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

[2021] AATA 168

KMWC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 168 (9 February 2021)

Division:GENERAL DIVISION

File Number(s):2020/7616      

Re:KMWC

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:9 February 2021

Place:Sydney

The reviewable decision made on 17 November 2020, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the applicant’s Class XE Subclass 790 Safe Haven Enterprise Visa, is set aside.

In substitution, it is decided that the mandatory cancellation decision of the applicant’s Class XE Subclass 790 Safe Haven Enterprise Visa on 10 February 2020, is revoked.

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

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

MIGRATION – mandatory visa cancellation – failure to pass the character test – whether another reason why the visa cancellation should be revoked – Ministerial Direction No. 79 applied – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – expectations of the Australian community – strength, nature and duration of ties to Australia – international non-refoulement obligations – impediments to removal – decision set aside and substituted 

LEGISLATION

Migration Act 1958 (Cth) ss 501, 501CA

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

HZCP v Minister for Immigration and Border Protection [2018] FCA 1803

VXKK and Minister for Home Affairs (Migration) [2018] AATA 3268

Do and Minister for Immigration and Border Protection [2016] AATA 390

FTYC and Minister for Immigration and Border Protection [2018] AAT 20

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

INTRODUCTION

1. The applicant is a 35-year-old Iranian national. He has resided in Australia since 2013 from the age of 28.

2. On 11 September 2017, the applicant was granted a Class XE Subclass 790 Safe Haven Enterprise Visa (the visa), having been recognised as a refugee on the basis of his homosexuality and his Christian faith.

3. Since arriving in Australia, the applicant has been convicted of a number of offences between 2014 and 2020. Most significantly, on 29 January 2020, the applicant was convicted of ‘affray’ and ‘reckless wounding in company’ and was sentenced to 14 months’ imprisonment.

4. On 10 February 2020, the applicant’s visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) (the Act).

5. On 9 March 2020, the applicant made representations seeking revocation of the mandatory cancellation decision.

6. On 17 November 2020, a delegate of the Minister (the delegate) decided not to revoke the mandatory cancellation decision.

7. On 19 November 2020, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.

   THE LAW

8. As the parties agree that the applicant does not pass the character test set out in section 501(6) of the Act given the length of his sentence, the sole issue the Tribunal must consider is whether to exercise its discretion under section 501CA(4) of the Act to revoke the mandatory cancellation of the applicant’s visa.

9. Accordingly, the issue before the Tribunal is whether, having regard to Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 79), there is ‘another reason’ why the mandatory cancellation decision should be revoked.

10. There are a number of relevant principles contained in Clause 6.3 of Direction 79 that I have considered, which provide the framework within which the task of exercising the discretion is to be approached:

    (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa

    (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no

    (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled or their visa application refused.

11. Direction 79 sets out primary and other considerations that must be considered, where relevant, when deciding whether to revoke the mandatory cancellation of a visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not properly be viewed as “secondary”; in certain cases, other considerations may outweigh primary considerations.

12. Those primary considerations in Direction 79 are as follows:

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

    (b)the best interests of minor children in Australia; and

    (c)expectations of the Australian community.

13. Direction 79 also sets out other considerations that must be taken into account, which include but are not limited to:

    (a)strength, nature and duration of ties to Australia;

    (b)international non-refoulement obligations;

    (c)extent of impediments to the applicant if removed from Australia;

    (d)impact on Australian business interests; and

    (e)impact on victims.

    THE ISSUES

14. It is agreed between the parties that the applicant does not pass the character test as he has been sentenced to a term of imprisonment of 14 months. He therefore has ‘a substantial criminal record’ under section 501(7) of the Act, and so does not pass the ‘character test’ pursuant to section 501(6)(a) of the Act.

15. The primary issue is therefore whether there is ‘another reason’ why the mandatory cancellation decision should be revoked under section 501CA(4) of the Act.

    THE EVIDENCE

    The applicant’s evidence

16. The applicant provided a statement dated 22 December 2020, which he confirmed was true and correct.

17. The applicant was born in Tehran, Iran and has family who continue to reside in Iran, including his mother, brothers, sisters, sisters in law, nephews and their spouses, uncles, aunts and cousins. His father passed away in around 2003. The applicant also has a sister in Canada who he is close to and who provided evidence at the hearing. He said he stays in regular contact with his family in Iran and that he spoke to his mother the night prior to the hearing. He said he also communicates regularly with his siblings.

