KVRK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 3978

KVRK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3978 (30 November 2023)
Division:                  GENERAL DIVISION
File Number(s):2023/6675
Re:KVRK
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Antoinette Younes

Date: 30 November 2023
Place:Sydney

The Tribunal affirms the decision under review.
....................................[SGD]....................................
Deputy President Antoinette Younes
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – supply of prohibited drug of indictable quantity – assault occasioning actual bodily harm – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 99 – nature and seriousness of offending conduct – protection of the Australian community – family violence – strength nature and duration of ties to Australia – best interest of minor children in Australia – expectations of the Australian community – legal consequences of the decision – impediments to removal – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Migration Act 1958 (Cth) ss 189, 195A, 196, 197AB, 197C, 198, 499, 501, 501CA, 501E
Migration Regulations 1994 (Cth)
CASES
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1 33
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
Commonwealth of Australia v AJL20 (2021) 273 CLR 43
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs [2020] HCATrans 056
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Nepata v Minister for Home Affairs [2019] FCA 1197
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIALS
Department of Foreign Affairs and Trade, DFAT Country Information Report Iraq (Report,16 January 2023).
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Deputy President Antoinette Younes
30 November 2023
BACKGROUND

The Applicant was born in Iraq on 1 January 1994. On 19 March 2015, at the age of 21 years, he arrived in Australia as the holder of a Class XB Subclass 202 Global Special Humanitarian visa (the Applicant’s visa).[1]
[1] Ex 1, [3]-[4]
On 17 January 2022, the Applicant was convicted in Liverpool Local Court of supply prohibited drug > indictable & < commercial quantity, for which he was sentenced to a term of imprisonment of 14 months, with a non-parole period of 7 months.[2] On 9 February 2022, pursuant to s 501CA(3A) of the Migration Act 1958 (Cth) (the Act), a delegate of the Minister cancelled the Applicant’s visa. On 23 February 2023, the Applicant made representations to the Minister requesting revocation of the cancellation decision. On 6 September 2023, the delegate of the Minister decided not to revoke the visa cancellation.[3]
[2] Ex 5, 33.
[3] Ex 5, 7-31.
On the 11 September 2023, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision.
LEGISLATION
Section 501(3A) of the Act compels the Respondent to cancel a visa in certain circumstances:
(3A)     The Minister must cancel a visa that has been granted to a person if:
(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record.’
Section 501(7) of the Act provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution.
Section 501CA of the Act applies if the Respondent makes a decision under subsection 501(3A) of the Act to cancel a visa that has been granted to a person.
Section 501CA(4) provides:
(4) TheMinister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
MINISTERIAL DIRECTION NO. 99
The Respondent is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. Except for the Respondent acting personally, the Direction must be applied by all decision-makers, such as the Respondent’s delegates and the Tribunal.[4]
[4] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 [4].
On 23 January 2023, the Respondent signed Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 99). The Direction commenced on 3 March 2023 and revoked the previous Direction 90.
The preamble in Direction No 99 sets out the objectives[5] and the overarching principles[6] that provide the framework within which decision-makers should approach their task under ss 501 and 501CA.
[5] Direction 99 [5.1].
[6] Direction 99 [5.2].
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
(1)Protection of the Australian community from criminal or other serious conduct;
(2)Whether the conduct engaged in constituted family violence;
(3)The strength, nature and duration of ties to Australia;
(4)The best interests of minor children in Australia; and
(5)Expectations of the Australian community.
Paragraph 9 of the Direction identifies the non-exhaustive list of Other considerations:
a)Legal consequences of the decision;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, “information and evidence from independent and authoritative sources should be given appropriate weight.” Paragraph 7(2) provides that primary considerations “should generally be given greater weight than the other considerations.”
MATERIAL BEFORE THE TRIBUNAL
The Tribunal has the following material before it:
·The Applicant’s Statement of Facts, Issues and Contentions (SOFIC), filed on 19 October 2023 (Exhibit 1);
·The Respondent’s SOFIC, filed on 25 October 2023 (Exhibit 2);
·Applicant’s Tender Bundle, filed on 8 November 2023 (Exhibit 3);
·Respondent’s Tender Bundle, filed on 25 October 2023 (Exhibit 4);
·G-Documents, filed on 18 September 2023 (Exhibit 5); and
·Post-hearing submissions.
FINDINGS AND REASONS
The character test is defined in s 501(6) of the Act. The test is generally concerned with the protection of the Australian community from the risk of harm.
A person does not pass the character test only if one of the paragraphs in s 501(6) applies to that person. In this case, the delegate determined that the Applicant did not meet the character test under s 501(6)(a) because the Applicant has a 'substantial criminal record' on the basis of having been sentenced to a term of imprisonment of 12 months or more and was 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.
It is not in dispute that the Applicant does not meet the character test. On the 17 January 2022, the Applicant was convicted in Liverpool Local Court of supply prohibited drug > indictable & < commercial quantity, for which he was sentenced to a term of imprisonment of 14 months, with a non-parole period of 7 months. As a sentence of 12 months or more is ‘a term of imprisonment for 12 months or more’ within the meaning of s 501(7)(c) of the Act, the Applicant has a ‘substantial criminal record’ and he does not pass the character test.
The issue before the Tribunal is whether there is another reason the cancellation of the Applicant’s visa should be revoked.
