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

[2023] AATA 2624

KQHR and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2624 (17 August 2023)

Division:GENERAL DIVISION

File Number:          2017/7654

Re:KQHR

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Britten-Jones

Date:17 August 2023

Place:Melbourne

The Tribunal sets aside the decision of 21 December 2017 to not revoke the mandatory cancellation decision and substitutes a decision that the cancellation decision of 23 March 2017 is revoked.

......................[sgd]..................................................

Deputy President Britten-Jones

CATCHWORDS

MIGRATION – mandatory cancellation of applicant’s visa - significant history of serious offending – applicant suffered sexual abuse as a ward of the state – applicant is owed non-refoulement obligations and has lived in Australia for 56 years - whether there is ‘another reason’ to revoke the mandatory cancellation decision – the countervailing considerations of ties to Australia and likely indefinite detention outweigh the primary considerations of the expectations and protection of the Australian community - decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth)

CASES

CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124

Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395; [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463; [2021] FCAFC 55

SECONDARY MATERIALS

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)

REASONS FOR DECISION

Deputy President Britten-Jones

17 August 2023

INTRODUCTION

1. This is an application for review of a decision to not revoke the mandatory cancellation of the applicant’s Class BF Transitional (Permanent) visa (the applicant’s visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]

   [1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.

   THE DECISION TO CANCEL THE APPLICANT’S VISA AND SUBSEQUENT PROCEDURAL HISTORY

2. On 23 March 2017 the applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months.

3. On 27 March 2017 the applicant sought revocation of the cancellation decision and made representations in support of revocation.

4. On 21 December 2017 a delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision). On 27 December 2017, the applicant applied to the Tribunal for review of the non-revocation decision. The Tribunal affirmed the non-revocation decision, but the Federal Court quashed the Tribunal’s decision by consent and remitted the matter to the Tribunal for reconsideration. 

5. On 8 March 2021, the Tribunal again affirmed the delegate’s decision, but this affirmation was also quashed by the Federal Court on 12 October 2022. The matter was remitted for reconsideration by the Tribunal and came on for hearing on 14 August 2023.

6. The Tribunal heard evidence from the applicant and his brother.

   LEGISLATIVE FRAMEWORK

7. Under s 501(3A), the Minister 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 paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); 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.

8. The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by sub-s (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[2]

   [2] Section 501(7)(c).

9. Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:

   501CA  Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

   (1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

   (2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:

   (a)would be the reason, or a part of the reason, for making the original decision; and

   (b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

   (3)  As soon as practicable after making the original decision, the Minister must:

   (a)give the person, in the way that the Minister considers appropriate in the circumstances:

   (i)     a written notice that sets out the original decision; and

   (ii)    particulars of the relevant information; and

   (b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

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

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

   (b)the Minister is satisfied:

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

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

10. Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.

    Issues before the Tribunal

11. The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a ‘substantial criminal record’ as defined under s 501(7). Therefore, the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.

12. Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is ‘another reason’ why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which I am required to read, identify, understand and evaluate.[3] Deciding whether or not to be satisfied that ‘another reason’ exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.[4]

    [3] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].

    [4] Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [14].

13. The applicant concedes that he does not pass the character test and that the only issue for the Tribunal is whether there is ‘another reason’ to revoke the cancellation decision having regard to the principles and considerations in Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023) (Direction 99).

    Direction 99

14. The purpose of Direction 99 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.

15. The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 99 as follows:

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

    (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

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

    (6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non­ citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

16. In making a decision under s 501CA(4), 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 strength, nature and duration of ties to Australia;

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

    (e)expectations of the Australian community.

17. In making a decision under s 501CA(4), other considerations must also be taken into account, including (but not limited to):

    (a)legal consequences of the decision;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)impact on Australian business interests.

18. In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[5]

    [5] Direction 99 at 7.

