] ATB, 20.

7. On the basis of the reports of STARTTS and Dr O’Rourke, it is submitted on Mr Khalili’s behalf that the risk of further criminal conduct ‘is low’[20] and not an unacceptable risk. 

   [20] Applicant’s Statement of Facts, Issues and Contentions [25].

8. Mr Khalili has completed courses while in prison and detention which he submits reduce the risk of further offending. Certificates confirm he has completed courses targeting stress management, depression, drug and alcohol abuse, anger management and emotional healing.

9. The certificates indicate courses were completed throughout June and July 2023. His initial assessment with Dr O’Rourke occurred in April 2023[21] and it is unclear if he is receiving ongoing treatment from STARTTS prior to or following the assessment, which was based on a two-hour interview conducted on June 2023.

   [21] ATB, 17.

10. Mr Khalili contends that should he be released into the community, he can rely on the support of his family. I note the Respondent’s submission that this support was available to Mr Khalili previously, but did not prevent his drug use or offending.

11. As recently as April 2019,[22] Mr Khalili was found in possession of drugs while incarcerated. This appears to be the last occasion on which Mr Khalili is recorded to have been found in possession of or to have used illicit substances.

    [22] G2, 69.

    Protection of the Australian community - conclusion

12. Based on the chronology of Mr Khalili’s offending, it is apparent that his most serious offending occurred between 2014 to 2016 when his drug use was at its peak. The evidence strongly supports he was addicted to drugs, his business unravelled, the relationship with his father broke down and he committed in two very serious crimes within weeks of each other. 

13. Mr Khalili was imprisoned on 13 November 2016[23] and his opportunity for reoffending has been limited as he has been held in the controlled environments of prison and then immigration detention since. The Respondent contends that access to illegal drugs is less readily available within these environments compared to the Australian community. Even if this is the case, there is no evidence to indicate that Mr Khalili has been a difficult prisoner or detainee. NSW Corrective Services records confirm Mr Khalili failed a drug test on September 2018 and February 2019, and the sentencing remarks of Judge English refer to Mr Khalili’s father providing him with tobacco while in prison.[24] 

    [23] G2, 68.

    [24] G2, 69, G2, 78.

14. I accept that Mr Khalili understands the role his drug addiction played in his offending and is sincere about in his commitment not to reoffend. It is concerning that much of his rehabilitation has been made after June 2023. Even allowing for the limited availability of some services, the timing indicates he was motivated in large part by the desire to have his visa returned. 

15. Nonetheless, Mr Khalili’s prospects of remaining drug free appear positive and seven years have passed since his most recent offending.[25] There is every indication that he has adjusted to life in prison and detention and has responded well to supervision. The experience of being away from the community and incarcerated has compelled him to begin to address the trauma he experienced while growing up in Iran. He last failed a drug test in 2019, and has a strong basis from which to continue his rehabilitation. 

    [25] G2, 78.

16. I am satisfied that Mr Khalili’s most serious offending was driven by his drug addiction. His resolve and capacity to remain drug free has yet to be tested in the community but he has insight into his offending and a period of sobriety stretching over a number of years. I am satisfied that there is a low to moderate risk he may reoffend. Given the harm that would be caused to individuals and the Australian community should Mr Khalili engage in further criminal conduct, this primary consideration weighs against revocation and is given significant weight in favour of not revoking the cancellation decision.  

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

17. The second primary consideration is whether the conduct engaged in by Mr Khalili constituted family violence. Family violence is defined in section 4 of Direction 99 to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Paragraph 8.2(3) of the Direction sets out a list of factors that the Tribunal must consider in assessing the weight to be given to this consideration. They relevantly include the frequency of the conduct, the cumulative effect of repeated acts of family violence and the rehabilitation achieved since the person’s last known act of family violence. 

