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

LJVN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 4771 (20 December 2023)

Division:                 GENERAL DIVISION
File Number(s):      2023/7160
Re:LJVN
APPLICANT

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

DECISION

Tribunal:Senior Member Dr Linda Kirk
Date:20 December 2023
Date of written reasons: 11 March 2024
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the Reviewable Decision dated 27 September 2023 to refuse to revoke the Mandatory Visa Cancellation Decision and, in substitution, decides that the cancellation of the Applicant’s Class BA Subclass 200 Refugee visa is revoked.
.....................................[SGD]...................................
Senior Member Dr Linda Kirk

CATCHWORDS

MIGRATION – visa cancellation – mandatory cancellation under section 501(3A) of the Migration Act 1958 (Cth) – where the Applicant does not pass the character test – whether there is ‘another reason’ to revoke the cancellation – consideration of Ministerial Direction No. 99 – protection of the Australian community – links to the Australian community – the best interests of minor children in Australia – expectations of the Australian community – legal consequences of the decision – impediments to removal – decision under review set aside
LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES

Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bugmy v The Queen (2013) 248 CLR 571
CRNL and Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
DMDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1993
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR and Minister for Home Affairs (2019) 272 FCR 454

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
Jal v Minister for Immigration and Border Protection [2016] AATA 789
Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151

Minister for Immigration v HSRN [2023] FCAFC 68
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 587
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Viane v The Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13
SECONDARY MATERIALS

Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION

Senior Member Dr Linda Kirk

11 March 2024

LJVN (‘the Applicant’) is a 42-year-old citizen of Iraq,[1] who arrived in Australia on 18 January 2000 as the holder of a Class BA Subclass 200 Refugee visa which he was granted on 17 December 1999 (‘the visa’).[2]
[1]Exhibit R1, G97.
[2] Exhibit R1, G159.
On 18 January 2023, the Applicant was convicted in the Local Court of New South Wales of Stalk/intimidate intend fear physical etc harm (personal)-T2 (two counts), Contravene prohibition/restriction in AVO (Domestic) (two counts) and Common assault (DV)-T2. He was sentenced to an aggregate term of imprisonment of 15 months.
On 7 March 2023, the Applicant’s visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) (‘the Mandatory Visa Cancellation Decision’) because a delegate of the Minister (‘the Respondent’) was satisfied that the Applicant did not pass the character test in subsection 501(6) of the Act as he was considered to have, pursuant to subsection 501(7)(c), a ‘substantial criminal record’ within the meaning of section 501(6)(c) as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution: section 501(3A)(b).[3] At the time, the Applicant was serving a sentence of full-time imprisonment at Cessnock Correctional Centre in New South Wales for an offence against a law in Australia. The Applicant was invited to make representations to the Respondent about revoking the decision to cancel his visa within 28 days of receipt of the Mandatory Visa Cancellation Decision.5F
[3] Ibid, G22, 160; Exhibit R2, 5-6.
On 11 March 2023, the Applicant was released on parole and transferred to Villawood Immigration Detention Centre (‘VIDC’).[4]
[4]Exhibit R2, 5-6.
On 28 March 2023, within the prescribed period, the Applicant made representations seeking revocation of the Mandatory Visa Cancellation Decision.[5]
[5]Ibid, 148-151.
On 27 September 2023, a delegate of the Respondent decided, under subsection 501CA(4) of the Act, not to revoke the Mandatory Visa Cancellation Decision (‘the Reviewable Decision’).[6]7F The Applicant was notified of the Reviewable Decision on the same date.[7]
[6]Exhibit R1, G11.
[7]Ibid, G7.
On 28 September 2023, the Applicant applied to the Tribunal for review of the Reviewable Decision under subsection 500(1)(ba) of the Act.8F[8]
[8]Exhibit R1, G1.
The matter was heard by the Tribunal on 6 and 7 December 2023. The Applicant attended the hearing in person and was represented by counsel.
The following persons gave oral evidence and were cross-examined at the hearing:
- the Applicant
- SPS, Applicant’s sister
- Mr Tim Watson-Munro, psychologist
The material before the Tribunal consists of:
- Section 501 G-Documents (G1 – G6, pp. 1 – 200) filed 10 October 2023 – Exhibit R1
- Respondent’s Tender Bundle (RTB1 – RTB8, pp. 1 – 391) filed 20 November 2023 – Exhibit R2
- Respondent’s Statement of Facts, Issues and Contentions dated 20 November 2023 (‘RSFIC’)
- Applicant’s Tender Bundle (A1 – A14, pp. 1 – 26) filed 2 November 2023 – Exhibit A1
- Report of Tim Watson-Munro dated 27 November 2023 – Exhibit A2
- Statement of SPS dated 27 October 2023 – Exhibit A3
- Applicant’s Statement of Facts, Issues and Contentions dated 1 December 2023 (‘ASFIC’)
The Tribunal has reviewed the evidence before it and refers to relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister 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.
Paragraph 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’. Paragraph 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 Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision.
MINISTERIAL DIRECTION NO. 99
Subsection 499(1) of the Act provides:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Subsection 499(2A) of the Act provides that “A person or body must comply with a direction under subsection (1).”
On 23 January 2023, the Minister, for the purposes of section 499 of the Act, made a Direction titled Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The commencement date for operation of the Direction was 3 March 2023.[9]
[9] Upon its commencement, the Direction revoked the operation of “Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”.
Paragraph 5.1 sets out the objectives of the Direction. Sub-paragraphs 5.1(1) and (2) provide:
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
(2)Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
Paragraph 5.1(4) provides:
(4)The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of the Direction sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse a visa under section 501 of the Act. These principles are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] 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 cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens 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 measureable [sic] risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
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) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[10] Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as Kenny and Mortimer JJ stated in their joint judgment in Jagroop v Minister for Immigration and Border Protection and Another, ‘the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under section 501’.[11]
[10]Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
[11](2016) 241 FCR 461, [57].
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account. 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.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
a)legal consequence of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
ISSUES FOR DETERMINATION
Before the power in subsection 501CA(4) of the Act to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by subsection 501CA(4)(a) of the Act. The issue before the Tribunal is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo,13F[12] the Full Court of the Federal Court of Australia made the following observations in relation to sub-section 501CA(4):
there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view ...[13]
[12] [2018] FCAFC 151.
[13] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are:
1)whether the Applicant passes the ‘character test’; and
2)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Early years in Iraq, Turkey and Greece
The Applicant was born in Baghdad, Iraq in 1981.[14] The Applicant has three sisters and two brothers, whose ages range between 19 and 45 years.[15] The Applicant’s family are Christian and follow the Catholic faith. In Iraq, they were subject to significant persecution during the time of the Saddam Hussein regime.[16]
[14]Exhibit R1, G97.
[15] Exhibit A2, 32.
[16]Ibid.
The Applicant experienced bullying at school from students and teachers due to his religion. He ceased schooling at around nine years of age due to the Gulf War.[17] In his statement dated 30 May 2023, the Applicant wrote:[18]
In about 1990, I stopped going to school. I was approximately nine years old, and it was during the Kuwait War. I was unable to go to school because we lived in an army-controlled area that was subject to constant bombing. We spent most of our time in safe houses and bomb shelters, we were only allowed to return to our houses briefly during the day. School was never easy for me as I was bullied by teachers and students because I was Christian. I think that fear of being laughed at and feeling like I don’t belong has travelled with me into adulthood.
[17]Exhibit R1, G117, [7].
[18]Ibid, [7].
As a consequence of his limited education, while the Applicant can read Arabic, his English reading capability is very slow, and he is unable to write in either language.
In around 1991, the Applicant and his mother, father, two brothers and two sisters fled Iraq to Turkey where they lived for about six years. The Applicant did not attend school and he worked in a glove factory and various other jobs.[19]
[19]Ibid, [8].

