LDKT and Minister for Immigration and Multicultural Affairs (Migration) - [2024] ARTA 405

LDKT and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 405 (23 December 2024)
Applicant/s:  LDKT
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/8443

Tribunal:Senior Member K Rosser
Place:Sydney
Date:23 December 2024
Decision:The Tribunal affirms the decision under review.

.................[SGD].........................
Senior Member K Rosser
CATCHWORDS
MIGRATION – Refusal of a Protection (Class XA) visa under s 501(1) of the Migration Act 1958 (Cth) – where the applicant does not pass the character test – whether the discretion under s 501(1) of the Act to refuse to grant the Protection visa should be exercised – Direction No 110 - protection of the Australian Community – expectations of the Australian Community – decision under review affirmed
LEGISLATION
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Migration Act 1958 (Cth)
Migration Amendment Act (Cth) 2024
Migration Amendment (Removal and Other Measures) Act (Cth) 2024
Migration Regulations 1994 (Cth)
CASES
CJD23 v The Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1218
FHHM v Minister for Immigration [2022] FCAFC 19
Ismail v Minister for Immigration, Citizenship & Multicultural Affairs [2024] HCA 2
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6; (2024) 98 ALJR 475
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Thornton [2023] HCA 17; (2023) 97 ALJR 488
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876
Suleiman v Minister for Immigration [2018] FCA 594
SECONDARY MATERIALS
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
INTRODUCTION

The applicant seeks review of a decision made on 17 October 2024 to refuse to grant him a Permanent Protection Visa (Class XA) on the basis that the applicant does not pass the character test: s 501(1) of the Migration Act 1958 (Cth) (the Act).
The application was heard on 5 and 6 December 2024. At the hearing, Mr L Karp of Counsel appeared for the applicant and Mr C Bourke of Sparke Helmore Lawyers appeared for the respondent. The applicant and his lay witnesses gave evidence with the assistance of an interpreter in the Arabic and English languages.
For the following reasons, I have decided to affirm the decision under review.
BACKGROUND
Applicant’s background
The applicant was born in Iraq on 21 February 1994. He arrived in Australia on 26 October 2008 with his mother and three siblings, the family having been issued Global Special Humanitarian (subclass 202) visas. The applicant and his family were living in Syria at the time their visas were granted.
According to the statement made by the applicant’s mother in support of her subclass 202 visa,[1] the applicant’s mother is from a Sabean Mandean background and his father was Shia Muslim and an officer in the Iraqi Army. The applicant is the youngest of four children, with an older sister and twin brothers. The applicant’s mother was forced to marry his father in the distressing circumstances set out in her statement. The applicant’s father died prior to the applicant’s birth in 1994. The applicant’s family was subjected to significant mistreatment in Iraq. This was in circumstances where the applicant’s mother was not accepted by the Sabean Mandean community because of her marriage and was not accepted by her husband’s family or the Muslim community generally because of her Sabean Mandean background. The family left Iraq and entered Syria in May 2007. They were resettled in Australia from Syria.
[1] Exhibit A1- Joint Tender Bundle (JTB) at 940.
The applicant’s family converted to Christianity shortly after arriving in Australia. The applicant’s mother and siblings are now Australian citizens.[2]
[2] Exbibit R2 – JTB 517-520.
In a statutory declaration made in support of his application for a protection visa,[3] the applicant describes the difficulties he encountered in adjusting to life in Australia, including difficulties with learning English, studying, and making friends. The applicant states that he wanted to be accepted by people of a similar cultural background and found that acceptance in a friendship group comprised of Iraqi and Iranian young people. He started skipping school with his friends and through them was introduced to marijuana. The applicant states that by the age of 16 or 17 he had a daily marijuana habit, which he hid from his family. He states although he did not realise it at the time, smoking marijuana inhibited his judgment particularly when he was withdrawing. It made him impulsive and prone to anger.
[3] Exhibit R2 – JTB 107-128
The applicant’s offending history
The applicant’s first conviction was for affray on 28 May 2013. He was 19 years old. The offence was committed on 21 September 2012. According to the amended Police Fact Sheet which was before the Court when the applicant was sentenced,[4] the applicant was in a car with his brother when, while stopped at a traffic light, they were yelled at by a group of three persons, who also struck the car with something. The applicant and his brother got out of the car and one of the other people punched the applicant’s brother. The applicant then punched one of the other people. A physical fight – described as a “violent physical altercation” - ensued between the applicant, his brother and the other three people. On sentence, the applicant was given a two-year bond.
[4] Exhibit R1 – JTB 1025-1026
The applicant’s criminal history[5] also shows several driving offences and a drug offence. In December 2013, the applicant was fined $800 and his driver’s licence was suspended for 12 months for driving during a period of licence disqualification. A year later, the applicant was fined $500 for being in possession of a prohibited drug and in August 2015 he was again fined and prohibited from driving for 12 months for three driving offences. The 2014 and 2015 driving offences and the drug offence were committed while the applicant was on bail for the offence described below.
[5] Exbibit R1- JTB 977 - 980
On 30 September 2016, the applicant pleaded guilty to, and was convicted of, “cause grievous bodily harm to person with intent” (GBH offence).