The purpose of the Direction is to guide decision-makers exercising powers under the Act. Delegates and the Tribunal must generally follow the Minister’s Direction. The Direction identifies certain principles which provide a framework within which decision-makers should approach their task.[7] It prescribes relevant considerations which must be taken into account. It provides guidance only as to the manner in which they are to be balanced.
[7] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [80]–[81]. The Court was discussing Direction No 55, but the reasoning applies equally to Direction 99.
The Direction does not determine rules of general application, but gives directions to the decision-maker, including the Tribunal, as to the policy to be applied in exercising the power conferred by ss 501 and 501CA of the Act. The Direction does not derogate from the Tribunal’s duty to reach the correct or preferable decision in the particular case before it; the Direction has that end as its purpose.[8]
[8] Uelese v Minister for Immigration and Border Protection [2016] FCA 348 [50].
While decision-makers are bound to take into account certain considerations, they are not limited to those set out in the Direction.[9] The Direction specifies the relative, but not the actual, weight to be given to those considerations. The Tribunal is obliged to examine the merits of the case and decide for itself.[10] The weight to be given to any particular matter is a matter for the decision-maker and cannot be the subject of some formulaic approach.[11] Phrases such as ‘should generally be given greater weight than the other considerations’ and ‘one or more primary considerations may outweigh other primary considerations’ have been interpreted as provisions that are intended to provide guidance to the decision-maker as to how the balancing exercise required by the Direction should be approached. These phrases leave it open to the decision-maker to adopt a different approach in the individual case.[12] It is not the content of the Direction which determines the outcome of the decision, but rather it is the application by a decision-maker to the evidence and material in an individual case.[13]
THE PRIMARY CONSIDERATIONS
[9] GBV18 v Minister for Home Affairs [2020] FCAFC 17.
[10] See Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [21].
[11] Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 [127].
[12] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [83].
[13] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 [78].
Protection of the Australian community from criminal or other serious conduct
The Direction contemplates that decision-makers should have particular regard to the principle that ‘entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.’[14] It indicates that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.[15]
[14] Direction 99 [8.1(1)].
[15] Direction 99 [8.1(2)].
Whether there is a risk that a person would engage in specified conduct requires an evaluative judgement by the decision-maker.[16]
The seriousness of the Applicant’s conduct
[16] See Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 [2]. The Court considered s 501(1), but the reasoning also applies to ss 501(2) and 501(3A).
The Applicant’s criminal history
The Applicant’s criminal history is as follows:[17]
·On 18 March 2019, the Applicant was convicted at the Liverpool Local Court of fail to appear in accordance with bail acknowledgement, and he was given a s 10A conviction.
·On 18 March 2019, the Applicant was convicted at the Liverpool Local Court of wield knife in public place and he received a $150 fine.
·On 11 March 2020, the Applicant was convicted at the Bankstown Local Court of possess prohibited drug and received a $750 fine.
·On 9 June 2020, the Applicant was convicted at the Liverpool Local Court of assault occasioning actual bodily harm (DV)-T2 and sentenced to a 12-month community correction order.
·On 17 January 2022, the Applicant was convicted at the Liverpool Local Court of supply prohibited drug > indictable & commercial quantity and sentenced to 14 months imprisonment.
·On 17 January 2022, the Applicant was convicted at the Liverpool Local Court of not comply with noticed direction re s 7/8/9 – COVID-19 and sentenced to a s 10A conviction.
·On 17 January 2022, the Applicant was convicted at the Liverpool Local Court of common assault (DV)-T2, assault occasioning actual bodily harm (DV)-T2, and stalk/intimidate intend fear physical etc harm (domestic)-T2, for which he received an aggregate 18 months-community correction order.
[17] Ex 5, 32-33.
In relation to the offence of wield knife in public place, the NSW Police Facts Sheet indicates that the Applicant drove into a car park and grabbed a knife with a 15 centimetre blade from the boot of his car, and then continued to drive.[18] When stopped by the police, he initially denied having a knife, but later told the police that there was an incident involving his friend’s sister and a group of men were going to hurt her. The Applicant alleged that the other party had a firearm and that he had brought to protect himself. He later made admissions that he had armed himself with a knife in the event he was attacked.
[18] Ex 4, 76-77.
The circumstances of the 2020 conviction for assault occasioning actual bodily harm are outlined in the NSW Police Facts Sheet.[19] The Applicant had been in a relationship with Ms K, during which a child was conceived. The child is in the care of the State.[20] The child was being returned to Ms K, and there were tensions between Ms K and the Applicant about child support arrangements. On 31 May 2020, the Applicant was communicating with a mutual acquaintance, Ms A, to arrange a meeting with Ms K and the Applicant to sort out finances. Ms K and Ms A drove to a park near the Applicant’s house. They parked their car and at the time Ms K was seated in the front passenger seat and Ms A in the driver’s seat. The Applicant approached Ms K and asked her to step out of the car. As she took off her seatbelt, the Applicant opened the passenger door, and took hold of Ms K’s left arm, pulling her out of the car with force. He held her against the car, yelling at her about comments she had made regarding his mother and sister. The Applicant grabbed Ms K by her hair and punched her twice in the face and punched her five to six times in the side and top of her head. Ms Knott sustained several cuts and bruises to her face. In self-defence, Ms K bit one of the Applicant’s fingers and punched him several times. The Applicant left the scene and both parties contacted the police. When he was arrested and interviewed by police, the Applicant denied hitting Ms K, stating that her child was not his and that the fight was over money owed to him by the witness. The Applicant also claimed that Ms K and Ms A had attacked him, and that he never punched any of them.
[19] Ex 4, 66-68.
[20] Ex 5, 51.

