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

KQHR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 795 (8 April 2021)
Division:GENERAL DIVISION
File Number:2017/7654
Re:KQHR
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:8 April 2021
Place:Melbourne

The Tribunal affirms the decision under review.
.......................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – remittal from Federal Court of Australia – applicant is Iranian citizen – mandatory cancellation of visa – whether mandatory cancellation should be revoked – Direction No. 79 – significant history of offending including violent offending – primary considerations – protection of the Australian community – best interests of minor children in Australia – expectations of the Australian community – other considerations – non-refoulement obligations – ties with Australia – extent of impediments if removed – applicant previously refused protection visa – country of citizenship’s policy on involuntary returnees – special consideration of applicant’s prospects in relation to detention if visa not restored – decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975, ss 19D, 33A, 35.
Migration Act 1958, ss 14, 48, 48A, 48B, 189, 195A, 196, 197C, 197AB, 417, 499, 500, 501, 501CA
Cases
AZABF v Minister for Immigration and Border Protection (2015) 235 FCR 150
Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61
DFTD v Minister for Home Affairs [2020] FCA 859
DHM16 v Minister for Immigration and Border Protection [2017] FCA 448
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Minister for Home Affairs v Omar [2019] FCAFC 188
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1
Secondary Materials
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (as later amended)
Department of Home Affairs – COVID-19 and the border – Health and vaccine (covid-19.homeaffairs.gov.au)(Accessed 7 April 2021)
Migration Act 1958 – direction under s 499 – Direction No. 79 – visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 28 February 2019)
Migration Act 1958 – direction under s 499 – Direction No. 84 – Consideration of protection visa applications (signed 24 June 2019, commenced 25 June 2019)
The Concise Oxford Dictionary of Current English (Fourth Ed.); Oxford University Press (Oxford)(1960)
REASONS FOR DECISION
Senior Member D. J. Morris
8 April 2021
PROCEDURAL HISTORY

On 22 February 2018 Deputy President Forgie made an order under section 35 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) prohibiting the publication of the name of the Applicant in these proceedings. He was assigned the anonym ‘KQHR’. Other details which may tend to identify him will be anonymised in these reasons.
KQHR was born in 1954 and is now aged 66. He is a citizen of the Islamic Republic of Iran. He arrived in Australia in 1967, aged 13, accompanied by his father and siblings. In 1994 KQHR was granted a Class BF Transitional (Permanent) visa, which he held until it was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (‘the Act’) on 23 March 2017 on the basis that the delegate of the Respondent was satisfied that KQHR did not pass the character test by operation of sections 501(6)(a) and 501(7)(c) of the Act and that he was, at the date of cancellation of the visa, serving a sentence of full-time imprisonment.
On 27 March 2017 KQHR requested revocation of the cancellation of his visa and on 21 December 2017 a different delegate of the Respondent decided under section 501CA of the Act not to revoke the visa cancellation. The Applicant sought a review of the decision by this Tribunal.
On 7 March 2018 KQHR lodged a notice of withdrawal of his application for review. On 15 March 2018, the date 84 days after he had been notified of the delegate’s decision, KQHR applied for reinstatement of his application. That day Deputy President Forgie convened a hearing. She reinstated KQHR’s application for review, heard submissions, and, at the end of the hearing, affirmed the delegate’s decision. The Deputy President advised the parties she would provide written reasons, which she promptly did.
KQHR applied to the Federal Court of Australia for judicial review of the Deputy President’s decision. On 13 May 2019 a Judge of that Court made orders by consent quashing the Tribunal’s decision for a failure of jurisdiction and remitting the matter for consideration by the Tribunal afresh.
The hearing, on remittal, was held on 7 and 8 May 2020 before the Tribunal (differently constituted). The learned Member reserved his decision. Subsequent to the hearing, the learned Member convened a directions hearing and advised parties that his statutory term as a Member of the Tribunal was shortly to conclude and that KQHR’s matter would be reconstituted for decision. On 15 October 2020 the matter was reconstituted to me by the President of the Tribunal under section 19D(2)(a)(ii) of the AAT Act. l then convened a directions hearing to give the parties the opportunity to make any further relevant submissions. Both parties notified the Tribunal on 29 October 2020 that they did not wish to make further submissions and were content for the matter to be decided on the material already before the Tribunal, so the directions hearing was vacated.
The Tribunal has proceeded to consider this matter and make a decision and publish reasons for that decision. Apart from the documents that were lodged by parties for the hearing, pursuant to section 19D(4) of the AAT Act, the Tribunal had regard for an official transcript of the hearing, produced by the contracted transcript producers of the Tribunal, and the evidence submitted by parties and admitted at the hearing by the Tribunal.
At the hearing on 7 and 8 May 2020 the Applicant was represented by Mr Angel Aleksov of counsel, instructed by WLW Migration Lawyers. The Respondent was represented by Mr J. W. G. Grant of counsel, instructed by Sparke Helmore Lawyers. KQHR gave evidence and was cross-examined. Other witnesses who gave evidence were Mr Jeffrey Cummins, clinical psychologist, and the Applicant’s brother, who will be called Mr ‘AB’.
The Applicant lodged a Statement of Facts, Issues and Contentions (‘ASFIC’) dated 17 March 2020. The Respondent lodged a Statement of Facts, Issues and Contentions (‘RSFIC’) dated 2 April 2020. The Applicant also lodged a document titled ‘Applicant’s Further Statement on Protection Obligations’ dated 4 May 2020.
The Tribunal admitted the following documents into evidence at the hearing:
·Document titled ‘Country Information Annexure’ to the ASFIC (Exhibit A1);
·Report of Mr Jeffrey Cummins, clinical and forensic psychologist, dated 17 March 2020 (Exhibit A2);
·International Health and Medical Services (IHMS) medical records (Exhibit A3);
·Witness statement of KQHR, dated 5 March 2020 (Exhibit A4);
·Witness statement of Mr AB, dated 13 March 2020 (Exhibit A5);
·Report by Associate Professor Catherine Cherry, infectious diseases physician, dated 7 April 2020 (Exhibit A6);
·PAM Policy document, downloaded on 27 April 2020 (Exhibit A7);
·Report on coronavirus and detainees in the UK by Professor Richard Croker, dated 17 March 2020 (Exhibit A8);
·WHO report titled ‘Preparedness, prevention and control of COVID-19 in prisons and other places of detention – interim guidance’, dated 15 March 2020 (Exhibit A9);
·Department of Health document (Exhibit A10);
·Andrew and Renata Kalder Centre for International Refugee Law, UNSW, document dated 12 December 2019 on the costs of detention (Exhibit A11);
·Asylum Seeker Resource Centre document titled ‘At what cost? The human and economic cost of Australia’s offshore detention policies’, dated 2019 (Exhibit A12);
·Copy of Direction No. 79 made under s 499 of the Act (Exhibit A13);
·Deed of Release between KQHR and a Religious Order, dated 19 June 2018 (Exhibit A14);
·Respondent’s bundle of documents (‘RBD’)(Exhibit R1);
·DFAT Country Information Report Iran, 14 April 2020 (Exhibit R2);
·Department of Home Affairs document titled ‘COVID-19 Management in Immigration Detention Facilities version 2.2’ (Exhibit R3);
·SERCO document titled ‘Coronavirus COVID-19 Outbreak Management Plan for Immigration Detention Facilities’, dated 14 April 2020 (Exhibit R4);
·Respondent’s supplementary bundle of documents (Exhibit R5);
·Sentencing remarks of Judge Chettle of the Country Court of Victoria in 30 May 2012 (Exhibit R6).
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act is a mandatory cancellation power. It provides that the Minister, or the Minister’s delegate, must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test and under section 501(3A)(b) of the Act 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.
A decision-maker may (under section 501CA(4) of the Act) revoke the mandatory cancellation of a visa if the person whose visa was cancelled makes representations within the relevant time period, and the decision-maker determines that the person passes the ‘character test,’ or there is another reason why the mandatory cancellation should be revoked, as provided for under s 501CA(4)(b)(ii) of the Act.