    BACKGROUND

19. The applicant was born in Iran in 1954 and came to Australia with his father and siblings when he was 13 years old. He went to school at a technical college in Victoria and soon developed an interest in becoming a jockey. His father disapproved because he associated horseracing with gambling. The police became involved and it was decided that the applicant would be taken from the care of his father. Only one year after arriving in Australia, he became a ward of the state and was subjected to regular sexual and physical abuse whilst in the care of the state.

20. It was not surprising that, after coming to a foreign country as a child, then being abandoned by his father and sexually abused as a ward of the state, he got himself into trouble as a teenager and an adult. He became addicted to heroin and commenced a life of crime mostly involving robbery and drug possession. His criminal record shows that he has been in and out of prison since 1972. He was last imprisoned in 2010 and was transferred into immigration detention in 2016.

21. In 2017 the applicant was assessed by a clinical psychologist, Ms Laura Anderson, in relation to a compensation claim against the State of Victoria regarding allegations of abuse and neglect whilst he was a ward of the state between 1968 and 1971. She diagnosed him with post-traumatic stress disorder, persistent depressive disorder and substance abuse disorder (in sustained remission). She described his traumatic upbringing and his alleged emotional, physical and sexual abuse at the hands of those responsible for providing him with care and safety. She said that he experienced ‘low mood, anxiety and self-harming/suicidal ideation as he struggled to come to terms with his childhood abuse. He also turned to drugs, seemingly as a maladaptive coping mechanism for dealing with his past trauma, which led to significant forensic involvement.’

22. In 2020, the applicant was assessed at the request of his immigration lawyers by a clinical and forensic psychologist, Mr Jeffrey Cummins who prepared a report dated 17 March 2020. With respect to his childhood sexual abuse, the applicant told Mr Cummins that “I can never take it out of my mind … you can never erase it from your mind – never.”

23. The applicant provided a statement to the Royal Commission into Institutional Responses to Child Sex Abuse and received a payment of $167,000 as compensation. 

    CONSIDERATION

    Protection of the Australian community – 8.1 of Direction 99

24. When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering 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. As required by paragraph 8.1(2) of Direction 99, I give consideration below to:

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

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

    The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 99

25. The applicant was first convicted in the Children’s Court for a house break and stealing in 1970. He continued to offend for the next 40 years and was convicted of in excess of 150 offences. He received a sentence of 12 years imprisonment for armed robbery in 1986 and then continued to offend soon upon his release. On 3 November 2010 he broke into a residential home armed with a knife in relation to which he later pleaded guilty to aggravated burglary, false imprisonment and armed robbery. On appeal he received a total effective sentence of six years and six months imprisonment and was described as follows:

    [29] The judge’s description of the appellants prior convictions as “appalling” was apt. He has multiple priors for burglary, theft, obtaining property by deception, handling stolen goods, going equipped to steal, dealing with proceeds of crime, armed robbery, robbery in company, assault, weapons and firearms offences, and drug offences. His history demonstrates that he has been little deterred by previous sentences passed upon him. He has breached parole, failed to answer bail, and has breached community-based orders and suspended sentences of imprisonment. Indeed, he was on a suspended sentence for burglary at the time he committed the present offences. He is, it would appear, incorrigible.

26. His victims included elderly homeowners who were threatened with weapons. The Australian government views such crimes very seriously because they include crimes of a violent nature against women and the vulnerable. The frequency and cumulative effect of his repeated offending over a significant period of time leads me to conclude that his criminal conduct has been very serious. The seriousness of the offending is reflected in numerous lengthy sentences of imprisonment. The applicant was formally warned in writing about the consequences of further offending in terms of his migration status. Despite this formal warning and other oral warnings, he continued to offend. This conduct is viewed very seriously by the Australian government and is a significant factor in terms of whether I am satisfied that there is ‘another reason’ to set aside the non-revocation decision.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 99

27. In considering the need to protect the Australian community from harm, I 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 repeated, is so serious that any risk that it may be repeated may be unacceptable.[6] As required by paragraph 8.1.2(2) of Direction 99, I also 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).