When the Applicant was a young boy, he was the victim of sexual abuse that continued for about 12 months.[20] In his statement dated 30 May 2023, the Applicant wrote:[21]
When I was around 6 or 7 years old, I was sexually assaulted. My grandmother used to rent rooms to people in her house, a man who was renting a room sexually assaulted me a number of times. I have never disclosed this to my family, the shame of this event has followed me throughout my life, and I would rather die than tell my family that this happened to me.
[20]Exhibit R1, G34; Transcript of proceedings, 6 December 2023, 13-14.
[21]Exhibit R1, G117, [6].
The Applicant and his family left Turkey and moved to Greece in about 1997.[22] He worked in an alcohol storage warehouse,[23] and at the age of 15 he became involved in people smuggling.[24]
[22] Transcript of proceedings, 6 December 2023, 14.
[23]Ibid, 31.
[24]Exhibit R1, G117, [9].
When he was aged approximately 16 years, the Applicant was homeless. He met a Kurdish Iraqi man who invited him to a hotel, and then beat and raped the Applicant.[25]
[25] Ibid, [10]; Transcript of proceedings, 6 December 2023, 14.
In around 1998, the Applicant was deported from Greece to the Turkish border and was forcibly removed to Iraq where he was severely beaten by members of the Iraqi army and left unattended with his injuries for two days.[26]
[26]Ibid, [11]-[12].
The Applicant returned to Greece, and he and his family were granted Class BA Subclass 200 Refugee visas.
Migration to and education in Australia
Following his arrival in Australia, the Applicant enrolled at the Bankstown Senior College, but he was asked to leave after a few months. As a consequence of him being made to leave school and his substance use, the Applicant’s parents asked him to leave the family home, leading him to live on the streets for some time and eat from rubbish bins.[27]
[27]Exhibit R1, G33.
Employment and welfare support
The Applicant obtained casual employment for a few months as a painter and a handyman. Due to his substance use and deteriorating mental health, he ceased employment in around 2010.[28] He received Centrelink benefits and applied for Disability Support Pension but was unsuccessful. [29] He was allocated a housing commission home, but this was lost following his incarceration.[30]
[28]Ibid, G33; Transcript of proccedings, 6 December 2023, 32.
[29]Exhibit R1, G33.
[30]Ibid, G33.
Drug and alcohol use
The Applicant started to using cannabis at about the age of 15 years when he was living in Greece.[31]His cannabis use escalated following his arrival in Australia.[32] He commenced smoking heroin in about 2002, with this continuing until about 2010. He was treated with Methadone and, as a consequence, ceased using alcohol and drugs from 2015 to 2020.[33] During this period the Applicant lived with his family which was a ‘stabilising factor’ for him.[34]
[31]Transcript of proceedings, 6 December 2023, 15.
[32]Exhibit R1, G34.
[33]Ibid, G34; Transcript of proceedings, 6 December 2023, 18, 56.
[34]Exhibit A3, [20].
In 2005, the Applicant commenced smoking crystal methylamphetamines (ice), which continued for a decade. At the peak of his use of ice, he could smoke half a gram per day and as a consequence, he could be sleep deprived for up to five to six days at a time.[35]
[35]Exhibit R1, G34.
The Applicant told the Tribunal that he resumed using drugs and alcohol when he met his former partner, JS, in around 2020. They were together for approximately two years. She had a mental health condition, and he was her carer for a period of time.[36] She ‘put too much pressure’ on the Applicant and he started drinking daily.[37]
[36]Ibid, G54.
[37] Transcript of proceedings, 6 December 2023, 58.
The Applicant commenced drinking alcohol at the age of 14 years, with him consuming Vodka and Gin whilst at work. His alcohol consumption continued in Australia, with him experiencing alcoholic blackouts and memory lapses. In the lead up to his most recent criminal offending, he was consuming alcohol on a daily basis.[38]
[38]Exhibit R1, G35.
The Applicant has been receiving Buvidal by way of monthly depot injections since around August 2023. In the past, he was prescribed oral Buvidal, however he became non-compliant as he was required to obtain it on a daily basis from a pharmacist.[39]
[39]Ibid, G34.
Mental health
The Applicant’s first psychotic break occurred under the influence of ice.[40] In 2015, he saw a medical practitioner and was diagnosed with schizophrenia.[41] He was prescribed Zyprexa (40mgs), which did not assist him. He was then trialled on Seroquel, which was more therapeutically beneficial, and he continued on it for seven or eight years.[42] The Applicant consulted a clinical psychologist, Dr Chai Nge, who he saw for couple of years, and he found this treatment to be beneficial.[43]
[40]Ibid.
[41] Transcript of proceedings, 6 December 2023, 18.
[42]Ibid, 19, 22, 57.
[43] Transcript of proceedings, 6 December 2023, 21.
The Applicant’s medication was changed to Olanzapine when he entered immigration detention, and he has been requesting to have his medication changed back to Seroquel as he does not believe that his current medication is effective.[44] However, the psychiatrist who treats him in VIDC has not agreed to change his medication to Seroquel.[45]
[44]Exhibit R1, G34; Transcript of proceedings, 6 December 2023,19.
[45]Ibid, 52.
Criminal history in Australia
The Applicant’s National Criminal History Check dated 5 July 2023 records his criminal convictions in Australia.32F[46]
[46]Exhibit R1, G32-45.
Early offending
The Applicant’s first conviction in Australia was on 28 March 2001 for Receive/Dispose Stolen Property-Min. Indict. Off. <=$5000-T2 which he committed on 22 February 2001. He was placed on a 12-month good behaviour bond.[47]
[47]Ibid, G45.
On 4 March 2005, the Applicant was convicted of Armed w/I commit indictable offence and Custody of knife in public place and sentenced to two years and three months’ imprisonment. According to the NSW Police Facts Sheet, on 23 April 2004 the Applicant and his co-accused were approached by uniformed police in the Sydney CBD.[48] The Applicant admitted to being in possession of a 24cm Stanley knife, with 8.5cm blade, and was found with three razor blades in his wallet. When questioned by police at the City Central Police Station, the Applicant explained that he and his co-accused had been intending to ‘do rolls’, which hesaid involved robbing females at ATMs. He said that he agreed to participate in these robberies in return for drugs.
[48]Ibid, G69-71.
During his oral evidence at the hearing, the Applicant told the Tribunal that his co-accused would ‘hug’ the victim with a knife so he could rob them of their money, and his role was ‘to stand behind him just to keep an eye out.’[49] He said that they targeted tourists, but denied that their victims were only women.[50] He agreed to participate in this offending because he needed money for drugs.[51]
[49] Transcript of proceedings, 6 December 2023, 35.
[50]Ibid, 36.
[51]Ibid, 37.
On 16 June 2011, the Applicant was convicted of Robbery armed with an offensive weapon and sentenced to four years and six months’ imprisonment. This related to an incident on 11 September 2010. According to the sentencing remarks of Judge Ashford of the District Court of NSW, the Applicant approached a woman on a bridge in Fairfield. While holding a box cutter to her stomach, he said ‘Give me money or I will kill you’. The victim gave him $295. The Applicant ran away, was chased by witnesses, and eventually was apprehended by police. The Applicant, when caught by the witnesses, said ‘I’m sorry, I need money for drugs’.[52]
[52]Exhibit R1, G58-59.
The Applicant was asked about this offending during cross-examination. He stated:[53]
Honestly, that day, like, I was working as a painter and I came home. And like, me and my girlfriend, we broke up. Like, two years later, she comes home and she does – just done my head in. And then, I went to a bottle shop. I always drink beer, but instead of beer I bought wine. So I had some wine, and then I went and ended up robbing a person, you know? Like, it wasn’t my plan, like, to go rob someone, because that day I had money as well. So then I ended up robbing a person for no reason because I was too drunk ...
[53] Transcript of proceedings, 6 December 2023, 38.
Domestic violence offences
On 25 May 2021, the Applicant was convicted of Stalk/intimidate intend fear physical etc harm (domestic)-T2. According to the NSW Police Facts Sheet, this related to an incident on 24 May 2021.[54] The Applicant was living with his sister (who was 35 weeks’ pregnant), his brother-in-law, his nephew and his parents, and a birthday celebration was taking place. The Applicant asked if his then partner, JS, could move into the home and, when the request was refused, he became enraged and verbally abused the victims and threatened to fight them. The Applicant was asked to leave and continued his verbal abuse and threats outside of the house, throwing a glass bottle which shattered at the front door. About an hour later, he called his sister’s home phone, which was answered by their mother and put on speaker. The Applicant stated, ‘(Redacted)’s gonna have a broken heart. I'm gonna to burn the house down and your cars and smash all the windows’. The verbal abuse caused his sister to fear for her safety and that of her child, and an AVO was issued to protect her from the Applicant. The Applicant received a 15-month community correction order for this offence.
[54]Exhibit R1, G65-68.
In his statement dated 30 May 2023, the Applicant described how he feels about this offending:[55]
This incident haunts me and it breaks my heart that my own sister needed protection from me.
[55]Applicant’s statement dated 30 May 2023,[22].