The GBH offence was committed on 10 May 2014. The background to the offence is set out in the remarks made by the sentencing judge.[6] At that time, the applicant was in a relationship with AA,[7] who, in 2009, had been in a relationship with LM. When AA and LM’s relationship ended, LM married another woman and AA commenced a relationship with the applicant. During the time the applicant and AA were together, AA and LM recommenced their relationship. The applicant found about a late-night meeting between AA and LM, which was to take place in a park. The applicant arranged to take revenge on LM in company with a friend. The applicant and his friend went to the park where AA and LM were to meet. The applicant hit LM on the head with a baseball bat with sufficient force to cause LM to lose consciousness. Once LM was on the ground, the applicant kicked him, once in the head and several times to the upper body.[8]
[6] Exhibit R2 – JTB 50 at 50-51
[7] In these reasons for decision, the names of the woman with whom the applicant was in a relationship and the victim have been anonymised. They appear in full in the sentencing remarks.
[8] Exhibit R2 – Ibid at 59
LM suffered severe traumatic brain injury, including multiple skull fractures, bleeding into the brain and a dislocated shoulder. He remained in hospital until 4 June 2014 and was then transferred to a brain injury rehabilitation unit. When he was discharged on 5 August 2014, a neurological assessment reported that LM’s injury resulted in reduced processing speed and ongoing problems with memory, organisational skills, problem solving, walking and balance. A further neurological assessment undertaken in February 2016 indicated that LM was unlikely to make a further recovery. In LM’s July 2016 victim impact statement, he reported that he had been unable to complete a TAFE course because of headaches and an inability to concentrate. He also stated that he had been unable to return to his former employment as a supervisor in a bakery because of its physical demands and the weakness and spasticity in his legs, which created problems with balance and resulted in falls.[9]
[9] Exhibit R2 – Ibid at 51-52
The District Court sentenced the applicant to six years and eight months (80 months) imprisonment with a non-parole period of three years. The sentencing judge found that the applicant had “instigated the offence, planned it and recruited the co-offender”. While accepting that the applicant had problems with anger and impulsiveness, the judge found that the applicant had the opportunity to withdraw before committing the offence and was satisfied that the offence was premeditated.[10]
[10] Ibid at 58-59
The judge also noted in the sentencing remarks that LM suffered permanent physical and cognitive difficulties because of the attack. The judge stated that while there was no evidence that LM had suffered any permanent physical disfigurement, “his poor balance, and being prone to falling is something that is likely to draw attention to him when he is in public places” before concluding that the offence has had “a substantially adverse impact on the victim’s quality of life”.[11]
[11] Ibid at 62
The Crown successfully appealed the sentence to the NSW Court of Appeal. On appeal, the head sentence was maintained, and the non-parole period was increased to four years and four months.
In connexion the GBH offence, the applicant was also charged with Face Blackened or Disguised W/I Commit Indictable Offence. This charge was dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).[12] In accordance with the High Court’s judgments in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Thornton[13] and Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs[14], I have had no regard to this offence when deciding the application.
[12] Ibid at 74
[13] [2023] HCA 17; (2023) 97 ALJR 488
[14] [2024] HCA 6; (2024) 98 ALJR 475
At the conclusion of his period of imprisonment in January 2021, the applicant was taken into immigration detention and transferred to Villawood Detention Centre. He was transferred to Christmas Island on 31 July 2021 and returned to Villawood Detention Centre on 31 July 2023.
Conduct in prison and immigration detention
While in prison, the applicant completed a range of personal development, life skills and vocational courses. These are detailed in the applicant’s first statutory declaration in support of his protection visa application.[15]
[15] Exhibit R2 – JTB 107-128 at 121
During the period of the applicant’s periods of imprisonment and immigration detention, several incidents were recorded against him. While I have not been referred to official records of these incidents, they are detailed in the applicant’s second statutory declaration in support of his protection visa application.[16] I have not considered these incidents in deciding the application for review, as it was not submitted that they constitute serious conduct.
[16] Exhibit R2 – JTB 146-154
Visa cancellation and review
The applicant’s Global Special Humanitarian visa was cancelled on 28 November 2018. The Administrative Appeals Tribunal (AAT) affirmed that decision on 22 November 2022. The Federal Court dismissed an application for an extension time to seek review of the AAT’s decision on 12 October 2023.[17]
[17] CJD23 v The Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1218
Protection visa application
On 7 December 2023, the applicant applied for a protection visa. On 24 March 2024, the Minister’s delegate issued a draft decision including a finding that the applicant is a person to whom Australia owes protection obligations under s 36(2)(a) of the Act. However, on 17 October 2024 the protection visa application was refused on character grounds under s 501(1) of the Act.
On the same date, the applicant was granted a bridging visa and released from immigration detention.
Current visa status
The applicant currently holds a Bridging R (subclass 070) visa (BVR), which came into effect on 7 November 2024. The BVR is subject to certain conditions, including that the applicant not become involved in activities which are disruptive to the Australian community. Other conditions include but are not limited to daily reporting by telephone, assisting with removal from Australia, obtaining approval to work in certain occupations, notifying change in employment details, attending interviews as required, not taking up specified employment and activities and notifying travel. The visa conditions do not include compliance with a curfew or the wearing of a monitoring device.[18]
[18] Exhibit A1 – JTB 910-911
The applicant currently lives with his mother and brothers. He is seeking a variation of the BVR conditions in relation to employment, so that he can work in his brother’s brick pressure cleaning business.
JURISDICTION
The Tribunal has jurisdiction to review a decision to refuse to grant a visa under s 501(1), where the application for review is lodged within nine days after the decision is notified: s 500(6B). In this case, the application for review was lodged on 23 October 2024, which is within nine days after the decision was notified. The Tribunal therefore has jurisdiction to hear and determine the application.