In relation to the conviction of stalk/intimidate intend fear physical etc harm that arose on 30 April 2021, the NSW Police Facts Sheet indicates that Ms S attended Liverpool Police Station to report her concerns that the Applicant had committed domestic abuse against her sister, Ms D, with whom the Applicant was in an intimate domestic relationship.[21] The police conducted a welfare check on Ms D, who denied that there were any concerns. Following the check, and while Ms S was still at the police station, the Applicant called Ms S. She put the Applicant on speaker so that the police could hear. The Applicant asked her if she had called the police, which she confirmed. The Applicant the said “shut up! Just shut the fuck u!. I’m going to fucking kill you, I swear I’m going to fucking kill you” and ended the phone call.
[21] Ex 4, 32-34.
The circumstances of the convictions of common assault and assault occasioning actual bodily harm, are that whilst the Applicant and Ms D were in a relationship, on 27 or 28 April 2021, an argument started between the two about the Applicant’s drug habits and whether he was on heroin.[22] Ms D was lying on her bed. The Applicant was angry and climbed on top of her and began to punch her in the face multiple times, and struck her on the right side of her back, saying “why would you ask that”. The Applicant then left the room. On 29 April 2021, Ms D’s sister, Ms S, reported the incident to the police. On 30 April 2021, the police went to Ms D’s home. She refused to speak to the police and denied that there was any reason for the police to be there. The police checked on the welfare of the children, who were asleep with no apparent injuries. On 1 May 2021, the police were informed that Ms D was at her sister’s house. The police attended Ms S’ house to speak to Ms D. The police found Ms D with visible bruising to both eyes, bruising on the right side of her forehead, and significant bruising on her right shoulder. Upon being questioned by the police, she said that the Applicant had punched her on the face.
[22] Ex 4, 57-60.
In relation to the breach of the COVID-19 direction, the Sentencing Court’s remarks indicate that the Applicant was spotted by the police who were on patrol, and spoke to the Applicant who became extremely nervous, placing his hands in his pocket.[23] The Applicant was in breach of the COVID-19 Pandemic Health Orders. He threw a black box on the ground. The police arrested the Applicant and found 6.48 grams of methylamphetamine in the black box. The Applicant denied that it was his, claiming to have found it on the ground. The Court found that the amount was in excess of the indictable quantity, being 5 grams.
[23] Ex 5, 43.
The Respondent submitted that the Applicant’s criminal history should be viewed very seriously. In the SOFIC and in closing submissions, the Applicant accepted that he has been convicted of the above offences and that his offending has increased in seriousness overtime.[24] The Applicant however contended that he has no overseas criminal record, he did not provide false information to the Department, he does not have a long violent history, and that prior to 31 May 2020 he had no history of violent offending. The Applicant also contended that his most serious violent offending happened between 31 May 2020 to 30 April 2021, a period which correlated with his most heavy usage of ice period in 2020 to 2021, which was up to 1 gram per day, where he smoked daily according to his oral evidence.
[24] Ex 1, [17].
The Tribunal accepts that the Applicant does not have an overseas criminal record, that the violent conduct commenced around May 2020, and that this appears to correlate with the heavy use of ice. However, the Tribunal is satisfied that there has been repeated violence against women with whom the Applicant has had an intimate personal relationship. He has threatened to kill Ms S after she reported him to the police, highlighting his out-of-control behaviour.
The Tribunal is concerned about the Applicant’s evidence in the course of the hearing that he ‘slapped’ Ms D rather than as accepted by the Court, namely that he had ‘punched’ her:
MR BURKE: I'm just asking you if you accept whether you punched her.
APPLICANT: I swear to God I'm saying the truth. That's the facts, they – whatever they need to say, they said. Let them say that, not me. I didn't say that. And I'm promise, I'm just going to say the truth, I swear to God, I'm going to say the truth. And I'm telling you that truth.
TRIBUNAL: So can you answer the question?
APPLICANT: Yes.
TRIBUNAL: So did you punch her at the back?
APPLICANT: Slapped three times.
TRIBUNAL: In the back? As Mr Burke had asked you?
APPLICANT: But when she turn, and I slapped her hard and that's was really bad.[25]
[25] Transcript, 28, [20]-[35].
Whether it is punching or slapping does not assist the Applicant, as any form of violent behaviour is unacceptable. The Applicant’s distinction between slapping and/or punching reflects lack of insight about violence and appropriate social conduct towards others, although he did acknowledge that the behaviour was “really bad”.
The Applicant has been involved in the supply of ice and has been convicted of that offence. The Tribunal notes the Applicant’s evidence, under cross-examination, that the 6.48 grams of ice he was found in possession of on 30 July 2021 was solely for personal use. However, as pointed out under cross-examination, upon his arrest, the Applicant provided the passcode to his mobile phone, indicating that he was involved in the supply of prohibited drugs. When this was raised during the hearing, the following exchange occurred:
MR BURKE: … what the police found on your phone indicates that you were actually selling drugs when you were arrested. Do you have anything to say about that?
APPLICANT: They open my phone, yes, but they couldn’t find nothing.
MR BURKE: Well, that’s not what the police have recorded there?
APPLICANT: They record, yes, but what’s the evidence? I don’t have it … I opened my phone for him. I opened. He said, ‘If you have that much you’re a drug dealer’, or something. Opened my phone. I opened the BAS code for him and I give it to him.
MR BURKE: And the police have recorded that the messages and images within your phone indicate you were actively involved in the supply of prohibited drugs?
APPLICANT: Only one message was. Only one message. It was not even messages. Was only one message and between me and my friend. He said, ‘Do you want a – like, do you want to come? Do you have stuff? Do you want to come and that?’ and he see it, and I told him that’s a friend.
The Applicant accepted that nearly six and a half grams of ice is a lot of ice. When the Tribunal asked how the Applicant had money to pay for the ice, the following exchange occurred:
APPLICANT: When I get out from prison, I have in my account – was nearly couple of grand.
TRIBUNAL: Where did you get that from?
APPLICANT: … I was getting some cars, cars, like, and fixed them in the front of the house. Like, change some stuff on, and sell them in Facebook. Like, I got a cheaper car from, like, auctions or something like that, and fixed them in the front of the … house, and sell them, like … 500, 1000, something like that … and then I’ve seen two cars, like, for my friends. I fixed them and they give me the money, and then I went to jail. Then that money’s still in my account. When I get out, the Centrelink, they give me 500 and that’s maybe couple of grand. It was enough for me.
The Tribunal is persuaded by the Respondent’s closing submissions that the Applicant’s explanation is not credible in terms of how he could afford such an amount of ice, and the evidence that the police identified messages and images on his phone indicating that he was actively involved in the supply of drugs. In any event, the Tribunal cannot go behind or scrutinise the essential facts for this conviction.[26] As outlined by the Respondent, in HZCP,[27] the Court outlined the principles that where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction, the sentence, or the essential facts.
[26] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 [78] (‘HZCP’) (upheld on
appeal to the Full Court of the Federal Court: HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202).
[27] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 [78].
The Tribunal is satisfied that the conviction for supply prohibited drug > indictable & commercial quantity, for which he was sentenced to 14 months’ imprisonment, is the basis for the Applicant’s failure of the character test, and therefore, the essential facts of this specific conviction cannot be challenged. Whereas the Applicant’s convictions for violent offending against women did not form the foundation for the mandatory cancellation of his visa and his failure of the character test under s 501, it is possible to challenge the essential facts underlying the convictions, although there is a heavy onus on a person seeking to challenge the facts upon which the conviction is based. In this case, the Tribunal is satisfied that the Applicant’s challenges such as ‘slapping’ instead of ‘punching’ do not meet the heavy onus and as mentioned earlier, they are reflections of lack of insight about violence and appropriate social conduct towards others in the community.