If I find that KQHR does not pass the character test, the sole issue before the Tribunal then becomes whether there is another reason why the original decision to cancel his visa should be revoked. In undertaking this task, the Tribunal examines the factors for and against revoking the cancellation. If the Tribunal is satisfied that the cancellation should be revoked, the Minister must act on that view and reinstate the Applicant’s visa (see North ACJ in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, 345, at [38]).
Evidence in relation to the character test
Before the Tribunal (Exhibit R1, pp 160 to 172) was a Victorian Criminal History Report in relation to KQHR. It records two appearances before the Children’s Court in 1970 to which, because of the age of the Applicant at the time, the Tribunal does not give significant weight. The report then records KQHR’s first appearance as an adult before the Magistrates’ Court in December 1971 for the offence of being armed with an offensive weapon or instrument.
In 1972 he was before the Court on three occasions. On the first occasion he was convicted of the offence of Attempted False Pretences and fined $50, in default 10 days’ imprisonment. Two months later, for the offences of House break and steal (two counts), KQHR received his first custodial sentences, for 18 months (concurrent), on each count. He was to serve a minimum of 12 months. Later that year he was again before the Court and received six months (to be served consecutively) on two counts of Assault occasioning actual bodily harm, and also fined $200.
In September 1974 he was convicted of the offences of Shorten barrel to less than 16 inches and Felon in possession of firearm, and received a nine months prison sentence. The following month he was convicted of Breach of Parole (adult), and received a further prison sentence of seven months and 28 days.
There was a break in offending, but in 1977 KQHR was convicted of the offence of Sell heroin and fined $400. In 1978 he was convicted of the offence of Armed with offensive weapon or instrument and sentenced to 14 days’ imprisonment.
Later in 1978 KQHR was convicted of six counts of Robbery in Company, and sentenced to a total of seven years in gaol. Four months later he was convicted of 31 counts of Burglary, two counts of Attempted Burglary and the offence of Handle/Receive/Retention of stolen goods. He was sentenced to a total period of imprisonment of six years and nine months, to serve a minimum of four years.
In 1979 KQHR was convicted of two counts of Armed Robbery, Robbery, Theft of motor vehicle used in commission of a felony. He was sentenced to an aggregate sentence of eight years, five years of which was concurrent with the sentence he was serving. He was paroled in September 1985.
In January 1986, KQHR was convicted of the three counts of Burglary, three counts of Theft, and one count of Assault with weapon. He was sentenced to a total term of imprisonment of three months and six days.
Later in 1986 he was convicted of Breach of Parole (Adult), and the offence of Armed Robbery, for which he was sentenced to 12 years’ in prison, to serve a minimum of nine years. His firearm was forfeited.
In 1991 KQHR was convicted of the offences of Possess heroin and Possess restricted substance, and sentenced to five months’ imprisonment, concurrent with the sentence being served, and fined $1,000.
In early 1993 he was convicted of the offences of Burglary, and sentenced to nine months’ imprisonment, six months of which was suspended for 24 months. He was also convicted of two counts of Theft, and sentenced to three months’ imprisonment on each charge, to be served concurrently. He was further convicted of Handle/Receive/Retention of stolen goods, and given a Community Based Order (‘CBO’) for 12 months to perform 150 hours of unpaid community work.
In mid-1993 he was convicted of the offence of Burglary, and sentenced to four months’ imprisonment. On the same day, KQHR was convicted of the offences of Theft and Theft of a motor vehicle, and sentenced to two months’ imprisonment on each charge, to be served concurrently. Later in 1993 KQHR was convicted of a breach of the CBO and sentenced to six months’ imprisonment, concurrent with the sentence being served.
In 1994 KQHR was convicted of the offences of two counts of Unlawful Assault, one count of Assault by Kicking, One count of Assault in Company, and three counts of Unlawful Possession. All the charges were adjourned.
In 1995 he was convicted of the offence of Burglary, and sentenced to four months’ imprisonment.
In 1996 KQHR was convicted of the offences of Theft, three counts of Obtain Property by Deception, and six counts of Attempt to Obtain Property by Deception. He was sentenced to five months’ imprisonment on each charge, suspended for two years.
In 1998, KQHR was convicted of the offences of Theft from shop (shopsteal), two counts of Burglary, 2 counts of Theft, Obtain Property by Deception, Unlawfully on premises/precinct, Go equipped to steal/cheat and Possess a dangerous article. He was placed on a CBO for 12 months. The following month, he was convicted of the offences of Possess cannabis, Use cannabis, Possess regulated weapon and Travel without valid ticket. All charges were adjourned, and he was ordered to forfeit drugs and knives.
In 2000 KQHR was convicted of the offence of Carry Regulated Weapon and fined, with a forfeiture order made by consent to seize and destroy property.
In 2001, the Applicant was convicted of the offence of Theft from shop (shopsteal) and fined $100. He was also convicted of the offence of Possess Controlled Weapon without Excuse, and fined, and an order made to forfeit and destroy a pocketknife.
In 2003 KQHR was convicted of two counts of the offences of Drunk in a public place, Assault Police, and Use threatening words in a public place. The charges were adjourned, and the Court made certain orders in relation to treatment and forfeiture of items.
In mid-2006 KQHR was convicted of three counts of Burglary and three counts of Theft, and sentenced to an aggregate prison term of six months. The Court noted that the offender had a heart condition and was on a methadone programme.
The following month, he was convicted of the offences of Burglary and Theft, and sentenced to an aggregated term of five months’ imprisonment, concurrent with sentences already being served. At the end of the year, KQHR was back before the Court and convicted of fresh counts of Burglary and Theft, and sentenced to six months’ imprisonment, wholly suspended for 12 months. In 2008 the suspended sentence was wholly restored.
In 2008 KQHR was convicted of seven counts of Burglary, nine counts of Theft, Go equipped to steal/cheat, Attempt to commit indictable offence, Fail to answer bail, two counts of Deal in property suspected proceeds of crime, Possess controlled weapon without excuse, Possess a dangerous article, and Theft. He received a total aggregate sentence of 18 months’ imprisonment with a non-parole period of 12 months.
In late 2009, KQHR was convicted of the offences of Enter building with Intent to Steal, Theft and Theft from motor vehicle. He was given an aggregate sentence of four months’ imprisonment, wholly suspended and given an order to be assessed for drug and alcohol addiction and medical, psychological or psychiatric assessment as directed. The record shows that KQHR requested that he be assessed for possible Acquired Brain Injury (‘ABI’).
In 2010 the charge of Possess cannabis was proven against KQHR without conviction and he was ordered to forfeit drugs and instruments.
In 2012 KQHR was convicted of the offences of Burglary and Theft and sentenced to a total of 12 months’ imprisonment.
In 2013 KQHR was convicted of the offences of Armed Robbery, Aggravated Burglary with offensive weapon, False Imprisonment (Common Law) and a breach of the suspended sentence relating to the earlier offences of Enter building with Intent to Steal and Theft. The total aggregated sentence imposed was six years and six months, with a non-parole period of four years and six months.
Finding in relation to character test
On the evidence before me, I am satisfied that the Applicant has been sentenced to a term of full-time imprisonment for a period of 12 months or more and therefore has a ‘substantial criminal record’ as that term is described in the Act. I note that both parties conceded in written submissions, and reiterated at the hearing, that it was their submission that KQHR did not pass the character test set out in the Act. I find that KQHR does not pass the character test under section 501(3A)(a) of the Act.
The remaining task before the Tribunal is to decide whether there is ‘another reason’ why the mandatory cancellation of KQHR’s visa should be revoked.
Direction made under s 499 of Act – Direction No. 79
Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The relevant direction in this matter is Direction No. 79 (‘the Direction’). Under s 499(2A) of the Act, the Tribunal must comply with the Direction in considering this matter. Paragraph 6.1 of the Direction states, in part:
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

