Khamisi and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 2748

Khamisi and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2748 (23 August 2022)
Division:GENERAL DIVISION
File Number: 2022/4525
Re:Sharam Shegar Khamisi
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date:23 August 2022
Place:Melbourne

The Tribunal affirms the decision under review.
……...[sgd].........................................
R Cameron, Senior Member
CATCHWORDS
MIGRATION – Mandatory visa cancellation – Class XB Subclass 200 Refugee Visa –– failure to pass character test – substantial criminal record – people smuggling – assault in company – destroy or damage property – driving offences - Ministerial Direction No. 90 applied – primary and other considerations - reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
DPP v Haddari [2013] VSCA 149
FYBR v Minister for Home Affairs [2019] FCAFC 185
Khamisi v The Queen [2015] VSCA 355
Plaintiff M1/2021 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 17
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SECONDARY MATERIALS
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention Relating to the Status of Refugees, opened for signature on 28 July 1951; 189 UNTS 137 (entered into force 22 April 1954)
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Richard Walker, “Keeping their Traditions Alive: Mandaean Baptism in the Nepean River”, Refugee Transitions-Issue 30
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
REASONS FOR DECISION
R Cameron, Senior Member
23 August 2022
INTRODUCTION

The applicant seeks a review of a decision by a delegate of the respondent made on 31 May 2022 under section 501CA(4) of the Migration Act 1958 (“the Act”), not to revoke the mandatory cancellation of his Class XB Subclass 200 Refugee Visa (“the visa”) (“reviewable decision”).
EVIDENCE BEFORE THE TRIBUNAL
There was both oral and documentary evidence before the Tribunal at the hearing of this application.
The following witnesses gave evidence:
(a)the applicant;
(b)his sister;
(c)his brother;
(d)his wife; and
(e)Dr Peter Cook, a clinical psychologist.
There was an array of documentary evidence before the Tribunal which included the G documents, the applicant’s Tribunal Book, the respondent’s Bundle and a Confidential Psychological Report prepared by Dr Cook, dated 30 July 2022.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision if the person whose visa has been cancelled makes representations in accordance with an invitation from the Minister, and the Minister is satisfied that:
(a)the person passes the character test; or
(b)there is “another reason” why the original decision should be revoked.
Under section 499(1) of the Act, the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (section 499(2A) of the Act). Currently, the applicable direction is Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“Direction 90”).
DIRECTION 90
It is not necessary to reproduce in full sections of Direction 90. However, it is useful to refer to several of them.
Clause 4 “Interpretation” contains a very broad definition of the term “family violence”. The term is defined to mean violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples of such behaviour that may constitute family violence include an assault or a sexual assault or other sexually abusive behaviour, amongst other things.
Clause 5.2 “Principles” provides the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under section 501CA of the Act. The contents of that Clause are referred to in their entirety for the full force and effect. However, several of them should be specifically referred to. It is provided that:
(a)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia;
(b)The Australian community expects that the Australian government can and should cancel non-citizens’ visas if they engaged in conduct that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and
(c)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence 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.
Clause 6 “Exercising discretion” provides that a decision maker must take into account primary and other considerations to the extent they are relevant.
Clause 7 “Taking the relevant considerations into account” provides that in applying the considerations:
(a)information and evidence from independent and authoritative sources should be given appropriate weight;
(b)primary considerations should generally be given greater weight than the other considerations; and
(c)one or more primary considerations may outweigh other primary considerations.
Clause 8 “Primary considerations” mandates that in deciding whether to revoke the mandatory cancellation, the following are primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia; and
(d)expectations of the Australian community.
Clause 9 “Other considerations” mandates that in deciding whether to revoke the mandatory cancellation, the following are other considerations that should be taken into account where relevant. They include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
ISSUES BEFORE THE TRIBUNAL
There are two issues before the Tribunal as follows:
(a)whether the applicant passes the character test; and, if he does not,
(b)whether there is “another reason” why the decision to cancel the applicant’s visa should be revoked.
Does the applicant pass the character test?
Pursuant to section 501(6)(a) of the Act a person does not pass the character test if they have a substantial criminal record. Section 501(7)(c) of the Act provides that a person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
On 20 February 2015 the applicant was sentenced in the County Court of Victoria to a term of seven years imprisonment with a non-parole period of four years and nine months after being convicted by a jury of one charge of aggravated people smuggling.[1]
[1] The Reasons for Sentence of the trial judge are referred to at page 39 of the G documents.
Therefore, the applicant has a substantial criminal record and does not pass the character test. This is not in dispute by the parties.[2]
[2] Paragraphs 28 and 29 of the applicant's Statement of Facts, Issues and Contentions dated 22 July 2022 are referred to.
BACKGROUND AND OFFENDING
There is no dispute about the applicant’s background.[3] The applicant was born in August 1972 in Iran. He is the eighth of 10 children. Two of his older brothers were killed in the Iran-Iraq war whilst serving in the army.
[3] Much of the facts that are reproduced in this section are taken from the applicant's Statement of Facts, Issues and Contentions dated 22 July 2022 as they are not controversial and represent an accurate summary of the material that was before the Tribunal from both the documentary and oral evidence given by witnesses.
The applicant and his family are part of the Mandean community. It is worthwhile reproducing several passages from a learned article that was tendered in evidence at the hearing of this application concerning the Mandaean community:
“The Mandaean trace the history of their faith back to the third century AD, making Mandaeasm one of the oldest monotheistic religions in the world. It is considered by the Mandaean community as both a religion and an ethnicity at the same time, with a spiritual and cultural heritage formed through thousands of years of practice.
Mandaeans Revere Adam, Noah and John the Baptist as major profits, place great importance on flowing water as a source of life, and live a life guided by principles of peace, nonviolence and compassion. Their traditional homeland is around the lower Euphrates, Tigris and Karun Rivers in the southern parts of Iraq and Iran.
In addition to being one of the oldest religions, it is also one of the most persecuted. Mandaeans have survived over 1000 years of persecution, largely at the hands of Muslims who generally consider them infidels. In modern times, particularly since the Islamic revolution in Iran during the reign of Saddam Hussein in Iraq, they have occupied a precarious position in a number of societies.
Largely excluded from the protection of the laws of the land where they traditionally resided, they have been mistreated, exploited and assaulted with impunity. However, since the overthrow of Saddam Hussein and the war in Iraq, persecution has increased dramatically. Imprisonment, torture and killings, and aggressive forced conversion to Islam, threaten the very existence of the Mandaean people.”[4]
[4] See Richard Walker, “Keeping their Traditions Alive: Mandaean Baptism in the Nepean River”, Refugee Transitions-Issue 30. There were several other learned articles tendered in evidence before the Tribunal that expressed similar opinions concerning the Mandaean religion.
The applicant, both in his several witness statements and from the witness box, gave an account of the discrimination that he and his family faced in various ways as a member of the Mandaean community in Iran. It was reflective of what was referred to in the extract that has been included in these reasons above.
The applicant’s father was a jeweller and businessman. He was also well-known in the Mandaean community. His father built a church for the Mandaean community which was subsequently burnt down as part of persecutions against the Mandaean community. He was imprisoned because of his religion and tortured which ultimately led to him being killed in 1997.
When he was at school the applicant was discriminated against and forced to sit separately from everyone else in the classroom. This was because of his Mandaean ethnicity and faith. This discrimination was also experienced in the wider community. He gave evidence that there was a fear that Mandaean children would be kidnapped and forced to convert to Islam.
When the applicant was approximately 14 years of age his family sent him to Dubai to live with an older sister who was married and worked as a jeweller. This decision was made because the applicant was approaching the age for compulsory military service in Iran at that time. He remained in Dubai for approximately 11 years. He was able to complete three years of school and following graduation worked in his sister’s jewellery shop.
Following his father’s death, the applicant was conscripted into the Iranian army to serve for two years. It was a difficult experience for him due to religious discrimination against him. In 1999 a military vehicle he was travelling in was bombed. In that incident the officer next to him was killed. The applicant suffered serious injuries from which he still suffers to this day. Those injuries included the permanent dislocation of his elbow and deformities in his left arm and right wrist.
Later the applicant married a Muslim woman and obtained a false marriage certificate. He was imprisoned for this and later escaped by bribing officials that were transporting him. There was a copy of an arrest warrant or an instrument signed by Brigadier calling for his arrest in evidence before the Tribunal. The authenticity of this document and its translation was not challenged at the hearing.[5]
[5] A copy of the document and its English language translation was contained in the applicant's Tribunal Book at pages 40-41.
After his escape from prison the applicant made his way to Tehran. There he eventually rendezvoused with his mother and together they travelled to Indonesia.
Subsequently, they attempted to travel to Australia by boat, however, the boat sank. Eventually they made their way to shore, but unfortunately several of the occupants of the boat perished.
Whilst in Indonesia the applicant was a victim of a serious stabbing attack and also experienced further discrimination based upon his faith.
After spending approximately five years in Indonesia, the applicant and his mother were granted the visa on 19 December 2005.
They travelled to Australia arriving on 9 February 2006 and settled in Sydney where they had other family members present including a sister, her husband and his brother. Additionally, there was a large Mandaean community there and a Mandaic church which they attended. Presently the applicant’s mother, two brothers and two sisters live in Sydney.
Between 2006 and 2009 the applicant worked in the supermarket trolley business as an employee. In 2009 he commenced his own business manufacturing and repairing supermarket trolleys. He was comparatively successful in this endeavour, at one stage employing approximately 40 people in the business.
Subsequently things did not go so well for him. He experienced a series of health problems including heart complications. Additionally, he suffered from depression and became afflicted with a gambling addiction. As he put it, his life and business slowly collapsed around him. He self-medicated through alcohol use.
It is now appropriate to turn to the applicant’s offending.
It is appropriate to commence with the facts concerning his conviction for aggravated people smuggling in the County Court of Victoria.
The applicant and his co-accused were introduced by the applicant’s brother within the Sydney refugee community where they both lived. In approximately June 2009 the applicant proposed to his co-accused that they travel to Indonesia firstly, to locate one of the applicant’s brothers who was apparently living there and also to look for potential travellers wishing to make their way to Australia without a lawful right to do so. The object of the exercise was to facilitate such a journey for money. As the trial judge put it, the applicant invited his co-accused to come to Indonesia to engage in people smuggling. The applicant having lived in Indonesia for several years as a refugee had, in that time, met and worked with people who were involved in the people smuggling trade.
The applicant and his co-accused flew to Jakarta on 24 July 2009. They met the applicant’s brother and commenced scouting for passengers. The applicant educated his co-accused in the practices of procuring passengers to take the journey at a cost of $6,000 per adult. Whilst recruiting passengers in a suburb of Jakarta the applicant and his co-accused met a family group through a third party who negotiated to send his family to Australia for a lower price in return for joining the people smuggling enterprise. That third party introduced the applicant and his co-accused to a fourth individual, he was also recruited to the enterprise. From that time the four of them worked as a team recruiting passengers, collecting money, renting villas for them and organising transportation such as in buses and accommodation in places such as Bali. Occasionally passengers were collected from the airport and taken to the town of Maumere, the take-off point for the boat. Additional arrangements were made procuring a boat for travel to Australia and also paying bribes to police to enable the safe passage of passengers from Jakarta to Maumere.
As observed, passengers were recruited but the initial trip was aborted because the co-accused and others were arrested on route between Jakarta and Maumere. After the co-accused had been released the applicant had disappeared along with the money that he had received in payment for the anticipated journey to Australia. Ultimately, the co-accused continued with the plan and successfully placed the passengers on a boat which left Indonesia on approximately 9 November 2009 and was intercepted in Australian waters on 12 November 2009.
At his trial, evidence was led that the applicant visited a trial witness and told him that he had looked after his family while in Indonesia and now they had to look after him as he had expenses arising from his Court trial and travel from Perth.
The applicant was also convicted of one count of assault in company in the Ararat Magistrates’ Court on 28 August 2020. He pleaded guilty to the charge and was sentenced to one month’s imprisonment. It was ordered that the sentence be served concurrently with his sentence that he was then serving for aggravated people smuggling.
Whilst there was a transcript of the hearing before the Magistrates’ Court in evidence before this Tribunal, it is not possible to determine the precise circumstances of the assault concerned. The prosecution summary,[6] which is usually agreed to by the defence, stated that the CCTV footage shows the accused (applicant) punching the complainant in excess of 20 times and shows the co-accused stomping on the complainant in excess of 15 times.[7] The learned Magistrate stated “I’m told it’s a very serious example of assault in company, well, can I just say this, I couldn’t really tell that from the video, I was looking at ants really. The injuries to the victim were minor. You just couldn’t tell how many of these blows were landing and what power they were landing, where they were landing, what stomping was going on; it’s hard to see”.[8]
[6] The Magistrate stated that he took the summary into account.
[7] Page 318 of the G documents.
[8] Page 325 of the G documents.