18. The applicant grew up in a supportive family and continues to receive support both emotionally, on his mother’s side of the family, and financially through his sister who resides in Canada.

19. The applicant identifies as a gay male but said that he has kept his sexuality a secret from his family in Iran due to the dangers of being homosexual in Iran. His sister who lives in Canada is the only family member who openly knows about the applicant’s sexuality since around 2006 or earlier. He said he thought that other family members were probably aware of his sexuality, but that they did not want to acknowledge it. He said that his sexuality was not something that his family in Iran can support or have ever discussed openly with him, and he said he would be treated differently if he was open about his sexuality.

20. The applicant attended primary and middle school in Iran and said he left school between the ages of 15 and 17. He worked in wrestling with his brother, as well as later in a role with council and then in refrigeration. When asked if he could work with his brother again if he were returned to Iran, he said he hoped so, but there would be serious problems in relation to his Christian faith and his sexuality.

21. The applicant said that when he was residing in Australia in the community, he attended Church with two pastors and that he occupied his time with some part time work as a handyman until receiving work rights in 2015 or 2016.

22. When questioned about his faith, the applicant said that he converted to Christianity in 2013 when he was baptised, soon after his arrival in Australia. He said he converted because he had the experience of meeting other Christians in detention, was exposed to their ideology and saw how they behaved and viewed the world. He also became close to a pastor who was working at the detention centre. He said he currently practiced his Christian faith by observing the ten commandments and said that he had attended the Hillsong Church prior to his detention. In Villawood Immigration Detention Centre, he said he regularly attended Bible Study.

23. When questioned further, the applicant said that he had been to the Hillsong Church at least four times and had also attended other churches in Paramatta. He was unable to recall the name of the church in Paramatta but said that it was near Fitness First and that the Church had provided free food after the services. The applicant had attended Bible Studies with a pastor and said that he had continued to attend services and Bible Study in prison. The applicant said that at Bible Study he tried to learn about humanity and that he also tried to teach other people about the Christian faith.

24. The applicant said he had spoken to other Iranians about Christianity, had encouraged people of the Islamic faith to practice Christianity and had tried to encourage a friend to attend a Bible Study with him. The applicant said that if he returned to Iran, he would ask Muslims to convert to Christianity and said that he might be hanged for this. When questioned as to why he would engage in this behaviour which would expose him to serious risk, the applicant said it’s because “I like it” and that he wanted others to be “rescued like him”.

25. The applicant’s attention was drawn to the Department of Foreign Affairs and Trade (DFAT) recent Country Information Report on Iran, and particularly page 43 of the Report, which indicated that there was low risk of official discrimination in Iran if an individual in Iran did not attempt to convert Muslims to the Christian faith. The applicant said that if he went back to Iran it was likely that he would talk about the Bible or his Christian beliefs and therefore expose himself to serious danger.

26. When questioned as to why there was a letter from only one religious connection that the applicant had formed in Australia, the applicant said that his pastor was very busy and had not yet responded to his request for a character reference for the hearing.

27. When the applicant was living in the community, he resided with three other Iranians with whom he had formed a friendship with whilst he was in detention. He has lost contact with these friends now because of his drug addiction and also during his recent period in custody and immigration detention, but he said he still has friends from this period living in the Australian community. In this regard, one of the applicant’s friends from this period provided a letter of support for the applicant in these proceedings.

28. The applicant said that he became aware of his sexuality in Iran when he was around 12 to 15. He said that he had had sex with other males in Iran, the first time with a friend of the same age when they were both young. He said that he continued to have sex with men regularly whilst in Iran. He said that he used to meet men in secret locations, including a park or on the street and that gay men were able to recognise each other on the street.

29. The applicant said that in 2012 the Basij found him at a common gay location, threatened to send him to prison and raided his house. He had no problem with the authorities prior to this incident, but as a result he decided to flee Iran as he feared for his life as the Basij knew of his sexuality. In 2013 the applicant came to Australia alone.

30. The applicant said that in Australia he continued to have sex with men whom he met at gay venues and a dating app and lived openly as a gay man. He said that if he were returned to Iran, he would continue to have sex with other men.