    [6] Direction 99 at 8.1.2(1).

28. In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[7] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.

    [7] (2014) 225 FCR 424; [2014] FCA 673.

    Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 99

29. If the applicant were to engage in further similar criminal offending, then the nature of the harm would be very serious because some offences involved weapons and unsuspecting victims of a vulnerable nature who lost property and were impacted psychologically by the threatening behaviour.

    Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 99

1. The applicant contends that there is little risk of re-offending because he has addressed the main drivers of his previous offending, namely impecuniosity, homelessness and drug addiction. I find that the applicant has abstained from drug use for many years and he is now more financially secure because of his compensation payment. He has arranged stable accommodation with his brother in Darwin. He has spent the last 12 years in prison or detention giving him time to reflect and he says that he wants to turn his life around. He is 69 years old and has health issues. Whilst in prison he engaged successfully in rehabilitative courses directed towards addressing the key drivers of his criminal offending, namely, anger and violence and drug addiction. He has expressed genuine remorse for his criminal behaviour in his written and oral statements to the Tribunal. He understands the harm he caused to his victims. He has stayed out of trouble whilst in prison and in detention. These are all positive indications that support a finding that he is a low risk of re-offending.

2. In February and March 2020 the applicant was assessed by a clinical and forensic psychologist, Mr Jeffrey Cummins. He said that the applicant’s cognitive profile and clinical history are suggestive of a likely mild to moderate alcohol related brain injury. In his report dated 17 March 2020 he assessed the applicant as a moderate risk of further violence but he assumed, incorrectly, that he had not taken a violence intervention program. In fact, the applicant completed a Moderate Intensity Violence Intervention Program in June 2014 which included modules relating to motivation, life pathways, offence process, pro-social thinking, anger and violence, victim empathy and self-management plan. 

3. The respondent relied upon Mr Cummins’ opinion that the applicant had no insight into the notion that he would almost certainly require some form of supervised accommodation if he is released back into the community. The respondent submitted that, absent appropriate plans for supervision, the applicant was a higher risk of relapsing into drug use or becoming homeless which may lead to reoffending. I take this into account but note that the applicant’s brother, with whom he will be living, said that he would refer his brother to his family doctor and ensure that his health condition is adequately treated and monitored. I also take into account that the applicant made very positive comments about the effect of his current treatment for his heroin addiction which involves monthly injections of buvidal.  It is apparent that the applicant has every intention to keep up this treatment if released and I am confident that he will remain compliant with this program of medication. Mr Cummins concluded by expressing his ‘overall opinion’ that the applicant’s risk of reoffending was already trending towards low. I give significant weight to this independent and authoritative opinion.

4. I accept as genuine the evidence given by the applicant in his 20 June 2023 statement that:

   [5] I would not do any more offending if I left detention now because I have money for my compensation payment that I could support myself with. Furthermore, if I was released from detention, I would be living with my brother, Frederick, in Darwin. He is happy to support me upon my release. … Due to my old age and health problems, I will not be able to work on my release from detention. I would be mainly spending time with my brother in Darwin, in a new environment and he would ensure that I stay grounded and not associate myself with the wrong people and would look after me and my health to ensure that I continue to be on the Biodone program.

5. Having heard the applicant and his brother give evidence, and giving appropriate weight to Mr Cummins’ opinion, it is my view that the applicant is a low risk of reoffending.

   Conclusion as to protection of the Australian community – 8.1 of Direction 99

6. The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[8] The applicant has committed serious crimes. He has engaged in appropriate rehabilitation by addressing his anger and drug abuse, and he has the added benefit of his improved financial position and stability due to the offer of accommodation and support from his brother. There remains a risk of re-offending, albeit low, and therefore, the protection of the Australian community is a factor that weighs against the applicant, but I do not give it significant weight.

   [8] Direction 99 at 8.1(1).