On 6 May 2011, in the Liverpool Local Court, the applicant was convicted of driving with a low range of the prescribed concentration of alcohol (the precise reading is not available in the material). He was disqualified from driving for three months and fined $700. He was also convicted for driving an unregistered motor vehicle and fined $300.[9]
[9] Information regarding the applicant’s fines is at page 313 – 314 of the G documents.
On 10 June 2011, in the Fairfield Local Court, the applicant faced charges of destroying or damaging property. The charges were proven, and the applicant was placed on a 12 month good behaviour bond.[10]
[10] Refer to footnote above.
On 15 February 2012, in the Parramatta Local Court, the applicant was convicted of driving whilst disqualified. He was fined $800 and had his driver’s licence cancelled for two years. He was also convicted of driving an unregistered motor vehicle and fined $300. Finally, he was convicted of destroy or damage property and placed on a 12 month good behaviour bond.[11]
PRIMARY CONSIDERATIONS
[11] Refer to footnote above.
Protection of the Australian community: clause 8.1
Clause 8.1(1) of Direction 90 provides that when considering the protection of the Australian community, the Tribunal should acknowledge 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. It further provides that in this respect, decision-makers should have particular regard to the principal 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.
Clause 8.1(2) further states:
(2) Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the applicant’s conduct
Clause 8.1.1 of Direction 90 identifies a number of factors that a decision-maker must have regard to when considering the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. The range of factors enumerated in that paragraph is not exclusive.
Clause 8.1.1(1)(a)(i) of Direction 90 provides that without limiting the range of conduct that may be regarded as very serious, violent and/or sexual crimes are viewed very seriously by the Australian Government and the Australian community.
Clause 8.1.1(1)(b)(ii) of Direction 90 also provides that without limiting the range of conduct that may be considered serious, crimes committed against vulnerable members of the community are considered by the Australian Government and the Australian community to be serious.
The applicant accepts that his conduct in engaging in the crime of aggravated people smuggling is serious in nature.[12]
[12] Paragraph 37 of the applicant's Statement of Facts, Issues and Contentions dated 22 July 2022 is referred to.
The applicant has also conceded that the offending of aggravated people smuggling weighs against him in the balancing act that this Tribunal must undertake.[13]
[13] Paragraph 36 of the applicant's Statement of Facts, Issues and Contentions dated 22 July 2022.
Aggravated people smuggling carries a maximum penalty of 20 years imprisonment and/or a $220,000 fine. There is a minimum mandatory term of five years imprisonment with a three-year minimum term which must be imposed on first offenders.[14] Parliament therefore clearly views such criminal offending as very serious. The seven-year term of imprisonment which was imposed on the applicant, and which he subsequently served, also reflects the seriousness of his offending with respect to aggravated people smuggling. The trial judge described the applicant’s conduct as “particularly shocking” and by reason of the lengthy prison sentence imposed upon him the Tribunal concludes that the applicant’s offending was very serious.
[14] The Reasons for Sentence of the trial judge are referred to, document G 3 of the G documents at page 44 paragraph [14].
In assessing the nature and seriousness of the applicant’s criminal offending, with respect to aggravated people smuggling, as required by paragraph 8.1.1 of Direction 90 it is useful to record the observations made by the sentencing judge presided over a jury trial which convicted the applicant.[15]
[15] The sentencing judge’s reasons are to be found in document G3 at page 39 of the G documents.
The trial judge stated that in considering the appropriate sentence she was satisfied the minimum term would not sufficiently represent the seriousness of the applicant’s role as a people smuggler. She further opined that he did not fall into the lowest category of participation, for example, the role of a poverty-stricken Indonesian fishermen who had been lured to crew as a deckhand for approximately $50. She stated she was satisfied that the applicant was a prime organiser of a group of at least 12 passengers, that he recruited a co-accused and with him recruited passengers, took money from them, arranged for their accommodation and transport and received thousands of dollars for his efforts.
Additionally, the trial judge considered that the applicant’s role in the people smuggling exercise had been best described by another judgment in the Court of Appeal.[16] That judge observed that the objective seriousness of the applicant’s criminality does not equate with that of a lowly member of the crew. The applicant was acting as an organiser quite prepared for financial gain to exploit the vulnerability of others. (It is considered that this vulnerability falls fairly and squarely within the types of crimes and conduct considered by the Australian Government and the Australian community to be serious as enumerated in paragraph 8.1.1(b)(ii) of Direction 90.) He also considered that it was necessary to take into account that greed was a powerful motive.
[16] The Honourable Justice Harper in DPP v Haddari [2013] VSCA 149.
The trial judge reiterated that as the applicant was apparently running a successful business, she could only conclude that the motivating force for his decision to engage in the enterprise of people trafficking was greed. Tellingly, she also observed that there “was also something particularly shocking about a man who has lived the difficult life of a refugee, enduring one unsuccessful illegal voyage and then five years in the limbo land of an UNHCR refugee waiting for admission into Australia, eventually finding refuge not only in a country which offered you security and opportunity but which also contained a community of the religious minority to which he had belonged, determining then to undertake this criminal enterprise simply for motives of greed”.[17]
[17] G documents, page 46, paragraph 19.
It was also recorded by the trial judge that she accepted the evidence given at the trial that the applicant absconded with money that he had obtained in the course of his people smuggling enterprise. She observed “I regard your offending as shameless and callous and carried out by one who should have had more reason than many to be compassionate towards refugees and the terrible plight those passengers found themselves in, that is, suddenly forced to flee the country from where they were born and where they had every intention of remaining for the rest of their lives and then suddenly essentially being forced into the life of the fugitive”.[18]
[18] G documents, page 47. Paragraph 19.
It was observed by the trial judge in her reasons for sentence that the applicant had shown no remorse for his offending. She also accepted that the applicant attended upon a witness and his wife in order to obtain money from them in the course of the trial. Such behaviour she described as “brazen and callous in the extreme”.[19]
[19] G documents, page 47, paragraph 20.
The trial judge concluded by saying that she was satisfied that having been the recipient of a great deal of good fortune as a refugee, the applicant nevertheless took a calculated and criminal risk for financial gain or greed and in an activity exploited the vulnerability of refugees he encountered. She stated he was deserving of condign punishment. Once again, the trial judge described the victims of the applicant’s offending as vulnerable people and the Tribunal agrees with this description.
It is apparent that asylum seekers in the position of those who paid the applicant money as part of his people smuggling enterprise were particularly vulnerable to the very type of exploitation that the applicant engaged in. On any objective or arm’s-length measure, it was serious offending. It was reflected in the penalty that the trial judge imposed of seven years with a non-parole term of four years and nine months.
As for the conviction for assault in company, the Tribunal acknowledges that it is a summary offence. It also acknowledges that the applicant pleaded guilty to the charge. It is also acknowledged that by pleading guilty the applicant accepted responsibility for his offending, showed remorse and demonstrated insight. The maximum penalty for such an offence is 12 months imprisonment. Even though the injuries to the victim were described in the transcript of the proceedings before the Magistrates’ Court at Ararat as minor, the Tribunal considers that a one-month prison sentence notwithstanding that it was to be served concurrently with the sentence for people smuggling, does reflect the objective seriousness of what the applicant did to his victim.