31. The respondent’s representative drew the applicant’s attention to the recent DFAT country information report which noted that it was possible to live as a gay person in Iran if you were discreet. However, the applicant said that, in his view, the authorities in Iran already know that he is a gay man because of the prior incident with the Basij where his sexuality was discovered. He also said that it would be very difficult for him to keep his sexuality secret or hidden if he were returned to Iran because “it is now normal” for him and he is only able to form relationships with other men. When asked if he would use the same dating app to meet other men in Iran, he replied “of course”.

32. When the applicant first arrived, he said he struggled a lot as he was not able to work without work rights, could not speak English and was not allowed to apply for a protection visa. He said that although he had friends during this period, he did not have any romantic relationships. He did not undertake study during the period and was in receipt of welfare as he did not have working rights. He was placed in immigration detention in 2014 to 2015 as a result of a number of traffic infringements including drink driving, which he received a six-month bond and fines and was consequently returned to immigration detention for approximately a year.

33. After release from immigration detention, the applicant said he looked for work and housing. He worked as a handyman in a carwash, bricklaying, air conditioning and for a labour agency picking up rubbish. He then found a stable job in air conditioning and worked there for around one year. He said he stopped working at the air conditioning business because he became homeless due to his drug addiction that he developed in immigration detention and because he was in very poor health. He had worked very hard at the air conditioning business installing air conditioning equipment in some 400 units.

34. When questioned about police reports which referred to the applicant having a girlfriend, he said that the report was incorrect. He said that he and the woman referenced were not in a romantic or sexual relationship as he was gay, but that they were mutually helping each other. The woman was a sex worker for whom he provided some protection and assistance and she in turn would give him some money to assist in funding his drug dependency. The applicant said he had introduced the woman to his friend who had “cut his grass”, by which he meant that she would give drugs to his friend and not to him. He saw this as a betrayal of his friend. When questioned about breaking into an apartment and allegedly looking for his “girlfriend”, he said that this comment again referred to this friend, who was a sex worker.

35. The applicant said he started using drugs for the first time in 2014, which were given to him in Villawood Immigration Detention Centre by an Iranian roommate. He used ice, marijuana and alcohol and had tried heroin on one occasion. In about 2018, the applicant became drug dependent. Prior to his arrest in 2019 he was using drugs five times a week and spent all of his money on ice.

36. He did not seek any help for his addiction at this time. He said that a barrier to him accessing treatment was his language difficulties in not being able to speak English and his limited knowledge in where to go and access treatment. However, the applicant was referred to the Drug and Alcohol Multicultural Education Centre (DAMEC) in September 2019, but it was noted in case notes that he didn’t believe he needed drug counselling as he believed he had already stopped using and was clean from drugs.

37. The applicant said he had no current health issues and he had no minor children.

38. When questioned about his criminal history, the applicant admitted to lying to police about his license status when he was pulled over for drink driving on 26 September 2014 and returning a high alcohol reading. In relation to the 7 October 2014 incident, the applicant admitted that his license was suspended at the time, that he had lied to police and that he accepted the police report that he was over the alcohol limit, although he said he did not remember much about the incident. He said that he recalled his failure to stop was not because he was trying to avoid the police, but that he was young at the time and was an alcoholic and said that he had drunk a lot of wine. He also said he did not know the law in Australia. During re-examination, the applicant said he also did not understand the difference between a direction to stop and slow down because of his poor English at that time.

39. The applicant said that he had not received a warning after his release from his first period in immigration detention and did not recall signing a document in relation to his visa conditions. The applicant acknowledged that he was aware that he had been returned to immigration detention because of criminal offences and that his visa may be cancelled as a result of this. He said that his first period of immigration detention was a wakeup call for him.

40. When questioned on the police records in relation to another incident, he said he was under the influence of drugs at the time. He recalled the police finding a number of items in his possession, including Opal cards, mobile phones, a Chinese identity document and a Channel bag, but said that he had found some of the Opal cards on the ground, one had been given to him and that the Chinese identity document he was carrying was one that he had forgotten to take to his office as instructed. He said the mobile phones were old and he had found the Nokia phone on the road. He said that he had not stollen the items. The applicant said that he had entered a guilty plea to the various offences at court because he just wanted to get out again.

