Mah v Minister for Immigration and Border Protection - [2018] AATA 416

MAH and Minister for Immigration and Border Protection (Migration) [2018] AATA 416 (7 March 2018)
Division:General Division
File Numbers:2017/7512
Re:MAH
APPLICANT

Minister for Immigration and Border ProtectionAnd
RESPONDENT

Decision
Tribunal:Mr P W Taylor SC, Senior Member
Date:7 March 2018
Place:Sydney

The delegate’s reviewable decision of the 12 December 2017 is set aside.
In substitution the 8 December 2016 decision to cancel the applicant’s Resolution of Status visa (Class CD, subclass 851) is revoked.
..........................[sgd]..........................................
Mr P W Taylor SC, Senior Member
Catchwords
IMMIGRATION AND CITIZENSHIP – mandatory visa cancellation – resolution of status visa – failure to pass character test – substantial criminal record – multiple terms of imprisonment of 12 months or more – Ministerial Direction no 65 applied – protection of the Australian community – community expectations – risk of future offending – other considerations – physical and mental health issues – drug use – need for ongoing treatment and monitoring – possibility of indefinite detention – decision set aside and substituted
Legislation
Migration Act 1958 (Cth) ss 5, 5H, 5J, 13, 14, 15, 35A, 36, 40, 48, 48B, 50, 189, 195A, 197C, 198, 499, 501, 501CA, 501E, 501F, 502
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Amendment (Complementary Protection) Act 2011 (Cth)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
Migration Regulations 1994 (Cth) regs 2.03, 2.04, 2.08F, Sch1, Sch2
Cases
Ahmed and Minister for Immigration and Border Protection [2017] AATA 1908
BCR16 v Minister for Immigration and Border Protection [2016] FCA 965
Brown v Minister for Immigration and Citizenship [2010] FCAFC 33
Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; 240 FCR 29
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
Gaspar and Minister for Immigration and Border Protection [2016] FCA 1166
Kim v Minister for Immigration and Border Protection [2017] FCA 372
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141; 227 FCR 562
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1
Plaintiff M61/2010 E; Plaintiff M69/2010 v Commonwealth of Australia (2010) 85 ALJR 133; 272 ALR 14; [2010] HCA 41
SZRTN v Minister for Immigration and Border Protection [2014] FCA 303
Tesic v Minister for Immigration and Border Protection [2016] FCA 1465
Wozniak v Minister for Immigration and Border Protection [2017] FCA 44
Secondary Materials
Direction no 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
7 March 2018

MAH is a 44 year old Iraqi citizen. He came to Australia, as a passenger aboard an unauthorised boat, in November 1999. From July 2000 until December 2010 he held either a bridging visa or (between at least July 2003 and August 2009) a Temporary Protection visa. (In 2006 he had been found ineligible for a Permanent Protection visa.) On 22 December 2010 he was granted a permanent Resolution of Status (Class CD) visa. He held that visa until the 8 December 2016 cancellation decision that underlies the present proceedings.
During the first ten years of his Australian residence MAH incurred convictions for at least 14 offences. In July 2009 his two most recent offences (for assault and intimidation) resulted in suspended sentences of 12 months’ imprisonment. Those sentences meant he had acquired a “substantial criminal record” and was precluded from satisfying the “character test” in Migration Act 1958 (“MigAct58”) ss 501(2), (6)(a), (7)(c)&(d):- see Brown v Minister for Immigration and Citizenship [2010] FCAFC 33. In the light of that circumstance, in April 2010, the Minister put MAH on notice that consideration was being given to the cancellation of his visa. After considering MAH’s response (see paragraphs 76 & 77 below) in August 2010 the Minister formally warned MAH that any future offending might result in cancellation of his visa, and that disregard of the warning could weigh heavily against him.
After the August 2010 warning MAH incurred fourteen more convictions. One of those convictions (in May 2016 for unlicensed driving) was his fifth such offence. It resulted in another suspended sentence of 12 month’s imprisonment. Two subsequent convictions in December 2016 - for larceny and unauthorised entry - resulted in concurrent custodial sentences of 12 months.