   Family Violence – 8.2 of Direction 99

7. The applicant has not engaged in family violence so this factor is neutral in my determination as to whether there is another reason to set aside the non-revocation decision.

   Strength, Nature and Duration of Ties to Australia – 8.3 of Direction 99

8. This primary consideration provides at paragraph 8.3 of Direction 99:

   (1)  Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

   (2)  In considering a non-citizen's ties to Australia, decision-makers should give more weight to a non-citizen's ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

   (3)  The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

   (4)  Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

   (a)the length of time the non-citizen has resided in the Australian community, noting that:

   i.considerable weight should be given to the fact that a non­ citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and

   ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

   iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non­ citizen began offending soon after arriving in Australia.

9. The immediate family members of the applicant who live in Australia are his brother and sister and his three adult children. There was very little evidence about the impact of non-revocation on his family members. The applicant has not seen his children since 2009 and last spoke to his daughter four or five years ago. There was a period of about 10 years of relative stability from 1995 when he lived with his ex-partner and had three children.  However, there is no evidence that they wish to re-engage with him. He said he wants to see them if released and to take them out to dinner and that he would fly them up to Darwin if they wanted. The applicant’s brother gave written and oral evidence to the Tribunal in support of the applicant’s release and said he would be disappointed if he were not successful with his application.

10. Paragraph 8.3(4)(a)(i) of Direction 99 requires me to have regard to the length of time the applicant has resided in the Australian community noting that considerable weight should be given to the fact that he has resided in Australia during and since his formative years, regardless of when his offending commenced and the level of that offending. Accordingly, I give considerable weight to the applicant being in Australia since he was 13 years old including his formative years. The applicant has been in Australia for 56 years and his ties to Australia are greater than his ties to his homeland of Iran. He was a ward of the state from 1968 to 1971 where he was sexually and physically abused. That period of abuse occurred during his formative years and I have no doubt that it was a most significant contributor to what followed, namely a life of crime, drug abuse and homelessness. It is a sad story. It is not surprising that the applicant only had short periods of employment and that he has made very little other positive contributions to the Australian community. 

11. In conclusion with respect to ties to Australia, whilst the impact on family members is not significant, I place significant weight on the fact that the applicant has spent the majority of his life in Australia from and including those formative years which had such a detrimental impact on his future. This is a factor that weighs very heavily in favour of revocation of the cancellation decision.

    Best interests of minor children – 8.4 of Direction 99

12. There are no minor children that come within this consideration so this factor is neutral in my determination as to whether there is another reason to set aside the non-revocation decision.

    Expectations of the Australian community – 8.5 of Direction 99

13. 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 remain in Australia.[9]

    [9] Direction 99 at 8.5(1).

14. In addition, visa refusal may be appropriate simply because the nature of the character concerns is such that the Australian community would expect that the person should not continue to hold a visa.[10] In particular, the Australian community expects that the Australian government should cancel a visa of a person who committed a serious crime against a woman or the elderly.[11]

    [10] Direction 99 at 8.5(2).

    [11] Direction 99 at 8.5(2)(c).

15. Paragraph 8.5(4) of Direction 99 provides that, as a decision-maker, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed therein, without independently assessing the community’s expectations in the particular case. It is not for me, as a decision maker, to make my own assessment of community expectations. However, in the weighing up exercise by which I evaluate whether to exercise my discretion, I am still entitled, and indeed should where appropriate, give weight to the circumstances particular to the applicant. In this regard, the following words of Stewart J in FYBR v Minister for Home Affairs[12] remain apposite to the expectations of the Australian community under Direction 99:

    [97] … The community thus expects that it will be necessary in every case to assess the circumstances particular to the visa applicant in question in order to reach an evaluative assessment of “appropriateness”. That assessment is not an assessment of what the Australian community expects in the particular case. The Australian community expects people to obey the law, and if they do not (or there is a risk that they will not) then that is relevant to whether or not they will be granted a visa, and in some cases it may be appropriate that they will be refused a visa because of their disobedience (or the risk of their disobedience). Direction 65 does not ascribe to the Australian community a relevant expectation with regard to the outcome in the particular case. That is a matter for the decision-maker.