During cross-examination, the Applicant told the Tribunal that he understood that it was a condition of the community correction order that he was not allowed to commit further offences, and he knew that ‘it was serious’. He was asked why he continued to offend. He stated:[56]
It’s not like I want to offend. It just happens, like, when I’m drink or I’m on the drugs. From the drugs. I don’t know why I would do it. Is there any, like, if someone drinks, then why he doesn’t know what he’s doing. You know? So that’s what happens to me. Yes. I just – I can’t. I don’t see nothing.
[56] Transcript of proceedings, 6 December 2023, 45.
On 1 August 2022, the Applicant was convicted for Stalk/intimidate intend fear physical etc harm (domestic)-T2, two counts of Contravene prohibition/restriction in AVO (Domestic), Stalk/intimidate intend fear physical etc harm (personal)-T2 and Common assault (DV)-T2. This relates to several incidents of offending against JS, and another woman, BB. In relation to the offending against JS, the sentencing judge, Magistrate Gibson, noted that the Applicant was JS’s carer at the time, and found that this breach of trust was an aggravating factor. There was an AVO in place, and the Applicant intimidated and assaulted JS by putting his hand over her mouth. His Honour accepted that this offending fell towards the lower end of seriousness.[57]
[57]Exhibit R1, G54.
During cross-examination, the Applicant was asked about this offending. He stated:[58]
I didn’t press my hand – I know, because me and her, we were just arguing. Because, like, I wanted to leave the house and she’s not letting me leave. So we just shoving each other and the neighbours called the police. That’s what happened.
[58]Transcript of proceedings, 6 December 2023, 46.
He told the Tribunal that he had not been drinking and was ‘straight’ when this offending occurred. He did not admit to the offence when he was charged, but he did plead guilty in court, so as ‘to get a better result.’[59]
[59]Ibid, 46-47.
On 7 December 2021, while on bail for this offending, the Applicant intimidated BB in the company of JS, which was a breach of the AVO protecting JS.[60] The Applicant received a 15-month aggregate term of imprisonment for these convictions.
[60]Exhibit R1, G54.
During cross-examination, the Applicant was asked about his recollection of this offending. He stated:[61]
Honestly, that time we’re sitting in the park, we’re having a good time. So [BB] walks past, she was liking the friend, I looked to her. So she – she swear at me. So I sweared back to her. And then afterwards, her boyfriend comes, and he wants to have a go at me. And I’d just had an operation to my arm – it was wrapped. So my friends, they jumped him. And then she – I don’t know, her mum was there or something, yes. And her mum called the police. When the police come, she goes, ‘He’s got a knife in 15 his pants, you know, the big kitchen knife and that.’
So the police search out from the cameras as well, and I didn’t have one knife or nothing on me. And she – she made me, like, a terrorist, you know? ‘He wants to chop my stomach; he wants to get the baby out of stomach and chop his head off.’ And she’s not even pregnant or anything. And they just put it on me like that. And she said she’s eight months pregnant. And she was just a ice junkie, you know? She was not pregnant or anything. And because I got a criminal record, I don’t get time – I’m going to cop it, because I’ve got a criminal record, like come up to my mouth. And that’s why it’s happening.
[61] Transcript of proceedings, 6 December 2023, 47.
He agreed that he was with JS at the park, and that this was a contravention of the AVO protecting her.[62]
[62]Ibid.
Other violent offending
On 18 January 2023, the Applicant was convicted for three counts of Destroy or damage property and one count of Stalk/intimidate intend fear physical etc harm (personal)- T2. He received an aggregate sentence of nine months for these convictions. These convictions relate to an incident on 12 December 2022 when the Applicant was affected by alcohol and was wandering up and down Canley Vale Road. He was holding a broken glass bottle which he used to intimidate the victim.. He then continued along the street damaging cars with his bottle. In sentencing the Applicant, Magistrate Devine found that the damage was not of a high order but did fall towards the higher end of the mid-range of objective seriousness.[63]
[63]Exhibit R1, G46-49.
During cross-examination, the Applicant said that he does not remember this offending.[64]
[64] Transcript of proceedings, 6 December 2023, 49.
Remorse and responsibility for offending
In his statement dated 30 May 2023 the Applicant stated:[65]
I have an extensive criminal record which began shortly after I settled in Australia. My experience of displacement, trauma, poverty and physical and sexual assault resulted in me using drugs and alcohol to cope with the pain.
I acknowledge the crimes that I have committed are serious and I pled guilty to my most recent charges as I take full responsibility for my actions, and I am deeply remorseful.
I acknowledge that I have committed acts of domestic violence against my ex-girlfriend. We had a toxic relationship, and she suffered a range of mental health issues, but this does not explain or excuse my behaviour toward her. I am responsible for my actions, and I am deeply ashamed that I have injured a woman. I have two sisters and mother and I have been taught to be respectful and treat women better than this.
In the past, I have believed that friends have contributed to my poor behaviour. Now I know that I am the only one who can change my life, I am choosing to stay away from my previous friends and work on a life that is good. I cannot hold my friends responsible for my actions, I am the only one who can change my life.
I have been able to curb my drug use, but my addiction to alcohol has impacted upon my most recent re-offending. I have come to realise that alcohol is my main enemy as it changes me and makes me do things I do not want to do.
[65]Exhibit A1, [14]-[18].
In his statement dated 2 November 2023 the Applicant stated:[66]
I acknowledge the crimes that I have committed are serious and I pled guilty to my
most recent charges. I take full responsibility for my actions, and I am deeply remorseful.
[66]Applicant’s statement dated 2 November 2023, [14]-[17].
Impact on Applicant’s victims and his family
In his evidence in chief, the Applicant was asked how he feels about the victims of his offending. He stated, ‘I feel very bad, like, about all the victims.’ He was asked to elaborate, and he stated:[67]
I feel sorry about those things, because I got sisters and brothers as well. Yes, like, anything happens to them, all the things I’ve done, I always think about as well. It was not a right thing to do, but I didn’t mean to do it, but I wasn’t all there in the head to do it. You know, like, I mean, I planned that and I went and done it? No. It just happened because I was too drunk or it was my head on drugs.
[67]Transcript of proceedings, 6 December 2023, 24.
In his statement dated 2 November 2023, the Applicant outlined the shame he feels in relation to how his offending has impacted his family:
I am ashamed of the ways that my offending has hurt my family and I have caused
my family to suffer. It hurts me to think of the ways my mother has suffered, and the ways I have increased her stress and depression. I appreciate the constant support of both my parents, despite all the things I have put them through. I am very grateful for [SPS] and [AP], they have supported me over many years and I want to change my life to be a better brother and brother in law to them.
Drug and alcohol rehabilitation
In his statement dated 30 May 2023, the Applicant stated:
I have come to realise that I cannot touch alcohol, it does not work for me. It ruins my
life and my family’s lives. Every time I am in trouble, they are the ones who pay for it.
My parents and sisters are suffering now because of the uncertainty of my situation, I want to get my visa back for them.[68]
…
I am currently receiving Buvidol (sic) injections monthly in Villawood, to address my
addiction. For the first time in a long time, I am feeling good and happy. I have been
wanting to get on this injecting program for some time and I am proud of myself for
making a choice to get better. I have sense of relief now that I am on this program
[68]Applicant’s statement dated 30 May 2023, [23].
[69]Ibid, [25].
because I know that if I continue to receive this medication, I have real chance of being able to turn my life around.[69]
During cross-examination, the Applicant confirmed that he is now abstinent from alcohol, and he does not intend to resume drinking if he is released from immigration detention.[70]
[70] Transcript of proceedings, 6 December 2023, 54.
Mental health treatment and assistance
The Applicant’s IHMS medical records indicate that he is being treated for Schizophrenia, Post-Traumatic Stress Disorder, Major Depressive Disorder, Insomnia, and Substance Misuse Disorder. His symptoms of Schizophrenia and Major Depressive Disorder are managed with medication, Olanzapine.
The Applicant is a recipient of the National Disability Insurance Scheme (NDIS) and has a plan with a total budget of $48,679.60. This NDIS support is funded for two years from 16 February 2022.[71]
[71]Exhibit R1, G155.
Rehabilitation programs and work
The Applicant has undertaken the following rehabilitation programs:
·Alcohol and Other Drugs (AOD) recovery stage 1 and 2 at Odyssey House;[72]
·18 SMART recovery sessions between 2018 and 2020;
·Four SMART recovery sessions at VIDC;
·Drug and alcohol counselling at VIDC; and
·Three sessions with the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) at VIDC.
[72] A letter from Amby Perez, Odyssey House dated 8 May 2023 reports the Applicant engaged in the non-residential treatment program at Odyssey House Community Services: Exhibit R1, G129.

