LMSL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2024] AATA 1291
•30 May 2024
LMSL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 1291 (30 May 2024)
Division:GENERAL DIVISION
File Number(s): 2022/9478
Re:LMSL
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Date:30 May 2024
Place:Sydney
The Tribunal sets aside the decision under review and in substitution decides that the cancellation decision dated 14 November 2022 be revoked.
.............................[sgd]...........................................
Deputy President Britten-Jones
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – whether there is ‘another reason’ to revoke mandatory cancellation decision under s 501CA(4) of the Migration Act 1958 – significant impediments and serious risk of harm if removed to Iraq – the primary considerations of the protection and expectations of the Australian community are outweighed by the countervailing considerations – decision under review is set aside
Legislation
Migration Act 1958 (Cth)
Cases
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
NRFX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 21
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRTN v Minister for Immigration and Border Protection [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
Department of Foreign Affairs and Trade, Country Information Report for Iraq (16 January 2023)
REASONS FOR DECISION
Deputy President Britten-Jones
This is an application for review of a decision to not revoke the mandatory cancellation of the applicant’s Global Special Humanitarian (class XB) (subclass 202) visa (the applicant’s visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
THE DECISION TO CANCEL THE APPLICANT’S VISA
On 11 April 2022 the applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months.[2]
[2] Exhibit 1, 179.
The applicant sought revocation of the cancellation decision and made representations in support of revocation.[3]
[3] Exhibit 1, 78.
A delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision).[4] The applicant applied to the Tribunal for review of the non-revocation decision[5] and a decision was made by the Tribunal (differently constituted) which was subsequently set aside by the Federal Court who remitted the matter for re-hearing. The Tribunal re-heard the matter on 21 and 22 May 2024.
[4] Exhibit 1, 11-31.
[5] Exhibit 1, 4.
LEGISLATIVE FRAMEWORK
Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by sub-s (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[6]
[6] Migration Act 1958 (Cth) (Migration Act) s 501(7)(c).
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)a written notice that sets out the original decision; and
(ii)particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
ISSUES BEFORE THE TRIBUNAL
The applicant concedes appropriately that he does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a ‘substantial criminal record’ as defined under s 501(7). It follows that the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is ‘another reason’ why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which I am required to read, identify, understand and evaluate.[7] Deciding whether or not to be satisfied that ‘another reason’ exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.[8]
[7] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [22] and [36].
[8] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41, [14].
The applicant gave oral evidence and provided written statements dated 19 April 2024[9] and 16 May 2024,[10] and an earlier unsigned statement which the applicant said was true and correct.[11] The applicant also relied upon his statement dated 19 March 2023,[12] which was drafted in support of his protection visa application that has yet to be determined. There was written and oral evidence from his brother, sister and his mother. In addition, there were a significant number of written statements from other family members and supporters of him. The applicant relied upon a report dated 18 April 2024 and oral evidence from a consultant psychologist, Tim Watson-Munro.
[9] Exhibit 4, 1.
[10] Exhibit 6, 10.
[11] Exhibit 2, 744.
[12] Exhibit 4, 130.
The applicant does not pass the character test. The only issue for the Tribunal is whether there is ‘another reason’ to revoke the cancellation decision having regard to the principles and considerations in Direction 99,[13] to which I will now turn.
[13] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023) (Direction 99).
DIRECTION 99
The purpose of Direction 99 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.
The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 99 as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
In making a decision under s 501CA(4), the following are primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
In making a decision under s 501CA(4), other considerations must also be taken into account, including (but not limited to):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[14]
[14] Direction 99 at 7.
BACKGROUND
The applicant is an Assyrian Christian who was born in Iraq in 1984. He is the youngest of 10 siblings, one of whom has died. He had a difficult and traumatic childhood. As Christians in Iraq, his family faced discrimination and persecution. He was a witness to the atrocities of the Gulf War, the Iran-Iraq war and terrorism. He had an interrupted education for about six years. He was abused and bullied by his teachers and fellow students at school. In addition to the physical and verbal abuse, he was sexually abused as a child by other boys at school. His father was a violent man who beat his mother.