The Direction has the following principles at paragraph 6.3:
(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 expectation that such people should be allowed to come to, or remain permanently in, Australia.
(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.
In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations’. The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community’. Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed’.
The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations in coming to its decision.
SUBMISSIONS FOR THE APPLICANT
The ASFIC conceded that KQHR failed the statutory character test in the Act but argued that the evidence supported a conclusion that the Applicant is not an unacceptable risk of re-offending for the principal reason that his former drug addiction and homelessness are no longer factors in his life.
Mr Aleksov submitted that KQHR was sexually, physically and emotionally abused by members of a Religious Order during the period when he was a ward of the State between 1968 and 1971; and that these abuses have had a lasting impact on his mental health and were a significant contributing factor in his offending.
Mr Aleksov submitted that KQHR is a person in respect of whom Australia owes protection obligations and that the Direction states that the Minister will not remove a non-citizen from Australia in that circumstance. Counsel for KQHR said that KQHR may not be detained indefinitely and that, as soon as practicable, the Minister will need to identify a suitable option for ‘managing’ the Applicant outside of detention in an Immigration Detention Centre (‘IDC’). Mr Aleksov submitted that it is ‘not in keeping’ with the community’s expectations for KQHR to remain in detention ‘at a cost of several hundred thousand dollars annually, only for him to be released “quietly” later’ and that, therefore, KQHR’s ‘visa should be reinstated now’.
The ASFIC submitted that notwithstanding the seriousness of KQHR’s past offences, there is a proper basis for the Tribunal to find that there is another reason why the mandatory cancellation of his visa should be revoked. Mr Aleksov referred to the fact that KQHR has three children in Australia, one of whom is a minor, and that as he is estranged from the mother of his minor child, removal to Iran would effectively be a permanent separation from her.
Mr Aleksov submitted that, because KQHR has been a resident in Australia for more than 50 years, a greater degree of tolerance should be afforded him than might otherwise be the case, and that his return to Iran, where he has limited support and limited capacity to find employment, would be a particularly harsh consequence.
The ASFIC referred to a number of relevant health concerns relating to KQHR, including diabetes and an ABI, and also the fact that he is currently on a methadone treatment programme. Mr Aleksov submitted that KQHR is in a state of neurological decline and, because of this combination of health issues, does not pose a threat to the Australian community.
Mr Aleksov referred to a psychological report of Mr Cummins dated 17 March 2020. Mr Cummins examined KQHR and relevantly wrote:
In my opinion, if and when he is released into the Australian community and even though he has some familiarity with the Australian community, he would most probably be required to reside in some form of supported accommodation – which, ironically, in itself will probably reduce the risk of him engaging in further offending because he would then have accommodation and presumably be in receipt of an aged pension and under those circumstances may well have a significantly reduced incentive to commit offences – even if he did resume using heroin and/or abusing alcohol.
Mr Aleksov submitted that KQHR received a significant compensation payment from the Religious Order in recognition of his historical abuse at the institutions at which he was a child resident when a ward of the State (R1, pp 327-324 and A14) and that he would be able to financially support himself with these funds.
The ASFIC submitted that the Applicant’s brother, Mr AB, had indicated he would be able to house and accommodate KQHR and support him into the future. Mr Aleksov submitted that KQHR has lived in Australia since migrating here as a 13-year-old child and has not departed Australia since 1967. He is now aged 65 and has clearly made Australia his home.
In terms of his Australian citizen children, the ASFIC acknowledged that KQHR has had limited contact with them for significant periods since separating from their mother in 2005 or 2006; and that he specifically chose not to have contact with his children whilst in prison and immigration detention as he did not want to expose them to those environments.
Mr Aleksov submitted that KQHR says he wishes to rebuild his relationship with his children and re-establish a parental role. The ASFIC submitted that as well as the medical conditions referred to above, KQHR has some peripheral oedemata, referred to in the IHMS medical records, which reduces his mobility. Mr Aleksov referred to a diagnosis of a Major Depressive Disorder which Mr Cummins opined was:
….recurrent in type and of moderate severity and which was most probably triggered by him being abused whilst in care and then reinforced through his chronic dependency on heroin.
Mr Aleksov submitted that the ‘expectation of the Australian community is that persons who have been victim to institutional and systemic abuse should not be punished for the abuse that occurred to them’.
In terms of Australia’s international non-refoulement obligations, the ASFIC submitted that there was a real risk that KQHR ‘will be harmed upon return [as] an Assyrian Christian and as a person with evident religious tattoos and a history of drug offending. We refer to the significant amount of country information provided with this submission that strongly supports the contention of persecution of persons with these characteristics’.
The ASFIC stated that KQHR is no longer aware of, or in contact with, any family that exists in Iran and ‘would not know where to live, work and eat. He does not speak Farsi and would be unable to support himself’.
Mr Aleksov noted that KQHR had previously applied for, and been refused, a protection visa based on the 1951 Refugee Convention, and that he cannot apply for a fresh protection visa on that basis. However, he noted that the complementary protection regime provided for in section 36(2)(aa) of the Act did not exist at that time and submitted that KQHR can apply for a protection visa based on that regime, but that this was not the same as the regime established by the 1951 Refugee Convention obligations, given his religious persecution claims.
The Tribunal notes that KQHR cites the fact that his father worked for the Australian and British embassies in Tehran prior to emigrating to Australia in 1967, was a claim of risk of harm due to imputed political opinion, and that this was a further ground for him being owed Australia’s international protection.
SUBMISSIONS BY THE RESPONDENT
The Respondent noted that KQHR has over 150 convictions (excluding matters dealt with by the Courts when he was a minor), including several convictions for Armed Robbery, and that the seriousness of that offending is such that any risk that he might re-offend in a similar fashion is unacceptable.
As set out above, his first prison sentence was in 1972 when KQHR was aged 18. His offences range across dishonesty offences, offences involving violence or threats of violence, and weapons offences. There are also motor vehicle offences and drug offences.
The Respondent submitted that on 21 occasions, KQHR has been sentenced to terms of imprisonment, and that seven of these terms exceed 12 months and that, if an exercise is conducted on the basis set out in section 501(3A) of the Act (which requires sentences served concurrently to be considered as if consecutive), KQHR is submitted to have been the subject of gaol sentences totalling more than 100 years.
The RSFIC referred to KQHR’s most serious sentence of 12 years, imposed in 1986 for the offence of Armed Robbery. In the circumstances of that offending, the sentencing Judge recorded that KQHR and his wife broke into the home of an elderly couple with a loaded shotgun. KQHR forced the couple to lie on the floor. He made the female victim remove rings from her fingers (which he took) and then searched the house and took jewellery valued at that time of between $4,000 and $5,800. The Judge described the crime as a “very serious crime” and found that taking a loaded firearm with him to a burglary was, in His Honour’s words, KQHR’s “usual pattern”.
The most recent offending which triggered the cancellation of the visa was for the offences of Armed Robbery, Aggravated Burglary – Offensive Weapon, and False Imprisonment (Common Law). The aggregated head sentence, after appeal, was six and a half years in prison. The circumstances of the offence were that KQHR broke into a residence carrying a knife. He was interrupted by the occupant of the house, and then approached her with the knife, imprisoned her in a rear bedroom of the house and then demanded her handbag and mobile phone and removed a camera from a cabinet.
In terms of the considerations in the Direction, the Respondent submitted that ‘there can be no sensible dispute’ that KQHR’s criminal record is anything but extremely serious, and noted that the Court of Appeal in Victoria expressed the view that the Applicant’s prior convictions were ‘appalling’.
The Respondent noted that KQHR has committed crimes against women and against elderly persons, in their own homes. The Respondent submitted that KQHR has received four warnings from the department responsible for Immigration in 1971, 1973, 1984 and 1996. The Respondent submitted that KQHR’s heroin addiction and homelessness have clearly been significant drivers of his offending, but that they cannot be taken to be the only causes. The RSFIC refers to the report of Mr Cummins, and also a psychological report by Ms Laura Anderson.
In respect of minor children affected by the visa cancellation, the Respondent submitted that KQHR claims to have a minor daughter aged 17, however in past material submitted to the Department and to the Tribunal, he has consistently stated she was born in 2001. If that is the case, the daughter would now be aged over 18.
The Respondent noted KQHR’s claims that if returned to Iran there is a real risk that he would be harmed as an Assyrian Christian and as a person with evident religious tattoos and with a history of drug offending. The Respondent noted that he had made previous claims that he would be targeted because his father worked for the British and American embassies in Tehran and that his family were political and religious refugees, but Mr Grant submitted that KQHR did not appear to press these particular claims now.
The Respondent submitted that the Tribunal is required to consider KQHR’s claims to fear harm if returned to Iran and whether Australia owes non-refoulement obligations in respect of him and is additionally required, because of the decision in Minister for Home Affairs vOmar [2019] FCAFC 188, to consider any other claims to fear harm in Iran independently of any claim concerning Australia’s non-refoulement obligations.
The Respondent noted that KQHR made an application for a protection visa on 26 August 1993 on similar bases to the present claims. That protection visa was refused in 1995. Although the protection visa application was made before the complementary protection criterion was inserted into the Act at section 36(2)(aa) on 24 March 2012, section 48A(1) of the Act still precludes KQHR from making a further protection visa application: see AZABFv Minister for Immigration and Border Protection (2015) 235 FCR 150, at [26]–[27] (‘AZABF’).
The Respondent submitted that the country information in relation to Iran does not support a finding that KQHR would suffer harm on return to Iran on the basis of his claims that he is a practising Christian, nor that his return would result in a breach of Australia’s international non-refoulement obligations. However, the Respondent submitted that if the Tribunal finds that KQHR is owed non-refoulement obligations, the potential legal consequences of its decision must be considered: see NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1.
The Respondent submitted that sections 197C and 198(2B) of the Act provide that the legal consequence of a refusal to revoke the mandatory cancellation of KQHR’s visa would be that he is required to be removed from Australia as soon as reasonably practicable, irrespective of whether Australia’s owes protection obligations to him: see DHM16 v Minister for Immigration and Border Protection [2017] FCA 448, at [26].
Although Australia and Iran signed a Memorandum of Understanding on Consular Matters (‘MOU’) on 19 March 2018 which, among other things, includes an agreement by Iran to facilitate the return of Iranians who have no legal right to remain in Australia, this MOU only applies to Iranian citizens who arrived in Australia after the date the MOU was signed, and KQHR is not in this category.
The Respondent submitted that it is:
unlikely that it will be reasonably practicable to return the Applicant to Iran at present. Until it was reasonably practicable to return the Applicant to Iran, he would be subject to “indefinite detention” in the limited sense that he would be detained until removal was reasonably practicable.
The Respondent further submitted that although it would be open to the Minister to personally exercise ‘alternative management options’, such as an exercise of discretion by the Minister under sections 48B or 195A of the Act, or a residence determination under subdivision B of Division 7 of Part 1 of the Act, the Minister “holds no present plans to do so”.
In terms of KQHR’s ties with Australia, the RSFIC submitted that the Applicant started offending soon after arrival and that there is negligible evidence of a positive contribution to the Australian community, which Mr Grant submitted reduces the weight that would normally be given to the length of time KQHR has been in Australia.
ORAL EVIDENCE OF KQHR, THE APPLICANT
KQHR told the Tribunal that he was on medication for diabetes, his heart, gout and for high blood pressure, as well as methadone treatment, and estimated he currently takes around ten tablets a day. He said he had sores on both of his legs, which he attributed to his diabetes, and gout in his toes and ankle. In terms of his heart, KQHR said he had a triple by-pass about 12 years ago and that his brother also had cardiac problems and had had two operations so far. KQHR thought, with this family history, he therefore was due further heart surgery.
KQHR told the Tribunal that he was an Assyrian Catholic and that he attended church when he was at liberty, but not every week. He said he would not practise his religion if he returns to Iran because he believed there were no Christian churches there.
Under cross-examination, Mr Grant took KQHR to his witness statement where he wrote:
I accept that my criminal record is long, and I am aware that I have committed offences of a serious nature. All my offending was related to my homelessness and because I couldn’t support myself and my drug abuse.
KQHR confirmed that this statement was true, as was his statement that from 1995 to 2006 he stayed out of prison. KQHR conceded, however, that during this period he was in fact convicted of offences and at that time was on a methadone treatment programme but was smoking cannabis. He conceded that he was living with his partner at the time and her children, and ‘of course’ he had a home. He said he was not using drugs at that time except three or four times over the 11-year period.
KQHR said he could not explain why he had convictions for stealing but that it was probably because he was ‘short of money’. Asked about his convictions for burglary during that time, and why he was still committing burglaries in this period, KQHR responded “No, I can’t explain why, mate. I can’t.”
KQHR accepted that he had a conviction for carrying a weapon during this period and said, “I just happened to have a little knife in my pocket”, but could not explain why.
Mr Grant asked the Applicant what his plans were if he was released into the community. KQHR said: “I plan to buy a boat and the boat I’m going to go from Victoria, from Melbourne right around Australia to Darwin then I’m going to visit my brother in Darwin and then I’ll probably come back or probably stay up there, I don’t know, but that’s my plan”.
KQHR said he had not visited his brother (Mr AB) in Darwin and last lived with him when he was aged around 15 or 17 “but not as I got older. He went his way; I went my way. And we – but we always run into each other”.