The applicant’s offending in committing an assault in company whilst in prison also needs to be looked at with a degree of realism. He had by the time of the assault already been imprisoned for some years. Having had the opportunity to observe him in the witness box the Tribunal considers that he is not an unintelligent man. He clearly knew the difference between right and wrong. He sought to explain his offending by reference to ongoing religious and ethnic tensions that he had experienced whilst in that prison environment. One would have expected that he might have realised that resolving his differences with other prison inmates by resorting to his fists was ultimately not going to achieve the desired objective.
The applicant’s offending with respect to the assault in company is also puzzling because the offending occurred after the mandatory cancellation of his visa. It also occurred at a time when he had made representations in support of a request to revoke that cancellation. The respondent contended that it was indicative of a serious disregard for the law and the seriousness of the consequences of his actions. It is certainly difficult conduct to comprehend because it would certainly not assist his application to revoke the mandatory cancellation of his visa.
Brief mention should be made to the destroy or damage to property convictions imposed on the applicant. Such offending involves violations of the rights of another and has to some extent an element of violence attached to it. Precise details of the facts surrounding one of these offences are recounted later in these reasons. It is unacceptable behaviour and cannot be countenanced. The Tribunal does regard it as serious. Indeed, the applicant’s conviction on 15 February 2012 in the Local Court at Parramatta attracted the comments from the sentencing magistrate that they are particularly serious offences.
Some reference is warranted with respect to the motor traffic offending, particularly the exceeding of the prescribed blood alcohol limit. Drink-driving laws were introduced into this country for the very reason that the parliaments of this nation considered drink-driving to be inherently serious. These laws were introduced as a significant measure to attack the road toll. Alcohol affected motorists are more prone to making errors of judgement on the road that can lead to death or serious injury. Whilst the applicant’s offending in this case is at the lower end of the scale, it should be acknowledged.
Indeed, the applicant’s conviction on 15 February 2012 in the Local Court at Parramatta attracted the comments from the sentencing magistrate that they are particularly serious offences, particularly that of driving whilst disqualified.[20] He also observed that the offending occurred only shortly after his conviction with respect to a prescribed concentration of alcohol for which a bond was imposed requiring him to be of good behaviour. It was also observed by the sentencing magistrate that a presentence report indicated that the applicant seemed to misunderstand the seriousness of his offending. He stated that it should be clear to the applicant that serious driving matters are approached equally seriously by the Courts. The Tribunal agrees with these observations.
[20] The sentencing Magistrate’s comments are at page 330 of the G documents.
The applicable subparagraphs of paragraph 8.1.1(1) of Direction 90 in their totality, weigh heavily against revoking the decision to cancel the applicant’s visa.
The risk to the Australian community should the applicant commit further offences or engage in other serious conduct
Clause 8.1.2 of the Direction 90 relevantly provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In undertaking the assessment required of this primary consideration the Tribunal must identify the nature of the harm should the applicant engage in further criminal conduct.
The nature of the harm to individuals or the Australian community should the applicant engage in further criminal conduct by way of aggravated people trafficking would encompass several aspects. There is the risk to the vulnerable asylum seekers themselves. Those risks include the financial losses they will suffer and of course the risks that they face by undertaking a perilous sea voyage as part of the enterprise. There is the risk of injury and/or death. It is, indeed, an outcome well-known to the applicant as a result of his ill-fated attempt with his mother to take a boat from Indonesia to Australia in approximately 2001.
There is also the risk to Australia’s security and sovereignty. This can include bio security risks and the introduction of unwanted diseases and pests. It also can from time-to-time place at risk border and defence force personnel who may intercept vessels making unauthorised attempts at maritime arrivals. It is also a blatant breach of Australia’s immigration laws.
As for the assault in company offending the risk of reoffending would involve the possibility of physical injury and/or psychological harm to the victims. The particular type of offending engaged in by the applicant where he used his fists has the potential particularly, if it is to the victim’s head, to have catastrophic consequences. Regrettably, from time-to-time victims of one punch attacks suffer death or serious injury. It cannot be underestimated.
Reference should be made to the motor traffic offences that were committed by the applicant and the two convictions for destroying or damaging property. Whilst they are comparatively minor offences in the scheme of things, they did indicate a pattern of behaviour that the applicant engaged in comparatively soon after his arrival in Australia. They also showed a pattern of some level of disobedience to the law which is of concern. Australia has led the world in road safety reform that has led to a considerably lower rate of death and serious injury on our roads. It should be noted that at least one of his motoring offences was driving whilst disqualified and driving an unregistered motor vehicle. It demonstrates that he did not learn from his previous experience in the local Court on the first occasion. It shows that he was prepared certainly in the sense of motoring to take the law into his own hands. By reason of this, there must be some risk of the applicant reoffending with respect to motor traffic law.
As for the convictions for destroying and damaging property, it is of concern that the two offences occurred within a relatively short space of time. It also appears that the applicant’s previous appearance in Court did not result in him appreciating that this sort of behaviour is unacceptable. In the witness box the applicant said that he was drunk when this offending occurred. It appears that excessive consumption of alcohol was a significant factor that led to his offending. Whilst the applicant may well have been under the influence of alcohol when he undertook this offending it nonetheless highlights the fact that continued abstinence from alcohol is essential for him. Without such continued abstinence there must be a heightened risk of reoffending.
The applicant contends that his risk of reoffending is low. In support of this contention, he states that he has developed insight into his offending. The Tribunal had the opportunity to observe the applicant in the witness box and has doubts that he has come to terms with his offending or fully understands the seriousness of what he did. This is both with respect to people smuggling and the assault in company and probably the lower-level summary offending including motor traffic offences and destroying or damaging property. There are several reasons for this. They include the fact that the applicant continued to give a different version of the events of the respective people smuggling offences, details of which are outlined later in these reasons. In the witness box, with respect to the assault in company, the applicant continued to deny that he punched the victim in the head 20 times notwithstanding the findings of the sentencing Magistrate. Also, concerning the damaging of property, the applicant denies that he smashed the oven which was contrary to the evidence before the Tribunal.
Additionally, the applicant has pointed to strong ties in the Mandaean community and family support which would assist him to manage any future risk. The Tribunal should observe that both the applicant’s brother and sister gave evidence before the hearing of this application. They were impressive and decent witnesses, and the Tribunal has no doubt that they will offer the applicant all the support they possibly can and appropriate guidance to assist him to stay on a pathway of obedience to the law. However, it should be observed that prior to his offending the applicant unquestionably had the support of his family and the broader Mandaen community, yet such support did not deter him from the path of offending that he undertook. This fact does to some extent diminish the weight that the Tribunal places upon this factor.