    …

    [102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be.

    [12] (2019) 272 FCR 454; [2019] FCAFC 185.

16. In considering the weight to be attached to the expectations of the Australian community as part of the evaluative exercise in determining whether there is another reason to revoke the cancellation decision, I take into account the sexual, physical and emotional abuse the applicant suffered as a ward of the state during his most formative years. As found by the clinical psychologist, Ms Anderson, those traumatic experiences harmed his mental health and caused him to turn to drugs as a coping mechanism. The applicant’s drug addiction was a significant driver of his criminal behaviour. It follows that the applicant’s childhood experience as a ward of the state was a material contributor to his life of crime as an adult. In this regard, I accept the applicant’s statement in his 5 March 2020 witness statement:

    [41] If I hadn’t been abused as a kid I don’t think I ever would have been in jail. I was a smart kid and did well in school in Iran. My dad was abusive and then I was abused by the priests in Turana and Morning Star. I think that this is the main reason I started using drugs and got involved in criminal activity. All of my criminal convictions were related to drug abuse and homelessness.

17. The applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. His criminal conduct was very serious and I find that the Australian community expects that the Australian government should cancel the applicant’s visa. However, as will be seen from my conclusion below as to whether to revoke the cancellation decision, I give this consideration less weight because his criminal conduct must be seen in the context of the abuse suffered by the applicant as a ward of the state.

    Other Considerations

18. In deciding whether there is ‘another reason’ to revoke the cancellation of the applicant’s visa, I must also take into account the ‘other considerations’ listed in Direction 99, but these are not exhaustive.[13]

    [13] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.

    Legal Consequences of Decision – 9.1 of Direction 99

19. This other consideration provides at paragraph 9.1 of Direction 99:

    (1)  Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) 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 non­citizen.

    (2)  A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.

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

20. The applicant has articulated the prospect of Australia breaching its non-refoulement obligations as a reason for revoking the cancellation decision. This is in addition to, and distinct from, his underlying claimed fear of harm if removed to Iran.

21. I note that the risks of harm that the applicant will face if removed are relevant to non-refoulement obligations and the extent of impediments if removed.

22. The applicant has not applied for a protection visa, but it is open to him to do so.  Consequently, the applicant is not the subject of a protection finding (as defined in s 197C) and paragraph 9.1.2 of Direction 99 is relevant:

    9.1.2 Non-citizens not covered by a protection finding

    (1)Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.

    (2)However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person's representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.

    (3)Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, 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. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non­revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non­ citizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.

23. The respondent accepts, and I find, that the applicant is a refugee within the meaning of Article 1A of the Convention Relating to the Status of Refugees (Refugees Convention) and that Australia owes him non-refoulement obligations. 

24. The decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs (Plaintiff M1/2021)[14] addressed the issue of decision-makers’ approach to non-refoulement:

    [21] It is in that context that the specific issue in this case is to be addressed — whether a decision-maker considering revocation under s 501CA(4) is required to determine whether non-refoulement obligations are owed to the former visa holder where the person makes representations which raise a potential breach of those obligations but the person remains free to apply for a protection visa. As has been stated, the dispute between the parties was not if, but how, such representations should be considered by the decision-maker.

    Decision-makers’ approach to representations

    [22] Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason“ why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.

    … [24] Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. …

    Decision-makers’ approach to non-refoulement

    … [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 s 501CA(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.

    (Footnotes removed)

    [14] [2022] HCA 17.

1. It follows that I am required to read, identify, understand and evaluate the representations made by the applicant. Those representations included a claim of non-refoulement under domestic law. The High Court said that such a claim may be considered by the decision-maker, but that one available outcome is to defer assessment of whether the applicant is owed those non-refoulement obligations.[15] The High Court’s statement is now embodied in paragraph 9.1.2(2) of Direction 99 which says that where it is open to an applicant to make a protection visa application:

   a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person.