EVIDENCE AND SUBMISSIONS
In deciding the outcome of the application, I have considered:
(a)The applicant’s bundle of documents – Exhibit A1
(b)The applicant’s Reply to the respondent’s Statement of Facts, Issues and Contentions – Exhibit A2
(c)A letter dated 23 September 2024 prepared by Dr Samir Benjamin, consultant psychiatrist, concerning the health of the applicant’s mother Mrs M[19] - Exhibit A3
(d)A report dated 11 November 2024 prepared by Dr Emily Kwok, clinical and forensic psychologist - Exhibit A4
(e)The respondent’s bundle of documents – Exhibit R1
(f)The “G documents” - Exhibit R2
(g)The oral evidence given by the applicant and his witnesses; and
(h)The opening and closing oral submissions made on behalf of the parties.
[19] In these reasons for decision, the names of the applicant’s mother and brothers have been anonymised.
All documents other than Exhibits A2 and A3 are included in the Joint Tender Bundle (JTB).
The applicant’s witnesses were:
·His brothers, ZA and KA;
·His pastor, Mr Fakhry Farag;
·His treating psychologist Mr Chafic Awit; and
·Dr Emily Kwok, clinical and forensic psychologist.
Relevant parts of the oral evidence and submissions are considered below.
LEGISLATIVE FRAMEWORK
Section 501 of the Act deals with decisions to refuse or cancel a visa on character grounds. Relevantly to this case:
(a)Section 501(1) states that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
(b)Section 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record; and
(c)Section 501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Minister may give written directions under s 499(1) of the Act to a person or body having functions or powers under Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) requires the Tribunal to comply with any directions made under s 499(1).
In this case, “Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (the Direction) applies.
For the purposes of deciding whether to refuse an application for a visa or whether to revoke the mandatory cancellation of a visa, 5.2 of the Direction sets out several principles that must inform the decision-maker’s application of the primary and other considerations set out in Part 2 of the Direction, where those considerations are relevant to the decision.
These principles are:
(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 safety of the Australian Community is the highest priority of the Australian Government.
(3) 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.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may 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.
(7) 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.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
Informed by these principles, I must take into account the relevant primary and other considerations set out in the Direction.
Section 7.1 of the Direction states that appropriate weight to be given to information and evidence from independent and authoritative sources. Section 7.2 of the Direction states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. It also states that primary considerations should generally be given greater weight than ‘other’ considerations.
The primary considerations are set out in section 8 of the Direction. They are:
(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.

A non-exclusive list of other considerations is set out in section 9 of the Direction. They are:
(1) The legal consequences of the decision;
(2) The extent of impediments if removed; and
(3) The impact on Australian business interest.
In FHHM v Minister for Immigration,[20] the Full Federal Court considered 8.4 of Direction 79, which also stated that primary considerations should generally be given greater weight than other considerations. O’Callaghan and Colvin JJ (Derrington J agreeing) referred to remarks made by Colvin J in Suleiman v Minister for Immigration,[21] and stated at [34] that “…particular circumstances may pertain that may justify greater weight being to one or more of the other considerations than one or more of the primary considerations”.
[20] [2022] FCAFC 19
[21] [2018] FCA 594 at [23].
ISSUE
As noted above, s 501(6)(a) of the Act states that a person does not pass the character test for the purposes of s 501(1) if the person has a substantial criminal record, which relevantly to this application is defined in s 501(7)(c) as a term of imprisonment of 12 months or more.
The applicant concedes that he does not pass the character test. The issue to be determined is therefore whether the discretion to refuse to grant a protection visa to the applicant on that basis should be exercised, taking into account relevant considerations in the Direction.
CONSIDERATION
Protection of the Australian community from criminal or other serious conduct – 8.1
In accordance with 8.1(1) of the Direction, in considering the protection of the Australian community, I have had regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. I have also considered that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
As required by 8.1(2) of the Direction, I have considered:
(a)the nature and seriousness of the applicant’s conduct; and
(b)the risk to the Australian community, should the applicant commit further offences or engage in other serious conduct.
Nature and seriousness of the applicant’s conduct - 8.1.1
I have first considered the nature and seriousness of the GBH offence. The applicant does not dispute that this was a crime of violence and a very serious offence. As stated in the applicant’s Statement of Facts, Issues and Contentions at [27]:
It is impossible to characterise this crime as anything other than “very serious” in terms of para 8.1.1 of Direction 110. It was a crime of violence, fuelled by jealousy and drugs and committed with a potentially lethal weapon. It left the victim with life long physical, neurological and no doubt psychological injuries. If repeated it would doubtless have similar effects on future victims.
The applicant’s concession in this regard is consistent with the evidence he gave during the hearing, when under cross-examination the applicant agreed that that he had intended to significantly injure LM, that he had wanted to teach him a lesson, that he had planned the attack and that he knew that the attack could cause LM catastrophic and life-changing harm. He did not claim that the drugs he took prior to the assault[22] caused him to lose control, although he stated that they made it worse.
[22] The applicant smoked marijuana during the day and took MDMA for the first time on the night of the assault because he thought “it might calm [his] nerves”: see the applicant’s statutory declaration dated 7 December 2023 at [83] – Exhibit R2 – JTB 107 - 128
The applicant’s concession that the GBH offence is very serious is also reflected in the remarks of the sentencing judge. In reaching a finding that the crime was premeditated, the sentencing judge stated:
During his evidence the Offender confirmed what the circumstantial evidence established, namely that he instigated the offence, planned it, and recruited the co-offender. The Court is satisfied of those matters beyond reasonable doubt. Although the Offender had problems with anger and impulsiveness, he had the opportunity to withdraw before actually committing the offence.[23]
[23] Exhibit R2 – JTB 58
The sentence imposed on the applicant is relevant to this issue. As noted above, the head sentence imposed on the applicant was six years and eight months imprisonment. The head sentence was not changed on appeal by the Crown, although the non-parole period of three years was increased to four years and four months. While the maximum penalty at the time of the offence was twenty-five years imprisonment,[24] a head sentence of six years and eight months is a significant sentence, reflective of the violence of the crime and the seriousness of the offence.