KQHR said he had memory difficulties which he felt began in 2008 after an altercation with a police officer. He said a nurse at the time recommended he consider further treatment but that he did not do this, and that he now understands he is forgetting things, particularly dates.
In respect of children, KQHR told the Tribunal that he brought up three children, but he was not the biological father of two of them as they were the children of his former partner. He said he brought them all up until the youngest was about 11 or 12 when “I just left because we were arguing too much and I didn’t want them to see their mum and dad arguing all the time, so I just left”.
Asked about the birthdates of the children, KQHR thought that the oldest (a girl) was born in ‘1992 or 1998’, another (a boy) in 1994 and the third one (a girl) in 2001.
In terms of his 2011 arrest following a burglary, KQHR told the Tribunal that he was not using heroin at that time, and was on methadone. He agreed that this burglary incident involved him burgling a house when a woman came home and interrupted him. KQHR said that “they reckoned I had a knife. I still maintain I didn’t have a knife”.
KQHR told the Tribunal about his life when he was on heroin, and described it as “the worst life anyone could have”.
The Applicant said that he first took methadone in 1997 but could not handle it, and went off it around 2003 or 2004, but later went back onto methadone treatment and has been on it ever since. He said the last time he used heroin was around 2010.
KQHR said he was living in a boarding house and had put three bottles of methadone in a shared refrigerator, but another resident took them. He said he got very sick, “so I thought: f--- it, I will go and do a burglary. I went and done a burglary. While I was in there, the people come home and this s--- happened where I’m sitting here for”.
He told the Tribunal that he had undertaken the burglary in order to buy a ‘hit’ of heroin.
KQHR said that during this period he would sometimes attend a church in a Melbourne suburb and that he had undertaken an Alpha course and been ‘re-baptised’. He considered that he attended church at the time around every three or four months.
The Tribunal asked KQHR a direct question as to why it should be satisfied that he would not commit further offences if he is allowed to remain in Australia. The Applicant replied: “Because I’ve got over $80,000 in the bank. I don’t need money any more….I don’t need to pinch money anymore. I’ve got money. I’m 66, I’m not going to live forever. I’ve got one and a half feet in the grave at the moment. I haven’t got that long to go”.
KQHR estimated he would have been 55 when he committed his last offence. He said the money he had in the bank was from a pay-out he had received from a Religious Order for historic childhood abuse. He said he originally received $170,000 but “most of it has gone for lawyers and solicitors”.
KQHR said he had helped a friend who bought a boat sanding it and painting it, and he estimated that with $20,000 he could buy a good boat. He might buy a boat and sail around Australia, perhaps visiting his brother (Mr AB) in Darwin, maybe staying with him for a time, and then returning to Melbourne. KQHR told the Tribunal that “My life of crime is finished. It’s behind me. Not behind me, a thousand miles behind me. It’s finished. I’ve had enough of a life of crime…I can’t say any more”.
ORAL EVIDENCE OF MR CUMMINS
Mr Jeffrey Cummins, psychologist, gave evidence as an expert witness. He referred to his report (Exhibit A2) which states, of the Applicant:
He has a history which would justify the diagnosis of PTSD.
Mr Cummins confirmed that was his diagnosis, and he also diagnosed KQHR as having a Major Depressive Disorder. In terms of what might be the effect on KQHR’s mental condition if he returned to Iran, Mr Cummins said that KQHR’s level of functioning is significantly impaired. Mr Aleksov asked the witness about the impacts of KQHR not being able to speak the local language and having these mental health diagnoses. Mr Cummins responded:
“In my opinion, that would compound the difficulties for him. In my opinion he does have an ABI, an acquired brain injury, and there is a degree of impairment in terms of his executive functioning, and the processing of new and novel information would, in my opinion, inevitably be more difficult for him”.
Mr Cummins expressed the view that KQHR has limited patience and would probably not be able to communicate with persons who do not speak his own language (i.e. English) as a primary language.
Under cross-examination by Mr Grant, Mr Cummins confirmed that he administered an HCR-20 assessment tool when he examined KQHR. He explained to the Tribunal that this tool assesses the risk of a person committing a further violent offence and that the only risk category options available in the HCR-20 tool are ‘high’, ‘moderate’, or ‘low’. Mr Cummins in his report stated it is imperative that KQHR undertake a comprehensive anger management programme and, if he did not undertake such a programme, Mr Cummins said:
“Well, I would say that by definition there would be a tangible risk that they could and maybe would commit another violent offence. As I have indicated in my report it is inexplicable to me why this man has apparently never been required to undergo an anger management programme in the past”.
Mr Grant took Mr Cummins to an earlier report he had prepared in relation to KQHR, in 2012. In that report he was of the opinion that the Applicant suffered from an anti-social personality disorder. Mr Cummins told the Tribunal an anti-social personality disorder:
“is typically a well-entrenched pattern of behaviour which would be observed typically once a person is in their early 20s but perhaps a little earlier than that, from age 18 on. It means that inevitably people don’t respect others’ property, they don’t respect others’ rights and a percentage of people who are charged with and convicted of criminal offending do have an anti-social personality disorder”.
Mr Cummins told the Tribunal that while he wrote in his report that, during the two interviews he had conducted, KQHR did not speak in a manner indicating he has an anti-social personality disorder:
“his history would indicate that he most probably still does suffer from an anti-social personality disorder. However, his manner of speaking at interview was not directly consistent with that, and it is a clinical fact that a significant percentage of patients who suffer from personality disorders eventually effectively stop suffering from those conditions and that process is age-related. So, it may be the situation that that personality disorder has essentially now resolved, but I’m not in a position to say that that is categorically the situation at this point”.
Mr Cummins agreed with Mr Grant that there is a risk that KQHR has in fact become institutionalised, because of the time he has spent in prison and immigration detention. He agreed that this would affect KQHR’s ability to cope in the community without support but confirmed it was his view that KQHR effectively has no insight that he would require some form of supervision or support in the community.
Mr Cummins said KQHR’s risk of re-offending is not already ‘low’ but is ‘trending towards low’. He said:
“I have expressed that opinion based on my belief that if he were released into the community now he would require ongoing supervision and from my point of view the fact that he does not or may not have the insight to realise that he requires that is not of particular concern to me, because I think he would come to the particular attention of support services very quickly in the community. I would expect that he would come to the attention of organisations such as the Brotherhood of St Laurence or the Salvation Army”.
…
“I think if he were provided with no support in terms of accommodation then the likelihood of him re-offending would go up. Exactly to what level I’d find that hard to express. That would, in my view, depend on whether he resorted to using illicit drugs again, whether he resorted to abusing alcohol again”.
Ms Laura Anderson prepared two psychological reports on KQHR, one in May 2017 and the second in November 2017. In her November 2017 report she wrote:
Furthermore, based on the information currently available I once again hypothesise that as a result of the exposure to the alleged early life trauma and abuse, the client developed a coping strategy in which he avoided addressing and processing the traumatic events and instead attempted to minimise the extent of the trauma and avoided discussing it as well as an attempt to numb the underlying emotional distress he experienced through drug and alcohol abuse.
Mr Cummins said he agreed with Ms Anderson’s opinion, and also the opinion expressed in her report that KQHR engage with a clinician specially trained in trauma focussed cognitive behavioural therapy. Mr Cummins said that it was his understanding KQHR had never engaged in such therapy, nor been offered it.
In answer to direct questions from the Tribunal, Mr Cummins confirmed that the HCR-20 assessment tool is a qualitative rather than a quantitative assessment tool and that the outcome of the application of that tool to KQHR was that he was assessed as a moderate risk of violent re-offending.
The learned Member asked Mr Cummins to explain how he came to the conclusion that “on the balance of probability the risk of re-offending is trending towards low” when the HCR-20 tool allows only three classifications, ‘high’, ‘moderate’ or ‘low risk’. Mr Cummins said that the HCR-20 only relates to violent offending, so he had factored into his own assessment KQHR’s diagnosis of PTSD and a Major Depressive Disorder, and suffering from an ABI, and an assumption that if released in the community he would be ‘picked up by’ a support organisation, having stable accommodation and certain psychological treatment.