To avoid persecution, his family moved to Baghdad in around 1995 but soon after they realised it was not safe to remain and his family fled to Jordan and then Syria where they faced further difficulties as refugees. The applicant came to Australia in 2003 aged 18 with his mother and father and his sister. His other siblings followed that same year.
Soon after arriving in Australia, the applicant obtained work collecting trolleys in a supermarket and as a cleaner. He then obtained work in the construction industry erecting form work, an area in which he now has some significant experience. At around 19 years old, the applicant met an older woman with whom he commenced a relationship. She introduced him to drugs for the first time, including marijuana and then ice and cocaine. He started associating with the wrong people and getting into trouble with the law.
CONSIDERATION
Protection of the Australian community – 8.1 of Direction 99
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. As required by paragraph 8.1(2) of Direction 99, I give consideration below to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 99
The applicant’s criminal record is extensive but includes mostly less serious offences dealt with in the Local Courts of New South Wales. His first recorded convictions were in the Fairfield Local Court on 26 May 2005 for resisting a police officer on 21 January 2005 and driving with a suspended licence on 26 March 2005, which were dealt with by way of a bond.[15] There were other not very serious but frequent offences including driving offences, larceny, possessing drugs and stolen property over the period from 2015 to 2018.[16]
[15] Exhibit 1, 37.
[16] Ibid, 35-36.
There were two convictions for assault occasioning actual bodily harm committed on 21 July 2006 for which he was sentenced to periodic detention of 8 months.[17] He received a bond for another assault and a fine for related offences committed on 26 September 2010.[18] On 30 November 2010 the applicant had a physical altercation with a Centrelink officer which resulted in a conviction for another assault occasioning actual bodily harm for which he received a suspended sentence of 12 months later converted to an Intensive Corrections Order.[19] I have not taken into account conduct where a conviction was not recorded,[20] such as the failure to comply with a direction on 21 January 2005 and one assault on 21 July 2006.
[17] Ibid, 47.
[18] Ibid, 36-37.
[19] Ibid, 36.
[20] See Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468.
On 17 January 2019, the applicant was convicted of supply prohibited drug and sentenced to 16 months imprisonment which was reduced to an intensive correction order for 10 months on appeal.[21] The applicant’s more recent offending was dealt with in the Parramatta Drug Court in 2020 and 2022.[22] In February and March 2020, he committed numerous offences including break and enter and larceny. He pleaded guilty and on 10 September 2020 he was given a suspended sentence of 13 months in aggregate and required to participate in a drug program. The sentencing Judge described this offending as “low-end” examples except for the goods in custody which was “mid-range”.[23] The sentencing Judge described his previous criminal history as not extensive:[24]
It is a fair observation to be made against other matters that come before the Drug Court that it is not an extensive record. There are, however, matters back in 2007 of violence. There are drug matters in 2009, further matters of violence, domestic violence, and damage in 2010 to 2011 and there were call-ups in the various matters.
In 2015 community service orders were imposed for dishonesty matters. They were called up and then converted into other orders.
In 2016 some driving matters; 2017 carry, use or possess explosive but it is a very modest matter. More relevantly in 2018 there was a matter dealt with initially supplied by way of full-time imprisonment. That was then varied to an Intensive Corrections Order.
[21] Exhibit 1, 34 and 433.
[22] Ibid, 33-34.
[23] Ibid, 425-26.
[24] Ibid, 426-27.
I note that there is a reference to domestic violence in the above-quoted passage, but both the applicant and the respondent accept that the reference is an error and that the applicant has never engaged in domestic or family violence. The applicant does accept that his offending on 26 September 2010, which included an assault, amounts to a crime against women and would therefore be considered as serious.