[24] Crimes Act 1900 (NSW) s 33(1)
The effect on the victim of the GBH offence is also relevant to this issue. As noted above, the applicant concedes the effect of the assault on LM in the Statement of Facts, Issues and Contentions. The physical and cognitive effects of the applicant’s attack on LM as described by the sentencing judge are referred to earlier in these reasons for decision. The impact on LM is also described in the victim impact statement tendered in the sentencing proceedings.[25] In this statement, LM refers to the physical and psychological effects of the attack, the resulting loss of his employment, the fact that he had to withdraw superannuation to live on and his inability to care for his child because of his injuries.
[25] Exhibit R 1 – JTB 991-992
I find that the GBH offence had a catastrophic and permanent effect on LM, physically, psychologically and emotionally.
I find that the GBH offence is of the utmost seriousness, involving pre-meditated and callous violence, and causing permanent damage to the victim.
In addition to the GBH offences, I have considered the offences for which the applicant was convicted between 2013 and 2015; that is, affray, several driving offences and a single drug offence. As noted above, a number of driving offences and the drug offence were committed while the applicant was on bail in relation to the GBH offence, which was in turn committed while the applicant was on a behaviour bond in respect of the affray offence.
While there was violence involved in the affray offence, it does not compare in severity to the GBH offence. It appears from the circumstances in which the affray offence occurred – that is, an altercation between the applicant and one of his brothers and three intoxicated individuals who had abused them and hit their car – that the offence was impulsive, reactive, and not premeditated. The two-year bond to which the applicant was sentenced is reflective of this. I do not consider that the affray offence is of itself serious. However, the fact that the applicant committed the GBH offence during the currency of the behaviour bond indicates that at that time, the applicant had little regard for his legal obligations.
I also do not consider the driving offences or the drug offence serious. In the case of the driving offences, the offences consisted of speeding and other traffic offences as well as driving while suspended. While speeding can be extremely dangerous to both the person speeding and the community in general, in this case the offences were dealt with by way of licence suspension and fines. This indicates that the offences were considered minor in nature. The drug offence was also minor and was dealt with by way of a fine. However, while these offences are not of themselves serious, the fact that they were committed while the applicant was on bail for the GBH offence also demonstrates that at that period of his life, the applicant had a propensity for disregarding the law.
Risk to the Australian community – 8.1.2
In considering the need to protect the Australian community from harm, I have had regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In this regard, I note 8.1.2(1), which states that “[s]ome 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”.
The applicant’s position is that the risk of the applicant reoffending is negligeable. In relation to this, Mr Karp submitted that the applicant is remorseful, aware of his mental health issues and actively engaged in treatment for those issues. It was submitted that the applicant is substantially rehabilitated.
In relation to this issue, I have considered:
·The applicant’s two statutory declarations dated 7 December 2023[26], his statutory declaration dated 12 November 2024[27] and his oral evidence at the hearing;
·The statutory declaration dated 16 May 2024 made by the applicant’s brother KA[28];
·The statutory declaration dated 17 May 2024 made by the applicant’s brother ZA[29];
·The letter dated 17 May 2024 written by Mr Fakhry Farag, Pastor of the Crest Community Baptist Church[30]
·The oral evidence given by the applicant, his brothers and Mr Farag at the hearing;
·The reports dated 2 October 2022[31], 12 February 2024[32] and 11 November 2024[33] prepared by the applicant’s treating psychologist Mr Chafic Awit; and
·The report dated 11 November 2024 prepared by clinical and expert psychologist Dr Emily Kwok.[34]
[26] Ibid at 107-128 and 146-154
[27] Exhibit A1- JTB at 874-882
[28] Exhibit R2 - JTB at 510-513
[29] Ibid at 507-509
[30] Ibid at 514-515
[31] Exhibit A1 - JTB at 825-834
[32] Exhibit R2 – JTB at 155-159
[33] Exhibit A1 – JTB at 884-888
[34] Exhibit A4 – JTB after page 956
The applicant and his brothers gave evidence in a frank and forthright manner without prevarication or exaggeration. While at the hearing, they were able to give evidence in English in response to many questions. At times, a question needed to be re-phrased and/or interpreted so that it could be properly understood.
Relevantly to the issue of the applicant’s chance of reoffending, the applicant’s evidence and that of his brothers is, in summary, that the applicant has significantly changed since he committed and was convicted of the GBH offence. The applicant’s brothers are committed to supporting the applicant with a view to ensuring that he is integrated into the community and does not reoffend.
Mr Farag’s evidence is, in summary, that the applicant’s imprisonment and detention has led him to have a stronger commitment to Christianity. He stated that he is prepared to support the applicant because he has noticed a personal, spiritual and psychological difference in his life. Mr Farag stated that he has long-standing experience with young people of Arab background and he noticed the applicant become more attached to his faith. He believes that because of his experiences, the applicant can become a good influence on younger people.
Mr Awit has been the applicant’s treating psychologist since October 2022. His evidence is, in summary, that the applicant has diagnoses of Attention Deficit Hyperactivity Disorder (ADHD) and Major Depressive Disorder with Anxious Distress (in early remission). Mr Awit considers that impulsivity in decision making arising from ADHD contributed to the commission of the GBH offence. However, he considers that the applicant’s impulsive nature has steadily declined as he has matured. In his most recent report, Mr Awit sets out a treatment plan. Relevantly, the treatment plan involves:
·Treatment sessions every six weeks over the next twelve months;
·A review with a psychiatrist to see if medication may assist;
·The applicant to complete anger management counselling with Mr Awit;
·The applicant to adhere to all treatment requests;
·The applicant to continue to receive Cognitive Behaviour Therapy;
·The applicant to continue to receive skills to help cope with stress in the form of being provided with stress reducing techniques; and
·The applicant to continue to receive problem solving skills.