1. On the 22 July 2019, the applicant handed police a number of documents that were not in his name. He said he did not recall the documents but said that one document belonged to “a guy who introduced him to ice”. He said because he had poor English and no interpreter, he was unable to explain himself to police.

2. The applicant said he was aware of the incident on 3 September 2019 but could not remember causing any harm to the police. When questioned as to whether he accepted his conviction for assaulting a police officer, the applicant said he did not remember hitting a policeman but that he may have under the influence of drugs, which he took the day before. He said he would also have been feeling sick because he did not take drugs that day. The applicant emphasised that he did not recall attacking police and that he did not have an interpreter at court on that occasion. When questioned again about whether he accepted the assault on police conviction, the applicant said he may have tried to defend himself but that he did not remember the incident.

3. In relation to his latest conviction of affray and reckless wounding in company, the applicant said that he recalled parts of the incident but said that he did not hit anyone. He said that he eventually entered a guilty plea after speaking to his lawyer, who said that if he plead guilty, he would be convicted of a lesser charge and receive a reduced sentence.

4. In relation to the statement of the Magistrate Tsavdaridis that had noted the applicant, alongside the two other co-accused, had said words to the effect of: “I’ll fucking kill you”, the applicant said he did not say that. The applicant accepted that his conviction was based on a guilty plea but said that he did not hit anyone. In relation to his latest conviction, the applicant said his lawyer did all the talking and he was not asked a single question by the Judge. He entered a guilty plea to “get it over with”.

5. In relation to his offences overall, the applicant says he accepts most of them but that he had a lesser involvement than what was said in the police statements. He said he was under the influence of drugs and because he did not speak very proficient English, he was unable to explain himself.

6. The applicant said that he accepts that he pleaded guilty and takes responsibility for his actions. The applicant said that he was now a “clean” and changed person. He was very remorseful because of the harm he had caused to himself and to those around him, including his friends and family.

7. The applicant said that he had tried to complete courses to improve his English and that he had completed a drug and alcohol course with another person whilst in detention. The applicant produced a drug and alcohol certificate which showed he had done seven hours of coursework, which he said took a lot longer as he had to utilise another detainee to assist him in translating the course. Under re-examination, the applicant said that his English was “plenty” better now and that his behaviour would have been different in relation to a number of his encounters with police if he had had his current level of English language skill.

8. In his statement dated 22 December 2020, the applicant said: “drugs have destroyed my life and I want to have the chance to do rehab so I can be good again and not reoffend. It means that I can live in a safe country”.

   The applicant’s sister’s evidence

9. The applicant’s sister affirmed her statement of 19 December 2020.

10. On cross-examination, the applicant’s sister confirmed that she had grown up with him in Iran and had last seen him in person in 2005, prior to her leaving Iran to live in Canada.

11. The applicant’s sister in her statement of 19 December 2020 said that she “believes that after leaving our country, separation from family and above all my mother, language barriers, loneliness lead [the applicant] to using drugs and offending crimes”. She confirmed that she was aware that her brother was homosexual.

12. The applicant’s sister had never visited him in Australia but confirmed that she was supporting the applicant financially and said she sends him money when he asks and she is also supporting with seeking rehabilitation for his drug addiction, for instance calling Odyssey House and William Booth House. When questioned as to whether she’d continue to financially support her brother if he were to return to Iran, she said that she thought he would not be safe in Iran because of his sexual orientation and religion, but that she will continue to support him “in any situation”.

13. The applicant’s sister was aware of his various convictions but believed that he was capable of rehabilitation and making a fresh start in Australia.

    The applicant’s psychologist’s evidence

14. The applicant’s psychologist submitted a written report to the Tribunal along with an outline of her relevant qualifications, which she confirmed was true and correct.

15. In her report, the applicant’s psychologist sets out a brief history of the applicant from the time he arrived in Australia, including his introduction to methamphetamine whilst in immigration detention in 2014 to 2015. She also relayed information given to her by the applicant as to his time in prison and immigration detention.

16. The applicant’s psychologist noted that the applicant has no history of any psychiatric illness. She noted that the applicant had not completed any therapeutic rehabilitation programs, partly because of his limited English skills in detention. He had, however, completed an online drug education program whilst in detention and he was hoping to access further drug rehabilitation services if he were to be released into the community. He had also completed an anger management program.