The applicant participated in a drug program until it was terminated on 10 February 2022 for breach which resulted in him returning to court for further sentencing.[25] On 11 March 2022 he was sentenced to a term of imprisonment of 18 months with a non-parole period of 11 months commencing on 3 June 2021 for offences of larceny, goods suspected stolen, and break and enter. One of these offences occurred on 27 February 2020 when the applicant forced his way into a residential home and stole a watch. The victim returned home when the applicant was still inside. The victim feared for her safety after being approached by the applicant, so she turned and ran out the door and went to a neighbour’s house. The other offences (referred to above) occurred in March 2020.
[25] Ibid, 49-53.
The applicant contends, and I agree, that the offending is far from trivial but also far from the most serious category. Much of the offending was impulsive and related to the applicant’s drug abuse. The sentencing Judge on 10 September 2020 said:[26]
The motivation no doubt for the defendant’s involvement in these matters was his drug addiction, a matter that has been with him for some many years. Consistent with the authorities, the drug addiction is relevant in as much as it may explain the motivation for his behaviour; it does not however, constitute a matter in mitigation.
[26] Ibid, 427.
The offending spanned a period from January 2005 (less than two years after arriving in Australia) to March 2020 and it was frequent with only limited periods of not offending. The assaults for which he was convicted involved a low level of violence and were not frequent, namely three incidents the last of which was on 30 November 2010, although one of these incidents would be considered very serious because it involved an assault against women. Noting that the sentencing judge on 10 September 2020 described his offending for which he was being sentenced as ‘low end’ or ‘mid-range’ and described his previous offending as ‘non extensive’, I conclude as to the nature and seriousness of the applicant’s conduct that it was serious but not at the upper end of seriousness. Nevertheless, it is a significant factor in terms of whether I am satisfied that there is ‘another reason’ to set aside the non-revocation decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 99
In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.[27] As required by paragraph 8.1.2(2) of Direction 99, I also have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[27] Direction 99 at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[28] Her Honour said that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 99
[28] (2014) 225 FCR 424; [2014] FCA 673.
If the applicant were to engage in further similar criminal offending, the nature of the harm would be serious. By committing larceny-related offences, the applicant deprived persons of their property and also caused them to be fearful. Driving offences have a negative impact on the community. Supplying drugs, albeit of limited quantities and duration, has a very negative impact on the community. The violence of an assault causes physical and mental harm to the victim and is therefore serious. I note however that much of the larceny-related offending and the assaults were at the lower end of seriousness and therefore the nature of the harm that would be caused by further similar offending is not as serious as if the offending was at the higher end.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 99
The applicant has expressed remorse for his offending and insight into why he offended. In his statement of 19 April 2024 he said in relation to:[29]
(a)the assault occasioning actual bodily harm at Centrelink in November 2010, that when he was a child he was “bashed a lot and targeted” and that violence was very common in his family but he understands what he did was wrong and that he does not want to let his family down again;
(b)the offences in 2018 relating to drug supply, that he was not selling for a long time and sold drugs to a few people he knew because he was addicted to drugs himself. He said that he knows selling and distributing drugs is a problem and that what he did was “stupid” and “wrong”;
(c)the break and enter on 27 February 2020, that he needed money and went to a house at random and he remembers feeling shameful. He understands how scared the victim would have been and he is very sorry to her for what he did; and
(d)the offences for larceny and break and enter in March 2020, that he stole the watch from his friend because his friend owed him money and that he was using drugs at the time and associating with the wrong people.
[29] Exhibit 4, 9-12.