Mr Awit is of the opinion that the applicant’s chance of reoffending is low. In oral evidence, he stated that a risk of reoffending cannot be assessed at any less than low, even if a psychologist thinks that there is no risk of reoffending.
Dr Kwok also considers the applicant as being at a low risk of reoffending. In her report, she relevantly concluded:
·The applicant recognises the seriousness of his offending, has expressed remorse for the impact on the victim, has accepted responsibility for his behaviours, and has identified the factors that contributed to his problematic behaviours.
·The applicant has made genuine efforts towards rehabilitation and continues to show commitment to treatment. His prognosis is positive.
·The applicant has responded to intervention and has matured emotionally and psychologically since he committed the offences.
·The applicant is in remission from previously diagnosed paranoid psychosis, PTSD, ADHD, major depressive order and substance abuse disorder for marijuana.
·The applicant will continue treatment with Mr Awit and be under the care of his general practitioner.
·The applicant has a range of protective factors and did not display patterns of antisocial attitudes at assessment.
·The applicant has a low risk of reoffending if he continues psychological treatment with Mr Awit.
·An indefinite community detention will likely cause the applicant’s symptoms to return to a level of security that meets the full criteria for major depressive disorder.
·Inability to secure a permanent visa will prolong the applicant’s anxious distress, which places him at risk of meeting the full criteria for major depressive disorder and PTSD.
·The restrictive visa conditions will be a barrier to the applicant’s long-term reintegration into the community.
·Early life traumas can interfere with a child’s development of stress tolerance and emotional regulation skills needed to manage later life stresses.
At the hearing, Dr Kwok stated, as had Mr Awit earlier in the hearing, that “low” is the lowest assessment that can be given to an opinion concerning the risk of re-offending. The assessment can be “low”, “low moderate”, “moderate” and “high”. This is based on considering the risk factors likely to contribute to criminal behaviour, balanced with the protective factors. In cross-examination, Dr Kwok stated that her opinion that the applicant is at low risk of re-offending is premised on the applicant maintaining his current mental state, which will be assisted by treatment. She stated that there is always some risk of re-offending, although she did not consider the risk significant in the applicant’s case. On re-examination, Dr Kwok stated that, generally speaking, a low risk of re-offending can encompass a negligeable risk.
Conclusion in relation to protection of the Australian community
It is not in dispute that the GBH offence was a very serious and violent offence. There is no doubt that should the applicant again engage in conduct similar to the GBH offence, the resulting harm to an individual and more broadly to the Australian community through that individual’s family, friends and associates is likely to be as serious as the GBH offence was to LM.
In relation to the risk of the applicant reoffending, I accept that the applicant feels remorse for the crime he committed and that he is very intent on not reoffending. I accept that he has matured in the ten years since the offence was committed and that his state of mind in 2024 is not the same as his state of mind was in 2014. I accept that the applicant no longer takes drugs, does not drink alcohol, no longer has contact with friends who were a bad influence on him and has a positive attitude towards receiving ongoing treatment. I accept that the applicant blocked his former partner AA when she contacted him on social media. I further accept that the applicant has excellent family support, including from his brothers, who are committed to supporting him and putting protective measures in place with a view to ensuring that he does not reoffend. I also accept Mr Farag’s evidence that the applicant is committed to his Christian faith and that he has the support of his church community. Based on the evidence given by the applicant, his brothers and Mr Farag, I accept that the applicant’s commitment to rehabilitation and to not reoffending is genuine and not reactive to the applicant’s current visa status. I accept the opinion expressed by both Mr Awit and Dr Kwok that the risk of the applicant reoffending is low and that in giving their professional opinion about the risk of reoffending no lower assessment can be given.
However, as noted above, during cross-examination Dr Kwok indicated that her opinion in relation to the likelihood of the applicant reoffending is premised on him maintaining his current mental state. In her report, she states that the risk of reoffending is low if the applicant continues with treatment. Mr Awit’s most recent report demonstrates that the applicant’s treatment is not complete and needs to continue on a regular basis for at least the next twelve months. This treatment will include a review with a psychiatrist to see if medication will assist the applicant, the completion of anger management counselling, continued cognitive behaviour therapy and continued development of stress reduction and problem-solving skills.
In assessing the likelihood of the applicant engaging in further criminal or other serious conduct, 8.1.2(2) of the Direction requires me to take into account not only information and evidence on the risk of the applicant reoffending, but also evidence of rehabilitation achieved by the time of the decision. In doing so, I am to give weight to time spent in the community since the applicant’s most recent offence. In this case, the applicant has been in prison and then in immigration detention until some two months ago and he requires ongoing psychological treatment. The applicant has therefore spent very little time in the community since he was convicted of the GBH offence in 2016 and remains on a path towards full rehabilitation.
As noted above, I accept the professional opinions of Mr Awit and Dr Kwok that the applicant has a low risk of reoffending. I also accept the genuineness of the applicant’s commitment to not reoffending and the strength of the personal, familial and social factors which are present to assist him to achieve this goal. I also accept that the applicant has made significant progress towards rehabilitation, particularly since beginning treatment with Mr Awit. However, considering the seriousness of the potential harm if the applicant’s conduct were to be repeated, the fact that the applicant still requires significant ongoing psychological treatment and the fact that the applicant has spent very little time in the community since his last offence, I conclude that this is a case where any risk that the applicant’s conduct may be repeated is unacceptable. I am of this view while acknowledging that there is a plan for the applicant’s further psychological treatment and that having only recently been released, the applicant has had little opportunity to demonstrate how he acts in the community.