18. The Respondent submits that Mr Khalil has been convicted of multiple offences perpetrated in a domestic violence context. In 2015, he received section 10 bonds for Destroy or damage property (DV), Common assault (DV)-T2 and Stalk/intimidate intend fear physical etc harm (domestic)-T2, which the Respondent contends are ‘domestic violence related’.[26] It appears the family violence conduct is limited to the offending involving the argument with Mr Khalili’s father and the Respondent accepts that the common assault conviction in 2016, during which Mr Khalili intervened following an assault on his then girlfriend, does not constitute family violence.

    [26] Respondent’s Statement of Facts, Issues and Contentions [62].

19. I am satisfied that the nature of the dispute between Mr Khalili and Mahmoud Khalili caused his father to be fearful. However, the evidence supports a finding that this was an isolated incident of family violence on the part of Mr Khalili and at the lower end of the scale in terms of its seriousness. I also note that Mr Khalili accepts his responsibility for the actions and has completed an anger management course as part of his rehabilitation. 

20. For these reasons, this consideration is afforded limited weight in favour of not revoking the cancellation decision.

    Primary consideration 3 – The strength, nature and duration of ties to Australia

21. I am required to consider the impact of the decision on Mr Khalili’s immediate family members in Australia as well as the strength, duration and nature of any family or social links with Australian citizens, permanent residents and people who have a right to remain in Australia indefinitely. Subparagraph 8.3(4)(a)(i) provides that considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years.

22. Mr Khalili has resided in Australia for most of his life having arrived in May 2003 at age 16. He has not departed since. His immediate family including his father, sisters and stepmother reside in Australia. All have provided statements in support of Mr Khalili in which they have outlined their support for him and the deleterious effect his removal would have for them and their family.  

23. In considering Mr Khalili’s ties to the community, I take into account that he finished his schooling in Australia and has been an ordinarily resident in Australia. Mr Khalili claims to have made a positive contribution to the community through his employment. There is evidence of maintaining employment as a truck driver from 2013 to 2014, but there is limited evidence of him having made a positive contribution through employment or other means beyond this. 

24. Having particular regard to his immediate family including his stepmother, this consideration favours revocation of the mandatory cancellation decision. 

    Primary consideration 4 – Best interests of minor children affected by the decision

25. Direction 99 requires the Tribunal to make a determination about whether non-revocation is, or is not, in the best interests of any minor children in Australia affected by the decision. The Direction at subparagraph 8.4(4) sets out a number of factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child, the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child, any known views of the child, and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence.

26. Mr Khalil has a 10-year-old niece. Mr Khalili does not contend he plays a parental role in relation to his niece. For the most part he has been physically absent from his niece’s life having been incarcerated in 2016, after which he was transferred to immigration detention. Prior to his imprisonment, he claims to have regularly cared for his niece and to have maintained regular contact with by telephone since his imprisonment. He contends that he will be a positive and important influence on his niece in the future, as he was to his younger sisters.

27. I afford the best interests of Mr Khalili’s niece limited weight in favour of revoking the cancellation decision.

    Primary consideration 5 – Expectations of the Australian community

28. Paragraph 8.5 of Direction 99 requires me to consider the expectations of the Australian community. Subparagraph 8.5(1) relevantly states: 

    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.

29. In FYBR v Minister for Home Affairs,[27] the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case, which is analogous to paragraph 8.5 of Direction 99.

    [27] [2019] FCAFC 185, [75].

30. The Direction lists specific conduct which the Australian community as a whole expects would raise serious character concerns and an expectation that the person would not hold an Australian visa.

31. Having regard to the provisions of Direction 99 and Mr Khalili’s criminal offending, I find that the community’s expectations weigh in favor of not revoking the cancellation of the visa.

    Other consideration A – Legal consequences of the decision

32. I am required to consider the legal consequences of the decision having regard to Australia’s non-refoulment obligations. Should Mr Khalili’s visa remain cancelled, by operation of subsections 189 and 198 of the Act, he will be liable for removal from Australia as soon as reasonably practicable.