The evidence before the Tribunal is that the Applicant has been involved in violent behaviour, including assault occasioning actual bodily harm, wielding a knife and threatening. There is a trend of increasing seriousness in the Applicant’s offending, as well as frequency of offending. The offence of supply prohibited drug occurred when the Applicant was on bail for domestic violence charges.
The Tribunal gives significant weight to the Court’s imposition of a custodial sentence, which is an objective reflection of the seriousness of the Applicant’s offending. The Tribunal accepts the Respondent’s submissions that a term of imprisonment is the last resort in the sentencing hierarchy.
For those reasons and on balance, the Tribunal is satisfied that the nature and seriousness of the Applicant’s criminal offending weigh heavily against revocation.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Direction states that decision-makers must have regard to the following considerations cumulatively:
a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the noncitizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The Direction contemplates that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[28] In some circumstances, it may be permissible to conclude that any type of continued offending increases the risk of further violent offending.[29] The Tribunal needs to consider the likelihood and consequences of further offending.[30]
[28] Direction 99 [8.1.2(1)].
[29] Nepata v Minister for Home Affairs [2019] FCA 1197 [30].
[30] Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 [95].
In the Applicant's SOFIC,[31] it was accepted that this primary consideration weighs against revocation.
[31] Ex 1, [20].
The Respondent contended that the Applicant’s contentions should not be accepted and that the Applicant remains at risk of reoffending. The Respondent raised a number of matters in support of those contentions. The Respondent argued that the Applicant has shown limited insight into his offending, has had little engagement with rehabilitation, has refused to accept responsibility for his actions and attempted to blame his victims, and has continued to demonstrate aggressive and violent behaviour while in immigration detention.[32]
[32] Ex 2, [34]-[39].
In closing submissions, the Applicant acknowledged that drug use has been a major contributing factor in his serious offending. It was contended and the Tribunal accepts that the Applicant had acknowledged and accepted his struggle with addiction to ice. In his statement, the Applicant gave an outline of his drug use and noted that “ice was a problem for me’ [he] was out of control, the more [he] used it the more [he] needed to use it”.[33] In relation to the use of heroin and bupe, he gave evidence that according to his recollection he has not used those drugs. The Applicant confirmed that he has used drugs in detention[34] and used drugs weekly in prison from July 2012 until February 2022.[35] Although the Applicant reported that he last consumed drugs around February 2023 while in detention, this is inconsistent with a report on 1 July 2023[36] that suspected drug use products were found in a package addressed to the Applicant, which the Applicant denies was his.[37] However, the evidence of Ms Lillian Harman, Clinical Psychologist, confirms the Applicant’s reporting to her that he had maintained sobriety for the last 10 months in detention.
[33] Ex 3, [12].
[34] Transcript, 40, [35].
[35] Transcript, 38, [40]-[45].
[36] Ex 5, 82.
[37] Transcript, 41.
The Tribunal is of the view that whether the Applicant has been sober since February 2023 or later is not that significant in terms of timeframe. The fact is that the Applicant has continued to use illicit drugs even in controlled environments such as prison and detention, indicating that his drug problem is serious and longstanding.
In closing submissions, the Applicant contends that he has commenced meaningful rehabilitation and has a commitment to continue if his visa is reinstated. The Tribunal accepts that the Applicant is participating in the SMART Recovery Program and has been doing so weekly for around 2 hours for the last 3 months. The Tribunal accepts that the Applicant has completed courses in Domestic Violence,[38] Anger Management 101,[39] Drugs and Alcohol, and has engaged in psychological treatment. The Tribunal accepts that the Applicant has been attending weekly sessions with a Clinical Psychologist, Ms Lillian Harman, from the NSW Service for the Treatment and Rehabilitation of Torture & Trauma Survivors (STARTTS) for around 1 year after being referred. The Applicant however conceded that Ms Harman is not a Forensic Psychologist and does not have capacity to use actuarial measures to formally assess risk of recidivism, and that her role is to provide torture and trauma counselling as a Clinical Psychologist.
[38] Ex 3, 20.
[39] Ex 3, 19.
The closing submissions further contended that the Applicant’s offending occurred while he was using drugs and living with untreated Post Traumatic Stress Disorder (PTSD) as well as the impacts of chronic refugee trauma occurring during his developmental years. It was accepted that the Applicant has not had an opportunity to demonstrate prosocial living skills in the absence of substance addiction and mental illness. The Tribunal accepts Ms Harman’s evidence that if the Applicant is released, STARTTS would provide ongoing support and that they have a plan for the Applicant, to which the Applicant is committed. STARTTS ongoing support includes continued psychological treatment with Ms Harman, completion of a behaviour modification program in the community, either through CSNSW DV/EQUIPS or another program which addresses violence towards women and healthy relationships, and continuation of SMART recovery group and other forms of treatment for drug and alcohol.
The Tribunal accepts that the Applicant intends to recommence vinyl laying employment and that the Applicant has an incentive not to reoffend because of the potential of losing his entire family. The Tribunal accepts that the Applicant has never been warned that his visa would be cancelled, but a warning is not a precondition to cancellation.
In essence however, the Applicant conceded that this consideration weighs against revocation of the visa cancellation.
There is no expert evidence before the Tribunal concerning the Applicant’s risk of recidivism, or criminogenic factors contributing to his repeated offending in the past. The Applicant has relied on the report and oral evidence of Ms Lilian Harman. In oral evidence, Ms Harman confirmed that the treatment and counselling that she provided to the Applicant are essentially to address his mental health including PTSD, and not to identify and treat his criminogenic needs. She stated “…my role is primarily to provide torture and trauma counselling. I don’t have the scope to provide specific criminogenic needs treatment.”[40] She also confirmed that she could not provide an opinion on whether the Applicant was a low, medium, or high risk of reoffending, and that assessing an offender’s risk of recidivism was not within her professional expertise.
[40] Transcript, 82, [25].
When asked by the Tribunal, Ms Harman acknowledged that she could not comment on the effectiveness of any treatment for the substance abuse of the Applicant. She did however say:
MS HARMAN: … in the community there are a number of treatments options and support services available for people with substance misuse. Some of this would depend on the nature of the substance that's been used. For example, you know, methadone clinics and things like this. Pharmacological treatments are available for certain substances. There is also the counselling and motivational interviewing sort of behaviour change side of things which – in terms of the counselling intervention, you know, I have implemented some of this with KVRK around motivational interviewing, identifying risk factors, triggers, mental state, situations that are associated with previous drug use, and how to plan to avoid or manage or mitigate these factors, both at present in detention and also in the future, possibility of being in the community, how he will continue to manage these factors.
… I do believe that counselling has a role to play in a recovery from substance use in conjunction often with pharmacological medical sort of interventions, as well as group interventions such as the SMART recovery group that he is participating in at present and – or – and to continue in the future.
TRIBUNAL: KVRK told us earlier – and I respected that very much – that he felt it's a journey, you know, in terms of the drug rehabilitation issues, that it is going to take some time to overcome that issue. Do you want to comment on that?
MS HARMAN: Look, yes, I would say that for many people who have challenges and issues with substance misuse, often recovery is a longer-term process, and in the process of recovery, we – you know, we talk about how relapse is often a common part of recovery, and that it may take, you know, a number of attempts to maintain sustained sobriety.[41]
[41] Transcript, 83-84, [30]-[45], [5]-[20].
In relation to Ms Harman’s reference to the Applicant addressing “risk factors”, she confirmed that this is not specifically a reference to the Applicant addressing risk factors contributing to a risk of recidivism, rather, risk factors associated with mental state deterioration generally.[42]
[42] Transcript, 82, [45].