There is other evidence that the applicant relies upon in support of his contention that the risk of him reoffending is low. He implemented a Mental Illness Care Plan whilst in prison and undertook 16 sessions. Additionally, he sought regular assistance from a psychiatric nurse in the psychiatric clinic in the prison system on approximately 36 occasions during the term of his sentence.
The applicant has continued to seek assistance for mental health issues whilst in immigration detention. He has undergone regular torture and trauma counselling for lengthy periods. Additionally, psychiatric assistance has been obtained including for panic attacks. This has included two psychiatric consultations, five medication reviews and nine counselling sessions. The fact that the applicant has sought assistance does suggest that he is willing to take steps to rehabilitate himself and must be relevant to assessing the risk of future offending on his part.
At the hearing the applicant called a clinical psychologist Dr Cook to give evidence. The Tribunal found him to be an impressive witness who clearly understood that his role was to assist the Tribunal. There was also in evidence a detailed psychological report, dated 30 July 2022 that had been prepared by Dr Cook. An earlier report prepared by Dr Cook, dated 11 December 2015 was also in evidence. That report had been prepared in support of a visa application concerning the applicant’s wife.
In the report of 30 July 2022, Dr Cook reported that the applicant returned to Indonesia to assist his brother who was a refugee there. The applicant told Dr Cook that his brother was having difficulties with immigration and as a consequence the applicant became involved with people smugglers who said that if he assisted them, they would get his brother to Australia. The applicant also told Dr Cook he assisted the people smugglers by way of translations and introductions but was not himself a people smuggler. Dr Cook recorded that the applicant “maintained his innocence despite his conviction and current incarceration. He said the people smugglers had taken his money and failed to assist his brother. He is currently appealing his conviction”.
This version of the events recorded by Dr Cook is at significant variance with what is recorded by the trial judge in the reasons for sentence. It will be recalled that the trial judge was satisfied that the facts she recounted in her reasons for sentence had in fact occurred and of course these facts were accepted by the jury after a fully defended trial. On that note it should be observed as was recorded in the Court of Appeal[21] that in order to prove the charge of aggravated people smuggling against the applicant at trial, the prosecution was required to prove that there were five passengers whose passage to Australia was intentionally facilitated by the applicant. In order to do so the prosecution relied upon the evidence of seven witnesses plus that of one of the participants in the joint people smuggling enterprise.
[21] See Khamisi v The Queen [2015] VSCA 355 at [17].
Dr Cook, when asked about predicting future offending, opined that there are complex factors at play. He observed that it was noteworthy that the applicant’s account of his people smuggling activities was significantly at odds with official accounts. Dr Cook concluded that it appears that the applicant continued to minimise his involvement in people smuggling. The Tribunal agrees with these observations. However, Dr Cook also noted that he did express remorse and provided a clear explanation as to why the people smuggling activities were wrong. Dr Cook also opined that the applicant’s mental state at the time of offending was of likely significance. He considered it was likely that the applicant was a psychologically unwell man who was not particularly coherent in making judgements regarding appropriate behaviour.
Dr Cook undertook an assessment of the applicant applying the United Kingdom Ministry of Justice guidelines “Transforming Rehabilitation: A summary of evidence on reducing reoffending”. He expressed the opinion that appraising the applicant with respect to those guidelines gave cautious grounds for optimism regarding him not reoffending in the future. Also, he said that the applicant’s history did not constitute that of a repeat offender or that he has a criminal identification.
Dr Cook observed that the applicant had avoided further offending since ceasing alcohol use in 2011 with one exception being the assault in company offence. He stated that what is clear is that the applicant had a long history of difficulties in his dealings with Muslims. Dr Cook in the witness box observed that when he first saw the applicant in 2015, he was genuinely terrified of dealing with Muslims. He recorded that the applicant had moved on and has interacted with Muslims in prison.
Dr Cook concluded that given the applicant’s cessation of alcohol use, his increased maturity and his history over the past 11 years, he is of the opinion that there are grounds for optimism with respect to the risk of further offending. In particular, he opined that given current circumstances, any return to activity associated with people smuggling is highly unlikely. Similarly, he expressed the opinion that the applicant’s past offending does not suggest likely involvement in violence towards others. He was optimistic about the applicant’s future prospects. He stated that with increased maturity and the opportunity to reflect there is a far less likely chance that he would offend in the future. He observed that the applicant realises that his past offending has caused him nothing but grief and future offending would do the same. In the witness box he did also consider that the applicant needs much more intensive treatment than what he has had.
There was a report in evidence from a clinical psychologist Dr Coffey, dated 26 January 2015.[22] He did not give evidence at the hearing. This report had been prepared for the purposes of the people smuggling trial and sentence. Dr Coffey concluded that he did not believe that the applicant had personality characteristics which rendered him likely to offend in the future. He considered the likelihood of reoffending, specifically in relation to the offence committed of people smuggling and in relation to criminal activity more generally, to be low. It should be observed the report of Dr Coffey was written many years ago. As for the conclusions he reached concerning risk of reoffending it should also be observed that the applicant did subsequently offend whilst in prison when he committed the offence of assault in company. Also, as Dr Coffey was not called his evidence could not be tested in cross examination. Therefore, by reason of these matters the weight that the Tribunal might otherwise place on Dr Coffey’s opinion is more restricted.
[22] Document G33 at page 365 of the G documents.
Notwithstanding the conclusions of Dr Cook and Dr Coffey, the Tribunal has some concerns about the risk of reoffending on the part of the applicant. The particular source of the concern arises from the candid reference in Dr Cook’s reports that the applicant presented to him an account of his offending with respect to the people smuggling that was significantly at odds with what he described at his trial. He told Dr Cook that he was recruited by people smugglers and that he was motivated to help his brother. He further maintained to Dr Cook that he withdrew from the activity once his brother had decided not to travel by boat as an illegal migrant. As Dr Cook noted he recruited another man and took a highly active role and absconded with proceeds from the venture. The actual details of the applicant’s offending with respect to people smuggling have been recorded earlier in these reasons and are referred to and repeated. It is apparent when one reads the reasons for sentence of the trial judge that the account given by the applicant to Dr Cook was simply incorrect. He must have known it was incorrect yet was prepared to actively mislead an expert clinical psychologist who had been retained on his behalf for the purposes of this application. It is of much concern that he did so with the knowledge that Dr Cook’s report would be tendered in evidence before this Tribunal. It is also of concern that he did so appreciating that the true facts would see the light of day. It poses the question as to whether the applicant truly has gained insight into the nature and severity of his offending.
It should also be observed that in cross examination the applicant continued to deny that what the trial judge had found actually occurred. It is a further reason for considering that the applicant has not truly come to terms with what he did and the gravity of his offending despite his contentions to the contrary.
Reference must also be made to the risks associated with further offending of the applicant’s other convictions, which included assault in company, motoring offences and damage to property. It should be repeated that the assault in company occurred whilst the applicant was in prison. It took place in the highly regulated prison environment and also in the presence of security cameras but despite these measures the applicant was prepared to engage in a random attack upon his victim. The spontaneity of his actions in such a setting must remain of concern. This is particularly amplified in the context of the applicant having any interactions with other citizens of the Muslim faith which in a multicultural society such as Australia is a distinct and real possibility. This concern should be balanced against the conclusions of Dr Cook expressed in the witness box, that the applicant has moved on and interacted with Muslims in prison.