I consider that the applicant is genuinely remorseful about his past criminal conduct and that he understands the hurt and harm that was caused by it. I believe that he has a genuine intention of not reoffending because of his insight and because he does not want to let his family down again or return to prison. The applicant participated in the Drug Court program for a long time and achieved considerable success by getting himself up to phase 2 of the three phase program.[30] Whilst in immigration detention from late 2022, the applicant has completed online certificates in drug and alcohol abuse, anger management, pursuing happiness, understanding addictions, workplace drug use, writing basics and building self-esteem.[31] He has also been attending the SMART recovery workshops at Villawood and has been engaging with counselling services from STARTTS.[32] He has also been engaged recently with his parish priest Father George who provided a positive written reference for him.[33] By this positive engagement, the applicant has commenced addressing his past trauma and his drug abuse which are the most significant contributors to his past offending.
[30] Exhibit 1, 51 of sentencing remarks dated 11 March 2022.
[31] Exhibit 4, 21-27.
[32] Exhibit 4, 59-93.
[33] Exhibit 4, 28.
The applicant gave oral evidence that the courses he completed have taught him about the problems with doing crimes, what doing drugs do to you and how to look to the future and what a life without drugs can be. They also provided guidance about how to avoid doing drugs and coping with abstinence from drugs. He said that if he were released, he wants to do further rehabilitation and that if his family moved to Queensland he will seek help from them to support him and also seek help from the community services available with respect to mental health treatment.[34]
[34] See also Applicant Statement of 10 April 2024 at [130]-[131].
Mr Watson-Munro provided his opinion that the applicant’s risk of reoffending was trending from a moderate risk to a low risk. He believes that if the applicant remains free of drugs and undertakes appropriate treatment for his mental health, the likelihood of reoffending would be low. He said that there were a number of current protective factors which reduce the risk of reoffending including his maturation, his drug-free status (apart from two brief relapses), his expressions of remorse, the support of his family, his desire to re-enter the workforce and the galvanising impact of his understanding of what will occur should he reoffend in any way. Mr Watson-Munro noted that he had undertaken some treatment in immigration detention including with the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) and the SMART recovery workshops and that when examined the applicant showed maturity and expressed a strong desire for treatment to continue in the Australian community if he is permitted to remain.
The most recent psychological assessment report from STARTTS dated 9 May 2024 notes that the applicant presented as motivated, cooperative and engaged in the assessment process and that he demonstrated reasonable judgement as well as limited insight into his psychological condition.[35] The immigration report from NSW Community Corrections noted that his behaviour in custody appeared to be to a satisfactory standard. Further, there were no significant incidents of poor behaviour when in immigration detention.[36]
[35] Exhibit 6, 23.
[36] Exhibit 1, 110-171.
The applicant in his oral evidence to the Tribunal expressed what I considered to be genuine remorse and showed insight into why he offended in the past and how his offending impacted his victims. He has demonstrated a willingness to become drug-free and to address his mental health issues. As Mr Watson-Munro said, if he is able to abstain from drugs and receive treatment for his mental health issues then the likelihood of reoffending would be low.[37]
[37] Exhibit 4, 46.
I am satisfied after hearing from the applicant and taking into account the expert opinion of Mr Watson-Munro that his intention to not reoffend is genuine and that he will likely succeed in remaining drug free and addressing his mental health issues because he has already started to do so and because he has the support of his family who will provide him with a stable environment away from negative peer influences. For these reasons I conclude that his risk of reoffending is low. The type of offending that the applicant has engaged in is not the most serious and when combined with a low risk of further offending of that nature, the risk to the Australian community if he were released is acceptable.
Conclusion as to protection of the Australian community – 8.1 of Direction 99
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[38] The applicant has committed serious crimes but has shown a willingness to rehabilitate and has a low risk of reoffending. It is my view that the applicant’s conduct and the harm that would be caused if it were to be repeated is not so serious that any risk that it may be repeated is unacceptable.[39] In the circumstances where there remains some risk of re-offending, I conclude that the protection of the Australian community is a factor that weighs against the applicant but only moderately so.
[38] Direction 99 at 8.1(1).
[39] Direction 99 at 8.1.2(1).