MAH’s convictions and sentences, together with the relevant various periods he spent in custody (either on remand or under sentence), are summarised in the Schedule to these reasons.[1] The Schedule includes (i) the date of the events underlying each offence (so far as it can be discerned, or reasonably assumed, from the available material), (ii) the maximum penalty for the particular offences and, (iii) details of the actual sentence, fine or behaviour bond, applicable to each conviction. (I have also included the date of the Ministerial warning in August 2010.) The information summarised in the Schedule justifies the following propositions:-
(a)on five separate occasions (two in 2009, and three in 2016) MAH has incurred sentences of at least 12 months’ imprisonment;
(b)three of those sentences were imposed after the August 2010 warning;
(c)one of his 2016 sentences involved his fifth conviction for unlicensed or disqualified driving;
(d)his two most recent convictions (in September 2016) followed five previous convictions for dishonesty related offences, and resulted in actual imprisonment for six months (between September 2016 and February 2017);
(e)in almost all instances (with the exception of his 31 May 2016 driving offence) the sentences imposed have been significantly less than the potentially applicable maximum; and
(f)on 12 occasions MAH has entered into good behaviour bonds, with which he has generally complied (except, apparently, in relation to his drug possession convictions in early 2014).
[1] I note that, having regard to the medical assessment referred to in paragraph 80, that the remand periods may be incomplete and understated.
MAH was released from prison on 28 February 2017, on the expiry of the non-parole period of the sentences imposed for his May 2016 offences. But, because of the December 2016 cancellation of his Resolution of Status visa, he was immediately taken into immigration detention as an “unlawful non-citizen”:- see MigAct58 ss 13, 14 & 189.
MAH has remained in immigration detention because of three later events. They are (i) an April 2017 Ministerial delegate’s decision not to revoke his visa cancellation, (ii) the September 2017 refusal of his August 2009 protection visa application, and (iii) a further non-revocation decision in December 2017. The last of those decisions is the subject of the present review proceedings.
The legislative scheme and relevant policy
The lawful presence of non-citizens in Australia depends on their visa status:- MigAct58 ss 13 -15. The Minister has statutory discretions to refuse to grant, and to cancel, a visa, unless satisfied the non-citizen satisfies the statutory “character test”:- MigAct58 s 501(1)&(2). Prior to the December 2014 commencement of the Migration Amendment (Character and General Visa Cancellation) Act 2014, the Minister had a discretion to cancel the visa of a non-citizen who had been sentenced to (one or more) terms of imprisonment that totalled at least 12 months. (The Minister’s consideration of that discretion underlay the August 2010 formal warning.)
Since December 2014, under the terms of the amending legislation, the Minister must (i) cancel the visa of any non-citizen prisoner if satisfied they have a “substantial criminal record”, (ii) provide particulars of the reasons for the cancellation decision and, (ii) invite the non-citizen prisoner to make representations about revocation of the cancellation:- MigAct58 s 501(3A), 501CA(2)&(3). In response to timely (and formally compliant) representations, the Minister may revoke a cancellation decision if satisfied either (i) that the non-citizen passes the “character test” or, (ii) that “there is another reason why” the cancellation decision should be revoked:- MigAct58 s 501CA(4). (A revocation decision has the effect of treating the visa in question as never having been cancelled:-- MigAct58 s 501CA(5).)
The “another reason” criterion involves more than just satisfaction that there is a reason favouring revocation. It requires an evaluative assessment of all the relevant matters, both those that favour revocation and those that do not:- Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [30]-[32]; Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38]. The evaluation required is for the purpose of achieving a result that is “fair and rational in all of the circumstances”:- Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141 at [80]-[83]; 227 FCR 562.
Visa cancellation precludes a non-citizen from either applying for or obtaining certain other classes of visa:- MigAct58 s 501E(2). That preclusion does not apply to a protection visa application:- MigAct58 s 501F(3). However, refusal or cancellation of a protection visa application precludes a further protection visa application, subject to the favourable exercise of a Ministerial public interest discretion:- MigAct58 ss 48 & 48B. The Ministerial consideration of any such further application may be confined to new information, and may accept the correctness of any matters determined in the course of the previous protection visa application:- MigAct58 s 50. Consistent with the provisions of MigAct58 s 50, the Ministerial policy guidelines relating to the exercise of the public interest discretion to permit a further protection visa application (see MigAct58 s 48B) generally require there to have been a significant change in the applicant’s circumstances. Illustrative matters suggestive of such a change include:
(a)strong compassionate grounds, where the person’s removal would cause irreparable harm to an Australian citizen, or to the person themselves (because of their age, health or psychological state);
(b)inability to return to the person’s country of origin or previous residence;
(c)long residence in Australia and integration into the Australian community;
(d)exceptional benefit to Australia; and
(e)any other circumstances where removal would lead to “clearly unintended consequences” or “unfair or unreasonable results”.