The risk of the applicant not reoffending is probably dependent on several factors. These factors include access to continuing psychological treatment, as recommended by Dr Cook, upon his release and continued abstinence from alcohol and any other form of self-medication. There will undoubtedly be pressures on the applicant if he is released into the community which would tempt him to relapse. It is acknowledged that the applicant has been abstinent from alcohol since 2011. Such factors suggest that he has some ability to remain alcohol free. However, given that the applicant has been in prison and or immigration detention since 2015 his ability to remain alcohol free whilst at liberty in the community has not been recently tested. As noted earlier, prison is a more controlled and regulated environment. There would also need to be a level of self-discipline on his part to ensure that he undergoes appropriate treatment and does not succumb to the temptation of relapsing. For these reasons, with respect to this offending, the Tribunal concludes there is a moderate risk of reoffending.
Therefore, the Tribunal considers that there is a moderate risk of the applicant reoffending. The Tribunal also finds that given the serious nature of the applicant’s offending having committed, amongst other crimes, aggravated people smuggling, such a risk of reoffending is unacceptable and must weigh heavily against revocation of the cancellation of the applicant’s visa.
Family violence: clause 8.2 of Direction 90
The facts concerning the conviction on 10 June 2011 for destroying and damaging property are contained in a New South Wales Police Facts Sheet.[23] On the evening in question the applicant arrived home and shortly after began arguing with his mother about getting some money. His mother refused to give the applicant money whereupon he became angry and punched a wooden coffee table causing one end of the table to break. He then left the room and entered the kitchen kicking the door and causing the glass to shatter and bending the doorframe. The applicant’s brother arrived who was called by his mother. After arriving the brother called the police. Nowhere in the Fact Sheet is it recorded that either the brother or the mother were fearful at any time.
[23] Document G3 of the G documents at page 333.
The applicant concedes that his behaviour does demonstrate some low-level violent behaviour but does not record that the applicant was threatening or attempted to use violence to coerce or control his mother or for that matter anyone else. Therefore, it is contended there is no evidence before the Tribunal in which to find that the applicant committed family violence, within the meaning of this clause of Direction 90. The Tribunal agrees with this contention.
It should also be observed that in closing submissions, the respondent’s counsel informed the Tribunal that the respondent does not ask the Tribunal to place any weight on the family violence consideration. In the light of this concession the Tribunal will not do so.
Best interests of minor children in Australia affected by the decision: clause 8.3 of Direction 90
Clause 8.3(4) of Direction 90 prescribes a range of factors that must be considered by a decisionmaker in evaluating the best interests of minor children.
The applicant has one niece and three nephews who are under the age of 18 in Australia and are the children of his sister. The daughter is aged 17 years and the boys 11, nine and eight.
The evidence concerning the nature and duration of the relationship between the applicant and the minor children is somewhat scant. The applicant gave evidence that he speaks to these children usually every weekend. Those conversations centre around school, church and encouraging them to listen to what their mother says.
The applicant stated that he wished to have strong relationships with the minor children to make up for the time that he had been absent and for the grief that he had caused them.
The applicant has also contended that the relationship with the minor children is amplified due to the Mandaean faith, culture and the ethnicity that he shares with those children. Associated with this, the applicant submits that the shared spiritual, religious and social connection fuelled by generational trauma and memory of torture, persecution and discrimination of the Mandaean community elevates the importance to be attached to this consideration. There is, it is submitted, the need to preserve cultural memories, Mandaean identity, rituals, language, faith and customs which are of critical importance to that community. In the balancing act that the Tribunal is required to undertake by reason of Direction 90 significant weight attaches, it is contended, because Mandaeans are facing the risk of cultural extinction, particularly due to the fact that it is a religion by birth only.[24] Therefore, it is contended that the best interests of the minor children include the interests of maintaining the connection formed through the Mandaean faith, culture and ethnicity of which the applicant and the minor children are a part.
[24] The Tribunal was referred to a substantial number of learned articles on these topics in footnotes 94, 95 and 96 of the applicant's Statement of Facts, Issues and Contentions dated 22 July 2022.
The children’s mother in her statement deposed to the fact that all of her children ask about their uncle and say that they want to be with him. She stated that they also said they want him to be involved in their lives as they grow older. It was said by her that the minor children love him very much and it would be important for him to be in their lives as they grow older.
The applicant seeks to persuade the Tribunal that this consideration, which is of course a primary consideration, must weigh heavily in favour of revocation of the cancellation of the applicant’s visa.
On the other hand, the respondent, whilst accepting that it is in the best interests of the minor children for the applicant to remain in Australia and establish or maintain a relationship with them, contends that it is a consideration that should be given little weight.
It should be noted that under clause 8.3(4)(a) of Direction 90 the Tribunal is obliged to consider the nature and duration of the relationship between the child and the applicant. Less weight should generally be given where the relationship is non-parental, and there is no existing relationship and/or there have been long periods of absence or limited meaningful contact.
The relationship with the minor children and the applicant is non-parental. As the applicant has been in custody for over seven years there has been limited contact with them. This was particularly the case when the applicant was in prison, which it should be recorded was for a period of seven years and had limited phone access and there were no personal visits from the children. There has been more frequent contact as noted earlier with the minor children by way of telephone on the weekends since he has been in immigration detention and has access to a mobile phone. With regard to the younger children, the applicant has been in custody for most of their lives and therefore, the Tribunal finds that the relationship has been limited.
It should also be observed that there was no suggestion that the children’s cultural needs, particularly as part of the Mandaean faith with its identity, rituals, language and customs are not being adequately met by their parents. It is acknowledged that the children’s parents are divorced. However, the father sees the children usually every week on the weekend and access arrangements have been worked out between them without the necessity of the intervention of a court order. In any event there are also the other brother and sisters of the applicant who live in Australia and are able to fulfil this additional role in the children’s lives if it is required.
There does not seem to be any evidence to suggest that the applicant could not continue to maintain contact with the minor children as he has done now over the phone.
The Tribunal finds that the best interests of the minor children does weigh to a limited extent in favour of the revocation of the cancellation of the applicant’s visa.
Expectations of the Australian community: clause 8.4 of Direction 90
Clause 8.4 of Direction 90 provides:
(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.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, 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. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a)acts of family violence…
b)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, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
c)involvement or reasonably suspected involvement in human trafficking or people smuggling…
Reference should be made to the majority decision in FYBR v Minister for Home Affairs.[25] Although it related to a previous Direction 65 the applicable consideration of Direction 90 is expressed in similar terms. The majority held that this consideration should be understood as expressing a deemed community expectation. This ascribes to the community an expectation aligning with that of the executive government which would generally weigh in favour of non-revocation. It is not however necessarily an inflexible conclusion.
[25] [2019] FCAFC 185.