In his oral evidence, the Applicant told the Tribunal that when he was in gaol in 2006 and 2012, he completed drug and alcohol and anger management courses and the 12-step program.[73]
[73] Transcript of proceedings, 6 December 2023, 56.
In his statement dated 2 November 2023, the Applicant described the rehabilitation program he has undertaken at VIDC:[74]
I have been going to SMART recovery sessions in Villawood. We are taught strategies how to deal with cravings for drugs and alcohol, I have also learnt about how to manage my anger and we share the strategies that have helped us in the past. I have appreciated learning what has helped other people and how they deal with their problems.
[74] Applicant’s statement dated 2 November 2023, [10], [16]; Transcript of proceedings, 6 December 2023, 56.
When he was in gaol, the Applicant worked constructing demountable buildings for use as school classrooms following the floods.[75]
[75]Transcript of porceedings, 6 December 2023, 32-33.
Risk of re-offending
In his evidence at the hearing the Applicant explained why he will not re-offend:[76]
… I won’t offend because most of the time I was homeless. So I wasn’t care (sic) about nothing. For okay if they send me back to Iraq, let them. You know what I mean? So I wasn’t caring about anything. Most of my life I’m homeless in the street, no one would take me home. So I was having a tough life in here too. That’s why I didn’t care about nothing.
[76] Transcript of proceedings, 6 December 2023, 50.
In his statement dated 2 November 2023, the Applicant further outlined why he believes he will not re-offend in the community:[77]
I feel that I am better in control of my actions with medical help. It will not be easy, but with my family’s support and medical assistance I know that I can stay clean.
I have been practising the strategies I have learnt through the SMART program in
detention. I have been staying away from people and situations that will get me into
trouble. If I am released, I know that I need to stay close to family and stay away from people and places that could lead to relapse.
[77]Applicant’s statement dated 2 November 2023, [15]-[16].
Previous warnings
The Applicant received three prior warnings from the Department of Immigration that his visa may be cancelled if he continued to re-offend. In his statement dated 30 May 2023, he stated:[78]
I acknowledge that I was given a warning in 2006 as the result of a previous Notice
of Intent to Consider Cancellation issued to me by the Department of Immigration
and Border Protection. I also received another Notice of Intent to Consider
Cancellation in 2015.
Following the warning in 2015, I had a period of stability and got myself clean. I
relapsed and I am full of regret. I have learnt that I need family support, medical and
[78]Exhibit R1, G119.
psychological help to stabilise my life, if my visa is returned I will commit myself to creating a happy life. I do not want my family to suffer anymore because of me.
During cross-examination, the Applicant told the Tribunal that when he received the first warning letter in May 2005, he thought that ‘nothing serious was going to happen’ and he ‘didn’t really care.’[79] When asked by counsel why he was not concerned, the Applicant stated:[80]
Because like, I wasn’t – I was bad before, like, I wasn’t care about anything, you know. I was a bad person before. I didn’t care about my parents. Like, I didn’t care about no one. So yes, I was living a different life.
[79] Transcript of proceedings, 6 December 2023, 37.
[80]Ibid.
The Applicant was asked about his reaction to the second warning letter he received in April 2013. He said that he ‘wasn’t taking it too seriously’.[81]
[81]Ibid, 39.
In relation to the third warning letter the Applicant received in February 2015, he told the Tribunal he ‘didn’t really care.’[82]
[82]Ibid, 42.
The Applicant said that it was not until he received the mandatory visa cancellation notice in March 2023 and he was transferred to VIDC that he realised ‘that all is happening’ and it was ‘the wake-up call.’[83]
[83]Ibid, 43, 49.
Relationship with nieces and nephew
The Applicant is an uncle to his sister’s (SPS) children, JP who is aged six years and AP who is two years of age.
In his statement dated 2 November 2023, the Applicant described his relationship with his niece and nephew:[84]
I want to be there for [JP] as he grows up, we have a special bond as I used to spend a lot of time with him when his parents were at work. In detention, it is the photos and the video calls with [JP] and my niece [AP] that bring me strength in hard times.
[84]Applicant’s statement dated 2 November 2023, [18].
During his oral evidence, the Applicant explained how he feels when he thinks about his niece and nephew:
Honestly, it makes me feel good, like, because I’ve got my younger sister, she was born here and I missed all of that, because I was in and out of jails, I wasn’t living with them, so I missed her childhood. So I don’t want to miss with my nephew and my niece as well.
The Applicant told the Tribunal that he speaks to JP ‘nearly daily’ and they talk about ‘everything’ including when he is coming home.[85]
[85] Transcript of proceedings, 6 December 2023, 33.
The Applicant’s brother has two daughters, one of whom is aged 13 years (SB1) and the other is seven years old (SB2).
Relationship with family members
In his oral evidence, the Applicant told the Tribunal that in the past he and his family were ‘never close’ but now they are ‘very close’. They were not close in the past because he was ‘doing too much (sic) drugs’ and had ‘bad friends’.[86] He did not speak to his family but recently he has ‘been talking to everyone’.[87] He has a very close relationship with his sister, SPS, and he speaks to her on the phone every day and to his other siblings every couple of weeks.[88]
[86]Ibid, 17.
[87]Ibid.
[88] Transcript of proceedings, 6 December 2023, 33.
The Applicant told the Tribunal that he does not have any family in Iraq. All his family, including cousins, live in Australia. He has an aunt who lives in Jordan, and they are taking steps to bring her to Australia.[89]
[89]Ibid, 24, 26.
Future plans
The Applicant’s evidence is that if he is permitted to return to the community he will live with his parents, and his sister and her family. In his statement 30 May 2023, the Applicant stated:[90]
If I am released, I would like to return to living with my parents, my sister and her
family. Last time I was clean, I was living with my family and I know this is what I
need to be able to have a stable life. In addition to medical and psychological
support, it is living with my family that provides me the most stability. Being around
[90]Exhibit R1, G119.
my niece and nephew inspires me to be a good person for them, I do not want [JP] to see someone who is drunk and violent.
In his statement dated 2 November 2023, the Applicant outlined in more detail what he intends to do if he returns to the community:[91]
If I get my visa back and I am released from Villawood, I will live with my parents and
my family in Leppington. I know that my health and stability improves with their support and I am grateful that they continue to offer this to me. When I’ve settled, I will apply for public housing close to Leppington, so I can remain close to my parents and family because I need them for support.
If I am released, I want to change all my life. Everything will change, I will start working, find new friends and make a new life for myself.
I intend to get a job with my brother-in-law at [PSS]. I am very enthusiastic to work, and I am excited about the prospect of working. If I cannot work with my brother-in-law, I will find a job at a car wash, labouring, or something similar.
[91]Applicant’s statement dated 2 November 2023, [5]-[7].
In his oral evidence at the hearing, the Applicant told the Tribunal that he will get a job as a machine operator at the company where his brother-in-law, AP, works.[92]
[92] Transcript of proceedings, 6 December 2023, 59.
In his statement dated 2 November 2023, the Applicant outlined what steps he will take to address his drug and alcohol problem and to manage his mental health condition:[93]
I will go back to Odyssey House for drug and alcohol treatment. I also have support from the National Disability Insurance Scheme (NDIS). I have recently spoken to my NDIS caseworker Samira and booked an appointment with her in December, in hope that I will be released around that time. I know that if I am released, I will not be returning to my old life, but one where I will be supported with my mental health issues. I would also like to go back to my psychologist Dr Chai Nge for treatment as I have found it helpful in the past.
I have Schizophrenia and I have been prescribed Seroquel (Quetiapine) in the past. I know it works for me and helps to manage my symptoms of Schizophrenia and helps me to feel calm. I have asked for Seroquel from the psychiatrist in Villawood on a number of occasions and have been refused, I don’t understand why. I know this medication helps me and I have been frustrated by not being listened to in Villawood.
…
I am also receiving Buvidal injections on a monthly basis, which I intend to continue if released, it helps me to manage my addiction and I know that with medical support, I can remain sober. I have come to realise that I cannot touch alcohol, it does not work for me, it ruins my life.
If I am released, my sister [SPS] has told me that she will take me to her doctors in Leppington where I will request a treatment plan for my Schizophrenia. I will also go back to my psychologist, Dr Chai Nge for further treatment.
[93]Applicant’s statement dated 2 November 2023, [8]-[9], [11]-[12].
In his oral evidence at the hearing, the Applicant told the Tribunal that he could be getting married. His family have identified a girl, who he has not yet met or spoken to, and they are waiting for her to give them her ‘answer’.[94]