Family Violence – 8.2 of Direction 99
The applicant has not committed family violence. The respondent accepts that this factor is neutral.
Strength, Nature and Duration of Ties to Australia – 8.3 of Direction 99
This primary consideration provides at paragraph 8.3 of Direction 99:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen's ties to Australia, decision-makers should give more weight to a non-citizen's ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non citizen began offending soon after arriving in Australia.
The applicant has lived in Australia since he was 18 years old. He is now 39 years old, so the majority of his life has been in Australia. The applicant’s parents and siblings all came to Australia. In his request for revocation of the cancellation decision the applicant also listed four aunts and uncles, five nieces and nephews and 15 cousins in Australia.[40] These relatives support the applicant’s application to stay in Australia and they would be devastated if he is required to leave.
[40] Exhibit 1, 91.
The Tribunal heard oral evidence from the applicant’s mother who is 81 years old and in poor health.[41] She referred to the help that the applicant provided her before he was imprisoned and said that she would be devastated if he were not released. She said that her other children have their own families and lives and are too busy to look after her and that it has become more difficult since her husband died.
[41] See witness statement at Exhibit 4, 1-3.
One of the applicant’s sisters gave written and oral evidence.[42] She has very severe health issues and the applicant was her carer for some time before incarcerated. She is very close to her brother and would be devastated if he is not released. The other sisters of the applicant gave written evidence in support of him and said how if he were not released it would have a negative impact on them.[43]
[42] Exhibit 4, 29-35.
[43] Exhibit 2, 761, 765, 880, and 967.
The applicant’s brother gave written and oral evidence and described how close they were and how he would be devastated if he has to leave Australia.[44] He referred to the support to their mother that the applicant provided, and would provide if released, both financially and medically. In addition the brother explained how the applicant could live with him in Queensland and said that he can offer him employment in his business in the construction sector erecting formwork.
[44] Exhibit 6, 5.
I am satisfied on all of the evidence I have heard that the applicant has very strong ties to his large family in Australia and that his immediate family members would be negatively impacted if he were not released. The most significant impact would be felt by his mother and his sister who gave oral evidence about how much they used to rely on him and how he could help them in the future.
In addition to his family, the applicant has developed significant ties over the last 21 years with his local church, his community, and those with whom he has worked. I consider that the applicant has made a significant contribution through the work that he has conducted since arriving in Australia. He has worked in a variety of industries but most significantly as a form worker which is what he hopes to do with his brother if he is released.
As for the weight that should be applied to the applicant’s ties to the Australian community, I would reduce that weight marginally because he began offending, albeit not in a serious way, soon after arriving. I would also note that it cannot be said that the applicant spent his formative years in Australia, having arrived here as an adult.[45]
[45] Direction 99 at 8.3(4)(a)(iii).
In conclusion with respect to ties to Australia, I place significant weight on the fact that the applicant has spent 21 years in Australia which is just over half of his life. The applicant has all his family in Australia and has contributed positively to the Australian community through his work. I conclude that the applicant’s ties to Australia is a factor that weighs heavily in favour of revocation of the cancellation decision.
Best interests of minor children – 8.4 of Direction 99
I must determine whether non-revocation of the cancellation of the applicant’s visa is, or is not, in the best interests of a child who is affected by the decision. The following factors that I must consider where relevant to this application include:[46]
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[46] Direction 99 at 8.4(4).
The applicant has three nieces and a nephew who are less than 18 years old. He has a particularly strong relationship with his sister’s daughter who is 15 years old. She wrote a very positive letter about the times they spent together and how it would truly harm her emotional wellbeing if the applicant were not released.[47] Revocation of the cancellation decision is in her best interests. The other two nieces and nephew are aged between two and 10 years old and have had much less time together with the applicant (or no time for the youngest) and therefore limited meaningful contact.
[47] Exhibit 6, 8.