33. Subparagraph 9.1(2) explains that 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-refoulment obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol as well as other international conventions. The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of the obligations that Australia is committed to implementing.

34. Subparagraph 9.1(3) provides that international non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.

35. Mr Khalili fears what may happen to him if he is returned to Iran. He fears he will be at risk of harm if he returns to Iraq as he is a Christian returning to an Islamic country. He is also concerned about the violence in Iran which led to the family’s migration to Australia and the current travel warnings due to the instability of Iran’s security situation. He expects he will be required to partake in mandatory military training in the Iranian Army for two years as all men have to do this when they turn 18. 

36. Regarding Mr Khalili’s submissions in relation to compulsory military training, I accept the Respondent’s submission that this is something all male Iranian citizens are required to complete and would not be something in which he would experience discrimination and it does not engage Australia’s non-refoulement obligations.

37. Regarding the other risks that Mr Khalili has identified should be return to Iraq, it is stated in Mr Khalili’s Statement of Facts, Issues and Contentions at paragraph [44]:

    [t]he delegate of the Minister accepted that given the nature of the claims of the Applicant, he would be owed non refoulement obligations … As such the removal of [Mr Khalili] under s198 of the Act would not apply and [Mr Khalili] would be indefinitely detained under s189 of the Act.

38. It is argued that Mr Khalili’s ‘indefinite detention’ would cause his mental health to worsen.

39. Subparagraph 9.1.2(2) of the Direction provides that where it is open to a non-citizen to apply for a protection visa, it is not necessary to consider non-refoulment issues in the same level of detail as those types of issues are considered in a protection visa application, and the Tribunal is not required to determine whether non-refoulment obligation are engaged in respect of the applicant.

40. Mr Khalili has not made an application for a protection visa but is able to do so if he chooses. Mr Khalili stated that it is appropriate that the Tribunal assess whether his claims engage Australia’s non-refoulment obligations. The information before the Tribunal to substantiate his stated concerns is insufficient to determine whether non-refoulement obligations may be owed to him. Having regard to the High Court decision in Plaintiff M1/2021 v Minister for Home Affairs,[28] the appropriate course of action is to allow Mr Khalili’s claims to be more fully assessed in a protection visa assessment, consistent with the Respondent’s submissions.

    [28] [2022] HCA 17, [30] per Kiefel CJ, Keane, Gordon and Steward JJ.

41. The extent to which the concerns raised by Mr Khalil may be legitimate impediments should he return to Iran is considered below. For these reasons, this consideration is afforded neutral weight.

    Other consideration B - Extent of impediments if removed

42. I am required to consider the extent of any impediments that Mr Khalili may face if removed from Australia in establishing himself and maintaining basic living standards in Iran, in the context of what is generally available to other citizens of that country.

43. Should he be returned to Iran, Mr Khalili contends he would suffer harm or hardship based on having converted to Christianity which would place him at risk of discrimination and persecution.

44. Mr Khalili is 37 years of age and appears to be in overall good physical health. The evidence supports him having been diagnosed with Chron’s disease in 2009 and he was hospitalised for the condition in 2017 for two weeks.

45. He has been diagnosed with Opioid Dependence,[29] for which he currently receives monthly injections of Buprenorphine from the Drug and Alcohol Unit in Villawood Detention Centre. He has also been diagnosed with PTSD, depressive disorder and Antisocial Personality Disorder.[30]

    [29] ATB, 20.

    [30] ATB, 17, 44, 137.

46. Mr Khalili fears returning to Iran would cause a decline in his mental health and that he would have limited access to health services and treatment in Iran. He fears that being in proximity to those who abused him as a child growing up in Iran may exacerbate his PTSD symptoms.[31]

    [31] G2, 136.

47. The Respondent accepts that Mr Khalili may face difficulty if returned to Iran but contends that the difficulty he would face is likely to be similar to that of other citizens of Iran.