In these circumstances, I conclude that the primary consideration of protection of the Australian community against criminal and other serious conduct weighs strongly in favour of exercising the discretion not to grant a protection visa on character grounds.
Family Violence – 8.2

The applicant has not committed a family violence offence. This factor is neutral.
The strength, nature and duration of ties to Australia – 8.3
In accordance with 8.3(1) of the Direction, I have considered the impact of the decision on the applicant’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.
The applicant’s mother, brothers, sister and infant nephew are immediate family members resident in Australia. They are Australian citizens. I have considered the interests of the applicant’s nephew separately below.
I have had particular regard to the evidence concerning the applicant’s mother, Mrs M. A letter dated 23 September 2024 written by Dr Samir Benjamin, consulting psychiatrist, to Hayee Aged Care Services[35] states that Mrs M has been under Dr Benjamin’s care for psychiatric treatment since 2011. Dr Benjamin further states that Mrs M suffers from chronic major depressive disorder and chronic PTSD, for which conditions she has been prescribed psychotropic medication. Dr Benjamin notes that Mrs M also suffers from multiple physical problems including hypertension, migraine headaches, osteoarthritis and dizzy spells. He states that Mrs M needs assistance with domestic care, personal care and transport.
[35] Exhibit A3
During the hearing, the applicant referred to his mother’s heart and mental health problems and stated that her health and mood had improved since he was released from detention. This evidence was echoed by the applicant’s brothers. KA stated that his mother would be very badly affected if the applicant were forced to leave Australia. ZA stated that it would have a devastating impact on their mother if the applicant were forced to leave Australia. He considered that her health would deteriorate if this happened.
On the basis of this evidence, I find that a decision adverse to the applicant would have a very adverse effect on the applicant’s mother. That said, the applicant is not currently the sole carer of his mother and does not intend to be a full-time carer in the future. In relation to this, the applicant stated at the hearing that that he wishes to get a job and that he would provide care to his mother after work. Furthermore, the applicant’s brothers also live with their mother and provide care to her. The applicant stated at the hearing that when he was in detention his brothers took their mother shopping, to the doctor and to other appointments. He also stated that his mother now gets assistance from an external aged care provider two days per week.
I conclude that if the applicant were removed from Australia, his brothers would continue to provide care to their mother. The availability of aged care services to Mrs M is also relevant to this issue. In these circumstances, I conclude that that the impact on the applicant’s mother would not be as great as it would be were the applicant his mother’s sole carer.
I have considered the impact of the decision on the applicant’s siblings. It is clear from the evidence of both KA and ZA that they have a close bond with the applicant. They regularly visited him when he was in prison and in immigration detention. They live with the applicant and their mother and have both expressed their intention to assist him to reintegrate into the community through their friendship groups. I accept that the applicant’s removal from Australia would have an adverse impact on the applicant’s brothers.
I was not referred to any evidence directly concerning the applicant’s sister. However, I accept the applicant’s evidence that he regularly visits his sister to see his baby nephew. I conclude from this that the applicant has a good relationship with his sister, which would be adversely affected if he were removed from Australia.
I note that the applicant also has ties to his church community. However, I do not consider that the people the applicant knows through that church community would be adversely affected if he were removed from Australia. In relation to this, Mr Farag did not give evidence that he would be adversely impacted if the applicant were removed from Australia and no evidence was otherwise provided by members of the church community of any adverse impact they would face.
Overall, and notwithstanding my finding concerning the availability of care for the applicant’s mother from his brothers and from aged care services, I consider that this factor weighs strongly against exercising the discretion to refuse to grant a protection visa on character grounds.
The best interests of minor children in Australia - 8.4
In accordance with 8.4(1) of the Direction, I have considered whether the refusal of the applicant’s visa application is in the best interests of the applicant’s nephew, who was born in August 2024.
I accept the evidence given by the applicant at the hearing that he generally visits his nephew every three days, although as at the date of the hearing the applicant hadn’t seen his nephew for ten days as the applicant had been unwell and didn’t want his nephew to get sick. I also accept that the applicant intends to be involved in his nephew’s life as a role model and a loving uncle.[36] I do not consider that the applicant’s past conduct will have a negative effect on his nephew, although there could be an adverse impact on him if the applicant reoffended.
[36] Exhibit A1 – JTB at 877
That said, the relationship between the applicant and his nephew is not a parental relationship. The applicant’s nephew lives with and is cared for by his mother and father. As far as extended family is concerned, the applicant’s nephew also has at least two other uncles (the applicant’s brothers) and a grandmother (the applicant’s mother). In these circumstances, I do not consider that separation from the applicant would have a negative effect on the applicant’s nephew. This is particularly so given that the applicant and his nephew would have other ways of maintaining contact if the applicant were removed from Australia, such as by telephone, messaging applications and video conferencing. Such methods of communication are commonly used by family members who do not live in the same city or country.
Overall, I am satisfied that it would be in the best interests of the applicant’s nephew for the applicant not to be removed from Australia. However, I consider that this factor weighs only slightly against exercising the discretion to refuse to grant a protection visa on character grounds.
Expectations of the Australian community – 8.5
In relation to this consideration, 8.5(1) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.
In accordance with 8.5(4) of the Direction, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed in the Direction, without independently assessing the community’s expectations in the particular case.[37]
[37] See Ismail v Minister for Immigration, Citizenship & Multicultural Affairs [2024] HCA 2, at [38] and [51] to [52].