The applicant understands that his behaviour fell below the expectations of the Australian community.[26] This is particularly so in circumstances where the offending of aggravated people smuggling occurred approximately three years after he arrived in Australia as a refugee. Once again, the observations of the sentencing judge are referred to and repeated in this regard.
[26] Paragraph 14 of the applicant's witness statement of 23 July 2020 page 292 of the G documents is referred to. A similar concession was made at paragraph 65 of the applicant's Statement of Facts, Issues and Contentions of 22 July 2022.
It is contended by the applicant that the Australian community would not expect the decision not to revoke his visa be affirmed in circumstances where he would be at risk of refoulement to Iran or indefinite detention. The Australian community would not expect the applicant to be placed at risk of persecution, discrimination or harm due to his Mandaean beliefs and identity.
Another contention with respect to this primary consideration advanced by the applicant is that the Australian community would not expect that he would be prevented from returning to the Australian community in circumstances where he has an ailing, elderly Australian citizen mother and a partner whom it is said would suffer immeasurably as a result. The Tribunal does not agree that they would suffer immeasurable harm but there is no doubt that such a decision would have a serious effect on them.
The Tribunal must be guided by the language used in clause 8.4(2)(e) of Direction 90. It will be recalled that clause provides that non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the community would expect the person should not continue to hold a visa. Specific examples of that include involvement in people smuggling. It was aggravated people smuggling that was engaged in within three years of the applicant’s arrival in Australia. He undertook the aggravated people smuggling after his own experiences in Indonesia as a refugee. He betrayed the trust of the Australian community. For reasons explained earlier the Tribunal has found that there is a moderate risk of reoffending particularly in circumstances where he failed to be candid when describing to Dr Cook the circumstances of his offending who he knew was preparing a report for use in the conduct of this application. This conduct raises serious questions as to whether the applicant has really come to terms with the nature and gravity of his offending or truly gained an insight into it. If he has not done so the expectations of the Australian community are not being met. In any event it should be repeated that clause 8.4(3) of Direction 90 specifies that the expectations of Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The expectations of the Australian community should also be considered with respect to the offending concerning assaulting company, motoring offences and destroy or damage property. They are serious offences for the reasons that have been canvassed earlier. As recorded in clause 8.4(1) of Direction 90 the Australian community expects non-citizens to obey Australian laws whilst in Australia. The Tribunal has concluded there is a moderate risk of the applicant also reoffending with respect to these offences. The Tribunal considers that the Australian community would expect that with this record and in particular given that the assault in company occurred after the mandatory cancellation of the applicant’s visa and whilst he had submissions before the delegate seeking to revoke that decision, that he should expect not to be allowed to remain in Australia.
The Tribunal considers that the nature of the applicant’s offending is such that the Australian community would expect that the reviewable decision would be affirmed, and he should not hold a visa. When all these matters are taken into account this primary consideration weighs heavily in favour of non-revocation of the cancellation of the applicant’s visa.
OTHER CONSIDERATIONS
Clause 9 of Direction 90 sets out five Other Considerations which must be taken into account. These considerations are:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Links to the Australian community, including:
(iii)Strength, nature and duration of ties to Australia; and
(iv)Impact on Australian business interests
International non-refoulement obligations: clause 9.1 of Direction 90
Clause 9.1(1) of Direction 90 states 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. It also states that 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, and the International Covenant on Civil and Political Rights and its Second Optional Protocol.
Clause 9.1(2) of Direction 90 specifies that in making a decision under section 501 or 501CA, 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 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.
Clause 9.1(3) of Direction 90 states however, that does not mean the existence of a non-refoulement obligation precludes non-revocation of the mandatory cancellation of a non-citizen’s 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. Following a visa non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their protection visa application is being determined.
It was identified by the majority in Plaintiff M1/2021 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Plaintiff M1”) that to the extent that Australia’s non-refoulement obligations are incorporated into domestic law, they are reflected in the sections of the Act relevant to protection visas.[27] The protection visa application process is ‘the specific mechanism chosen by Parliament for responding to protection claims’.[28]
[27] Plaintiff M1, 8 [18].
[28] Ibid 18 [38].
Accordingly, the Court found that where a non-citizen’s representations make reference to claims of non-refoulement “under domestic law”, while that claim may be considered by the decision-maker, it is open to the decision-maker “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”.[29]
[29] Ibid 14 [30].
The respondent urged the Tribunal to apply the decision of the High Court of Australia in Plaintiff M1 and defer consideration of the applicant’s non-refoulement claims because he is a person able to make a valid application for a protection visa. The High Court observed in that case as follows:
“Decision-makers approach to non—refoulement
[28] Where the representations do not include, or the circumstances do not suggest, a non-refoulement claim, there is nothing in the text of s 501CA, or its subject matter, scope and purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke the cancellation of any Visa that is not a protection Visa.
[29] Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decision-maker under s 501CA (4). But those obligations cannot be, and are not, mandatory relevant considerations under s501CA (4) attracting judicial review for jurisdictional error-they are not part of Australia’s domestic law.
[30] 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.”
It should be emphasised that in expedited hearing process such as this the Tribunal cannot make an assessment of protection obligations in the way that would occur were the applicant to make an application for a protection visa. Nor is the Tribunal required to conduct an extensive assessment of the applicant’s claims to fear harm should he return to Iran.
The Tribunal considers that it should not defer consideration of the applicant’s protection claims but nonetheless insofar as international non-refoulement claims are made they should be identified, understood and evaluated as best as is open to it on the material that has been tendered.
The applicant contends that he is owed non-refoulement obligations for three reasons:
(a)firstly, he is a recognised refugee;
(b)secondly, prior to its cancellation the applicant held the visa which was a refugee visa; and
(c)thirdly, he is also eligible for a protection visa under the relevant provisions of the Act.
Iran is a theocracy with Islamic beliefs and customs enshrined in law. Shi’a Islam is the official state religion. There is pervasive structural discrimination against non-Shi’a Muslims and religious minorities. Adherents of non-recognised religions particularly Baha’is and the Mandaean community face widespread official and societal discrimination. According to a July 2019 survey on religious restrictions conducted by the Pew Research Centre, Iran ranks among the top 10 countries in the world for laws and policies restricting religious freedom. Mandaeans do not enjoy legal recognition in Iran and are not permitted to worship openly.[30] The respondent accepts that this is an accurate summary of the treatment of the Mandaean community in Iran. It also accepts that there is a likelihood that the applicant faces a real chance of harm in Iran due to his religion and mental and physical ill-health.[31]
[30] Reference is made to the Department of Foreign Affairs and Trade Country Information report-Iran, 14 April 2020 at [3.27] and [3.28]
[31] Paragraph 55 of the respondent's Statement of Facts, Issues and Contentions is referred to.