All of these children have their own parents who provide care for them. The applicant’s relationship with them is non-parental and therefore less weight would be attributed.
I give more weight to the 15-year-old niece whose best interests would be negatively impacted by non-revocation. I consider it would be in the best interests of the two nieces and nephew if the cancellation decision was revoked but I give this less weight because their relationship with them is non-parental and there has been extremely limited meaningful contact.
The interests of minor children is a factor that weighs in favour of revocation but overall I do not give it significant weight.
Expectations of the Australian community – 8.5 of Direction 99
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[48] The applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. His criminal conduct was serious but at the lower end of the spectrum and I do not consider there is an unacceptable risk of further re-offending. I take into account that the Australian community would have a higher level of tolerance of the applicant’s criminal past because he has lived in Australia for most of his life, although not during his formative years.[49] The applicant has been in Australia for 21 years since he was 18 years old.
[48] Direction 99 at 8.5(1).
[49] Direction 99 at 5.2(5).
Paragraph 8.5(4) of Direction 99 provides that, as a decision-maker, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed therein, without independently assessing the community’s expectations in the particular case. It is not for me, as a decision-maker, to make my own assessment of community expectations. However, in the weighing up exercise by which I evaluate whether to exercise my discretion, I am still entitled, and indeed should where appropriate, give weight to the circumstances particular to the applicant. In this regard, the following words of Stewart J in FYBR v Minister for Home Affairs[50] remain apposite to the expectations of the Australian community under Direction 99:
[97] … The community thus expects that it will be necessary in every case to assess the circumstances particular to the visa applicant in question in order to reach an evaluative assessment of “appropriateness”. That assessment is not an assessment of what the Australian community expects in the particular case. The Australian community expects people to obey the law, and if they do not (or there is a risk that they will not) then that is relevant to whether or not they will be granted a visa, and in some cases it may be appropriate that they will be refused a visa because of their disobedience (or the risk of their disobedience). Direction 65 does not ascribe to the Australian community a relevant expectation with regard to the outcome in the particular case. That is a matter for the decision-maker.
…
[102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be…
[50] (2019) 272 FCR 454; [2019] FCAFC 185.
In considering the weight to be attached to the expectations of the Australian community as part of the evaluative exercise in determining whether there is another reason to revoke the cancellation decision, I take into account his traumatic childhood which involved witnessing atrocities of war, fleeing his own country and being sexually abused.
The applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. His criminal conduct was serious and I find that the Australian community expects that the Australian government should cancel the applicant’s visa. However, I give this consideration less weight because his criminal conduct is not the most serious and must be seen in the context of his traumatic childhood and his rehabilitative efforts. Australia would afford him a higher level of tolerance because he has lived in the Australian community for the majority of his life.
This is a factor that weighs in favour of non-revocation of the cancellation decision but only moderately so.
Other Considerations
In deciding whether there is ‘another reason’ to revoke the cancellation of the applicant’s visa, I must also take into account the ‘other considerations’ listed in Direction 99, but these are not exhaustive.[51]
[51] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
Legal Consequences of Decision – 9.1 of Direction 99
This other consideration provides at paragraph 9.1 of Direction 99:
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
The applicant has articulated the prospect of Australia breaching its non-refoulement obligations as a reason for revoking the cancellation decision. This is in addition to, and distinct from, his underlying claimed fear of harm if removed to Iraq.
I note that the risks of harm that the applicant will face if removed are also relevant to non-refoulement obligations and the extent of impediments if removed.
The applicant has applied for a protection visa which has not yet been determined. The applicant is not the subject of a protection finding (as defined in s 197C) and paragraph 9.1.2 of Direction 99 is relevant:
9.1.2 Non-citizens not covered by a protection finding
(1)Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2)However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person's representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3)Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or nonrevocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non citizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
Pursuant to paragraph 9.1.2(2) of Direction 99, I am ‘not required to determine whether non-refoulement obligations are engaged in respect of the person’ and I ‘may choose to proceed on the basis that … any protection claims they have will be assessed…’ on his application for a protection visa.