17. The applicant’s psychologist noted that the applicant had expressed concern to her that he did not understand the Australian legal system and that his capacity to interact appropriately with the police and his legal advisors had been adversely impacted by his lack of English skills.

18. The applicant’s psychologist said that when she discussed the most recent offence of “wounding in company” and “affray” with the applicant, he accepted that he had committed the offence, although he was not sure who he had kicked and punched. Rather, he said he had “apparently kicked and punched someone”.

19. When asked to go through the various factors in the self-appraisal questionnaire, the applicant’s psychologist said that some factors which she identified were dynamic, in other words they can be changed, whilst others were static. On the overall scale, the applicant had a score in the low to moderate range, namely with a total score of ‘20’, which was towards the top end of this range. The applicant’s psychologist found that the applicant’s Level of Service Inventory-Revised (LSI-R) testing indicated a medium risk of reoffending, which was consistent with the self-appraisal that she conducted with the applicant.

20. The applicant’s psychologist also outlined the methodology by which she had reached her conclusions in relation to the applicant, which she also explained in cross-examination at the hearing.

21. In her report, she noted that the applicant was not inherently antisocial and that much of his offending was related to alcohol and methamphetamine use and dependency. She also noted that the applicant had reportedly abstained from methamphetamine use for the past 15 months, although she noted that he “demonstrated little insight regarding his motivations for using methamphetamine and little understanding of relapse prevention strategies”. She felt that he would benefit from participation in an appropriate rehabilitation, for example with Odyssey House which provides alcohol and drug counselling services and programs.

22. The applicant’s psychologist also noted that prolonged detention was likely to have a long-term effect on the applicant’s mental wellbeing and as a gay Christian man he may face persecution if he were deported to Iran. She said that the threat of deportation “undoubtably weighs heavily on his mental health”.

    PRIMARY CONSIDERATION

    Protection of the Australian community

23. There are two aspects of the first primary consideration regarding the protection of the Australian community. First, the nature and seriousness of the applicant’s conduct to date and second, the risk to the Australian community if the non-citizen commits further offences or engages in further serious conduct.

    Nature and seriousness of the applicant’s conduct

24. The applicant has been convicted of 13 separate offences between 2014 and 2020, namely a number of traffic infringements, ‘enter enclosed land not presc premises w/o lawful excuse’, ‘goods in personal custody suspected of being stolen’, ‘destroy or damage property’, ‘fail to appear in accordance with bail acknowledgements, ‘assault police officer in execution of duty w/o abh’, ‘resist or hinder police officer in the execution of duty’ and ‘possess prohibited drug’. Most significantly, on 29 January 2020, the applicant pleaded guilty to the offences of ‘affray’ and ‘reckless wounding in company’ and was sentenced to 14 months’ imprisonment with a non-parole period of nine months.

25. Violent offences are to be viewed very seriously. In this regard, I note that at the hearing the applicant disputed the level of the involvement, particularly in relation to the 29 January 2020 conviction of ‘affray’ and ‘reckless wounding in company’, which were the most serious convictions against him. The respondent, in my view, quite appropriately reminded the Tribunal that it cannot go behind the conviction in the criminal courts and the essential facts on which this is based (HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78]).

26. During the course of the hearing, the applicant did accept that he had been convicted of serious offences, with one incident involving violence which should be viewed as particularly serious as it involved violence against the police in the execution of their lawful duties (clause 13.1.1(1)(c) of Direction 79).

27. It is also relevant that there is a cumulative nature to the applicant’s offences and that the seriousness of the applicant’s offending also increased over time, as reflected in the length of the sentences that he received.

28. In relation to his 2014 traffic offences, the applicant said that he was young and naïve at the time and that he did not know the law in Australia. I note, however, that he was 29 years of age and although he had recently arrived in Australia, he had spent some time in the country.

29. I also take into account the fact that the applicant appeared to disregard the warning given to him after his bridging visa was cancelled as a result of his driving convictions in 2014. When the applicant was granted a further visa in 2015, he signed a set of conditions including that he “must obey the law and not engage in criminal activity”.

30. Although most of the applicant’s offending was related to drug usage and there is a clear link between the applicant’s offending conduct and his homelessness and drug dependency, his offences increased in seriousness over time and involved violence, including violence against public officials in the course of their duties.