Overall, although the Tribunal is satisfied that the Applicant has engaged in ongoing sessions with Ms Harman, there is limited evidence to conclude that this has resulted in a tangible difference in the Applicant’s risk of reoffending. Moreover, it is difficult to see the impact, if any, of the courses undertaken by the Applicant on the risk of recidivism. What is evident is that the Applicant has a significant drug abuse problem which has been associated with his offending. The extent of the problem is longstanding – he even used drugs in prison and in immigration detention until at least the start of 2023. The Applicant denies using heroin but admits to using ice, which the Tribunal understands to be a serious drug. The Tribunal formed the view that the Applicant lived a challenging lifestyle dominated by drug use and periods of abstinence that are short term and not indicative of a sustainable level of abstinence. The steps he has taken to address his drug abuse issues have not been tested in the community.
The Tribunal acknowledges the Applicant’s plans to abstain, but his oral evidence suggests that those plans are unclear. He spoke of rehabilitation and continuing sessions with Ms Harman, but there does not appear to be concrete plans to engage with drug and alcohol rehabilitation services. Further, the Applicant’s plans to live with his mother and brother cannot be seen as a stabilising influence, given that he resided with his mother before he was imprisoned in 2021, and he was also on drugs.
The Applicant’s conduct in detention such as violent and abusive behaviour by repeated kicking of the door of another detainee’s room,[43] threatening to kill other detainees[44] and abusive language directed to detention staff,[45] highlights his tendency for violent and threatening behaviour, even within the controlled environment of immigration detention.
[43] Ex 5, 83.
[44] Ex 5, 85.
[45] Ex 5, 97.
The Tribunal is satisfied that the cumulative evidence supports a finding that that the Applicant’s journey to recovery is ongoing and that there is still a considerable way to go, meaning that he presents an unacceptable risk to the community. The Tribunal is satisfied that the cumulative evidence supports a conclusion that there is a risk of reoffending and given the seriousness of the offending, any risk is unacceptable.
For those reasons, the protection of the Australian community consideration weighs heavily against revocation of the cancellation decision.
Whether the conduct engaged in constituted family violence
The Direction refers to the Australian Government having “serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.”[46]
[46] Direction 99 [8.2(1)].
Family violence is defined by Direction 99 as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Direction 99 provides non-exhaustive examples of family violence, including assault, stalking, and intentionally damaging or destroying property.[47]
[47] Direction 99 [4(1)]
The Direction contemplates that in considering the seriousness of the family violence engaged in by the non-citizen, the factors that must be considered are:
·the frequency of the offending conduct;
·any trend of increasing seriousness;
·the cumulative effect of repeated acts of family violence;
·rehabilitation achieved at time of the decision since the person’s last known act of family violence (including the acceptance of responsibility, understanding of the impact of the behaviour on the victim/witness of that abuse (particularly children) and the efforts to address factors which contributed to the conduct); and
·whether the person has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement, or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour.[48]
[48] Direction 99 [8.2(3)].
Direction 99 defines ‘member of the person’s family’, for the purposes of the definition of family violence, as a person who has, or has had, an intimate personal relationship with the relevant person. The phrase should not be construed narrowly.[49]
[49] Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115 [124].
The Applicant’s conduct relates to family violence. The Applicant has been convicted of violent assaults against his former partners, Ms D and Ms K. He has also made threats to his former partner’s sister, Ms S. The Tribunal accepts the Respondent’s closing submissions that the Applicant’s conduct towards Ms S does not amount to family violence as she is not a member of his family, as defined.
The Tribunal is satisfied that the convictions that involve family violence are the assault occasioning actual bodily harm against Ms K on 31 May 2020, and the common assault and assault occasioning actual bodily harm against Ms D on 27 or 28 April 2021. These offences were committed against women with whom the Applicant had an intimate personal relationship, and they relate to serious incidents of family violence. The Tribunal is satisfied that there is a trend of increased frequency given that the Applicant committed three further family violence offences after his first offence, in close succession.
In the Applicant’s closing submissions, it was conceded that this consideration weighs in favour of non-revocation. However, it was contended that the Applicant has complied with conditions imposed in the 2 apprehended violence orders made protecting Ms K and Ms S, that he has engaged in treatment for his drug misuse and behaviour with Ms Harman, and he has also completed a Domestic Violence course.
The Tribunal accepts the Applicant’s engagement with Ms Harman and his undertaking of courses, but the Tribunal is of the view that there is a degree of lack of insight. As mentioned earlier, in the course of the hearing, the Applicant made a distinction between ‘slapping’ and ‘punching’, suggesting amongst other things, of lack of insight relating to appropriate behaviour towards others, although he did say it was “really bad”. The Tribunal considers this concession to show a degree of remorse, but it does not demonstrate an understanding of the impact of his behaviour on his victims.
The Tribunal views the Applicant’s family violence very seriously and as such this consideration weighs heavily against revocation.
The strength, nature and duration of ties to Australia
The Direction at paragraph 8.3(1) contemplates that decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. In considering a non-citizen’s ties to Australia, the Direction provides, among other things, that decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.[50]
[50] Direction 99 [8.3(2)].
Paragraph 8.3(4) of the Direction requires the Tribunal to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community and in doing so have regard to:
(a) the length of time the non-citizen has resided in the Australian community, noting that:
(i) considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending;
(ii) more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant has been in Australia since March 2015. He did not spend his formative years in Australia, having arrived at the age of 21 years. In the Applicant’s closing submissions, it was noted that the Applicant has his mother, 2 sisters, a brother, about 15 nieces and nephews, and around 58 cousins. However, in oral evidence, the Applicant confirmed that he has 3 sisters and a brother. Moreover, in his Statutory Declaration dated 8 November 2023, he refers to 3 sisters and a brother.[51] The Applicant’s father is deceased. His mother is in Australia. He has a sister in Denmark, one in Dubai, and a brother in Finland.[52]
[51] Ex 3, [2].
[52] Ex 3, [2].
The Applicant has one biological son who was born on 24 March 2019. The Applicant’s son has been in the care of the NSW Family and Community Services (FACS). The Applicant has a partner, Ms R, who gave evidence in the course of the hearing supporting the Applicant.