The respondent submits that the Tribunal is entitled to and should defer consideration of non-refoulement obligations because they will be considered as part of his current application for a protection visa. The applicant submits that no further deferral is reasonable and there is sufficient evidence on which to base a finding of non-refoulement.
The decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs[52] (Plaintiff M1/2021) provides that I am required to read, identify, understand and evaluate the representations made by the applicant. Those representations included a claim of non-refoulement under domestic law.
[52] [2022] HCA 17.
I intend to defer assessment of whether the applicant is owed non-refoulement obligations. That does not mean that I ignore the representations made by the applicant. Plaintiff M1/2021 makes it clear that a decision-maker must not do that,[53] but ‘one available outcome’ is the deferral of the substantive assessment of such a claim.[54] This is consistent with the terms of paragraph 9.1.2 of Direction 99. I take into account that there is likely to be further delay to deal with his application for a protection visa.
[53] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [23].
[54] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124, [105].
In this case, the applicant has clearly raised claims which may give rise to international non-refoulement obligations. I deal with them below. Paragraph 9.1.2(2) of Direction 99 provides that it is not necessary at the s 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. That sub-paragraph applies in this case and allows the decision-maker to defer substantial assessment of non-refoulement issues, as I have decided to do in this matter.
Applicant’s representations including as to risk of harm
The applicant made representations concerning risk of harm in Iraq.
The High Court has provided the following guidance for this situation:[55]
[37] … [The Tribunal is] not required to determine whether the plaintiff was owed non-refoulement obligations (by conducting an assessment of the merits of the plaintiff's claim) in the same manner, or to the same extent, as would be called for by a direct application of the international instruments to which Australia is a party or by reference to the domestic implementation of those obligations.
…
[39] Where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being “another reason” why the Cancellation Decision should be revoked.
(Footnotes omitted)
[55] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [37] and [39].
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[56] (CKT20) makes clear that I am required to consider facts underpinning the claim such as the risk of harm arising from violence and instability along ethnic lines. In CKT20 the Full Court of the Federal Court rejected the Minister’s submission that there was no obligation to consider a claim based on ethnicity.[57]
[56] [2022] FCAFC 124.
[57] Ibid, [97]-[106].
The applicant said he would not be able to survive if removed to Iraq because he is an Assyrian Christian with mental health problems who fled Iraq with his family when 11 years old.
It is apparent from the DFAT Country Information Report for Iraq dated 16 January 2023 together with other country information referred to by the applicant in his statement dated 19 March 2023 that Assyrian Christians face persecution and discrimination in Iraq which amounts to a real risk of harm to their health and safety. The applicant’s family fled Iraq because of genuine fears for their safety and the evidence shows that the grounds for their fear remain today.
In summary, I accept the applicant’s concerns as expressed in his representations that he will likely face serious harm if removed to Iraq. It is not in dispute that the applicant left Iraq as a child with his family due to their persecution as Christians in a Muslim country. The applicant would have no family support or other network if removed to Iraq. The risk of harm is a factor that weighs heavily in favour of revocation of the cancellation decision.
Consequence of the decision
I note that if the cancellation decision is not revoked, the applicant may remain in detention whilst his protection visa application is considered or while the Minister considers the possibility of re-settlement or the exercise of a personal discretion in favour of the applicant. The delay associated with this may be significant, although there is an email dated 8 February 2024 from the Department of Home Affairs that his application is being actively considered.[58] There is some merit in the applicant’s submission that he would have no reasonable prospects of success in a protection visa application, although that involves a measure of speculation. There is no evidence before me suggesting that re-settlement or the exercise of a personal discretion would be considered. Ongoing detention would impact the mental health of the applicant and would have adverse consequences. The applicant is experiencing fear and anxiety in detention and is having difficulty sleeping.[59] In WKMZ v Minister for Immigration, Citizenship,Migrant Services and Multicultural Affairs,[60] Kenny and Mortimer JJ considered the impact of further detention, which is apposite to the applicant:
… The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end.