31. Although the warning the applicant received did not relate specifically to his drug use, it nevertheless should have served to alert him of the consequences of offending. I also note the remarks of the sentencing Judge when the applicant was convicted of the ‘affray’ and ‘reckless wounding in company’, who noted that whilst the applicant played a lesser role than his co-accused:

    [i]t is important also to remember that the essence of affray is that there is collective responsibility on the guilty for all of the conduct and consequences that go to making up the egregious aspect of the offence in its entirety.

32. Overall, I am of the view that the applicant’s conduct to date involves serious criminality with some crimes involving violence.

    Risk to the Australian community

33. In considering the protection of the Australian community from criminal conduct, the Tribunal must also consider ‘the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct’ (clause 13.1.2 of Direction 79).

34. The applicant’s criminal history shows an increase in the severity of his offending over time. Further, I note the sentencing assessment report completed by a community corrections officer on 6 December 2019 found the applicant to be a “medium” risk of reoffending and said that he was “lacking in remorse” and that he had “no insight” into his offending.

35. It is also relevant that the applicant has consistently failed to meet his bail conditions, has committed 13 offences between 2014 and 2019 and has also breached a good behaviour bond and community corrections order by reoffending. The applicant has also shown a disrespect for the police in the execution of their duties.

36. It is relevant that the applicant appears to have abstained from drug use whilst in detention over the past 15 months and has engaged in available programs to address this drug dependency and any anger management issues. However, he has only been able to complete one drug rehabilitation program given his language barriers and COVID-19, and his new commitment to abstain from drug use has not been tested in a community setting where there is no supervision.

37. At the hearing the applicant did express remorse for his offending and despite some attempt to minimise his involvement, particularly in relation to his conviction for ‘affray’ and ‘reckless wounding in company’, I am satisified that he understands the effect of drug taking and homelessness on his behaviour and that there was some recognition of the effect of his conduct on others. However, the fact that the applicant accepts some of his offences but seeks to minimise his involvement or responsibility, can be seen as adding to the risk that he may reoffend.

38. I accept the evidence of the applicant’s psychologist that the applicant is at a low to moderate risk of reoffending. The applicant’s psychologist in her report notes that the applicant is not inherently anti-social and that he does not suffer from any mental health issues, but that the applicant must abstain from drug use.

39. I note that the applicant has said he plans to enter residential rehabilitation on his release, which is outlined in the applicant’s and his sister’s statement and that the applicant’s sister is assisting him from Canada with contacting rehabilitation programs. Furthermore, the applicant has been offered an opportunity to work and accommodation if he were to be released into the Australian community and that with support for his drug dependency this will likely lower the risk of him reoffending.

40. Having regard to the applicant’s criminal history, together with the evidence outlined above, I find that the applicant is at low to moderate risk of reoffending and that access to appropriate drug rehabilitation programs and support will play a critical role in ensuring that he does not reoffend. In considering the nature and seriousness of the applicant’s criminal conduct and the risk of reoffending, I find this first consideration weighs heavily in favour of non-revocation of the delegate’s decision.

    Best interests of minor children in Australia

41. The applicant has no minor children in Australia as accepted by both parties. Accordingly, this consideration is not relevant in this matter.

    Expectations of the Australian community

42. Clause 13.3.1 of Direction 79 sets out the government’s views as to the expectations of the Australian community.

43. In FYBR v Minister for Home Affairs [2019] FCAFC 185 the Full Federal Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out at paragraph 11.3 of Direction 65, which is analogous to Direction 79.

44. The applicant has been convicted of multiple offences and has failed to abide by Australian law, even whilst on a good behaviour bond. Having regard to the provisions of Direction 79 and the applicant’s numerous offences including offences involving violence, the Australian community would expect that the applicant is not given the privilege of holding an Australian visa.

45. The applicant drew the Tribunal’s attention to the decision of Member Burke in VXKK and Minister for Home Affairs (Migration) [2018] AATA 3268, Deputy President McCabe in Do and Minister for Immigration and Border Protection [2016] AATA 390 and Deputy President Rayment in FTYC and Minister for Immigration and Border Protection [2018] AAT 20. In the circumstances of this case, it is in my view not necessary for me to have regard to those decisions in determining the weight to be given to this particular consideration, as the relevant issues can be dealt with elsewhere.