[94] Transcript of proceedings, 6 December 2023, 60.
Ongoing immigration detention
In his statement dated 2 November 2023, the Applicant outlined what he believes will be the impact on him of remaining in immigration detention:[95]
[I] also fear the prospect of being held in immigration detention forever. I have mentally struggled in here and a few months ago I really wanted to end my life, I am not receiving my medication and I’m starting to hear voices. The mental health treatment in detention is very bad, I cannot access the medication I need to keep my symptoms of schizophrenia under control. It is only the thought of my parents, family and the kids that stop me. I imagine how it would make my niece and nephew feel if they saw my grave. My mental health cannot handle permanent separation from my family.
[95]Applicant’s statement dated 2 November 2023, [25].
Fear of harm on return to Iraq
In his statement dated 2 November 2023, the Applicant outlined his fears in relation to being returned to Iraq:[96]
I fear that if return to Iraq, I will be at a real risk of harm due to the fact that I am a Christian. I am immediately recognisable by my surname ... I’m Catholic and I pray regularly, my faith is very important to me. My faith helps me to forgive people and forgive myself.
I fear the instability of Iraq due to its long history of war and I am afraid that I will be subjected to beatings, imprisonment and persecution due to my faith. There is no where in Iraq I can go to be safe. My family and I have only experienced discrimination and hate from Iraqi people because of our religion. I fear further physical assaults from the army, like the one that almost killed me last time I was there.
[96]Ibid, [21].
Impediments on return to Iraq
In his statement dated 2 November 2023, the Applicant outlined the impediments to him returning to Iraq:
I have no friends or family in Iraq, I have no connection to the country, only memories of persecution. All my extended family has moved to Australia over the past 20 years.
I know that I will not be able to access medication for my depression, schizophrenia or receive Buvidal injections in Iraq. I know that without support I will relapse into addiction, and I fear that the voices inside me will encourage me to kill myself. I have struggled with suicidal thoughts in the past and the idea of returning to Iraq makes me fear for my life.
Connection with Australia
In the same statement, the Applicant described his connection to Australia:[97]
… I have been in Australia for 23 years and my family and my life are here, it is my home, I haven’t been in Iraq since I was a child. Australia has allowed my family to have a home that is safe and free from racism and discrimination, and as a Christian person, I feel safe and secure. and when I die, I want to die here and be buried in Australian soil to forever rest in the country that showed me kindness. If my visa is returned, I will become a citizen as soon as possible because I am proud to be an Australian. It will be a huge achievement for me, as I will finally feel like I fit in.
[97]Applicant’s statement dated 2 November 2023, [26].
Applicant’s sister, SPS
SPS provided a statement dated 27 October 2023,[98] and gave oral evidence at the hearing.
[98] Exhibit A3.
In her statement, SPS outlined the support she and her family will provide to the Applicant if he returns to the community:[99]
[The Applicant] lived with us in the past between 2015-2020. He was doing well at the time, and we were happily living together. Everything was so good; this was a peaceful time for our family. If he is given his visa back, we have all discussed and decided that he will return to live· with us. We live in a five-bedroom home and there is enough room for us all, I know that [the Applicant] is at peace when he is around family.
In the past, we have helped [the Applicant] get medical treatment, but it was Fairfield and the location is a temptation for [the Applicant] to return to his old friend and old life. This time, we will be seeking doctors close to Leppington, my family goes to both Emerald Hills Medical Centre and My Family Health Medical Centre in Willowdale.
We will be applying for Centrelink in Campbelltown and taking him to Odyssey House, also in Campbelltown. He is intending to go on a waiting list for Housing NSW, and [the Applicant] has agreed to apply for a house close to us, so we can continue to support him, even when he is living independently.
We will do whatever he needs to help him. We will drive him places, we will provide him with food and surround with family. We will do whatever it takes for him [the Applicant] to be well.
[99]Ibid,[5]-[8].
In her oral evidence, SPS told the Tribunal that the Applicant is welcome to live in the family home as for as long as he wants. She also will support him to find independent housing if he wishes to do so.[100] She said that the Applicant has been told that he can apply for another public housing home when he returns to the community, and if this does not happen her family can help him with rent and a bond for private accommodation.[101]
[100] Transcript of proceedings, 6 December 2023, 88.
[101]Ibid, 93.
SPS told the Tribunal that she speaks to the Applicant every day and that JP speaks to him when he is at home.[102] She described the relationship between the Applicant and her son, JP:[103]
When [JP] was young, they used to spend a lot of time together. I was at work. But when I used to come home, my mum, she used to always say, like, ‘They’re really having a good day, because he’s been playing with him outside with the ball and that.’ So, yes, he’s been, like, really close to him. Up until today, [JP] says, like, ‘I miss him. I want to go see him.’ Because he’s, like, he’s on holiday. When I don’t say where he is -
[102]Ibid.
[103]Ibid, 90.
SPS was asked to tell the Tribunal how JP feels about the Applicant and whether she believes that JP benefits from having the Applicant in his life. She stated:
It’s like he’s really nice, is, like – he wants to play with him and game. Like I used to play with him before.
…
I think it’s good, because he’s happy to see him around him and that. But something good for him. Like, he’s growing, he can see, like – he’s around, he wants to play with him.
In her statement, SPS outlined the impact on the Applicant if he is returned to Iraq or held in ongoing immigration detention:[104]
… If [the Applicant] is sent back to Iraq or placed in immigration detention, as his sister I would be deeply distressed to lose [him]. If he is returned to Iraq, I am certain that he would die, he has no support or family, and the region is destabilizing on daily basis. [The Applicant] has significant mental health issues and I have heard that there is no treatment in Iraq, I fear that he would be killed. [He] is clearly identifiable as a Christian due to his family name ...
[104]Exhibit A3, [10]-[11].
She outlined the impact on her family if the Applicant is returned to Iraq or remains in immigration detention:
My parents are particularly stressed about the prospect of [the Applicant] being returned to Iraq, we left Iraq as refugees, so the thought of him returning is particularly traumatic for them.
As I have explained before, if my brother is detained forever, my family and I will suffer. [The Applicant] is family, we need to be together and I want him to be around for my son [JP].
She elaborated on the impact on her parents in her oral evidence at the hearing:[105]
That will affect them a lot, because they have – like, they both are sick. And they’re really, like, close to him. Because he was the only one, like, with dad at home and that. That used to help them a lot, too. So – yes. They’re close to him. So if he goes back there, we’re going to be – depression and that.
[105] Transcript of proceedings, 6 December 2023, 91.
In her statement, SPS described the impact on JP if the Applicant remains in ongoing immigration detention:[106]
[The Applicant’s] ongoing detention is not good for [JP], he continues to ask about [the Applicant] regularly. Recently, we went to take some food to Villawood for [the Applicant]. [JP] in the car, but he did not go in. [JP] was screaming and crying because he missed [the Applicant]. [The Applicant] loves children, particularly [JP], they are very close.
[106]Exhibit A3, [12].
Applicant’s brother-in-law, AP
AP provided a statement dated 27 October 2023, in which he confirmed that when the Applicant returns to the community, he will live in their family home. He will help the Applicant get a job at the company where he works. He stated that his son JP ‘asks about [the Applicant] every day’ and he sometimes cries when they tell him that the Applicant ‘is away’. The separation from the Applicant affects JP, and he finds it hard to watch his son ‘suffer’. The Applicant’s detention is ’hard’ for his family and a ‘constant source of stress’ for them, and ‘it is as though [they] are all being mentally detained.’
Applicant’s father, SPF
SPF provided a statutory declaration dated 26 October 2023. He stated that it would be ‘unimaginable’ for one of his children to be returned to Iraq, and he fears that the Applicant ‘would surely die’ there. It is ‘very difficult’ for him to accept the possibility that the Applicant ‘may be in detention forever’, and he fears he will ‘deteriorate’ if he is not surrounded by family. SPF stated that he will ‘suffer’ without his son, and he is ‘full of worry every day’ and this affects him.
Applicant’s mother, NY
NY provided a statutory declaration dated 26 October 2023, in which she stated that it is ‘very difficult’ for her ‘to accept the possibility that [the Applicant] may be in detention forever’, and she fears he ‘will be harmed or killed’ if he is returned to Iraq. She struggles with depression and the Applicant’s problems are ‘very difficult’ for her.
Mr Tim Watson-Munro, psychologist