The applicant also points to the fact that Iran implements the death penalty at one of the highest rates in the world, both in actual numbers and per capita. Offences punishable by death include “moral crimes” such as adultery and homosexuality. Further, vaguely defined offences such as “insulting the profit”, “enmity against God” and “spreading corruption on earth” including blasphemy and heresy also attract the death sentence. It is reported that torture and other mistreatment of detainees occurs in Iran together with other cruel, inhumane or degrading treatment or punishment.
As noted earlier in these reasons, a campaign of clearances has displaced Mandaeans from their ancestral homelands. It is accepted that they have been persecuted, including being victim to murder, kidnapping, forced conversion and forced circumcision.[32]
[32] The articles referred to in footnote 113 of the applicant's Statement of Facts, Issues and Contentions are referred to. Also see the extract in paragraph 21 above.
The applicant came to Australia after, amongst other things, escaping arrest by the Iranian authorities. He contends that if he were to return, he would continue to practice his Mandaean faith. The respondent, for the purposes of these proceedings, does not dispute that the applicant is a Mandaean and that he will continue to practice his faith if he is returned to Iran.
It is contended by the applicant that on return to Iran he would be placed in custody again. As noted earlier this could prospectively expose him to torture, cruel, inhumane or degrading treatment or punishment. This is for several reasons including of course his Mandeaen religion and ethnicity together with his prior marriage which caused him to be incarcerated previously, from which it must be said he escaped unlawfully in the eyes of the Iranian authorities. Collectively, he contends that he would face discrimination, persecution, harm and possibly the risk of death upon his return.
It is further contended by the applicant that he suffers from a range of disabilities including psychiatric, medical and physical impairments. In Iran he faces the prospect of social stigma and difficulty in accessing housing, employment and public transport. There is, as noted earlier, the risk of discrimination which will also occur due to the fact that he has such disabilities. The respondent accepts that the applicant has a range of physical and mental health concerns. It is also accepted by the respondent that the applicant’s physical and mental health conditions may cause him to come to the attention of authorities which would place him at a risk of harm. The Tribunal agrees with this conclusion and finds that the applicant’s physical and mental health conditions would expose him to a risk of harm and societal discrimination were he to return to Iran. The harm could include, but is not limited to, arbitrary arrest, imprisonment, torture and possibly even death.
By reason of the foregoing the Tribunal concludes that the risk of harm described does establish a non-refoulement obligation owed to the applicant. Were the applicant to be returned to Iran, Australia would be in breach of such obligation. This must weigh heavily in favour of the applicant and revocation of the decision to cancel his visa.
Having found that this “other consideration” weighs heavily in favour of the applicant the Tribunal must determine whether, it outweighs the primary considerations of protection of the Australian community and expectations of the Australian community. As has been observed clause 7(2) of Direction 90 provides that primary considerations should generally be given greater weight than other considerations. The Tribunal finds that this other consideration does not outweigh primary considerations 8.1 and 8.4 of Direction 90. It does so because of the findings it has made concerning the moderate risk of reoffending and the serious nature of such offending which it finds is unacceptable.
Extent of impediments if removed: clause 9.2 of Direction 90
As a guide for exercising the discretion, clause 9.2 of Direction 90 directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The applicant is presently aged 50 years. There would not be any substantial language barriers to him were he to return to Iran.
He has no family left in Iran. There is unlikely to be social support for him over there. The Tribunal considers that not having any family or other social support networks that he would be able to draw upon in the event of his return to Iran would be a significant impediment to him.
There was really no evidence before the Tribunal on the issue of economic support apart from the DFAT Country Information Report dated 14 April 2020. That indicates that unemployment rates are comparatively high. It also observes that official figures underestimate the true extent of unemployment, as people working one hour per week are considered by the government to be employed. Significant variations in unemployment rates exist between provinces. The Tribunal has no doubt given these facts, his age, societal discrimination against Mandaeans, together with the time that he has been away from the country, that it would be difficult for the applicant to obtain employment were he to return there. Therefore, the capacity to maintain a basic living standard comparable with that generally available to other citizens in Iran would be limited.
There would be substantial cultural barriers faced by the applicant due to his adherence to the Mandaean faith which have already been canvassed previously in these reasons. Due to his Mandaean faith and ethnicity the Tribunal is satisfied that social, medical and/or economic support available to him would be limited.
The applicant emphasises significant physical and mental health conditions that he faces. It is worthwhile repeating these.[33]
[33] The following is largely reproduced from paragraphs 11 to 21 of the applicant's Statement of Facts, Issues and Contentions dated 22 July 2022. These contentions were not contested by the respondent at the hearing of the application.
As a result of the 1999 bomb explosion the applicant suffers from the following conditions:
(a)a permanently dislocated left elbow;
(b)a deformity to his left arm and right wrist; and
(c)chronic pain caused by the injuries to his arms, hands and right knee.[34]
[34] See the G documents, 89; 101; 117; 113; 189; 304; 372 and 381.
The applicant’s arms are scarred and deformed, there are surgery scars on his right ankle.[35] He has ongoing pain and headaches which resulted from 2008 and 2014 assaults.[36] He suffers from chronic pain particularly relating to injuries arising from the bomb explosion for which he takes medication.[37]
[35] G documents page 381.
[36] G documents page 381.
[37] G documents page 117.
The applicant has suffered from a hernia for approximately four years which has caused considerable pain and prevented exercise. He recently underwent surgery to repair the hernia in January of this year.
He suffers from tinnnitus and has done so since he was stabbed in the face and head at 24 years of age.
The applicant suffers from pain and blood when defecating. Tests are pending to determine what the cause of this condition is.
The applicant has been advised by his doctors that he is at risk of developing more severe diabetes. He describes himself as a controlled diabetic.
The following further conditions are also suffered by the applicant:
(a)back pain;
(b)high blood pressure;
(c)hospitalisation in Australia following heart surgery in Indonesia and a stent in his leg;
(d)teeth grinding; and
(e)dizziness.
Mental health issues have been a concern for the applicant over some time. He has been diagnosed with:
(a)persistent depressive disorder and an adjustment disorder with anxiety;[38] and
(b)adjustment disorder with depressed mood.[39]
[38] G documents, 288-9 and 384.
[39] G documents at 372.
He has been prescribed and has taken antidepressants for his anxiety.[40]
[40] G documents at 288.
The applicant has suffered from a substance use disorder which was considered to be in remission as at December 2015.[41]
[41] G documents at 384.
These significant physical and mental health conditions were acknowledged by the respondent.[42] The respondent also conceded that the Tribunal should accept that such health issues would likely bring attention to the applicant if he returned to Iran and that he would not receive the same level of treatment for such conditions as is available in Australia. It was accepted on behalf of the respondent that the applicant is likely to be at risk of harm in Iran due to his religion, his mental and physical ill-health and that this weighs in favour of revocation of the cancellation decision.[43]
[42] See paragraph 64 of the respondent's Statement of Facts, Issues and Contentions dated 27 July 2022. As noted earlier the physical and mental health issues confronting the applicant were not contested at the hearing of the application.
[43] See paragraph 63 of the respondent's Statement of Facts, Issues and Contentions dated 27 July 2022.