The applicant has failed to obey Australian laws. He would therefore be expected to be removed from the community, as his GBH offence is at the very serious end of the spectrum. Further, while the risk of reoffending has been assessed as low, I have concluded above that any risk of the applicant reoffending is unacceptable in circumstances where the applicant has spent little time in the community since the GBH offence and remains under treatment.
In RCLN v Minister for Immigration, Citizenship and Multicultural Affairs[38], Horan J stated:
The assessment of community expectations is therefore not a matter of evidence, and does not turn on the personal circumstances of the individual non-citizen: compare, in relation to an earlier iteration of the Ministerial direction: FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [66] –[67] , [74] –[75] (Charlesworth J), [91]–[93], [103]–[104] (Stewart J); see also CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 at [29] –[30] (Moshinsky, O’Bryan and Cheeseman JJ). The “degrees of tolerance” referred to elsewhere in the Direction “are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion” (or, in the present context, the determination whether there is another reason to revoke the original cancellation decision), and “in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences”: FYBR at [77] (Charlesworth J). In other words, the decision-maker can take into account the personal circumstances of the individual non-citizen in so far as they are relevant to another primary consideration or one of the other considerations, and adjust the relative weight to be given to each of the primary and other considerations accordingly.
[38] [2024] FCA 876 at [56]
I find that the Australian community expects that the Australian government should not grant the applicant a protection visa, although the community may afford him a higher level of tolerance because he has lived in Australia for the majority of his life.
I consider that this factor weighs strongly in favour of exercising the discretion to refuse to grant a protection visa.
Legal consequences of the decision – 9.1
As noted above, the applicant is a citizen of Iraq. In his protection visa application, he claimed to have a well-founded fear of persecution in that country. The applicant’s claims were assessed and the delegate was satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) of the Act.[39] At the time the protection finding was made, the applicant’s removal from Australia was not practical or authorised under s 197C(3) of the Act. Once that protection finding had been made, consistent with the High Court’s judgment in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (NZYQ)[40] the applicant was released from immigration detention and granted a BVR.
[39] Exhibit R2 – JTB 697
[40] [2023] HCA 37
Under provisions in force at the time the protection finding was made, the applicant’s BVR could cease in circumstances specified in cl 070.511(c) of the Migration Regulations 1994, Schedule 2 subclass 070.
However, recent amendments to the Act have the potential to change the applicant’s situation in additional ways. The Migration Amendment Act (Cth) 2024 (Amendment Act) and the Migration Amendment (Removal and Other Measures) Act (Cth) 2024 (Removal Act) amend the Act in a manner which has the potential to affect the applicant’s status. The Amendment Act commenced on 5 December 2024. Parts of the Removal Act commenced on 4 December and other parts on 5 December 2024.
Amendments made by the Amending Act include but are not limited to establish a ceasing event in a new s 76AAA of the Act. Under this section, a BVR ceases to be in effect immediately after a mandatory notice is given to the BVR holder by the Minister that s 76AAA of the Act applies to the BVR holder. This can be done in certain circumstances where permission (however described) is granted by another country for the BVR holder to enter and remain in that other country. Another amendment made by the Amending Act is to amend sections 197C and 197D of the Act to broaden the application of these provisions to include removal pathway non-citizens (with a new definition for this term inserted in section 5 of the Act which includes BVR holders), enabling the Minister to make a decision that a protection finding would no longer be made in relation to a non-citizen who holds a visa as a removal pathway non-citizen. Amendments made by the Amending Act also authorise the Australian government to pay third countries to receive removal pathway non-citizens.
Amendments made by the Removal Act require non-citizens who are on a removal pathway and have exhausted all avenues to remain in Australia to cooperate with efforts to ensure their prompt and lawful removal. They will also enable the Minister to give a direction to a removal pathway non-citizen to do specified things necessary to facilitate their removal, or to do other things the Minister is satisfied are reasonably necessary to determine whether there is a real prospect of their removal becoming practicable in the reasonably foreseeable future. However, a non-citizen on a removal pathway cannot be directed to interact with, or be removed to, a country in respect of which the non‑citizen has been found to engage Australia’s protection obligations. That said, such a non-citizen may otherwise be given a direction to do certain things necessary to facilitate their removal to a safe third country.
As a person in respect of whom a protection finding has been made, the applicant cannot be kept in indefinite immigration detention. Nor can he be removed to Iraq or to another country where he would have a well-founded fear of persecution. However, the amendments made by the Amending Act and the Removal Act open the possibility that at some point in the future, the Australian government could arrange for the applicant to be received by a third country and the applicant would have an obligation to comply with directions made by the Minister to facilitate his removal from Australia to that country.
Therefore, while refusal of a protection visa will not result in the applicant’s detention and for the present he will remain in the community on a BVR, he could be removed from Australia to a third country at some indeterminate time in the future. I accept that the uncertainty inherent in this situation will be very difficult for the applicant and for his family. Dr Kwok has opined that uncertainty about his visa status is likely to have a detrimental effect on the applicant’s mental health.[41] Given the evidence before me concerning the applicant’s mother’s mental health and her general health situation, I also accept that the applicant’s mother’s mental health could be adversely affected by the uncertainty of the applicant’s ongoing status in Australia.
[41] Exhibit A4 – JTB from page after 956 at [102].
Another adverse legal consequence of the applicant not being granted a protection visa is that there will be significant restrictions on his ability to apply for another visa. Under s 48A of the Act, he would not be able to apply for another protection visa while in the migration zone, unless the Minister thinks that it is in the public interest to lift the bar under s 48B. Further, an application for any visa other than a protection visa would be subject to s 501E; that is, it could not be made from within the migration zone unless it was for a Bridging Visa R (Class WR) as prescribed by cl 2.12AA of the Migration Regulations 1994. The applicant could only apply for such a visa in response to an invitation.