The Applicant was examined by Mr Watson-Munro at the request of his solicitors on 14 and 21 November 2023. He e provided a report dated 27 November 2023[107] and gave oral evidence by phone at the hearing.
[107] Exhibit A3.
At the hearing, Mr Watson-Munro provided the following opinion as to the factors that contributed to the Applicant’s criminal offending:[108]
Well, my position is … [the Applicant’s] past offending in my opinion has been a function of psychiatric illness and drug use. And, of course, in the absence of consistent treatment, it’s almost inevitable that he would relapse and reoffend. He’s now having treatment, appropriate psychotropic medication – his drug use.
[108]Transcript of proceedings, 6 December 2023, 83.
During his oral evidence, Mr Watson-Munro explained the nature and efficacy of Buvidal for treating opioid addiction:[109]
[Buvidal is] a derivative of buprenorphine. It’s used to treat primarily opioid addiction, but it also seems to be effective in treating stimulant abuse addiction such as ice, and I’ve certainly had quite a number of clients in the last year with serious histories of drug addiction referrable to opioids and crystal methylamphetamines – ice – who say the same thing, that Buvidal seems to, with the effluxion of time, eliminate their craving for drugs. The important thing here is, as I understand it, [the Applicant] is receiving the Buvidal by way of depot injection, which will, I think, maximise compliance issues, or optimise compliance issues. So he gets an injection on a regular basis, he doesn’t have to report every day or two to a pharmacy to get his medication. So in terms of ongoing treatment and maintenance, it seems to be a very good medication in terms of the treatment of addiction.
[109]Transcript of proceedings, 6 December 2023, 71.
Mr Watson-Munro was asked whether in his opinionthe Applicant has insight into his criminal offending. He stated:[110]
Well, he’s aware of the chain of events that has led to incarceration and immigration detention. I think he’s aware that he’s had poor impulse control and fractured judgment in the past. He has limited insight sight, I think, but it’s developing, and I think the longer that he remains psychiatrically stable, the longer that he remains free of substance use, those insights will be reinforced.
[110]Ibid, 72.
In his report, Mr Watson-Munro provided the following opinion in relation to the Applicant’s risk of reoffending:[111]
I note you seek my opinion regarding [the Applicant’s] risk of reoffending. There are a number of protective factors in place now, which will reduce the likelihood of recidivism in this case. These include the stabilisation of his mood and in particular his psychotic illness, his detoxification from illicit drugs and alcohol, his willingness for treatment, the support which he will enjoy from his family and his expressions of remorse. He stated that he is keen to re-engage with the NDIS, which will be of considerable benefit to him in terms of his reassimilation into the Australian community. [The Applicant] now has insight to the dynamics surrounding his criminal conduct and he is remorseful for his past behaviour. Further, he recognises the consequences which will accrue should he be given an opportunity to return to live in the Australian community and he reoffends in any way. Clearly, for his mental health to remain stable, it is imperative that he remains free from illicit drugs and alcohol, whilst maintaining compliance with his prescribed psychotropic medication. I believe that with continuing support, treatment and supervision, the risk of him reoffending is now trending from Moderate to Low.
[111]Exhibit A2, 12.
In his oral evidence, Mr Watson-Munro elaborated on his opinion:[112]
I note in the earlier documents he was assessed as being moderate to high. But he’s now having treatment. He’s now having effective psychotropic treatment to address his addiction and so on. But I’m not saying it’s low. I’m saying that it’s heading in the right direction ...
[112] Transcript of proceedings, 6 December 2023, 77.
He outlined what must occur for the Applicant to continue the road to recovery:
But of course he’s in an artificial situation at the moment. The real test of this will be in the community. Whether those protective factors prevail in terms of maintaining treatment, maintaining the support of his family and being substance-free. If he ticks all those boxes then I’d be more optimistic about his ultimate prognosis. The thing about schizophrenia is it’s a chronic illness. And it doesn’t spontaneously remit. Clearly drug use will aggravate the symptoms of schizophrenic illness. So it’s, as I’ve said previously, it’s very important that he remains drug and alcohol free and maintains his medication and in addition, enjoys the support of his family and sees a suitably qualified and experience psychologist to give him psychotherapy and skills training.[113]
…
Clearly the most, in order of priority in terms of declines, he needs to maintain his antipsychotic medication and attendant to that he’ll maintain his insight. He needs to maintain his Buvidal. And then as ongoing factors in terms of his ongoing recovery the support of his family, supervision of his family and the input from a psychologist will be additional protective factors which I think are directed more towards the issue of maintaining treatment …[114]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[113]Ibid, 73.
[114] Transcript of proceedings, 6 December 2023.75.
1)Does the Applicant pass the ‘character test’?
In the representations and material that the Applicant submitted to the Department and the Tribunal, he does not dispute the information in the National Criminal History Check dated 5 July 2023 recording his criminal convictions and sentences. It relevantly records that on 18 January 2023 he was convicted in the Local Court of New South Wales of Stalk/intimidate intend fear physical etc harm (personal)-T2 (two counts), Contravene prohibition/restriction in AVO (Domestic) (two counts) and Common assault (DV)-T2 and sentenced to an aggregate term of 15 months’ imprisonment. The Tribunal is satisfied that the Applicant has a ‘substantial criminal record’ for the purposes of section 501(3A)(a) and section 501(6) of the Act as he has been sentenced to a term of imprisonment of 12 months or more: section 501(7)(c). The Tribunal is also satisfied, for the purposes of section 501(3A)(b) of the Act, that on 7 March 2023 Applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the state of New South Wales.
The Applicant accepts that he does not pass the character test because of section 501(7)(c).[115] The Tribunal is satisfied that the Applicant does not satisfy the character test, and accordingly it finds that section 501CA(4)(b)(i) cannot be invoked to revoke the Mandatory Visa Cancellation Decision.
2)Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
[115] ASFIC, [41].
In determining whether pursuant to section 501CA(4)(b)(ii) of the Act there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must, in accordance with paragraphs 8 and 9 of the Direction, take into account the relevant ‘primary considerations’ and ‘other considerations’. The existence or otherwise of ‘another reason’ is to be established on the balance of probabilities.
The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Federal Court of Australia in Viane v The Minister for Immigration and Border Protection:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.[116]
PRIMARY CONSIDERATIONS
[116] [2018] FCAFC 116; 162 ALD 13 per Colvin J, [64].
Primary Consideration 1 – Protection of the Australian community
Paragraph 8.1 of the Direction provides that, when decision-makers are considering the protection of the Australian community, they:
(1) … should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, 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 they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
a)Nature and seriousness of the conduct
Paragraph 8.1.1 of the Direction provides:
(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii. crimes of a violent nature against women or children, regardless of the sentence imposed;
iii. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv.where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's con status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Having regard to the factors in paragraph 8.1.1 of the Direction and for the reasons that follow, the Tribunal finds that the Applicant’s criminal offending is very serious. The Applicant has an extensive criminal record which lists convictions for 53 offences and nine sentences of imprisonment.[117] Relevantly to paragraph 8.1.1(1)(a)(i) of the Direction, the Applicant’s criminal offending includes violent crimes against members of the community, including when he was armed with sharp and dangerous weapons such as knives and broken glass. The Applicant’s convictions which demonstrate this pattern of violence include his convictions for Armed w/I commit indictable offence and custody of knife in public place, nine counts of Common assault-T2, five counts of Stalk/intimidate intend fear physical etc harm (personal)-T2, Robbery armed with offensive weapon, Resist officer in execution of duty and Use etc offensive weapon to prevent lawful detention etc-T1.
[117]Exhibit R1, G32-45.
Relevantly to paragraph 8.1.1(1)(a)(ii) of the Direction, the Applicant has committed multiple offences against women. His conviction for Armed w/I commit indictable offence involved the use by the Applicant of a knife to rob tourists using ATMs in the Sydney CBD, and his conviction for Robbery armed with offensive weapon involved the use of a box cutter to rob a woman on a bridge. The Applicant’s two acts of family violence, namely the conviction for Contravene prohibition/restriction in AVO (Domestic) against his former partner, JS, and his conduct that led to an AVO protecting his sister, SPS, are recognised in paragraph 8.1.1(1)(a)(iii) of the Direction as very serious.
Paragraph 8.1.1(1)(b)(ii) of the Direction recognises that crimes committed against a government official due to the position they held, are regarded by the Australian government and community as serious. The Tribunal finds that the Applicant’s conviction for Resist officer in execution of duty is a further example of the serious nature of his criminal offending.
Having regard to paragraph 8.1.1(1)(c) of the Direction, the Tribunal finds that the custodial sentences imposed on the Applicant are an objective indicator of the seriousness of his criminal offending. The Applicant has been sentenced to nine terms of imprisonment, including sentences of two years and three months on 4 March 2005 for Armed w/I commit indictable offence-T1, and four years and six months on 16 June 2011 for Robbery armed with offensive weapon-SI, and an Aggregate sentence of 15 months’ imprisonment on 1 August 2022 for Stalk/intimidate intend fear physical etc harm (domestic)-T2, two counts of Contravene prohibition/restriction in AVO (Domestic), Stalk/intimidate intend fear physical etc harm (personal)-T2 and Common assault (DV)-T2. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, indicating that the Court has considered that, considering all possible alternatives, no penalty other than imprisonment is appropriate which reflects the objective seriousness of the offences involved.[118]
[118] Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50]; Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 587.
Relevantly to paragraph 8.1.1(1)(d) of the Direction, there was a frequency to the Applicant’s offending between the period 2001 to 2022. While his most serious offending, Robbery armed with an offensive weapon was committed in September 2010, for which he received a sentence four years and six months in June 2011, his later offending included violent offences and acts of family violence. Whereas the evidence does not demonstrate an escalation in seriousness of the Applicant’s offending, he continued to engage in violent offending and commit acts of family violence, albeit with a break of five years between 2015 and 2020 until he was incarcerated most recently in August 2022.
Paragraph 8.1.1(1)(e) of the Direction recognises the relevance of the cumulative effect of repeated offending in assessing the seriousness of the Applicant’s offending. The Applicant contravened the AVO protecting JS multiple times, including in aggravating circumstances where he was her carer.[119] Furthermore, the large number offences committed by the Applicant between 2001 and 2022 resulting in 53 recorded convictions, have a cumulative effect which adds to the serious nature of his criminal offending, as it has burdened the resources of law enforcement, the court system, and corrective services.[120]
[119]Exhibit R1, G54.
[120] DMDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1993 at [67].
Having regard to paragraph 8.1.1(1)(g) the Tribunal notes that the Applicant continued to offend despite being warned by the Department on 12 January 2006 that him re-offending could have consequences for his visa,[121] and him having been sent a Notice of Intention to Consider Cancellation on 17 April 2013[122] and 6 February 2015.[123] Each of these warnings put the Applicant on notice that further offending would impact his migration status and may result in the cancellation of his visa. The Applicant demonstrated an indifference to the consequences of his conduct for his migration status and continued to re-offend indicating the seriousness of his offending.
[121]Exhibit R2, 1-5.
[122]Ibid, 6-34.
[123]Ibid, 35-72.
On the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant’s criminal offending is very serious in nature, and this weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
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.
(i)Nature of harm to individuals or the Australian community