In closing submissions, it was noted that the Applicant’s ties to Australia are strong and are strengthened by the fact that he was a displaced person, having left Iraq around the age of 5 years old, and waiting in Syria while being processed. It was further noted, and the Tribunal accepts that the Applicant has made some positive contribution to the Australian community through his employment as a vinyl carpet layer and role as his mother’s carer.
The Tribunal accepts that the Applicant’s main family, and other ties are in Australia and that non-revocation would have an adverse impact on his family, particularly his mother for whom he cared.
The Tribunal notes however that the Applicant has not spent his formative years in Australia, and that he commenced offending about four years after his arrival in Australia. On balance, the Tribunal gives this consideration some weight in favour of revocation.
The best interests of minor children in Australia
The Direction requires decision-makers to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.[53]
[53] Direction 99 [8.4(1)].
In considering the best interests of the child, the Direction states at paragraph 8.4(4) that the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has one biological child, a son, who was born on 24 March 2019 and is an Australian citizen. The Applicant found out that he has a son while in custody after being asked by FACS to undertake a DNA test. The Applicant’s son is in foster care with his half-brother. The Applicant acknowledges that he has not had much contact with his son, “only two or three times. The last interaction being a video chat this year”.[54] The Applicant expressed intention of being in the life of his son and states that if removed from Australia, his son will have no chance of having any relationship with his father.[55]
[54] Ex 3.
[55] Ex 3.
The Applicant has also identified the following nieces and nephews in Australia and states that he plays an uncle role in their lives:[56]
·a niece aged 7;
·a nephew aged 10;
·a nephew aged 5;
·a niece aged 16; and
·a niece aged 14.
[56] Ex 5, 66.
In her Statutory Declaration, the Applicant’s sister, Ms N, stated that the Applicant is a “pillar of support” for her and her three children.[57] She stated that the Applicant is a father figure who is always there for the children.
[57] Ex 3, 24.
Ms R, the Applicant’s current partner, gave evidence that her son has a close relationship with the Applicant and that when released, the plan is for the Applicant to play more of a parental role in Ms R’s son’s life.
The Tribunal is satisfied that it is in the best interests of the minor children for the Applicant to remain in Australia. However, the Tribunal considers it appropriate to moderate the weight to be given to this consideration for a number of reasons. The Applicant does not have a strong and/or personal relationship with his son. He is not fulfilling a parental role and even with all good intentions, it is speculative how such a relationship would develop in the future. As discussed above, the Applicant has had a serious and longstanding drug issue. How he will address that in the future is, at this stage, uncertain. The Tribunal is of the view that the drug problem presents challenges for the Applicant in developing a positive parental relationship with his son, who is in foster care. FACS would need to be involved and the Tribunal cannot predict what they would do. The Applicant has a history of family violence towards females including Ms K, the mother of the Applicant’s son, and given the unacceptable risk of reoffending, the Applicant’s ability to play a positive parental role is questionable.
In relation to the nieces, nephews and Ms R’s son, the Applicant does not fulfil a parental role, although the Tribunal acknowledges that Ms N’s children see him as a father figure. In relation to Ms R’s son, while the Applicant has plans that on his release, the Applicant’s ability to play a positive parental role is questionable, given his history of family violence and unacceptable risk of reoffending. Whilst Ms R’s son may prefer to have the Applicant in the community in light of their current relationship, the Tribunal gives limited weight to his best interests in favour of revocation.
On balance and having regard to the cumulative evidence, the Tribunal is satisfied that this consideration weighs in favour of revocation, but for the above reasons it should be moderated, and does not outweigh the considerations weighing against revocation.
Expectations of the Australian community
The Direction at paragraph 8.5(1) indicates that the Australian community expects non-citizens to obey Australian laws. It states that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
The Direction refers to non-revocation of the mandatory cancellation of a visa, being potentially appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.[58]
[58] Direction 99 [8.5(2)].
The Tribunal observes that the Direction contemplates that the expectations of the Australian community apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the community.[59]
[59] Direction 99 [8.5(3)].
The Federal Court of Australia’s decision in FYBR is significant.[60] In FYBR, the applicant argued that the Tribunal had erred in its approach that paragraph 11.3 of the then of Direction 65 as being deeming of what community expectations are, irrespective of the individual’s personal circumstances. The applicant argued that the Tribunal did not appreciate that it was permissible for it to assess whether community expectations would have been the same in relation to the applicant, given that he had already spent so much time in immigration detention.[61] In rejecting the applicant’s argument, Perry J concluded:
It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases.[62]
[60] FYBR v Minister for Home Affairs [2019] FCA 500 (‘FYBR’).
[61] FYBR v Minister for Home Affairs [2019] FCA 500 [21].
[62] FYBR v Minister for Home Affairs [2019] FCA 500 [42].
On appeal to the Full Federal Court, the majority of the Court (Charlesworth and Stewart JJ) essentially concluded that paragraph 11.3 contained a statement of the Australian Government’s views as to the expectations of the Australian community that must be applied,[63] that it is not for the decision-maker to make his or her own assessment of the community expectations,[64] and that in the context of Direction 65, community expectations as expressed normatively are what the Government says that they are (even though ascertainable community expectations might be quite different).[65] In essence, the judgment is authority for the proposition that it is not the decision-maker to make an assessment of community values on behalf of the community, and that those values are expressed as norms in Direction 65. The applicant’s special leave application to the High Court of Australia was dismissed.[66]
[63] FYBR v Minister for Home Affairs [2019] FCAFC 185 [66].
[64] FYBR v Minister for Home Affairs [2019] FCAFC 185 [67].
[65] FYBR v Minister for Home Affairs [2019] FCAFC 185 [91].
[66] FYBR v Minister for Home Affairs [2020] HCATrans 056.
In closing submissions and in his SOFIC,[67] the Applicant accepted that this consideration weighs against revocation.
[67] Ex 1, [30].
The Tribunal is satisfied that the Applicant has committed serious offences involving family violence. He has also been involved in the supply of illicit drugs. The Tribunal is satisfied that the Australian community expects that the Australian Government should not revoke the cancelation of the Applicant’s visa because his conduct is serious and he did not spend his formative years in Australia.
The Tribunal gives this consideration significant weight against revocation.
THE OTHER CONSIDERATIONS
Legal consequences of the decision
At paragraph 9.1, the Direction indicates that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