Mr Cummins confirmed that he had examined the IHMS medical records of the Applicant which referred to him being reluctant to engage with certain management of his conditions, notably his type 2 diabetes, and the reference that ‘he has been reluctant to engage in certain assessments’ and declining a psychiatric review. Mr Cummins said that he did question KQHR about these records when he examined him, and KQHR expressed the view that he had given up on himself, which he felt reflected that he is on the pathway to becoming institutionalised.
The learned Member asked Mr Cummins whether he was concerned that KQHR might not engage with the treatment he requires in order to ‘continue to trend towards a lower risk of re-offending’. Mr Cummins said he had a level of concern about that but expected KQHR would make contact with Centrelink and other helping organisations would become involved.
The learned Member asked Mr Cummins about contradictions between KQHR saying he might go and live with his brother in Darwin and his proposal to buy a boat to sail around Australia, including perhaps to visit Darwin and spent time with his brother. Mr Cummins responded:
“Well, I would be very surprised if that occurred…at times, his level of confabulation was quite high, and in that regard I do reiterate my earlier comment about the apparent contradictions, not only from one report to another in terms of the various reports I’ve read, but also in terms of what he told me back in 2012 versus what he told me when I first interviewed him this time round, versus what he told me the second time I interviewed him this time round…”
Mr Cummins gave evidence that he felt, in terms of support in the community, KQHR would be quite capable of going to the shops and keeping his accommodation clean, but ideally would require support in the taking of his medicine. Mr Cummins expressed the view that it would be rare for someone like KQHR to resume drug-taking because statistics show there are few heroin users in their 60s, and his view was that this would not be affected by whether or not KQHR continued on methadone treatment.
ORAL EVIDENCE OF MR AB, BROTHER OF THE APPLICANT
Mr AB adopted his written statement (Exhibit A5). Mr AB confirmed his brother could come and live with him if that is what he wanted to do. He said that he would get a two-bedroom unit and make sure he ‘does the right thing’. Mr AB said he would help KQHR to take his medicine, assist him with doctors’ appointments and help him navigate through Centrelink and any other services he may need.
Asked whether he thought KQHR would take up the offer of accommodation, Mr AB responded:
“Well, I hope he does, it’s for his own good. I’m pretty sure he will.
…
I think he’d had enough of the life he’s been living, really, just to be honest, and I think he’s at an age and, you know, he just – I think he’s had enough.
…
And I might add that he’s medically not well, he has got a few medical problems so, you know, I think that will pull him up a little bit, it will make him wake up to himself a little bit”.
Under cross-examination, Mr AB said his family has been a broken family for many years, and told the Tribunal he had left home aged 16 and never been back. He said he had contacted his sister and made contact for the first time in more than 20 years and had been in regular contact with KQHR since he has been in immigration detention, but had not been in contact at all when the Applicant was in prison.
Mr AB said he never knew, before the last two or three years, where KQHR was, and had really lost contact with him. He said he had originally lost contact with KQHR when he was aged around 24 or 25. He agreed KQHR had commenced offending at that time, and he had made some effort to correct his behaviour: “I tried a few times, but he was a bit pigheaded, it didn’t really work, you know, so I sort of gave up, to tell you the truth”.
Mr AB said he felt KQHR would now listen to him because “I think he’s had pretty much enough and these consequences now, they’re really sort of hitting home, if you know what I mean”.
Mr AB said:
“Well, I’ve told him, ‘You’ve just got to pull yourself together, mate, you know, just got to try to get a job if you can or if you can’t work, you know, we will find something, we will do something, you know. But you just can’t go on like that, it’s – you can’t. – you’ve got to give up drugs, just as simple as that. You’ve got to give up drugs.’ That’s what’s getting him into trouble”.
Mr AB said he was a Christian but not a regular church goer. He said he was aware KQHR has been involved in ‘a couple of religious outfits’, but did not know the specifics. Mr AB said he really did not want his brother to stay in Melbourne because he considered if his brother came to Darwin he would be away from unhelpful influences, and he would not be able to offer much support if KQHR stayed in Victoria.
In answer to direct questions from the learned Member, Mr AB said he currently lived in a granny flat, which was big enough for one person, but he could rent a two-bedroom unit if KQHR came to live with him.
Mr AB said that he was unaware that this was not the first time that the Department had considered removing his brother from Australia. Mr AB was then reminded that he was interviewed by Department officers in 1992 and that, at that time, he had offered financial support and assistance to KQHR. Mr AB said he did not remember the interview but agreed that he had been prepared to assist him. Mr AB said the last time he had seen KQHR was around 13 years ago when he had visited Melbourne to attend a funeral and had not heard from him at all until recently.
Mr AB said that he was retired and in receipt of a pension, but had some savings put away. He said he was aware that KQHR had received a compensation payment of some sort and that his brother had told him that their sister had power of attorney in relation to those funds. Mr AB said he had not spoken to his sister for about 12 months.
CONSIDERATION OF THE DIRECTION
As discussed above, decision-makers, including the Tribunal, must take guidance from the Direction because of the provisions of section 499 of the Act. In addressing the primary and other considerations, the paragraph references below refer to Part C of the Direction.
Primary consideration: Protection of the Australian community (paragraph 13.1)
The Direction states that when considering the protection of the Australian community, decision-makers (i.e. the Tribunal) should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is an expectation that for a non-citizen to remain in Australia (on a visa), they will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the broader community. The mandatory cancellation without notice of visas held by certain non-citizen prisoners is consistent with this principle because it ensures that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
The nature and seriousness of the conduct (paragraph 13.1.1)
This part of Part C of the Direction requires the Tribunal to have regard to certain listed factors, as relevant to the particular circumstances.
The principle that, without limiting the range of offences that may be considered, violent and/or sexual crimes are viewed very seriously (paragraph 13.1.1(a))
KQHR has amassed a comprehensive criminal record, as set out above where his offending has been summarised. There is no evidence before the Tribunal that he has committed sexual crimes, but several of his crimes have been violent, or have involved threats of violence. In respect of the particular conviction which led to his longest prison term, the offence occurred in December 1985. KQHR was in the company of his partner, whom he married six months later in HM Prison Pentridge. After a jury trial, KQHR was convicted of the offence of Armed Robbery and sentenced to 12 years’ imprisonment. The sentencing Judge set out the circumstances of the crime (R1, p 367).
In summary, KQHR broke into a house armed with a loaded shotgun. The house was occupied by a couple. The woman of the couple was at the sink in her kitchen. KQHR was in disguise and holding the gun. He made her lie on the floor and pulled her cardigan over her head. He made her take three rings off her finger. KQHR then took jewellery to the value of between $4,000 and $5,800. (The jewellery was not recovered, only some of the cheapest trinkets were produced as exhibits at the trial, after being found in KQHR’s and his wife’s possession when they were apprehended. KQHR’s wife was also convicted of offences).
At this time, the man of the couple came out of the bathroom. He was oblivious to the intruders. KQHR made him lie down on the floor as well. Both of the elderly couple were, the Judge said, frightened and in fear of their life. KQHR and his wife searched the house. They then ushered the couple into the kitchen. As they did, the man slammed the kitchen door shut. KQHR put the gun through the glass door. The couple escaped over the back fence. KQHR and his wife made off through the front door.
The Judge noted a pre-sentence report and a psychiatrist’s report that confirm KQHR’s heroin addiction, an addiction so strong that other considerations were blocked out. The Judge noted that drug addiction is no excuse for KQHR’s actions, and that innocent people are entitled to be protected from drug addicts bent on stealing by whatever means to get money for their habit. His Honour noted that while some understanding can be had of simple dishonesty by drug addicts, none can be had of those toting guns who may not, because of their addiction, be able to reason rationally while holding a loaded weapon.