A further legal consequence for the applicant is that while on a BVR, he is required to comply with the conditions of the visa. As noted above, the conditions do not involve a curfew or a monitoring device. The applicant is required to comply with conditions including reporting once per day by telephone, obtaining permission for certain kinds of employment and activities and notifying such things as travel. On their face, the conditions of the applicant’s BVR are not particularly onerous in the short to medium term. However, I consider that if these conditions were imposed on the applicant for more than a few years, let alone for the rest of his life, they would be very onerous. I conclude that the prospect of indefinite compliance with BVR conditions represents an adverse legal consequence of the decision.
While a decision that is not in favour of the applicant will have adverse legal consequences, I consider the most serious of these consequences is the potential for removal to a third country. This is a consequence that may never happen, as it depends on a third country being found that is willing to receive the applicant and the Minister deciding to exercise his powers to remove the applicant to such a country. The applicant cannot be returned to Iraq and in the meantime (subject to compliance with the conditions of his BVR) the applicant will remain living in the Australian community with his family, able to engage in most types of employment and able to attend church.
In these circumstances, I consider that the legal consequences of the decision weigh moderately against exercising the discretion to refuse to grant a protection visa.
Extent of impediments if removed – 9.2
This consideration refers to impediments a 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.
As noted above, the applicant has a protection finding in his favour and he cannot be removed to Iraq. I conclude that this consideration is neutral in respect of Iraq.
However, as noted above, the list of other considerations is not exclusive. I am of the view that the factors to be considered in relation to this consideration are also relevant to the applicant’s possible removal to a third country. These factors are the applicant’s age and health, whether would be substantial language or cultural barriers and any social, medical and/or economic support available to the applicant.
At thirty, the applicant is a young man, who is apparently in good physical health. However, he requires ongoing treatment for his mental health issues. Further, he is of Iraqi background and has some difficulty communicating in English. Whether the applicant would face substantial language and cultural barriers and whether appropriate medical and/or economic support would be available to him would turn on which country the applicant is removed to. In these circumstances, no clear finding can be made that the applicant would face impediments for health, linguistic, cultural or economic reasons. However, I accept that all the applicant’s family is in Australia and that he would be without any family support, no matter which country he was removed to. Further, while the applicant has social support from the church, whether he would be able to obtain such support in another country would depend on whether Christian churches can operate at all and the basis on which they provide support to their members in the country concerned.
I conclude that the extent of the impediments the applicant would face if removed to a third country cannot be fully assessed because it depends on which country the applicant is removed to. Given that the applicant would at least face the impediment of a lack of family support in any third country, I conclude that this factor weighs against exercising the discretion to refuse to grant a protection visa, but only slightly.
Impact on Australian business interests – 9.3
There is no evidence of impact on Australian business interests. This factor is neutral.
CONCLUSION
I made the following findings concerning the relevant primary considerations in the Direction, other considerations being neutral:
(a)Protection of the Australian community against criminal and other serious conduct weighs strongly in favour of exercising the discretion not to grant a protection visa on character grounds.
(b)The strength, nature and duration of ties to Australia weigh strongly against exercising the discretion to refusing to grant a protection visa on character grounds.
(c)The best interests of the applicant’s nephew weigh slightly against exercising the discretion to refuse to grant a protection visa.
(d)The expectations of the Australian community weigh strongly in favour of exercising the discretion to refuse to grant a protection visa.

I made the following findings about relevant other considerations:
(a)The legal consequences of the decision weigh moderately against exercising the discretion to refuse to grant a protection visa.
(b)The extent of the impediments if the applicant were removed to a third country weigh slightly against exercising the discretion to refuse to grant a protection visa.
I conclude that the primary considerations of the protection of the Australian community, and the expectations of the Australian community, which weigh strongly in favour of exercising the discretion to refuse to grant a protection visa, outweigh the considerations that weigh against exercising the discretion to refuse to grant a protection visa; namely the strength, nature and duration of the applicant’s ties to Australia, the best interests of the applicant’s nephew, the legal consequences of the decision and the extent of impediments if the applicant is removed.
I am satisfied that my conclusion in this regard accords with the weight of the evidence and the principles set out in 5.2 of the Direction. In relation to this, 5.2(2) expressly states that the safety of the Australian Community is the highest priority of the Australian Government. The principles otherwise emphasise the interests of the community over those of the individual. In this case, the two primary factors that weigh against a decision in favour of the applicant are those that are most relevant to the safety of the Australian community and the expectations of the Australian community. The only primary consideration which weighs strongly in favour of the applicant is his ties to Australia. I am not satisfied that this consideration, either alone or considered cumulatively with the interests of the applicant’s nephew, the legal consequences of the decision and the extent of impediments in the event of removal from Australia, outweigh the primary considerations that weigh in favour of exercising the discretion not to grant a protection visa to the applicant on character grounds.
I have therefore affirmed the decision under review.

Dates of hearing: 5 and 6 December 2024

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Kinslor Prince Lawyers

Advocate for the Respondent:
Mr C Bourke

Solicitors for the Respondent: Sparke Helmore Lawyers

Dates of hearing:	5 and 6 December 2024
Counsel for the Applicant:	Mr L Karp
Solicitors for the Applicant:	Kinslor Prince Lawyers
Advocate for the Respondent:	Mr C Bourke
Solicitors for the Respondent:	Sparke Helmore Lawyers