The Direction divides the considerations to be applied in this paragraph into two sections:
(1) non-citizens covered by a protection finding; and
(2) non-citizens not covered by a protection finding.
Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there would be a risk of harm.
The Applicant arrived in Australia as the holder of a Global Humanitarian visa, which is not a ‘protection visa’ as defined by the Act.[68] The Applicant has however made claims to fear serious harm if returned to Iraq on the basis of being of the Mandean faith.[69] He has claimed that Mandeans are a discriminated minority in Iraq, which is not a safe place. He also claimed that he would be killed and that he was previously injured in a bombing in Iraq, which resulted in PTSD, trauma and the loss of a kidney.[70] In the delegate’s statement of reasons,[71] the delegate accepted that the Applicant’s claims would give rise to the potential engagement of non-refoulment obligations, because the claims would fall within an assessment of whether protection obligations would be owed to the Applicant.
[68] Migration Act 1958 (Cth) s 35A; Migration Regulations 1994 (Cth) pt 4 sch 1; CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 [4], [123].
[69] Ex 5, 70-71; Applicant’s Closing Submissions, [43].
[70] Ex 5, 71.
[71] Ex 5, 16-31.
The Respondent in its SOFIC referred to the High Court’s decision in Plaintiff M1/2021,[72] which provides that the Tribunal is required to read, identify, understand and evaluate the Applicant’s representations, including any claims for non-refoulement under domestic law.[73] The Applicant has not applied for a protection visa, but intends to do so in case of an unfavourable outcome in relation to this review. The Tribunal is satisfied that the Applicant is able to make a valid application for a protection visa which would allow a comprehensive assessment of his claims. Consistent with Plaintiff M1/2021,[74] the Tribunal has decided to defer the assessment of whether the Applicant is owed protection obligations on the basis that it is open to the Applicant to lodge an application for a protection visa where non-refoulment obligations would be considered.
[72] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (‘Plaintiff M1/2021’).
[73] Ex 2, [65].
[74] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17.
The Applicant contended that if the Applicant were to lodge an application for a protection visa, he would face a further period in detention whilst the application is being considered or while the Minister considers the possibility of re-settlement or the exercise of a personal discretion. The Applicant contended that the period of detention the Applicant would face pending any protection application is likely to be a number of years which is “excessive”. The following paragraphs discuss the relevance and impact of NZYQ.[75]
[75] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154 (‘NZYQ’).
NZYQ
On 8 November 2023, the High Court handed down a judgment in NZYQ by pronouncing orders. The Court declared that, by reason of there being and continuing to be no real prospect of the removal of NZYQ from Australia becoming practicable in the reasonably foreseeable future:
·NZYQ’s detention was unlawful as at 30 May 2023; and
·NZYQ’s continued detention is unlawful and has been since 30 May 2023.
A writ of habeas corpus was issued requiring the defendants to release NZYQ forthwith.
The Court published the reasons on 28 November 2023.
Post-hearing, the Tribunal received submissions relating to NZYQ. The submissions are summarised below.
Applicant’s submissions
The Applicant referred to earlier submissions made in the SOFIC in relation to the prospect of the Applicant facing indefinite detention.
The Applicant noted that in NZYQ, the High Court made orders that an unlawful non-citizen in immigration detention with no real prospect of removal from Australia in the reasonably foreseeable future cannot be indefinitely detained. The Applicant stated that the High Court found that indefinite detention is beyond the constitutional limits of the government’s power. The Applicant submitted the following:
“However, it is reported through media that the Department of Home Affairs are currently releasing these cohort of detainees on Bridging Visa R with strict conditions. If the Applicant falls into this category it would appear on the information available, he would be released on a Bridging Visa R and for now wouldn’t be facing indefinite detention”.[76]
[76] Applicant’s Closing Submission, [50].
Respondent’s submissions
In summary, the Respondent made submissions, and the Tribunal finds that the Applicant is not the subject of a protection finding (as defined in s 197C(5) of the Act), and as such the legal consequence of the Tribunal making a non-revocation decision is that the removal obligation in s 198 will continue to apply and the Applicant will continue to be detained under ss 189 and 196 of the Act until he applies for and is granted a protection visa, or another visa under s 195A, or a residence determination is made under s 197AB, or the Applicant is removed. It was further submitted, and the Tribunal finds that where there is no protection finding, the duty to remove the Applicant under s 198 of the Act is engaged. The Respondent did not concede that there is no real prospect of removal and maintained that NZYQ does not require that the Applicant be released from immigration detention.
The Tribunal is satisfied that the effect of NZYQ is that, where pursuant to s 198 of the Act, the statutory duty to remove a non-citizen has arisen, the detention of the non-citizen will no longer be supported by ss 189 and 196 of the Act where there is no real prospect that it will be practicable to remove the non-citizen in the reasonably foreseeable future, and the non-citizen must be released from immigration detention. In this case, prior to cancellation, the Applicant held a Class XB Subclass 202 Global Special Humanitarian visa, which is not a protection visa as defined in the Act, and the grant of that visa did not involve any protection finding. Accordingly, no protection finding has been made in relation to the Applicant, and s 197C(3) of the Act is not engaged.
The Tribunal is satisfied that as the Applicant has not applied for a protection visa, it is open to him to do so, and that s 501E of the Act would not prevent such an application, even if the Tribunal were to affirm the delegate’s decision.[77] The Applicant’s evidence is that if the Tribunal did not revoke the cancellation decision, he would make such an application for a protection visa. In case of a non-revocation decision by the Tribunal, the removal obligation in s 198 of the Act will continue to apply to the Applicant.[78] The Applicant will remain in immigration detention under ss 189 and 196 of the Act unless and until he applies for and is granted a protection visa, or he is granted another visa under s 195A, a residence determination is made under s 197AB, or the Applicant is removed.
[77] Migration Act 1958 (Cth) s 501E(1)-(2)(a).
[78] Migration Act 1958 (Cth) s 198(2B).
The Tribunal is satisfied that whilst the application for a protection visa is under consideration, the removal obligation in s 198 of the Act would not apply[79] and the Applicant would lawfully remain in immigration detention under ss 189 and 196 of the Act pending the determination of his protection visa application.[80] The Tribunal accepts the Respondent’s submissions that the legal consequence of a non-revocation decision by the Tribunal is not affected by NZYQ because s 198 of the Act, in conjunction with s 197C(1) and (2), will continue to require the Applicant’s removal.
[79] Migration Act 1958 (Cth) s 198(5A)-(6).
[80] Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1 33; Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 [21]; Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 [26]; Commonwealth of Australia v AJL20 (2021) 273 CLR 43 [23].