46. Given the nature of the applicant’s cumulative offences, I give this consideration moderate to substantial weight in favour of non-revocation of the delegate’s decision.

    SECONDARY CONSIDERATIONS

    Nature, strength and duration of ties to the Australian community

47. The applicant has lived in Australia for seven years, having arrived as a 27-year-old to Australia by himself. During this time the applicant has lived in the community for approximately five years, having spent time in custody and immigration detention.

48. The applicant’s family is primarily resident in Iran. He has a sister living in Canada who gave evidence before the Tribunal and who clearly is willing to continue offering him financial and emotional support.

49. The applicant does not appear to have strong emotional or romantic ties to anyone residing in Australia and does not have a partner.

50. He does have a strong connection to his Church group and there was a letter of support from a member of the Church community provided to the Tribunal. The applicant also had a letter from a friend providing a character reference but appears to have lost meaningful contact with many of his early friends and acquaintances in Australia, particularly since his time in detention.

51. The applicant has been offered employment and housing on release and I accept that he is committed to accessing drug and alcohol counselling and rehabilitation. The support he will receive with housing and counselling is likely to assist in his drug rehabilitation and integration as a productive member of the Australian community. This support is important and unlikely to be available to the applicant elsewhere.

52. In considering the strength, nature and duration of ties that the applicant has in the Australian community, I have given this consideration moderate weight in favour of revocation of the delegate’s decision.

    International non-refoulement obligations

53. The applicant has been recognised as a refugee on the basis of his sexuality and his Christian faith, as set out in the decision of the delegate dated 11 September 2017. The applicant was therefore granted a Class XE Subclass 790 Safe Haven Enterprise Visa.

54. The respondent’s representatives said that if the applicant were to be returned to Iran, he would be able to practice Christianity in the same way he had practiced his faith in Australia. They submitted that he would be unable to proselytise Christian faith but there was no evidence of a significant effort to do so in Australia. In this regard, the Department of Foreign Affairs and Trade (DFAT) information is relevant:

    3.38 The activities of recognised Christian communities are closely regulated, to guard against proselytisation. All Christians and Christian churches must be registered with the authorities, and only recognised Christians can attend church…

    DFAT assesses that, while their congregations are monitored and they are subject to restrictions, Christians from recognised churches are permitted to practice their faith. DFAT further assesses that, except from their exclusion from senior government, military, intelligence and judicial positions, recognised Christians who do not engage in proselytisation activities face a low risk of official discrimination.

1. The respondent’s representative also claimed that the applicant may be able to live quietly and without persecution as a homosexual man in Iran. The respondent pointed to country information which indicated that it was possible to live as a homosexual in Iran if it was discreet.

2. The difficulty with the respondent’s argument is that the applicant has already been identified by the authorities in Iran as a homosexual man. Accordingly, I accept the evidence that he may be stopped at the airport and that having come to the attention of the authorities already, he faces a significant risk of harm. This reflects the decision of the delegate dated 11 September 2017, which found the applicant to be owed protection obligations.

3. In this case, I note the Jerusalem Post article dated 26 January 2019 filed by the applicant’s representatives, which shows that gay men are still being hung in Iran and provides an example of a 31-year-old Iranian man who was found guilty of charges in relation to violations of Iran’s anti-gay laws and was publicly hung. The applicant’s representative further provided evidence that in Iran, same-sex relations are criminal, and a man can be executed on the first conviction involving penetration.

4. Although Australia may have an option of returning the applicant to Iran despite his refugee status, this is most unlikely to occur under Australia’s current policy settings. Further, the applicant’s representatives submitted that Iran does not accept the forced return of refugees.

5. If the applicant were not to be returned to Iran because to do so would result in the contravention of Australia’s non-refoulement obligations, he faces the prospect of indefinite detention. The respondent’s representatives said that the Minister had a number of other options, including removal of the applicant to a third country and the grant of a further visa. It was accepted on behalf of the respondent that there was no evidence before the Tribunal of any third party arrangement which may lead to him being able to live in another country. I am satisified that the likelihood of a third country accepting the applicant appears remote. In any event, there may be significant impediments to the applicant being resettled in a third country, which the Tribunal is simply unable to assess at this time.