Where a non-citizen’s visa has been cancelled, and their revocation representations have not been successful, “an officer” must ordinarily remove the person from Australia “as soon as reasonably practicable”:- MigAct58 s 198(2B). Removal is prohibited if the person has made a valid, but undetermined, protection visa application:- MigAct58 s 198(5A); but not merely because of the existence of non-refoulement obligations:- see MigAct59 s 197C; DMH16 v Minister for Immigration and Border Protection [2017] FCA 448. If the non-citizen is in immigration detention the Minister has a personal, public interest, discretion to grant a visa of any class, whether or not the person has made any visa application:- MigAct58 s 195A.
Ministerial direction 65
The widely stated “another reason” revocation discretion conferred by MigAct58 s 501CA(4)(b)(ii), whether exercised by a Ministerial delegate or this Tribunal, is subject to the discipline of compliance with any applicable Ministerial direction:- MigAct58 s 499(1)&(2A). The relevant direction is “Direction no 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (“Direction no. 65”). The Minister issued Direction no. 65 on 22 December 2014, shortly after the commencement of the amending legislation to which I earlier referred.
Direction no. 65 has two sections, and three specific parts. Section 1 is a preliminary section. It contains a Preamble that (i) details the objectives of the relevant MigAct58 provisions, (ii) provides a statement of “general guidance” for decision makers exercising relevant MigAct58 powers, and (iii) sets out “principles” described as providing “a framework within which decision-makers should approach” their particular statutory tasks.
The general guidance part of the Direction no. 65 Preamble declares commitment to protection of the Australian community from “harm as the result of criminal activity … by non-citizens”. It describes the “principles” as being of “critical importance” in furthering that objective. It declares that the principles “reflect community values and standards” to be taken into account in “determining whether the risk of future harm from a non-citizen is acceptable”.
The principles stated in Direction no. 65 emphasise:
(a)the character of a non-citizens’ lawful presence in Australia as a “privilege” conferred with a corresponding expectation of law abiding respectful conduct;
(b)a range of tolerance for “criminal or other serious conduct” by non-citizens, influenced by the nature of the conduct, the period of time the non-citizen has lived in Australia and the extent to which they have “been participating in, and contributing to, the Australian community”;
(c)the relevance of the extent and nature of a non-citizen’s positive contribution to the Australian community; and
(d)the relevance of any adverse impact of visa cancellation on a non-citizen’s Australian resident minor children and other family members.
Although an expressly stated principle of community expectation is that a visa should be cancelled if the holder has committed “serious crimes”, other parts of the principles contemplate some permissible tolerance of criminal conduct. The degree of tolerance is stated to be “low” where the visa holder’s Australian community presence has been “only for a short period of time”. It is permissibly, but imprecisely, higher, where the person has lived in Australia since an early age, or for most of their life. The permissible tolerance, in any particular instance, will depend on impressions about whether the nature of apprehended future harm is so serious that “any risk of future similar conduct in the future is unacceptable” and not countervailed by other considerations.
The characterisation of visa status as a “privilege”, and the reference to “community expectation” should be understood as ways of pointing to (i) the relevant statutory visa criteria and conditions and, (ii) the potentially critical importance of “good character” in the exercise of many MigAct58 powers and discretions. That was essentially the view taken by Allsop CJ in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [26]. In the same case, Griffiths J provided a more expansive reservation about the role that the concepts of “privilege” and “community expectation” could play in the proper exercise of the visa cancellation discretion in MigAct58 s 502(2). His Honour said
[70] …. without doubting the relevance to the exercise of that power of protecting the Australian community, it is important that the value of the statement of reasons is not diminished by resort to superficial aphorisms or empty rhetoric, which is illustrated by phrases such as “expectations of the Australian community” and the “privilege” of being a visa-holder. The former concept has the potential to mask a subjective value judgment and to distort the objectivity of the decision-making process. The latter expression is simply misleading as a legal concept. Under Australian law, having the status of a visa-holder is not a privilege. Visa holders hold statutory and non-statutory rights which are inconsistent with the notion of their status being described simply as a “privilege”. For example, many visa-holders have statutory rights of review and all visa holders have rights relating to judicial review of adverse migration decisions. The statutory rights of a visa-holder are, of course, subject to the lawful exercise of executive powers such as those under s 501. But that fact does not justify the position of a visa-holder under Australian law being described as merely one of “privilege” in a legal sense.
In Tesic v Minister for Immigration and Border Protection [2016] FCA 1465 at [57] Collier J counselled against imprecise resort to the language of “privilege” and “expectation” lest doing so elevated the concepts to a “principle of law referable to the exercise of the power, rather than a general policy statement”. The distinction between permissible and impermissible emphasis on these concepts depends, however, on the substance of the decision reasons rather than mere verbal infelicity:- see Wozniak v Minister for Immigration and Border Protection [2017] FCA 44 at [110]; Kim v Minister for Immigration and Border Protection [2017] FCA 372 at [45]-[46].