[58] Exhibit 4, 144.
[59] See psychosocial assessment by Rosemary Qummouh dated 17 May 2022 at Exhibit 1, 121.
[60] [2021] FCAFC 55 at [132].
The prospect of further detention is a factor that weighs in favour of revoking the cancellation decision.
Extent of impediments if removed – 9.2 of Direction 99
Direction 99 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to Iraq in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
The applicant is 39 years old and in relatively good physical health but he has been diagnosed with serious mental health issues of depressive disorder and PTSD.[61]
[61] See psychosocial assessment by Mr Watson-Munro at Exhibit 4, 41 and 45.
I find that the applicant would face significant impediments if removed to Iraq and he would have great difficulty establishing himself and maintaining basic living standards. This arises primarily because the applicant left Iraq when he was a young child and has no network of family or friends to support him there. The discrimination and persecution he would face for being a Christian if returned to Iraq would make it unlikely that he would receive the necessary mental health treatment he would need. The matters referred to above in relation to risk of harm are also relevant to extent of impediments and I will not repeat them here.
This is a factor that weighs heavily in favour of revocation of the cancellation decision.
Impact on victims – 9.3 of Direction 99
There was no evidence of impact on victims within the meaning of the Direction. This factor is neutral.
Impact on Australian business interests – 9.4 of Direction 99
There was no evidence of impact on Australian business interests within the meaning of the Direction. This factor is neutral.
CONCLUSION AS TO WHETHER TO REVOKE THE CANCELLATION OF THE VISA
I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is ‘another reason’ to revoke the cancellation decision.
The primary considerations of the protection and expectations of the Australian community weigh in favour of not revoking the cancellation decision but in this case the applicant’s offending was not the most serious and the risk of further offending is low. With stable employment and the support of his family in a new environment, the applicant has good prospects for his future. It follows that I would not give determinative weight to the protection and expectations of the Australian community.
The countervailing considerations are the applicant’s ties to Australia, the best interests of children, the extent of impediments if removed, the risk of harm if removed and the prospect of further detention. Having lived in Australia with all his immediate family for all his adult life and worked in the community, the applicant has shown that he has very significant ties to the Australian community. In addition, as an Assyrian Christian being returned to a Muslim country, he would face significant impediments and risk of harm which would be exacerbated by his lack of family support and his mental health issues.
In these circumstances, I consider that the protection and expectations of the Australian community are significantly outweighed by the countervailing factors.
I am satisfied that there is another reason to set aside the non-revocation decision.
DECISION
The decision of the Tribunal is to set aside the non-revocation decision and substitute a decision that the cancellation decision be revoked.
I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones
...................................[sgd].....................................
Associate
Dated: 30 May 2024
Dates of Hearing: 21-22 May 2024 Counsel for Applicant Ms. Chelsea Brain Solicitors for Applicant Legal Aid New South Wales Counsel for Respondent Ms. Vanessa Barros Goncalves Solicitors for Respondent Sparke Helmore Lawyers
ANNEXURE A.
Exhibit List
Party Tendering
Description
Exhibit
Respondent
G Documents – Volume 1 (RB1 to RB3) (paged 1 to 702)
1
Respondent
G Documents – Volume 2 (RB4 to RB10) (paged 703 to 996)
2
Respondent
Respondent’s Tender Bundle (TB1 to TB2) (paged 1 to 171)
3
Applicant
Applicant’s Tender Bundle (paged 1 to 357)
4
Applicant
Annexure A to Applicant’s Submissions (paged 1 to 7)
5
Applicant
Applicant’s Supplementary Tender Bundle (paged 1 to 40)
6
0
10
0