6. Based on the evidence before me, I find that it would be a contravention of Australia’s international non-refoulement obligations for the applicant to return to Iran. There is the real prospect that the applicant will suffer serious harm on return to his home country. The alternative is that the applicant may face indefinite detention in Australia, which at the very least would seem harsh and punitive, particularly in circumstances where the applicant has already completed his sentence he received in the criminal courts and has now spent further time incarcerated in immigration detention.

7. I therefore give this consideration very heavy weight in favour of revocation of the delegate’s decision to cancel the applicant’s visa.

   Impediments to removal

8. There are very significant impediments to the applicant returning to Iran in relation to his homosexuality and religion. These have been more fully discussed in relation to Australia’s non-refoulement obligations above, but it is relevant that the applicant will be likely to also face discrimination if returned to Iran as a Christian and due to his sexuality. It is also appropriate to consider the applicant’s evidence, which I accept, that his family would not be able to accept his sexuality, at least openly, and that in addition to a well-founded fear of persecution he may find himself ostracised from mainstream society and discriminated against in all areas of life including his work.

9. Furthermore, the applicant said in evidence that he would seek to spread the Christian faith if he went to Iran and that this would also place him in very grave danger. It was said on behalf of the respondent that the applicant had not shown a consistent desire to promote and spread the Christian faith in Australia nor to convert Muslims to Christianity. However, I accept that there were times where the applicant had sought to introduce others to Christianity and that if he were to adopt such a practice in Iran he would be at very significant risk of harm.

10. The applicant does have most of his significant family connections in Iran, including his mother, siblings, uncles, aunts and cousins who could support him to some extent if he were to return. It is likely that he would receive some emotional support from his mother, and his sister gave evidence that she would continue to provide financial support for the applicant, whether he was in Australia or Iran.

11. The applicant has raised no major health issues that would be an impediment to his returning to Iran. The applicant claims to have had a heart attack; however, this is not evident from his medical records. There was some indication he claimed to have suffered from chest pains arising from anxiety in his medical reports. The applicant otherwise claimed he had nil health issues in an interview with custodial officers in 2019. His detention health records suggest he has been treated for asthma and dental problems.

12. Furthermore, the applicant attended school in Iran and has previously been employed in Iran. He said that he would attempt to find work, including with his brother, if he were returned to Iran. The applicant grew up in Iran, he is familiar with the language and culture, and in the same position as other citizens of that country with respect to his ability to access social, medical and/or economic support.

13. Overall, in considering the impediments the applicant would have, particularly in relation to his homosexuality and Christian faith, I give this consideration significant weight in favour of revocation of the delegate’s decision.

    CONCLUSION

14. In the current case before the Tribunal, the applicant’s criminal offending history, his prospects for reoffending and the expectations of the Australian community all weigh heavily against revocation of the delegate’s decision. However, on the other hand, Australia’s non-refoulement obligations and the impediments to his removal weigh strongly in favour of revocation. Further weight is added by the prospect of the applicant facing indefinite detention. It is also, in my opinion, unlikely that any third country is going to accept the applicant in the foreseeable future. This possibility must be weighed against the applicant’s criminal record, the sentences imposed and his personal circumstances.

15. The evidence clearly demonstrates that it is important that the applicant continues to abstain from drug use and engage with available programs and supports. The applicant would appear to have at least some support in the community and has insight into the importance of not engaging in drug use and the enormous consequences that would flow from any reoffending.

16. Overall, I am of the opinion that, in considering all the considerations in Direction 79, the balance weighs in favour of revocation of the delegate’s decision.

    DECISION

17. The reviewable decision made on 17 November 2020, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the applicant’s Class XE Subclass 790 Safe Haven Enterprise Visa, is set aside.

18. In substitution, it is decided that the mandatory cancellation decision of the applicant’s Class XE Subclass 790 Safe Haven Enterprise Visa on 10 February 2020, is revoked.

113.    I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of the Hon. John Pascoe AC CVO, Deputy President.

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

Associate

Dated: 9 February 2021

Date of hearing:	27 and 28 January 2021
Solicitors for the Applicant:	Mr D Pham, Legal Aid
Solicitors for the Respondent:	Mr J Hutton, Australian Government Solicitor