The learned Judge expressed the view that KQHR is a person willing to use violence, and noted it was not the first conviction for Armed Robbery. He remarked that the Applicant had shown no real signs of reforming and the risk of re-offending ‘would seem to be significant’. The Judge expressed the opinion that he had seen no suggestion of reform on KQHR’s part in the pre-sentence report and took the view that he was a person who was likely to re-offend.
This conviction led to the longest sentence imposed on KQHR, but it regrettably was not the most recent in a long line of serious offending in which he had engaged since first being incarcerated in 1972.
The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed (paragraph 13.1.1(b))
The conduct of KQHR as set out in the summary of the Judge’s remarks in respect of his December 1985 offending clearly shows that he was indifferent about whether the victims of his criminal conduct were men or women. A particularly heinous example of a crime against a woman by KQHR occurred in November 2011.
On that occasion, KQHR broke into a residential property, armed with a knife. While he was there, the occupant of the residence returned home to find the Applicant standing in her dining room. He approached her with his knife and imprisoned her in a rear bedroom of the house. He demanded her handbag and mobile phone, which she gave him. He took a camera from a cabinet while the home occupant was still in the bedroom. When KQHR had broken into the house, he had cut himself on a window and DNA analysis of his blood later led to his apprehension. The Applicant was convicted of the offences of Armed Robbery, Aggravated Burglary with an offensive weapon and False Imprisonment (Common Law). He appealed his sentences to the Court of Appeal and in 2013 received 5 years and 6 months’ imprisonment for the Armed Robbery offence; 3 years’ imprisonment for the Aggravated Burglary with offensive weapon offence (2 years of which was to be served concurrently), and 2 years’ imprisonment for the False Imprisonment offence. KQHR relied on a psychological report indicating that had suffered an ABI as a result of polydrug abuse, alcoholism and possibly a police assault.
The learned Judge of the Court of Appeal (speaking for the Court) referred to the sentencing judge’s description of KQHR’s prior convictions as “appalling” and said this was an apt description. The Appeal Judge noted that KQHR’s history demonstrates that he has been little deterred by previous sentences passed upon him. He had breached parole, failed to answer bail and breached both community-based orders and suspended sentences. His Honour described KQHR as an “incorrigible” offender.
The principle that crimes against vulnerable members of the community (such as the elderly and disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious (paragraph 13.1.1(c))
In the conviction which triggered the visa cancellation, the victims of what was essentially a home invasion by KQHR, described above, were an elderly couple, who quite reasonably thought they were, and were entitled to be, safe in their own home. His violation of their home, threatening them with a gun and terrifying them is of the highest level of this sort of offending, as reflected in the length of the prison sentence he received. There is also evidence, as set out in the summary of KQHR’s offending above, of his conviction of a previous conviction for assaulting police.
Subject to subparagraph 13.1.1(b), the sentence imposed by the courts for a crime or crimes (paragraph 13.1.1(d))
KQHR has been subjected to several of the sentencing tools available to the Courts, including suspended sentences, fines, CBO, bail, long and short prison sentences and orders for treatment. None of these seem to have had much effect on abating his criminal behaviour. He claimed not to have convictions during the period when he lived with a partner, had a child with her and lived a relatively stable life with her and their child and stepchildren. But the evidence shows he did have convictions, it was simply that for a period they did not result in terms of imprisonment.
It is a cold fact that, calculating all the different impositions of gaol terms on KQHR in terms of section 501(7A) of the Act, the Respondent’s calculation of the Applicant amassing sentences exceeding 100 years would appear to be accurate.
The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness; The cumulative effect of repeated offending (paragraphs 13.1.1(e) and (f))
KQHR has frequently offended, and has many appearances before the Court. His earliest adult offending was in fact serious, and involved being armed with an offensive weapon and then assault convictions. There was some ebbing in the monotonous nature of KQHR’s offending in the period from 1995 to 2006 but the Applicant seems to have some view that not being sent to prison equates to not offending. In his case, it did not. He continued to offend, except during the period between August 2001 and August 2003 and again from August 2003 to mid-2006.
Whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending (paragraph 13.1.1(g))
I do not conclude that the Applicant has not disclosed prior offending or provided misleading information.
Whether the Applicant has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of his migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour)(paragraph 13.1.1(h))
In October 1971 the Acting Minister for Immigration considered the question of KQHR’s deportation and decided on a warning. KQHR was warned of his liability to deportation (if he continued to offend) in November 1971 in the presence of his father (R1, p 106). The papers show the Department noted his family were all in Australia (his mother had subsequently emigrated) and he was young. On 14 September 1973 KQHR was given a further warning by the Department regarding “the consequences of further transgressions of the law” (R1, p 107). On 12 November 1984 while serving a sentence of imprisonment at Pentridge, KQHR was given another warning (R1, p 106). On 21 June 1986 KQHR received an oral warning that his convictions had rendered him liable to deportation, and that was followed up with a letter. KQHR signed a written acknowledgement of this warning (R1, p 105). It is clear to the Tribunal that KQHR has been well aware over the span of his time in Australia of his liability for being deported as a non-citizen, if he continued to offend.
Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention, including an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act (paragraph 13.1.1(i))
There was no evidence before me that KQHR has committed offences in immigration detention.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2)
In considering the risk to the Australian community, the Tribunal must have regard, cumulatively, to the nature of harm to individuals or the community should the non-citizen engage in further criminal or other serious conduct, and the likelihood of the person engaging in further criminal conduct, taking into account available information and evidence on the risk of re-offending.
As mentioned above, Ms Laura Anderson, clinical neuropsychologist, assessed KQHR in May 2017 (R1, p 327). She concluded that KQHR met the criteria for Substance Use Disorder (Heroin) in sustained remission, and that he presented with many of the clinical features of Post-traumatic stress disorder (‘PTSD’), and many of the clinical features of Persistent Depressive Disorder. Ms Anderson considered a more comprehensive cognitive assessment was warranted. Ms Anderson provided a supplementary report in November 2017 (R1, p 338) in which she updated her opinion and concluded that KQHR meets the criteria for Persistent Depressive Disorder.
I note from the papers before the Tribunal that KQHR has undertaken some courses in prison. In 2014 he completed a Moderate Intensity Violence Intervention Program. In 2015 he completed a 40 Hour Semi-intensive Drug Treatment Program. In 2016 he completed a 44 Hour Semi-intensive Program run by Caraniche, and later that same year KQHR completed a Vacro Relink Program. The Tribunal concludes that he was mindful of the need to take some personal responsibility for strategies designed to help him not to re-offend after the completion of his sentence.
In addition, KQHR completed subjects in a Certificate II in Kitchen Operations and two subjects in a Certificate II in Timber Merchandising, TAFE courses available to him in prison, which is to his credit in building skills for future employment.
Mr Cummins administered the HCR-20 assessment tool and as a result of that considered KQHR has a ‘moderate risk’ of re-offending. There was some discussion during the hearing about the additional conclusion Mr Cummins made that, subject to KQHR being provided with adequate supports if released into the community that moderate risk might be trending towards low, but I note Mr Aleksov in his closing submissions on behalf of the Applicant said that he ‘could not contest’ the ‘moderate risk’ assessment.
It is my conclusion that the assessment that the Applicant is a moderate risk of violent re-offending is much safer ground on which to base a conclusion, because any other lower assessment is based on several other pieces falling into place, which include KQHR staying off heroin, finding secure and safe accommodation, engaging in anger management and other voluntary treatment and behavioural courses, and receiving some income. Apart from the evidence that he has remaining funds from his settlement with the Religious Order, the other factors in this equation may only be speculated upon. Mr Cummins’ assessment that the risk of re-offending was, in his words, on a trajectory towards low, was heavily qualified. It relies on many other factors, such as KQHR not abusing drugs or alcohol, engaging with welfare organisations, and obtaining social security benefits.
I note that there is evidence that KQHR’s sister at some stage obtained a power of attorney from him, and she opened a bank account and bought him some clothes. It would seem to me that this is an indication that the Applicant has difficulty with the normal activities of life, which is consistent with Mr Cummins’ conclusions that he is somewhat institutionalised. His oral evidence that he might buy a boat (with some of his funds from the Deed of Release) and sail up to Darwin, and possibly stay with his brother for a time, and then return to Melbourne, sits squarely at odds with what I took to be a genuine offer from Mr AB to provide accommodation for his brother, partly to allow him a fresh start in a different locale. However, that plan, too, is undeveloped, because Mr AB told the Tribunal he currently lives in a granny flat and would have to find a larger residence to accommodate KQHR. I note in the documents that Mr AB did make a prior offer for KQHR to come and live with him, when at that time Mr AB had a three-bedroom house, and nothing came of that.
It would seem to me consistent with some cognitive decline that KQHR did not grasp the fact that, if released into the community, he needed to establish a structure of support to help him keep off heroin and avoid re-offending. I note particularly Mr Cummins’ opinion that KQHR would be able to undertake some everyday tasks, but would need help, for instance, in keeping to his medication regime.
In KQHR’s IHMS medical records from his time in immigration detention (Exhibit A3), I note there are various notes from health practitioners of KQHR’s unwillingness to engage in recommended medical treatment. For example, he declined suggestions he see an optometrist and a podiatrist, at different times. On 5 December 2019, the notes record that KQHR was ‘mostly non-compliant with diabetes management’ and referred to his history of refusing various treatments recommended to him to manage that condition.
Notably, on 24 January 2020, the notes record that KQHR was on a 45mg dose of methadone but asked the clinician for the dosage to be increased to 50mg because he told them he was ‘hanging out in the morning and didn’t want to go towards drugs’. The notes record that, when directly asked, KQHR denied using drugs. It would seem to me that this denial is supported by the urinalysis reports which are consistently negative, except for his permitted and prescribed methadone. The prescription for methadone was raised to a 50mg dosage.
On 29 November 2019 Dr Jillian Spencer, psychiatrist, conducted a mental health screening of KQHR by videoconference. Dr Spencer took a family history from KQHR and recorded that he told her “My mental health is perfect. I don’t need any help. I have managed harder things in my life, and this is fine. I don’t want to talk to you. What is this for? I want to go”.
KQHR told Dr Spencer he was sleeping from midnight to 7 am, did not have bad dreams and was eating well. He said that he separated from his wife in 2006 and he did not know her whereabouts now. Dr Spencer summarised her conclusions after the consultation:
…Reluctant to engage. Ended interview prematurely. Dismissive, not invested in social connection or seeking approval. No odd behaviour or responding to unseen stimuli. Speech of normal rate, volume and prosody. Mood euthymic. Affect slightly restricted. Thought normal in tempo, no FTD [frontotemporal dementia]. No delusions identified. No perceptual disturbances. Did not voice suicidality. Imp: older man who appears to prefer distance and does not want to talk about his life/thoughts/feelings, possibly has an institutional mindset and does not want engagement with authority figures. No evidence of mental illness.
(Emphasis added)
So, it can be seen that there are competing opinions about KQHR’s mental health. Ms Anderson, in 2017, and Mr Cummins, more recently, have each made certain diagnoses, but a psychiatrist has diagnosed in late 2019 that there was no evidence of mental illness. In common in the opinions of both Mr Cummins and Dr Spencer is that KQHR is either institutionalised or close to being institutionalised. It is also clear that he is not consistently compliant with medical treatment suggestions for a range of his conditions, on the one hand, and on the other hand he does appear to have some self-realisation that he is vulnerable to relapsing into drug taking, if for some reason he cannot get his regular methadone treatment. This would seem to me consistent with Mr Cummins’ view that KQHR lacks self-awareness about his medical conditions, which led to him not engaging in necessary treatment. Given the competing diagnoses, the Tribunal is not positively satisfied that KQHR has a mental illness.
The particular evidence that disturbed me is what KQHR told the Tribunal in May, about what happened when another resident of the boarding house he was staying in took his methadone doses from the refrigerator. KQHR said he tried to cope for one day but ‘got sick’ and then decided to commit a burglary to get money or items to sell, in order to buy heroin. It is readily apparent to me that his resilience in such circumstances is almost non-existent, which leads me to conclude that, faced with a similar set of circumstances in the community, which is not unlikely, he would be unlikely to be able to resist committing a further offence. In spite of the several courses he has undertaken in prison, any moral barrier to theft of property in his thought processes seems still to be absent. This may not be surprising given the entrenched nature of his offending history.
The Tribunal finds that there is at least a moderate risk of KQHR re-offending in a violent manner, which may rise if any one of the variable (and in my mind somewhat fragile) preventative factors listed by Mr Cummins is missing. He is now approaching the age of 67 and his mobility and health has declined, this is especially evident in the evidence that points to neurological deficits consequent on prolonged heroin use. These health factors might slightly militate the risk of re-offending, but they do not do so substantially. The IHMS medical records, in particular, show that KQHR himself is worried he might revert to drug taking. I am satisfied, given his evidence of what happened when he committed the crime which led to the cancellation of his visa, that there is a real risk of KQHR re-offending more generally, as distinct from violent re-offending.
Overall, I find that this primary consideration weighs very heavily against the revocation of the mandatory cancellation of the visa.
Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 13.2)
The Direction requires the Tribunal to make a determination about whether revocation is in the best interests of any relevant minor child.
In his written statement (Exhibit A4) dated 5 March 2020, KQHR said that his youngest child is 17 years old. However, in his Personal Circumstances Form dated March 2017 KQHR left the section where a non-citizen can list any minor children blank. In that form there are also questions about a non-citizen’s children in general. The questions and responses were (R1, p 73):
Please describe your relationship with each child including when it began, how often you contact/see the child/dren and the role you play in their lives.
No contact past 6 years due to incarceration and at your [sic] request did not want children to visit.
Please describe the impact the cancellation of your visa would have, or has had, on the child/ren listed.
Hurt, upset, wanting to build on past relationship.
Later in the form KQHR says two of his children live with their mother at an address unknown. He lists the older one as being born in 1997 and being aged 20, and the younger one as being born in 2001 and aged 16.
It would seem to the Tribunal on the evidence that the youngest child of KQHR was born in 2001. She therefore is aged, now, 20 or 21. She is not a minor child in terms of this primary consideration in the Direction. Nor was she at the time of the hearing in May 2020.
There were no other minor children put forward by the parties whose interests may be affected by the decision to cancel KQHR’s visa. The Tribunal therefore finds that this primary consideration is not relevant and weighs neutrally.
Primary consideration: Expectations of the Australian community (paragraph 13.3)
The first part of this part of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
A superseded version of the Direction contained virtually identical wording to paragraph 13.3 and was considered by the Full Court of the Federal Court of Australia (the Full Court) in FYBR, as mentioned by Counsel for the Applicant and in the RSFIC. The plurality of the Court (Charlesworth and Stewart JJ) found that this part of the Direction expresses a ‘norm’.