   [15] Ibid at [30].

2. In the circumstance of the respondent accepting that non-refoulement obligations are owed, I will not defer assessment of non-refoulement obligations but rather make a finding that they are owed. In addition, I will consider the representations made by the applicant as required by Plaintiff M1/2021.[16]

   [16] Ibid at [23].

3. The applicant has claimed that he will be at risk of harm if returned to Iran because he is an Assyrian Christian and a person with evident religious tattoos and a history of drug offending. The country information relating to Iran strongly supports the contention of persecution and harm suffered by persons with these characteristics.

4. In considering the weight to be given to my finding of a risk of harm in Iran and being owed non-refoulement obligations, I find that based on the current country information, the applicant would not be accepted by Iran as an involuntary returnee and that therefore he would not be returned to Iran. I am mindful, as required by paragraph 9.1(1) of Direction 99, that the applicant, as an unlawful citizen, would be liable to removal from Australia but this only applies where it would be ‘reasonably practicable’ to do so. Removal to Iran is not reasonably practicable for the applicant under the current policy of Iran. It follows that the consequence of a decision refusing this application would be further detention pending any application the applicant may make for a protection visa. Consequently, I would give little weight to risk of harm and non-refoulement obligations, but instead give significant weight to the prospect of further detention, which is the likely consequence of any decision to not revoke the cancellation decision. 

5. I note that if the visa cancellation is not revoked, the applicant may remain in detention whilst any protection visa application is considered or while the Minister considers the possibility of re-settlement or the exercise of a personal discretion in favour of the applicant. There is no evidence before me suggesting that re-settlement or the exercise of a personal discretion would be considered. The applicant gave oral evidence that since he has been in detention he has become ‘drained’ from which I infer he means that his mental health has deteriorated. In his witness statement dated 20 June 2023, the applicant referred to his deteriorating health and made particular mention of his diabetes, high blood pressure, heart condition and problems with his gallbladder which led to its removal by surgery earlier this year. There is little doubt that ongoing detention would adversely impact the health of the applicant. In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Kenny and Mortimer JJ considered the impact of further detention which is apposite to the applicant:[17]

   “… The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end.”

   [17] [2021] FCAFC 55 at [132].

6. I consider that further detention will be seriously detrimental to the health and wellbeing of the applicant and I give this factor very significant weight in favour of the cancellation decision being revoked.

   Extent of impediments if removed – 9.2 of Direction 99

7. Direction 99 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to Iran in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

   (a)the applicant’s age and health;

   (b)whether there are substantial language or cultural barriers; and

   (c)any social, medical and/or economic support available to him in that country.

8. The applicant is a 69 year old man who has physical and mental health issues. His mental health ailments include post-traumatic stress disorder, persistent depressive disorder and substance abuse disorder (in sustained remission). Mr Cummins said in his report that his cognitive profile and clinical history are suggestive of a likely mild to moderate alcohol related brain injury. Further, he said he is most probably suffering from symptoms of age related dementia and possibly from Alzheimer’s disease and a deterioration of his cognitive functioning as a direct result of his chronic usage of heroin and possibly alcohol. I note the clinical record from International Health and Medical Services (IHMS) dated 29 November 2019 in which a psychiatrist noted ‘No evidence of mental illness’, but in light of the more comprehensive reports from Ms Anderson and Mr Cummins, I place no weight on that record.

9. The applicant also suffers from diabetes and a heart condition, having had triple bypass surgery. He has blocked arteries and congestive heart failure. A report from IHMS dated 28 October 2022 lists further medical conditions, numerous medications and ongoing treatments including opioid replacement therapy.

10. These health issues would create a significant impediment if he were removed to Iran where he would likely not receive adequate treatment and may face active discrimination due to his religion and background.