In the DFAT Country Information Report, it reveals that the need for mental health services in Iran is significant. It also emphasises that there is an ongoing social stigma attached to mental illness in that country.[44] When one considers these factors together with the generalised societal discrimination against Mandaeans, which has been canvassed earlier in these reasons, one cannot be certain that the applicant would receive the attention and treatment for his mental health conditions in a way that is comparable with other Iranian citizens.
[44] See paragraphs2.24 and 2.25 of the DFAT Country Information Report Iran.
It was contended by the respondent however, that there is no evidence that the applicant will be unable to access the same support as other Iranian citizens. The Tribunal does not agree with this contention due to the level of discrimination that it has found takes place against those people in Iran of Mandaean faith and ethnicity. Given that the applicant has stated and, the respondent accepted, that he will continue to practice his faith were he to be returned to Iran, he will more likely than not be the victim of widespread societal discrimination in the context of what is generally available to other citizens of that country particularly when it comes to social, medical and/or economic support such as finding a job.
Notwithstanding the strength of the applicant’s contention concerning the weight that should be attached to this other consideration which the Tribunal finds is significant, once again it does not believe that it can outweigh the primary considerations of 8.1 protection of the Australian community and 8.4 expectations of the Australian community. There are several reasons for this. The provisions of clause 7(2) of Direction 90 that primary considerations should generally be given greater weight than other considerations are apposite in this case. This arises due to the nature of the applicant’s offending particularly aggravated people smuggling which is a repugnant crime motivated by greed. It is a crime that as has been explained previously, exploits the vulnerable and involved a significant betrayal of trust of the Australian community by someone who knew better and had been given an opportunity to lead a law-abiding and decent life in this country. The Australian community as a norm would expect the government not to allow the applicant to remain in Australia.
Impact on victims: clause 9.3 of Direction 90
Both parties agreed that there was no evidence to indicate that this consideration is relevant to this application. There was no evidence before the Tribunal concerning the impact on victims within the meaning of the Direction.
Links to the Australian community: clause 9.4 of Direction 90
Strength nature and duration of ties to Australia: clause 9.4.1 of Direction 90
Under clause 9.4.1(1) of Direction 90 the Tribunal as decision-maker must consider any impact of the decision on the applicant’s immediate family members in Australia.
Under clause 9.4.1(2) of Direction 90, the Tribunal, where consideration is being given to whether to revoke the mandatory cancellation of the applicant’s visa, must also consider the strength, nature and duration of any other ties that the applicant has to the Australian community. In doing so it must have regard to:
(a)how long the applicant has resided in Australia, noting that:
(i)less weight should be given where the applicant began offending soon after arriving in Australia; and
(ii)more weight should be given to the time the applicant has spent contributing positively to the Australian community,
(b)the strength, duration and nature of any family or social links with Australian citizens or permanent residents.
The applicant identifies the following family members presently residing in Australia, who it is said support his application for revocation of the decision to cancel his visa:
(a)his mother;[45]
(b)his wife (who gave evidence);
(c)his brother (who gave evidence);
(d)his sister (who gave evidence); and
(e)two adult nephews and other nieces and nephews and alleged family members.
[45] The applicant's mother did not give evidence at the hearing of the application. However, a witness statement made by her and dated 22 July 2022 was in evidence before the Tribunal.
The Tribunal accepts that if the decision to cancel the applicant’s visa is not revoked it will have a significant impact on his mother. In her statement she said that she has suffered great emotional pain since his imprisonment. She does suffer from several illnesses and requires care from her immediate family. These illnesses include a heart condition arising from a recent heart attack, diabetes, high cholesterol and blood pressure. She has difficulty walking and is mostly only able to move around with the assistance of a wheelchair. It is apparent in the many years that the applicant has been in custody that his other siblings in Australia have fulfilled this role as carers for their mother. The applicant and his wife relocated to Perth in the latter part of 2013 and have not returned to Sydney since. They have not seen each other since that time. It should also be noted that the mother has a carer paid for by the government who also renders assistance to her. It is also apparent that there would be an emotional impact upon her in the event that he is not permitted to stay. She would be unlikely to see her son again. The respondent concedes that this should be given some weight in favour of revocation.[46]
[46] See paragraph 71 of the respondent's Statement of Facts, Issues and Contentions dated 27 July 2022.
The Tribunal accepts that there is a close family bond between the applicant, his siblings and nieces and nephews. It is also accepted that this bond is perhaps stronger or otherwise more amplified due to their Mandaean faith and ethnicity together with the circumstances in which they reached Australia after fleeing Iran. The applicant’s sister gave evidence at the hearing of the application that it is important for her family to be reunited. There is however no doubt that that family bond has been strained over the last seven and a half years that the applicant has been in prison and immigration detention.
The applicant’s brother and sister both gave evidence to the effect that if he is released into the community, they will do everything to support him and his wife in any way possible. His brother stated that he would be prepared to permit the applicant and his wife to reside in his family home which he owns and has unoccupied bedrooms. He also undertook to assist the applicant in obtaining a car, subsequently finding a residence and securing a job or assisting him to start a new business.
As for the applicant’s wife, her evidence centred around her devotion to him and their future plans. She stated that she has been with her husband for 12 years and still supports him even after his convictions. She gave evidence of her visits both during the time the applicant was in prison and of course in immigration detention. Additional evidence was given by her of the contact that she has with the applicant and has had throughout his period of incarceration by telephone. The Tribunal accepts the strength of the relationship between the applicant and his wife as it was described. It is also accepted that significant stress will be placed on that relationship if the decision to cancel the applicant’s visa is not revoked. The contention of the applicant that it would be difficult to envisage how he and his wife could ever reside offshore together if the visa cancellation decision is not revoked is also acknowledged.
His wife is presently the holder of a bridging visa with no indefinite right to remain in Australia. The applicant is her sponsor for a partner visa.[47] Consequently, if the decision cancelling the applicant’s visa is not revoked there will be significant ramifications for her and her ability to remain in Australia would be seriously jeopardised. She faces the prospect of a return to China where she appears to have no financial resources and limited family connections. However, given that clause 9.4.1(1) of Direction 90 prescribes that decision-makers must consider the impact of the decision on the non-citizen’s immediate family members “where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia” and that clause 9.4.1(2)(b) is expressed in similar terms the Tribunal considers that it is unable to consider the impact upon the applicant’s wife.
[47] The applicant’s wife made an application for a Partner visa (subclasses 820/801) as far back as 25 October 2011. The applicant's visa cancellation is apparently the only reason that she has not been granted permanent residency to date. The respondent contends that as she is currently the holder of a bridging visa, she has no indefinite right to remain in Australia. Therefore, no weight should be placed on the impact on her of the decision to cancel the applicant's visa.
The Tribunal acknowledges that in the three years prior to the commencement of his offending the applicant made a positive contribution to the Australian community. He did this firstly, by working in a job which he obtained soon after his arrival to his credit. He then commenced his trolley repair business which was for some years successful. At its height it employed 40 people and was profitable resulting in the applicant paying taxes. However, that business ultimately failed and its decline occurred at about the time that the applicant commenced his offending in the people smuggling enterprise.
Overall, the Tribunal considers that the weight attributable to this other consideration in relation to the strength, duration and nature of the applicant’s ties to Australia must be less due to the relatively short time the applicant spent living in Australia before he commenced serious offending. Therefore, the Tribunal places limited weight upon this other consideration.
Impact on Australian business interests: clause 9.4.2 of Direction 90
There was no evidence before the Tribunal at the hearing of this application that demonstrated there was any impact on Australian business interests if the applicant were not allowed to remain in Australia.
The prospect of indefinite detention
The respondent contends that little weight should be given to the extent of impediments if removed in circumstances where he is able to make an application for a protection visa. In those circumstances all his claims would be fully assessed in a way that in an expedited hearing such as this application the Tribunal cannot undertake.
The applicant contends that he faces a realistic, if not actual prospect of indefinite detention.
The Tribunal is concerned that whether or not the applicant applies for a protection visa in the future given its findings concerning non-refoulement obligations previously in these reasons, almost certainly he will face the prospect of indefinite detention. As for indefinite detention it is useful to record the observations of the Federal Court in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs:[48]
“The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a Visa decision-maker should take into account, on the basis that Liberty is one of the most basic human rights and fundamental freedoms known to the common law. As we explained below, for our part we see no difficulty in attaching the adjective “indefinite” to such further period of detention, in circumstances where there is no fixed chronological endpoint, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom.”
[48] [2021] FCAFC 55 at [123].
The respondent has acknowledged that the applicant would not be removed to Iran if his visa remains cancelled, as Iran does not accept involuntary returns from Australia where the person arrived before 19 March 2018.[49] Therefore, the respondent accepts that should the mandatory cancellation of his visa not be revoked he is likely to be subject to an uncertain and potentially lengthy time in immigration detention, and in that sense indefinite detention. It was also acknowledged by the respondent that even if the applicant were to apply for a protection visa and found to satisfy sections 36(2)(a) and/or (aa) of the Act the visa could be refused on character grounds. Accordingly, he could not be removed to Iran pursuant to section 197C(3) of the Act. This would also see him potentially remain in detention indefinitely.[50]
[49] Department of Foreign Affairs and Trade, DFAT Country Information Report-Iran 14 April 2020 at [5.27]. See also paragraph 65 of the respondent's Statement of Facts, Issues and Contentions dated 27 July 2022.
[50] Paragraph 66 of the respondent's Statement of Facts, Issues and Contentions dated 27 July 2022 is referred to.
Therefore, the prospect of indefinite detention is also a significant factor that the Tribunal considers in favour of the applicant in its consideration of whether there is another reason to revoke the mandatory cancellation of his Visa.
CONCLUSION AND DECISION
The Tribunal concludes that there is not another reason why the mandatory cancellation of the applicant’s visa should be revoked. It is satisfied of this after having assessed the primary considerations together with other considerations. Heavy weight against revocation of the mandatory cancellation of the applicant’s visa has been attached by the Tribunal to primary considerations 8.1 and 8.4 of Direction 90. The weight that it attaches to primary consideration 8.3 and other considerations 9.1, 9.2 and 9.4 the Tribunal considers do not collectively outweigh primary considerations 8.1 and 8.4. It should be repeated that under clause 7(2) of Direction 90, primary considerations should generally be given greater weight than other considerations. The Tribunal considers that none of the material or the contentions advanced by the applicant persuade it that the terms of this clause should not apply in this instance.
As explained previously, this conclusion as to the weight placed on primary considerations 8.1 and 8.4 arises due to the nature of the applicant’s offending, particularly aggravated people smuggling, which is a repugnant crime motivated by greed. It is a crime that as has been explained previously, exploits the vulnerable and involved a significant betrayal of trust of the Australian community by someone who knew better and had been given an opportunity to lead a law-abiding and decent life in this country. It also arises from the applicant’s offending with respect to assault in company, which it will be recalled took place in the regulated environment of the prison system and was recorded in its entirety on CCTV. The Tribunal has concluded for reasons explained, there is a moderate risk of the applicant reoffending. The Australian community in such circumstances as a norm would expect the government not to allow the applicant to remain in Australia.
Therefore, the Tribunal affirms the reviewable decision.

174. I certify that the preceding 173 (one hundred and seventy-three) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

....[sgd]......................................................
Associate
Dated: 23 August 2022

Dates of hearing:

4 & 5 August 2022

Solicitor for the Applicant:

Visa Plan Lawyers

Counsel for the Applicant:

Advocate for the Respondent:

Liam McAuliffe

Michelle Stone

Solicitor for the Respondent: Australian Government Solicitor

Dates of hearing:	4 & 5 August 2022
Solicitor for the Applicant:	Visa Plan Lawyers
Counsel for the Applicant: Advocate for the Respondent:	Liam McAuliffe Michelle Stone
Solicitor for the Respondent:	Australian Government Solicitor