The Tribunal is satisfied that as to the prospect of ongoing detention, regardless of whether the Applicant applies for a protection visa or not, if the Tribunal were to affirm the decision under review, the Applicant would face a period of detention, and that would have an adverse impact on the Applicant’s mental health, including his PTSD.
The Tribunal therefore gives this consideration weight in favour of revocation.
Extent of impediments if removed
Paragraph 9.2 of the Direction requires the Tribunal to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) taking into account:
(a) the non-citizen's age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
The Applicant is 29 years old and he speaks Arabic. He has employment skills. He lived in Iraq until he was about 19 years old. There are no linguistic or social barriers if the Applicant is returned to Iraq.
In the Applicant’s closing submissions, it was contended that the Applicant has no reasonable third country to which he could return to reside, and that in the event that Iraq becomes a viable option for return, the Applicant would face substantial impediments if removed. The Applicant’s representative cited the Australian Department of Foreign Affairs (DFAT) Country Report for Iraq, dated 16 January 2023, which states that Sabean-Mandeans experience discrimination, slurs and negative stereotypes, as well as being targeted for attacks and kidnappings due to their perceived wealth and vulnerability. The submissions noted that DFAT’s report states that like other minorities, Sabean-Mandeans face a moderate risk of societal discrimination and violence in areas where they are a minority, including as targets of violent crime, kidnapping and extortion.
The Tribunal observes that DFAT reported as follows: [81]
[81] Department of Foreign Affairs and Trade, DFAT Country Information Report Iraq (Report,16 January 2023).
Sabean-Mandeans
3.52       The Sabean-Mandean religion is a form of Gnosticism, descended from ancient Mesopotamian worship, with rituals that resemble those of Zoroastrian and Nestorian worship. John the Baptist is its central prophet. Sabean-Mandeans practise baptism in flowing water, and generally live near rivers as a result. Sabean-Mandean faith bars the use of violence or the carrying of weapons.
3.53       Today there are an estimated 5,000-10,000 Sabean-Mandeans in Iraq. The community is primarily located in the southern Marshes or on the Tigris and Euphrates rivers, at al-Amara, Qal’at-Salih, Nasiriya, Suq al-Shuyukh and Qurna. There is also a small community in Baghdad. The electoral law reserves one seat in the Council of Representatives for a representative of the Sabean-Mandean community. There are also Sabean-Mandean representatives on the Baghdad and Basra city councils.
3.54       The Sabean-Mandean community has reduced considerably in number from a high point of around 30,000-50,000 in the mid-1990s. After the March 2003 US-led military action, Shi’a and Sunni militant groups targeted the community, accusing Sabean-Mandeans of committing witchcraft, impurity and adultery, and committing hundreds of killings, abductions and incidents of torture. Sabean-Mandean women are targeted for harassment for not covering their heads, while Sabean-Mandean goldsmiths, silversmiths and jewellers (traditional community occupations) are reportedly targeted for theft and murder at much higher rates than their Muslim counterparts.
3.55       Sabean-Mandeans were also affected by the rise of Da’esh after 2014, with many fleeing Da’esh-controlled areas to avoid forced conversions or death. The community experiences discrimination, slurs and negative stereotyping, as well as being targeted for attacks and kidnappings due to their perceived wealth and vulnerability.
3.56       DFAT assesses that Sabean-Mandeans face a low risk of official discrimination. Like other minorities, Sabean-Mandeans face a moderate risk of societal discrimination and violence in areas where they are a minority, including as targets of violent crime, kidnapping and extortion. Those living in areas where violence continues or who have been displaced face a risk of societal violence similar to that faced by other groups living in those areas or situations.
The Tribunal accepts that if returned to Iraq, the Applicant could face discrimination, violence, slurs, negative stereotyping, target for being perceived to be wealthy, all of which could impact on his ability in establishing himself, including finding employment, housing, and social support. The Applicant has no family support in Iraq.
The Tribunal accepts that the Applicant has health issues, including injures from the bombing, PTSD and drug dependency. The Applicant could face difficulties in obtaining treatment and possibly discrimination due to his mental health.
The Tribunal has considered the Applicant’s circumstances very carefully and is satisfied that there are notable impediments, which are difficult to overcome.
On balance, the Tribunal gives this consideration significant weight in favour of revocation.
Impact on victims
The Direction requires decision-makers to consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.[82]
[82] Direction 99 [9.3].
There is no evidence of the impact of the decision on victims, and as such, the Tribunal gives neutral weight to this consideration.
Impact on Australian business interests
At paragraph 9.4 of the Direction, it is noted that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence of any impact on Australian business interests if the Applicant is not allowed to enter or remain in Australia.
The Tribunal gives this consideration neutral weight.
Other matters for consideration
Paragraph 9 of the Direction expressly states the other considerations 'are not limited' to the matters listed therein.
There are no other matters for consideration.
CONCLUSION
The process of a visa cancellation is complex and is not intended to be a formulaic, or a simple aggregation of the relevant considerations. On balance, although there are aspects in favour of revocation, the aspects against revocation outweigh those in favour. The protection of the Australian community, which encompasses the seriousness and nature of the Applicant’s offending conduct and the risk of reoffending, the conduct engaged in constituted family violence, as well as the expectations of the Australian community, weigh heavily against revocation. The strength, nature and duration of the Applicant’s ties, the best interests of minor children, the legal consequence of the decision, and the extent of impediments if removed, are each in the Applicant’s favour. However, the cumulative weight of these considerations does not outweigh the significant cumulative weight of the considerations weighing against revocation.
The Applicant has repeatedly committed violence against women, and he has been involved in the supply of an illicit drug, ice, to the community. A fair appraisal of the evidence before the Tribunal demonstrates that the Applicant has a longstanding and serious drug abuse problem, which has been associated with his violent behaviour. For the stated reasons, the Tribunal has found that there is a real risk of re-offending, which is unacceptable given its seriousness. There is a risk that the Applicant will return to a lifestyle dominated by drugs and crime.
Having regard to all relevant material before it, the Tribunal is satisfied that the correct and preferable decision is not to revoke the cancellation of the Applicant’s visa.
DECISION
The Tribunal affirms the decision under review.

133.

134. I certify that the preceding one-hundred and thirty two (132) paragraphs are a true copy of the reasons for the decision herein of Deputy President Antoinette Younes.

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

Dated: 30 November 2023

Date of hearing(s):

14 November 2023

Solicitor for the Applicant:

Ms M Mamarot, South West Migration & Legal Services

Solicitor for the Respondent:

Mr C Burke, Sparke Helmore Lawyers

Date of hearing(s):	14 November 2023
Solicitor for the Applicant:	Ms M Mamarot, South West Migration & Legal Services
Solicitor for the Respondent:	Mr C Burke, Sparke Helmore Lawyers