For the stated reasons and having applied the guidance in paragraph 8.4 of the Direction, the Tribunal finds that Primary Consideration 4 weighs in favour of revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 5 – Expectations of the Australian Community
Paragraph 8.5 of the Direction relevantly provides:
(1) 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 enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be 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. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) …
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature …;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties
(e)…
(f) ...
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable (sic) risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The effect of paragraph 8.5 is that it imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. This consideration does not involve an inquiry into what the Australian community does or does not expect, because this is normatively expressed in the terms of the consideration: paragraph 8.5(4). Rather, the relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed community expectation’ of refusal of a visa ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[130] As a normative expression, this consideration indicates the likelihood that community expectations will in most cases lead to refusal of a visa, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.[131]
[130]FYBR and Minister for Home Affairs (2019) 272 FCR 454 per Charlesworth J, [77].
[131]Minister for Immigration v HSRN [2023] FCAFC 68.
Relevantly to the expectations of the Australian community as stated in paragraph 8.4, particularly paragraph 8.4(2)(c), and in accordance with principles 5.2(2)-(5) of the Direction, the Applicant’s offending has included violent offending and acts of family violence. Given the seriousness and nature of this offending, the Australian community would expect that the Applicant should no longer have the privilege of holding a visa to remain permanently in Australia.
The Applicant has resided in Australia as a permanent resident for a period of more than 24 years. Accordingly, the factors in principle 5.2(4) of the Direction, particularly the length of time the Applicant has been in Australia, support a finding that there would be higher level of tolerance by the Australian community for his criminal conduct than there would be for a non-citizen who has not lived in the community for an extended period of time.
Having had regard to the factors in paragraph 8.4 of the Direction in relation to the expectations of the Australian community, and giving them appropriate weight, and taking into account the nature, seriousness and impact of the Applicant's criminal offending, and the duration of his residency in Australia, the Tribunal finds that Primary Consideration 5 weighs against revocation of the Mandatory Visa Cancellation Decision.
OTHER CONSIDERATIONS
Paragraph 9 of the Direction sets out the ‘Other considerations to be taken into account in making a decision under section 501(1) as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
While the Primary considerations carry particular weight, the Direction provides at paragraph 9 that ‘Other considerations’ must be taken into account by the decision-maker where relevant. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection (‘Suleiman’):[132]
Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[132](2018) 74 AAR 545, [23].
In FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[133] Wigney J held that this analysis ‘tends to overcomplicate or over intellectualise the issue’. His Honour held that the use of the word ‘generally’ in clause 8(4) of Direction 79 (the same wording is used in section 7(2) of the Direction) ‘recognises that there may well be cases where the circumstances are such that one or more “other considerations” may be deserving of more weight than one or more primary considerations’.[134] His Honour also held that the formulation identified in Suleiman ‘is at least potentially problematic because it tends to suggest that a decision-maker cannot give greater weight to one or more of the “other considerations” in any given case unless they consider that the case is somewhat unusual or out of the ordinary’.[135]
[133][2021] FCA 775 [22].
[134] Ibid, [23].
[135] Ibid.
The ‘other’ considerations relevant to the Applicant’s circumstances are considered in the following paragraphs.
a)Legal consequence of the decision
Paragraph 9.1 of the Direction provides:
1)Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
2)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
3)International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
The Direction contains specific provisions relevant to non-citizens in relation to whom a protection finding has been made (paragraph 9.1.1) and to non-citizens in relation to whom no protection finding has been made (paragraph 9.1.2).
Paragraph 9.1.2 provides as follows:
9.1.2 Non-citizens not covered by a protection finding
(1) Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
(2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3) Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will
be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
Section 197C provides:
197C Relevance of Australia’s non‑refoulement obligations to removal of unlawful non‑citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
(3) Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non‑citizen to a country if:
(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.
(4) For the purposes of subsection (3), a protection finding is made for a non‑citizen with respect to a country if a record was made in relation to the non‑citizen under section 36A that the Minister is satisfied as mentioned in paragraph 36A(1)(a), (b) or (c) with respect to the country.
(5) For the purposes of subsection (3), a protection findingis also made for a non‑citizen with respect to a country if the Minister was satisfied of any of the following (however expressed and including impliedly):
(a) the non‑citizen satisfied the criterion in paragraph 36(2)(a) with respect to the country and also satisfied the criterion in subsection 36(1C);
(b) the non‑citizen satisfied the criterion in paragraph 36(2)(aa) with respect to the country;
(c) the non‑citizen:
(i) would have satisfied the criterion in paragraph 36(2)(a) with respect to the country except that subsection 36(3) applied in respect of the non‑citizen; and
(ii) satisfied the criterion in subsection 36(1C);
(d) the non‑citizen:
(i) satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and
(ii) would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non‑citizen was a non‑citizen mentioned in paragraph 36(2)(a);
(e) the non‑citizen:
(i) satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and
(ii) would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non‑citizen was a non‑citizen mentioned in paragraph 36(2)(a) and subsection 36(2C) or (3) applied in respect of the non‑citizen;
(f) the non‑citizen would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that subsection 36(2C) or (3) applied in respect of the non‑citizen.
(6) For the purposes of subsection (3), a protection findingis also made for a non‑citizen with respect to a country if:
(a) the Minister was satisfied (however expressed and including impliedly) that, because subsection 36(4), (5) or (5A) applied to the non‑citizen in relation to the country, subsection 36(3) did not apply in relation to the country; and
(b) a protection finding within the meaning of subsection (4) or (5) was made for the non‑citizen with respect to another country.
(7) For the purposes of subsection (3), a protection finding is also made for a non‑citizen with respect to a country in circumstances prescribed by the regulations.
…
Prior to its mandatory cancellation, the Applicant held a Class BA Subclass 200 Refugee visa. There has not been a ‘protection finding’ made in relation to the Applicant as contemplated by subsection 197C(4)-(7) of the Act. Accordingly, paragraph 9.1.2 of the Direction is relevant to the Applicant’s circumstances.
The Applicant contends that that he engages Australia’s non-refoulement obligations on the following grounds:
·He has a well-founded fear of persecution on the basis of his religion as a Catholic Christian; and
·There are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Iraq, there is a real risk that he will suffer significant harm, namely arbitrary deprivation of life.[136]
[136] ASFIC, [69].
If the Tribunal decides not to revoke the Mandatory Visa Cancellation Decision under section 501CA, the Applicant will be prevented by section 501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa (as prescribed by regulation 2.12A of the Migration Regulations 1994 (Cth)). Section 35A of the Act defines ‘protection visa’ as a visa of a class provided in that section, which includes Class XA, Class XD and safe haven enterprise (Class XE) visas. Prior to its cancellation, the Applicant held a Class BA Subclass 200 Refugee visa, which is not a ‘protection visa’. Accordingly, if the Tribunal decides not to revoke the Mandatory Visa Cancellation Decision it will be open for the Applicant to make an application for a Protection visa. As this option will be open to the Applicant, the Tribunal has considered whether it is obliged to evaluate the Applicant’s non-refoulement claims.
As recognised in paragraph 9.1.2(1) of the Direction, as the Applicant has raised non-refoulement claims, the Tribunal must ‘read, identify, understand and evaluate’ those claims.
In Plaintiff M1/2021 v Minister for Home Affairs (‘Plaintiff M1/2021’),[137] the High Court of Australia clarified the approach to consideration of representations involving non-refoulement claims. Relevantly, the majority explained:[138]
Where the representations do not include, or the circumstances do not suggest, a non‑refoulement claim, there is nothing in the text of s 501CA, or its subject matter, scope and purpose, that requires the Minister to take account of any non‑refoulement obligations when deciding whether to revoke the cancellation of any visa that is not a protection visa.
Where the representations do include, or the circumstances do suggest, a non‑refoulement claim by reference to unenacted international non‑refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error – they are not part of Australia's domestic law.
Where the representations do include, or the circumstances do suggest, a claim of non‑refoulement under domestic law, again the claim may be considered by the decision‑maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non‑refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.
[137] (2002) 400 ALR 417; [2022] HCA 17.
[138] Ibid, [28]–[30] per Kiefel CJ, Keane, Gordon and Stewart JJ.
The Respondent contends that Plaintiff M1 is applicable in this matter, and while it is open to the Tribunal to consider the Applicant's non-refoulement claims, an available option is for it to defer assessment of whether the Applicant is owed non-refoulement obligations as it is open to him to apply for a Protection visa.[139] The Respondent submits that this would be the most appropriate course given the complexity of the Applicant’s claims, and that the Protection visa process is specifically designed for the determination of non-refoulement obligations.
[139] RSFIC, [58].
The Tribunal has had regard to paragraph 9.1.2(2) of the Direction which recognises that it is not necessary at the section 501 stage for a decision-maker to consider non-refoulement issues in the same level of detail as they are considered in a Protection visa application. Accordingly, the Tribunal is satisfied that it need not undertake a full and comprehensive assessment of whether the Applicant engages Australia’s non-refoulement obligations. The Applicant has made claims that will require a full assessment if he makes an application for a Protection visa, which he will be permitted to make: section 501E(2)(a).