11. There are very significant cultural barriers due to the applicant’s religion and ethnic identity which, as set out earlier in these reasons, place him at real risk of harm in Iran. Not having returned to Iran in more than 56 years, the applicant has forgotten the language and has no family or friends in Iran to support him. Consequently, he would be less likely to have adequate access to social, medical and economic support if he were returned to Iran.

12. The extent of these impediments are very significant but I give them less weight because it is unlikely that the applicant will be removed to Iran because of their policy of not accepting involuntary returnees.

    Impact on victims – 9.3 of Direction 99

13. There was no evidence of impact on victims within the meaning of the Direction. This factor is neutral.

    Impact on Australian business interests – 9.4 of Direction 99

14. There was no evidence of impact on Australian business interests within the meaning of the Direction. This factor is neutral.

    CONCLUSION AS TO WHETHER TO REVOKE THE CANCELLATION OF THE VISA

15. I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is ‘another reason’ to revoke the cancellation decision.

16. The primary considerations of the protection and expectations of the Australian community weigh against revoking the cancellation decision. The applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community particularly because some of his robberies with weapons caused real fear to the elderly and women in their homes. His criminal conduct was protracted and very serious, but the nature of the offending was primarily related to property or his drug use. In considering whether to give determinative weight to the protection and expectations of the Australian community, I take into account the traumatic effect of the applicant’s sexual and physical abuse at the hands of the state which was a material cause of his subsequent offending. The fact that the primary considerations of the protection and expectations of the Australian community weigh against revoking the cancellation decision does not mean that I must not revoke the cancellation decision. Primary considerations should generally be given greater weight than the other considerations,[18] but not always, and in this particular case I consider that these two primary considerations are not determinative and should be given less weight than the countervailing considerations set out below.

    [18] Direction 99 at 7(2).

17. The most significant countervailing considerations are the duration of the applicant’s ties to Australia and the prospect of indefinite detention if the cancellation of his visa is not revoked. The applicant has lived in Australia for 56 years and has never returned to Iran after arriving in Australia as a 13 year old with his father and siblings. In accordance with the primary consideration of the strength, nature and duration of ties to Australia and in particular paragraph 8.3(4)(a)(i) of Direction 99, I have given considerable weight to the length of time he has resided in Australia. The applicant is now 69 years old and has very significant physical and mental health issues. Prior to his imprisonment in 2010, the applicant was already receiving a disability support pension because of his poor health and physical impairments, which have since deteriorated. If released, he will likely have the benefit of a disability support pension and his compensation payment plus he will have the support of his brother, all of which will provide a stable and financially secure environment. In these circumstances he is very unlikely to relapse into drug use or to reoffend. The applicant’s poor health has further deteriorated in detention and would only get worse if further detained.  The applicant has been in detention since 2016 and I consider that the prospect of further detention for an indefinite period is a factor that weighs very heavily in favour of revoking the cancellation decision.  He has been in prison or detention since 2010 and, as the applicant said “enough is enough”. 

18. The other less significant considerations are risk of harm if returned, non-refoulement obligations and the extent of impediments if removed. I give very little weight to these other considerations because the applicant is unlikely to be removed to Iran in the current circumstances.

19. I conclude that the primary considerations of the protection and expectations of the Australian community are outweighed by the primary consideration of ties to Australia and the other consideration of indefinite detention. It follows that I am satisfied that there is another reason to revoke the cancellation decision.

20. The decision of the Tribunal is to set aside the decision made on 21 December 2017 to not revoke the cancellation decision and to substitute a decision that the cancellation decision is revoked.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

............................[sgd]............................................

Associate

Dated: 17 August 2023

Date of hearing:	14 August 2023
Date final submissions received:	7 August 2023
Counsel for the Applicant:	Bryn Overend
Solicitors for the Applicant:	WLW Migration Lawyers
Counsel for the Respondent:	Kylie McInnes
Solicitors for the Respondent:	Sparke Helmore