In September 1992, writing a letter of support for KQHR to the Department, a Roman Catholic priest who was part of the Catholic Prison Ministry wrote (A5, p 128):
Because [KQHR’s] father worked for American and British embassies in Iran, the family fled to Australia in 1967 as political refugees.
In a 1996 submission to a Department Deputy Secretary about KQHR’s deportation, a Department officer referred to this representation and stated (A5, p 12):
This statement is not correct as [KQHR’s father] and his children were issued migrant visas in Tehran and lived there until they migrated to Australia. Therefore, they could not have been considered political refugees.
Without for a moment being critical of the Prison Chaplain, who it would appear based this part of his representation on what he understood from KQHR, there is no evidence before me that KQHR (or any member of his family) was in any sense a political refugee from Iran. They migrated to Australia in a regular and orderly manner.
In the 1995 RRT decision, there was no specific mention of KQHR’s father’s employment but there was discussion about political claims he had made. The Member observed (R5, p 155):
The applicant does not have any background of political involvement or activism in Australia, on any issues.
I note that KQHR’s father wrote, in a statutory declaration in 1994 (R5, p 137):
I was employed as a driver for the American Embassy and also performed interior design services for the American and British embassies on a contract basis in Iran. However, I desired for my children to grow up in a Christian country with good education. I therefore sought the assistance of Mr and Mrs Hogg, who contacted Sir Robert Jackson, when he visited Tehran from the [sic] Britain. He assisted me to come to Australia with my children.
The Tribunal believes that the Sir Robert Jackson referred to is the distinguished Australian civil servant who was, in the 1960s, working for the United Nations Development Programme. This statutory declaration does not say that KQHR’s family emigrated for a political reason.
While it is clear to me that a well-founded fear based on an imputed political opinion does fall within the scope of paragraph 2 of Article 1 of the 1951 Refugee Convention, I am not satisfied that the employment of KQHR’s late father some 60-plus years ago by foreign missions in Tehran, on the paucity of the evidence before me, rises to the level where it might satisfy a claim of a well-founded fear of persecution for an imputed political opinion. A chance that is remote is not sufficient to found such a claim (see Chan v Minister forImmigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, per Mason CJ at [12] and Dawson J at [19]). In this respect, I note the Applicant did not expand on this claim at the hearing.
Other claims
Other claims made on behalf of the Applicant in the ASFIC about him being perceived as an outsider, being unable to speak Farsi and not having an understanding of local culture are properly considered not in relation to this consideration, but in relation to impediments if the non-citizen is removed, later in these reasons.
The Tribunal finds overall that this consideration weighs neutrally in determining whether or not the mandatory cancellation of KQHR’s visa should be revoked.
OTHER CONSIDERATION: Strength, nature and duration of ties (to Australia) (paragraph 14.2)
The Direction requires the Tribunal to have regard to how long a person has resided in Australia, including whether he or she arrived as a young child, noting that less weight should be given where the non-citizen began offending soon after arriving in Australia and more weight should be given to time the person has spent contributing positively to the community. Regard must also be had for the strength, nature and duration of any family or social links with Australian citizens, Australian permanent residents or people with an indefinite right to remain in Australia, including the effect on the non-citizen’s immediate family of non-revocation.
KQHR came to Australia in July 1967 (R1, p 114) and has lived here ever since. That length of time in this country, by itself, weighs strongly in his favour. He had some years of schooling here and was a ward of the State. He appears to have had only two brief periods of employment, citing a job with the Postmaster-General’s Department at a Melbourne suburban post office in ‘1970 or 1971’ and being employed by a plastics moulding factory in Melbourne from 1975-1977, where he says he was advanced from a labourer to a tool setter to a leading hand, before being retrenched. He states that it was while he was looking for work after that retrenchment that he was introduced to heroin (R1, p 109). However, in his written statement (Exhibit A4) submitted for the hearing, he states he was ‘around 20’ when he first took heroin. The rest of his time in Australia has been spent either in custody or in the community but not working, partly it would be reasonable to surmise because of his significant heroin addiction.
KQHR’s father is deceased. He says in his written statement that his mother resides in a care facility. He states that he has one biological daughter and two stepchildren but no longer knows the whereabouts of their mother or the (now adult) children. In his written statement in July 2017, KQHR said he had not seen his daughter since 2009. He has two sisters. One sister appears to reside in Melbourne and was the sister to whom he gave power of attorney, and who gave some assistance in setting up a bank account for him. There was little information about the other sister. The evidence points away to KQHR having any regular contact at all with his sisters. He also has a brother, Mr AB, who lives in Darwin and who gave evidence, and the offer of accommodation. I am satisfied that Mr AB would want his brother to remain in Australia. Although there is no evidence before me regarding the views of KQHR’s adult children, it is reasonable to assume, given he has expressed nascent wishes to rebuild his relationship with them, that if they had knowledge of his immigration status, they might want him to remain in Australia as well.
Overall, the Tribunal finds, because of the long period that KQHR has resided in Australia and, even though, apart from his ties with Mr AB, the ties may be somewhat tenuous, he does have familial ties here. Thus, this consideration weighs in favour of revoking the mandatory cancellation of the visa, but the weight ascribed is relatively light.
OTHER CONSIDERATION: Impact on Australian business interests (paragraph 14.3)
The Direction requires the Tribunal to take into account the impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project or important service in Australia.
This consideration is not relevant to KQHR. His scant employment history of just over four years in the last 50 years is referred to above. The Tribunal finds that this consideration, not being relevant in the circumstances, weighs neutrally.
OTHER CONSIDERATION: Impact on victims (paragraph 14.4)
The Tribunal is required to take into account the impact of a decision not to revoke a mandatory visa cancellation on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Courts referred on occasion to the graphic and, in one case (that of the woman he burgled and imprisoned in her own home) enduring effect on KQHR’s victims of his criminal offending, but these expressions of impact made by victims were not made in the context of knowledge of the Applicant’s immigration status and the cancellation of his visa.
The Tribunal finds that this consideration weighs neutrally.
OTHER CONSIDERATION: Extent of impediments if removed (paragraph 14.5)
The Tribunal must consider the extent of any impediments that KQHR 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 his age and health; any substantial language or cultural barriers; and any social, medical and/or economic support available to him in that country.
In respect of language or cultural barriers, KQHR does not speak or understand Farsi. He is Assyrian Christian. There was no evidence before the Tribunal that he was familiar with the cultural mores of Iran, other than his statement that he recognises it is an Islamic country. Mr Aleksov submitted that KQHR has not left Australia since 1967 and has fully absorbed Australian culture, and the Tribunal accepts that submission on the material before it.
KQHR is now aged 66. Even putting aside his age, he has not acquired many skills during his adult life that would equip him well for employment. In this country, if his visa is restored, he would appear likely to be eligible for the age pension, having lived in Australia for more than 10 years. There is no evidence before the Tribunal of what social welfare entitlements he would have in Iran, but presumably they would not differ from those of another comparable citizen.
On the evidence, KQHR does not have family members in Iran or other contacts who could assist him become established in a community he left some 54 years ago. The only thing he does have is the residue of the compensation funds he received from the Religious Order, which he said is in the amount of around AUD$80,000. If repatriated, that would at least give him access to some funds.
The Applicant has a range of health conditions, especially a cardiac condition and diabetes which, it would appear from the medical evidence of the oedemata and the IHMS medical notes, is not completely controlled. He is also on a regimen of medication of, he estimated, around 10 tablets a day. The Tribunal notes the Country Report records (at paragraph 2.22) that Iran’s public healthcare is of a good standard, but has major challenges of overcrowding and a shortage of doctors, with 1,000 public hospitals for a population of around 83 million, or a ratio of 1:7 hospital beds per 1,000 people. The Tribunal has no reason to believe KQHR would not have the same access to the public health system as other Iranian citizens, which is the yardstick the Direction requires me to apply, but accepts his lack of Farsi would be an impediment to him in utilising such services, at least in the short term.
Overall, the Tribunal finds, especially because of the language and cultural barriers KQHR would face, that this consideration weighs in favour of revoking the mandatory cancellation of the visa.
OTHER RELEVANT SPECIAL CONSIDERATION
While, as I have said above, the Tribunal must, because of section 499 of the Act, apply the Direction in relation to considering KQHR’s application, the exercise of the discretion provided in section 501CA(4)(b) of the Act is not conditioned only by the contents of the Direction. I should consider any other properly articulated submission that is relevant to the objects of the Act and which may be relevant to the particular circumstances of the non-citizen who has sought the review.
There are a number of authorities which have made pronouncements on how the Tribunal should approach the question of detention where a person has either been refused a visa, or that visa has been cancelled, but the person still has the opportunity to apply for a protection visa (see, for example, the recent and extensive consideration of this in MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 25). However, the particular circumstances of KQHR are distinguishable in three respects: his earlier application for a protection visa in 1995 was rejected; he has been found in this decision not to be owed non-refoulement obligations; his citizenship is of a country which will not accept the repatriation of involuntary returnees.
The consequences of the refusal of the protection visa in 1995
I consider that the Tribunal should properly consider the consequences if it finds that the discretion available under section 501CA(4)(b)(ii) of the Act is not enlivened, given that KQHR has been refused a protection visa. Paragraph 14.1(5) of the Direction reminds decision makers that section 48A of the Act prevents a non-citizen who has been refused a protection visa from making a further application for a protection visa while he or she is in the migration zone. The Direction goes on to say (in the context of a former protection visa holder):
In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
The Tribunal does not accept the submissions in the ASFIC that KQHR can apply for a protection visa because the 1995 refusal of his protection visa application was before section 36(2)(aa) of the Act was inserted into the Act (which occurred in 2014). In AZABF, the Court held (North ACJ, Collier and Flick JJ), at [27]:
In light of the statutory regime following the commencement of the 2014 Amendment Act (and in place at the time the appellant made his second visa application), it follows that it is irrelevant that the appellant could not, in 2009 at the time of his first protection visa application, have relied on the complementary protection provisions in s 36(2)(aa) of the Act. It is not in dispute that the appellant has previously sought, and been denied, a protection visa. Section 48A(1) of the Act prohibits him lodging another application for a protection visa.
(Emphasis added.)
The policy of the country of reference
The visa KQHR had which was mandatorily cancelled was not a protection visa, but the Tribunal considers that this part of the Direction is nonetheless relevant. That is because Iran, the Applicant’s country of birth and citizenship, does not accept persons who are repatriated involuntarily. The Country Report relevantly states (at paragraph 5.27):
Conditions for Returnees
Iran has a global and longstanding policy of not accepting involuntary returns. Historically, Iran has refused to issue temporary travel documents (laissez-passers) to facilitate the involuntary return of its citizens from abroad. In March 2018 Iran and Australia signed a Memorandum of Understanding on Consular Matters. This includes an agreement by Iran to facilitate the return of Iranians who arrived after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia. A laissez-passer can be obtained from an Iranian diplomatic mission on proof of identity and nationality.
(Emphasis added.)
The obligation to remove an illegal non-citizen from Australia
Section 189 of the Act imposes on officers of the Department a requirement to detain a non-citizen in the migration zone (i.e. in Australia and prescribed territories) if the officer ‘knows or reasonably suspects’ that the person is an unlawful non-citizen.
Section 196 of the Act concerns the duration of detention and relevantly provides that, in a case of a non-citizen like KQHR whose visa has been cancelled under section 501, the detention is to continue unless a court finally determines that the detention is unlawful or that the person is not an unlawful non-citizen. Section 14 of the Act provides that a non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen. Section 198 provides, among other things, that an officer must remove an unlawful non-citizen from Australia “as soon as reasonably practicable” if the person’s visa has been cancelled under section 501(3A) and the Minister has decided not to revoke the cancellation of the visa (see section 198(2B)(c)(ii) of the Act).
In summary, therefore, KQHR is (1) an unlawful non-citizen whose visa has been cancelled under section 501, and (2) there is an obligation on officers of the Respondent’s Department to remove him from Australia and, until that occurs, his detention is to continue. Given that the parties accept that KQHR cannot, at this time, be repatriated to Iran, unless he chooses to be returned voluntarily, because of the established policy of that country’s Government, he is in the category of an unlawful non-citizen who must be detained pending his removal.
The range of options for the disposition of the Applicant
In the hearing and in the RSFIC, Mr Grant traversed some of what he called the ‘alternative management options’ available to the Minister. They include the power under section 48B of the Act for the Minister to determine that it is in the public interest to permit an unlawful non-citizen who has been refused a protection visa to make a further protection visa application from within the migration zone.
Another option available to the Minister is found in section 195A of the Act. The Minister may grant a person who is in immigration detention a visa of a particular class (regardless of whether the person has applied to the visa), if the Minister considers that is in the public interest.
Section 197AB of the Act also contains a power for the Minister to make a residence determination that an unlawful non-citizen resides at a specified address, rather than remain in an IDC, and the Minister may specify conditions with which the person must comply. Such a determination may only be made under section 197AB(1), if the Minister thinks it is in the public interest so to do.
Mr Grant told the Tribunal at the hearing that the Minister ‘holds no present plans’ to exercise any of these other powers available to him. I consider that to take these potential options further, without any further submissions from the Respondent, would be purely speculative. I note Mr Grant was careful to say to the hearing that ‘the Minister’s position is not that there is no intention to ever exercise these powers in favour of the applicant. The position is that there is no present intention to exercise them….It is not to foreclose the possibility that the Minister may in the future exercise those powers’
Mr Aleksov in his closing arguments submitted that it may be that the Iranian Government changes its policy in regard to involuntary return of its citizens, but in those remarks, I interpret he was merely canvassing that as a hypothesis. There was no evidence before the Tribunal that any such change is in the offing, and – again – for the Tribunal to come to any conclusions in that regard would also be purely speculative.
The learned Member mentioned during the hearing that a ministerial decision could be made under section 417, which permits the Minister to substitute a decision more favourable to an applicant when the Tribunal has made a decision under section 415 of the Act, and that is always a statutory power available. There were no submissions from the Respondent on this prospect.
There is another possibility which neither Mr Grant nor Mr Aleksov mentioned. It is obviously an option that KQHR makes his own decision to return voluntarily to Iran. Many non-citizens whose Australian-issued visas are cancelled or cease to have effect return to their home country of their own volition. However, there is no evidence that such a voluntary return is in prospect, and I can reasonably infer from all that KQHR has said in his submissions, not only for this hearing but in other representations he has made to the Department over the years, that he has no desire to return to Iran. His views may change in the future, but for the Tribunal to make any pronouncement on that would be conjecture.