48. Although Mr Khalili would not be expected to face language or cultural barriers in Iran, I accept that his reintegration would be particularly difficult owing to him not having lived in the country since he was 16 years of age. The evidence supports a finding that he has limited social and family supports in Iran. He would be expected to face emotional hardship which may be exacerbated by the need to treat his mental health conditions and maintain treatment of his opioid addiction.  

49. The Department of Foreign Affairs and Trade’s (DFAT) Country Information Report[32] (the country report) states that the government is the main provider of healthcare in Iran and all citizens are entitled to free healthcare, but the quality and availability of services can be variable, particularly in poorer rural areas.[33] The country report also states that drug addiction may be treated as a medical rather than criminal problem and that treatment or harm reduction and addiction services are available free of charge in all provinces and most large cities.

    [32] Department of Foreign Affairs and Trade, DFAT Country Information Report Iran (Report, 24 July 2023).

    [33] ATB, 195.

50. The country report states that there are a small number of recognised Christians in Iran but the activities of recognised Christian communities are closely regulated.[34] Iranian law prohibits non-Muslims from holding positions of authority over Muslims. DFAT assesses that those who convert to Christianity who avoid proselytization activities face a low risk of official discrimination.[35] 

    [34] ATB, 213.

    [35] ATB, 213-14.

1. I accept that Mr Khalili would face emotional hardship and face impediments which would make re-establishing himself in that country more difficult. Overall, this consideration weighs heavily in favour of revocation of the cancellation decision.

   Other consideration C – Impact on victims

2. Paragraph 9.3 of the Direction requires the Tribunal to consider the impact of a decision not to revoke the mandatory cancellation of an applicant’s visa on the victims of the non-citizen’s criminal behaviour and the family members of the victims where information in this regard is available.

3. Mr Khalili’s father is the victim of the March 2015 domestic violence offending and he would be negatively impacted by a decision to affirm the decision under review. This is not in dispute and I have taken his views into account in the consideration relating to Mr Khalili’s ties to the Australian community.

4. This consideration is afforded neutral weight.

   CONCLUSION

5. In balancing the considerations, the protection of the Australian community weighs heavily in favour of not revoking the mandatory cancellation of Mr Khalili’s visa. The nature of the October 2016 robbery offences was particularly serious. Doubts were cast on the prospects of his rehabilitation by the courts as recently as 2022, and his claims to the contrary are bolstered marginally by his relatively recent efforts at rehabilitation. I afford less weight to this consideration in recognition of Mr Khalili having abstained from using drugs since 2019 and his recent work with Dr O’Rourke.

6. Primary consideration 2 regarding family violence weighs against revocation and is afforded limited weight. The expectations of the Australian community are taken to weigh against revocation of the cancellation decision and is afforded medium weight.  

7. The strength, nature and duration of Mr Khalili’s ties to Australia weigh heavily in favour of revocation in recognition of his close ties to his father, stepmother and sisters. The best interests of Mr Khalili’s niece are served by him remaining in Australia and I afford limited weight to her interests.

8. The impediments he would face should he return to Iraq are considerable given he left that county age 16, the limited family and other support he could rely on in Iran and his conversion to Christianity.  

9. This is a very finely balanced decision. Having weighed the considerations, on balance I am satisfied that there is another reason why the mandatory cancellation of Mr Khalil’s visa should be revoked.

   DECISION

10. The reviewable decision made on 11 September 2023 not to revoke the mandatory cancellation of Mr Khalili's Class AH Subclass 101 Child Visa is set aside. In substitution the decision to cancel Mr Khalili's visa made on 18 January 2021 is revoked.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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

Associate

Dated: 19 December 2023

Date(s) of hearing:	13 & 14 November 2023
Solicitor for the Applicant:	Ms W Milojkovic, SouthWest Migration & Legal Services
Solicitor for the Respondent:	Ms E Letcher-Boldt, Clayton Utz