The Respondent accepts that, because the Applicant has not yet applied for a Protection visa, subsection 197C(3) of the Act is not presently engaged, and the immediate effect of the Tribunal’s decision not to revoke the Mandatory Visa Cancellation Decision would be that he is liable for removal to Iraq pursuant to section 198 of the Act.[140]
[140] RSFIC, [60].
Guided by paragraph 9.1(1) of the Direction, the Tribunal has had regard to sections 189 and 198 of the Act and finds that a legal consequence of a decision not to revoke the Mandatory Visa Cancellation Decision is that the Applicant will be an unlawful non-citizen and subject to immigration detention pending his removal to Iraq. Section 197C provides that the obligation to remove the Applicant from Australia under section 198 is unaffected by any non-refoulement obligations he may be owed. If the Applicant were to make a Protection visa application before he is removed to Iraq, the Protection claims made in this application would need to be assessed. However, the assessment of these claims will be a consequence of the Applicant’s application for a Protection visa. It will not be a legal consequence of the decision of the Tribunal to refuse to revoke the Mandatory Visa Cancellation Decision. Accordingly, the Tribunal finds that a legal consequence of its decision to refuse to revoke the Mandatory Visa Cancellation Decision is that the Applicant will be liable for removal to Iraq where he may face persecution or other serious harm.
For the reasons stated above, the Tribunal finds that a legal consequence of its decision not to revoke the Mandatory Visa Cancellation Decision is that the Applicant will be an unlawful non-citizen subject to detention and liable to removal from Australia, and this legal consequence is not affected by any application the Applicant may make for a Protection visa. The Tribunal finds that Other consideration a) weighs very heavily in favour of the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
b)Extent of impediments if removed
Paragraph 9.2 of the Direction provides:
1)    Decision-makers must 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;[141]
b)    whether there are substantial language or cultural barriers; and
c)    any social, medical and/or economic support available to them in that country
[141] The word “health” in paragraph 9.2(1) of the Direction is understood to mean any aspect of a person’s physical wellbeing and includes “the overall state of a person’s fitness and condition, including underlying health issues and ongoing effects of any past injury: Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126 at [12].
Having regard to the factors in paragraph 9.2(1)(a), the evidence before the Tribunal is that the Applicant is aged 42 years and he is in good physical health, however he suffers from Schizophrenia, Major Depressive Disorder and Substance Abuse disorder.
DFAT’s January 2023 Country Information Report for Iraq reports:[142]
The absence of community-based mental health care means that often the only care available is family-based or in psychiatric institutions, which have been linked to inhumane treatment and degrading conditions. There is significant societal stigma against people with mental illness.
[142]DFAT, Country Information Report Iraq, 16 January 2023, [2.12].
It also notes that drug abuse is increasing in Iraq and whilst drug treatment and rehabilitation centres have opened, ‘a shortage of available places means many drug users are jailed.’[143] Conditions in prison are reportedly harsh and occasionally life threatening, including due to overcrowding, physical abuse, a prevalence of communicable diseases and inadequate food, sanitation and medical care.”[144]
[143]Ibid, [2.13].
[144]Ibid, [5.15].
Based on the evidence before it, the Tribunal is satisfied that the Applicant will find it difficult, if not impossible, to access mental health services and treatment, including anti-psychotic medication if he is returned to Iraq. Consequently, his mental health will likely significantly deteriorate, putting him at even greater risk of experiencing discrimination, stigmatisation and limitations on accessing employment, education and health care. If the Applicant is unable to find employment due to the deterioration of his mental health condition, he will face severe financial hardship and will likely become homeless and destitute.
Guided by paragraph 9.2(1)(b) of the Direction, the evidence before the Tribunal is that the Applicant left Iraq at the age of 12 years and only returned there briefly in 1998. He is therefore unfamiliar with modern day life in his home country. While he speaks Arabic, it will take time for him to readjust to life in Iraq and to locate mental health services and treatment, if available. If his mental health condition remains stable and he is able to work, he may be able to find employment as a painter or handyman if he does not face discrimination as a Christian. Relevantly to paragraph 9.2(1)(c) of the Direction, the Applicant has no family in Iraq and therefore he will not have financial or practical support or assistance from family members upon his return.
Having regard to the evidence before it, the Tribunal finds that the Applicant will face significant impediments if he is required to re-establish himself in Iraq as a person with a mental illness. In addition, by reason of his mental health condition and his Christian religion, there is a real risk he will face significant discrimination on return. Furthermore, return to Iraq will likely be highly detrimental to his mental health condition and this will significantly impact his ability to work and be financially secure. Accordingly, guided by the factors in paragraph 9.2 of the Direction, the Tribunal finds that Other consideration b) weighs very heavily in favour of revocation of the Mandatory Visa Cancellation Decision.
c) Impact on victims
The Direction states in paragraph 9.3(1):
(1) Decision-makers must 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.
The two identifiable victims of the Applicant’s criminal offending are his former partner, JS, and his sister, SPS. There is no information before the Tribunal in relation to the impact on JS of a decision not to revoke the Mandatory Visa Cancellation Decision as she has not provided any evidence. There is, however, evidence of the impact of such a decision on SPS and her family members, including her parents (SPF and NY), her husband (AP), and her son (JP). SPS’s evidence and that of her family members is that they would be detrimentally impacted if the Applicant were removed to Iraq or held in ongoing immigration detention.
The Federal Court has recognised that this consideration is not limited only to impacts upon ‘victims as victims’. In PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[145] the applicant contended that the Tribunal erred in failing to have proper regard to the testimony of his ex-wife, in which she stated that she forgave him and her life would be made easier if he was allowed to live in Australia. Kerr J observed:[146]
… properly construed cl 14.4 of Direction No 79 operates in recognition that an offender’s victim is to be given appropriate agency in the decision-making process. That means a victim’s interest in respect of the impact of such a decision must be taken into account by the decision-maker consistently with the usual position that a relevant consideration may weigh either in favour of, or against, whether or not to revoke the mandatory cancellation of a visa.
[145][2021] FCA 1235.
[146]Ibid, [9].
In Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[147] Perram J observed that where family members are also the victim of the applicant’s crimes, the mandatory considerations relating to victims and ties to the Australian community have the potential to overlap. His Honour stated:[148]
Where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously…
The only way to outflank that problem would be to submit that there was some aspect of the wife’s evidence as a victim which was different from her evidence as a spouse. Such evidence might be readily enough imagined. For example, in her evidence [the applicant’s] wife could have addressed the fact that [the applicant] had been convicted of common assault following an attempt to throttle her early on the morning of 17 December 2007. She could have said that despite that assault she forgave him and was not concerned that he might assault her again. It may well be that evidence of that kind would have engaged cl 14.4(1) independently of cl 14.2.(1)(b).
[147][2020] FCA 646.
[148]Ibid, [26] and [27].
This issue was considered by the Full Federal Court in its recent decision in Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[149] Logan, Rangiah and Goodman JJ observed:[150]
The primary judge also considered that only impacts on a victim “as a victim” may be taken into account under para 9.3(1). Her Honour seems to have meant that only impacts on the victim in their condition or status as a victim may be considered. That would seem to include distress caused to a victim as a result of the offender being allowed to remain in Australia, but exclude, for example, impacts on a victim as a mother distressed by the emotional consequences for her children that would result from the removal of their father from Australia.
Such a construction is inconsistent with the language of para 9.3(1). That language merely refers to “victims”, not to “victims as victims”. It does not draw any distinction between beneficial or adverse impacts upon a victim from whatever decision is made. It does not distinguish between direct and indirect impacts. The language of the provision does not exclude consideration of impacts on a victim, as, for example, a spouse and mother who would be caused emotional distress or financial loss by the offender being removed from Australia.
[149][2023] FCAFC 116.
[150]Ibid, [142]-[143].
Following the Federal Court authorities above, the Tribunal has considered the impact on SPS and her family members of a decision not to revoke the Mandatory Visa Cancellation Decision. The evidence before the Tribunal is that they would be very emotionally distressed if the Applicant were to be removed to Iraq or required to remain in ongoing immigration detention while any Protection visa application he may make is being assessed. In having regard to this evidence, which was also considered in paragraph [154] above in relation to Primary Consideration 3, the Tribunal is satisfied that this does not amount to impermissible ‘repetitious weighing’ or ‘double counting’. In its’ recent unanimous decision in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs, the High Court observed:[151]
These shorthand phrases are apt to mislead. The same facts may be relevant to multiple different considerations. In the case of a matter made a mandatory consideration by a direction under s 499(1) of the Act, the matter to be considered may be described in a multiplicity of ways, such as by reference to a particular context, a particular purpose, or a particular assessment. Weighing the relevance or significance of the same facts by reference to those different considerations does not involve “repetitious weighing” or “double counting” in any illegitimate sense. It is doing no more than the direction, in terms, requires, and the direction is not inconsistent with the Act.
[151][2024] HCA 2 at [42].
The Tribunal finds that Other consideration c) weighs in favour of the revocation of the Mandatory Visa Cancellation Decision.
d) Impact on Australian business interests
Paragraph 9.4(1) of the Direction provides:
(1) 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.
The Applicant does not claim that any Australian business interests would be affected by his removal to Iraq.[152] Accordingly, the Tribunal has given this other consideration neutral weight.
[152] ASFIC, [92]-[93].
CONCLUSION
In summary, the Tribunal finds that Primary Consideration 1 weighs against revocation of the Mandatory Visa Cancellation Decision. The Applicant’s criminal offending is very serious, particularly as it includes violent offending and acts of family violence. The moderate to low risk of him committing future criminal offences coupled with the nature and seriousness of the harm this would cause to his future victims and the community is such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 weighs against revocation of the Mandatory Visa Cancellation Decision as the Applicant engaged in acts of family violence against his then partner and his sister and, although he accepts responsibility for actions and demonstrates an understanding of the impact of his behaviour on his sister, he continues to deny responsibility for the harm he caused to JS.
Primary Consideration 3 weighs heavily in favour of revocation of the Mandatory Visa Cancellation Decision as the Applicant has lived in Australia for more than 24 years and he has close and extensive family ties to Australian citizens who will be detrimentally impacted by his removal from Australia.
Primary Consideration 4 weighs in favour of revocation of the Mandatory Visa Cancellation Decision as it is in the best interest of the Applicant’s minor aged nieces and nephew for him to be permitted to remain in Australia.
Primary Consideration 5 weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that the Applicant’s serious offending should cause him to forfeit the privilege of remaining permanently in Australia, and this is not outweighed by the duration of his residency in this country.
In regard to the relevant Other Considerations, the legal consequence of a decision not to revoke the cancellation namely the Applicant being an unlawful non-citizen liable to removal as soon as reasonably practicable to Iraq where he claims he faces harm on return, the significant extent of impediments he will face on return to Iraq, and the impact on SPS and her family, weigh very heavily in favour of revocation.
The Tribunal is satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked and decides that the Reviewable Decision should be set aside.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the Reviewable Decision dated 27 September 2023 to refuse to revoke the Mandatory Visa Cancellation Decision and, in substitution, decides that the cancellation of the Applicant’s Class BA Subclass 200 Refugee visa is revoked.

I certify that the preceding 212 (two hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk

.................................[SGD].......................................
Associate
Dated: 11 March 2024

Date(s) of hearing:

6 and 7 December 2023

Counsel for the Applicant:

P. McManus, Maurice Byers Chambers

Representative for the Applicant:

S. Lee, Immigration Advice and Rights Centre

Solicitors for the Respondent:

T. Goodwin, Australian Government Solicitor

[2023] AATA 4771

20 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Standing

Statutory Construction

Date(s) of hearing:	6 and 7 December 2023
Counsel for the Applicant:	P. McManus, Maurice Byers Chambers
Representative for the Applicant:	S. Lee, Immigration Advice and Rights Centre
Solicitors for the Respondent:	T. Goodwin, Australian Government Solicitor