The Tribunal accepts that there is a tension between the requirement in the Act, under section 198(2A)(c)(ii), for officers of the Department to remove a relevant unlawful non-citizen from Australia “as soon as reasonably practicable”, and the factual difficulties of repatriating such an unlawful non-citizen, like KQHR, where he is (a) unlikely to return voluntarily and (b) his country of citizenship will not accept involuntary return of its citizens from Australia, except for any being involuntarily returned who arrived in this country after March 2018, who fall within the scope of the MOU. KQHR is also unlikely to request removal under section 198(1) of the Act. In cases such as this, there sometimes may be an arrangement made with a third country, but there is no evidence that any such arrangement is in prospect in relation to KQHR.
In terms of the duty of Department officers to remove an illegal non-citizen under section 198, there is no definition of the term ‘reasonably practicable’ or ‘practicable’ in the Act, so the Tribunal adopts the everyday meaning. The Concise Oxford Dictionary of Current English definition of the word ‘practicable’ is: “That can be done, feasible.” So, if his visa is not restored, KQHR may be detained until it is feasible for him to be repatriated (or until one of the other options canvassed above is put into effect by the Minister or by the Applicant himself), but not for another purpose.
While KQHR’s detention must only continue pending his removal from Australia (or some other disposition in the range of options Mr Grant outlined, none of which on the Respondent’s submissions are live), a prolonged term of detention is, in this set of circumstances, the current reality. Sometimes the term used is ‘indefinite detention’, and that was how it was couched in KQHR’s submissions. If the word ‘indefinite’ is used in this context, it must be understood in the ordinary meaning of lasting for an unstated length of time, but not in the sense of ‘without end’, because the Respondent is not able to detain an unlawful non-citizen on that basis.
It is relevant to note that North ACJ made the point in DMH16 v Minister for Immigrationand Border Protection [2017] FCA 448, at [26] that if the Minister decided to consider alternative management options, the person would be detained for a definite period, namely (in that case) until the Minister considered whether to exercise the power under section 197C.
The health of the Applicant in detention
The IHMS records show that KQHR has received regular medical services as relevant to his health needs. There was extensive documentation put before the Tribunal earlier in 2020 about the potential impact of the COVID-19 pandemic on detainees in general, and KQHR in particular, as a person with comorbidities. The Tribunal notes that these submissions were properly made at a time when the disease was florid in Australia. Fortunately, the trajectory of the disease in Australia has been positive, especially with the commencement of a national vaccination programme. The Department of Home Affairs website ‘COVID-19 and the border’ states:
“Free COVID-19 vaccines are available to everyone in Australia, including to all Australian visa holders living in the community….People living in detention facilities will also be eligible. .
Given this, what may have been a potentially significant factor in early 2020 no longer would seem to me to be pivotal.
While there was extensive material before the Tribunal about KQHR’s various health conditions, and his health challenges have been discussed above in these reasons, it was not submitted that his health, by itself, would prevent his removal from Australia (cf. the Full Court decision in Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61 where Mr Cotterill did have a range of health issues which the Court found the Minister had not taken into account).
The question before the Tribunal
However, the question before the Tribunal is whether or not there is another reason to exercise the discretion available in section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of a visa. The visa has already been cancelled by operation of law, because of the unlawful non-citizen’s substantial criminal record. The question before the Tribunal is not: ‘if the mandatory cancellation of the visa is not revoked, whether the outcome will be that the Applicant is in prolonged or indefinite detention’. The disposition of KQHR in a case where the decision is affirmed is not within the responsibility, nor indeed the control, of the Tribunal. As a practical consequence of such a decision, the Applicant would remain in detention initially, but as set out above, there are a range of possibilities in regard to his disposition which, in the absence of evidence about (a) his intentions or (b) what the Minister might decide, it is not useful for the Tribunal to speculate upon.
Relevantly, on the pitfalls of the Tribunal entering into speculation on future executive government action, in NBMZ and Minister for Immigration and Border Protection [2014] FCAFC 38, Buchanan J said, at [131]:
The Minister did not, at the time of refusal, grant the applicant a visa under s 195A as he might have done. I do not think it is permissible to speculate, much less to proceed upon any form of assumption, that the Minister might change his mind or take a different course at some future time. Such possibilities or assumptions have no relevance to the applicant’s present position.
Although the Federal Court of Australia was considering an illegal non-citizen who had an opportunity to apply for a protection visa, the comments of Snaden J in DFTD v Minister for Home Affairs [2020] FCA 859 (‘DFTD’) is apposite in KQHR’s case. His Honour said, at [50-53]:
In this case, prolonged immigration detention—leaving aside the uncertainty inherent in that phrase—is not a prospect that arises as a statutory or legal consequence of the Tribunal’s Decision. Even if it were, it is not, on the strength of Le, a consequence to which the subject matter, scope and/or purpose of the Act required, by implication, that the Tribunal give consideration before making its decision under s 501CA(4) of the Act. The prospect of prolonged detention, if it exists at all, exists contingently upon circumstances unrelated to the Tribunal’s Decision.
Chief amongst those circumstances is that the applicant may apply—or, at the time of the decision, could apply—for a protection visa. In the context of such an application (assuming one were made), regard would be had to the circumstances that the applicant nominates as the source of the non-refoulement obligations by which he is covered: see Greene v Assistant Minister for Home Affairs [2018] FCA 919 (Logan J) (and, in particular, his Honour’s consideration—at [18]-[19]—of Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Flick J)). That being so, there is no warrant for supposing that the subject matter, scope or purpose of the relevant statutory provisions require, by implication, that the exercise or non-exercise of power under s 501CA(4) of the Act be conditioned, in this case, upon consideration of those obligations. Given that it is those obligations (and their interplay with government policy) that was said to create the prospect of prolonged immigration detention in this case, I cannot see (and was not alerted to) any reason for supposing that the subject matter, scope or purpose of the relevant statutory provisions require, by implication, that the exercise or non-exercise of power under s 501CA(4) of the Act be conditioned upon consideration of that prospect (whatever it might be). This is not the first time that this court has reasoned in that manner: see BMX15 v Minister for Immigration and Border Protection (2016) 244 FCR 153, 176 [85] (Bromberg J).
I should return to tackle the indefinite nature of “prolonged detention”. Counsel for the applicant described the concept as detention “…without a known end date” and “…until a solution is found”. Respectfully (and appreciating, as I do, the predicament in which counsel found himself, having accepted that “indefinite” detention was not in prospect), “detention without a known end date” is another way of saying “indefinite detention”. Detention “until a solution is found” is only slightly more helpful. The reference to a “solution”, in the present context, is a reference to the realisation of a state of affairs by which the applicant, having failed to have the Cancellation Decision revoked, might be removed from immigration detention. In most cases, that occurs by means of removal to the former visa holder’s country of origin. Sometimes, it occurs after the exhaustion of judicial review processes (including appeals), many months—and sometimes much longer—after the non-revocation decision is made. In this case, the applicant’s removal from immigration detention could result from the applicant’s removal to a country other than Indonesia or from the granting to him of a protection visa. If circumstances permit (or, perhaps more accurately, change), it might result from his return to Indonesia (unlikely though that presently seems). It could, of course, result from a beneficial re-exercise of the power under s 501CA(4) of the Act, were the Tribunal’s Decision to be set aside.
Howsoever a “solution” manifests in any given case, there is always a period following the non-exercise of the power conferred by s 501CA(4) of the Act during which the non-citizen will remain subject to immigration detention. Where (as occurs frequently) review or appeal rights are engaged, that period can be more than trivial. There is nothing about the subject matter, scope or purpose of the relevant legislative provisions that, by implication, conditions the non-exercise of the power conferred by s 501CA(4) of the Act upon prior consideration of the likelihood that a former visa holder will be detained for a lengthy period whilst those processes play out.
CONCLUSION
The Tribunal has found that two of the primary considerations, the protection of the Australian community from criminal or other serious conduct, and the expectations of the Australian community, weigh heavily against the Applicant in this matter. The other primary consideration, the best interests of affected minor children in Australia, has been found not to be relevant in KQHR’s case.
In respect of the other considerations in the Direction, the strength, nature and duration of KQHR’s ties, principally because of the very long period he has resided in Australia – over 50 years – weighs in his favour because of that longevity, but not because he has made anything more than a very negligible positive contribution to Australian society during his adult life through his brief period of employment and having Australian citizen children.
The considerations relating to impact on Australian business interests and impact on victims have been found not to be relevant, and to weigh neutrally. The consideration relating to the extent of impediments if removed has been found to weigh in favour of revoking the mandatory cancellation of the visa. Non-refoulement obligations have been found not to be owed on the basis of KQHR’s articulated claims, so that consideration weighs neutrally.
The Tribunal has carefully read the transcript of the hearing, and the arguments put by the parties. Paragraph 6.4 of Section 1 of the Direction reads:
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 a visa.
KQHR’s criminal history is nothing short of appalling. As set out in detail above, he has frequently offended using firearms and other weapons. Some of that offending has been violent. He has hurt people, invaded at least two homes and menaced people, including putting two elderly Australians in fear of their lives. He shut another person in a room of her own home so he could steal her possessions. He has frequently robbed premises, often armed with a loaded gun, which a Judge remarked was his ‘pattern’, or with a knife.
KQHR alleged that all his offending was precipitated by homelessness and drug addiction, but the fact is that his offending began when he was a juvenile, and he had received his first prison sentence for a serious crime in 1972. Much of his offending occurred before 1977 when he said he first took heroin, and it continued during the period when he has been off heroin, on methadone, and in stable accommodation. In his written statement he says his offending commenced because of the abuse he suffered as a ward of the state, and in the care of a Religious Order. I do not accept that drug-taking and homelessness has been an ever-present factor, although it does appear to have been a significant factor. I do accept that KQHR’s heroin addiction and his need to fund it has been a significant propellant of his offending over the last 35 years of his criminal history.
Regrettably, I am unconfident that KQHR has the capacity to avoid falling into re-offending, and the ‘moderate risk’ of this occurring, as assessed by the psychological assessments, is, I find, in all the circumstances that apply to him, at least a moderate risk and too great a risk, given it may easily rise depending on a variety of factors, and that this is determinative in terms of paragraph 6.4. Even though now he is much older and in poorer health, I consider there is a more than probable chance that KQHR would relapse into offending of some kind in the community, including possibly serious or violent offending.
Lest it be submitted that the Tribunal did not give due weight to the prospect of KQHR’s prolonged detention (or even ‘indefinite’ detention in the sense of continuing for a time period unknown), that factor has been carefully considered, as set out above. But the cancellation of KQHR’s visa which made him an illegal non-citizen, and thereby liable to detention and then deportation, was an action by the Respondent under section 501(3A) of the Act through the operation of law, it is not the matter that is the subject of this review. In this respect, the Tribunal notes, especially, paragraph [38] in DFTD where His Honour said:
I do not accept that the prospect that the applicant might be subjected to prolonged immigration detention can fairly be described as a legal consequence of the Tribunal’s Decision. Plainly, the applicant’s efforts to persuade the Tribunal (and, initially, the Minister’s delegate) to revoke the Cancellation Decision were designed to secure for him, by means of the Visa, an ongoing entitlement to remain in Australia as a lawful non-citizen. Nonetheless, it was not by reason of the Tribunal’s Decision that the applicant lost that entitlement. That was a consequence of the Cancellation Decision, which, of course, involved the mandatory exercise of statutory power under s 501(3A) of the Act. The legal consequences of the Tribunal’s Decision not to revoke that cancellation was that it remained undisturbed, as did the applicant’s status as an unlawful non-citizen (within the statutory meaning attributed to that phrase). I confess some difficulty in understanding how a state of affairs (here, the applicant’s becoming an unlawful non-citizen who was liable to be detained, possibly for a “prolonged” period) the existence of which pre-dates the making of a particular decision (here, the Tribunal’s Decision) might, nonetheless, amount to a consequence of that later decision.
In terms of the consequences of this decision, the Tribunal is satisfied of the practical reality that KQHR cannot be removed from Australia at this time because of the existing and long-standing policy of the government of his country of citizenship. I find that this factual circumstance weighs strongly in favour of KQHR in regard to whether there is ‘another reason’ under section 501CA(4) of the Act to revoke the mandatory cancellation of his visa, given the lack of certainty in terms of his disposition, certainty to which any person is entitled in terms of a decision on his or her immigration status.
However, I am satisfied that this finding does not prevail over what the Tribunal has found in this case, because of the Applicant’s extensive criminal history and a real risk of him re-offending, to be what is the determinative consideration, protection of the community from further criminal conduct. I do not find that the discretion available in section 501CA(4)(b)(ii) of the Act is enlivened, so the decision under review was the correct decision.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 247 (two hundred and forty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..................[sgd]......................................................
Associate
Dated: 8 April 2021

Dates of hearing: 7 & 8 May 2020

Counsel for the Applicant: Mr Angel Aleksov

Solicitors for the Applicant: WLW Migration Lawyers

Counsel for the Respondent: Mr J. W. G. Grant

Solicitors for the Respondent: Sparke Helmore Lawyers

[2021] AATA 795

8 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice

Dates of hearing:	7 & 8 May 2020
Counsel for the Applicant:	Mr Angel Aleksov
Solicitors for the Applicant:	WLW Migration Lawyers
Counsel for the Respondent:	Mr J. W. G. Grant
Solicitors for the Respondent:	Sparke Helmore Lawyers