Section 2 of Direction no. 65 deals more specifically with the exercise of the relevant decision making power. It requires decision makers to act in a manner “informed by the principles”, take into account “the primary and other considerations relevant to the individual case”, and recognise that primary considerations “should generally” be given greater weight. Part C of Section 2 articulates the “primary” considerations, and some of the “other’ considerations, to which regard must be had in response to revocation representations invited under MigAct58 s 501CA(3)(b).
The “primary” considerations in Part C are:-
(a)the protection of the Australian community;
(b)the best interests of minor children in Australia; and
(c)the expectations of the Australian community.
The five specifically identified “other” considerations discussed in Part C are:-
(a)the strength, nature and duration of the person’s Australian ties;
(b)the impact of visa cancellation on Australian business interests;
(c)the impact of any revocation decision on victims of the person’s conduct;
(d)applicable international non-refoulement obligations (in practical terms, the criteria in MigAct58 s 36(2)(a)&(aa)); and
(e)the nature and extent of any difficulties the person is likely to encounter if removed from Australia as a result of the visa cancellation decision.
Those specifically identified “other” considerations are inclusive and illustrative, not exhaustive. Clause 14(1) of Direction no. 65 obliges decision makers to take into account (any) “other considerations … where relevant”. As the Direction expressly states, relevant “other” considerations “are not limited to” those listed:- SZRTN v Minister for Immigration and Border Protection [2014] FCA 303 at [86].
The significance of MAH’s Convictions and sentencing
In having regard to MAH’s criminal record the Tribunal may neither impugn the convictions nor the facts on which they were necessarily based. Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 at 653 & 655; Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at [25], [33]-[34]; Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 at [42] & [44]. Even in relation to factual issues that were not essential to the conviction, the Tribunal should accept any findings that were made in the criminal proceedings: Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 at [38] & [43]; and especially in connection with facts that were the basis of the sentencing decisions: Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at [20] & [40]-[46].

Notwithstanding those required acceptances, the Tribunal must, as a fundamental part of its task, permit an applicant to advance, and must form a judgment on, “all the matters which are relevant to the exercise of the power”: see Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 per Davies J at 656; Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 at [45]. In some instances this requirement may involve a degree of tension between the use of contentious evidence to explain the underlying circumstances of a conviction (a use that is permissible) and its impermissible use to question the conviction itself:- Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441 at 469 per Sheppard J. However that potential is not significant in the present case, because of the paucity of the available information about the relevant “underlying circumstances”.
The protective consideration and community expectations
Part C of Direction no. 65 does not explicitly stipulate “low tolerance” of criminal conduct in the exercise of the revocation discretion. But limited tolerance of criminal conduct is a corollary of the protective commitment declared in both the General Guidance provided in cl 6.2 of Direction no. 65, and the mandated primary consideration set out in cl 13.1. That consideration requires regard to both the “nature and seriousness” of the person’s past conduct and to the risk to the Australian community in the event of “further offences or … other serious conduct”.
The basis for the appropriate calibration of conduct as “serious” is elusive. MigAct58 s 5 contains a definition of “serious” Australian and foreign offences. The general thrust of these definitions is to include offences involving violence, serious property damage and serious drug offences, where they are punishable by at least a maximum three year term of imprisonment. Some parts of Direction no. 65 use the disjunctive expression “criminal activity or other serious conduct” and appear to suggest, perhaps not unreasonably, that all criminal activity should be regarded as “serious”:- see eg., cl 6.2(1), 6.3(5), 6.3(6); 9.1(1), 9.1.2(2), 13.1(1), 13.1.2(2). Other parts of Direction no. 65 implicitly disavow any such necessary suggestion, Clause 13.1.1(1)(a), for example, contemplates that a wide range of offences “may” be considered serious. That proposition recognises that some offences need not be so characterised. And elsewhere the Direction deliberately uses the expression “serious crime”:- see eg., cl 6.3(2), 6.3(3). There is no definition of “serious crime” in the interpretation annex to Direction no. 65, but it is apt to include violent and sexual crimes, as well as crimes against officials and vulnerable victims: see clause 13.1.1(a) & (b). In addition, the exegesis in clause 13.1.1(c)-(d) & (f) requires that both repeated offending, and particular sentences, can provide a basis for characterising offences as relevantly serious.
There is no doubt that MAH’s numerous convictions include offences that involve “serious” crimes according to the “substantial criminal record” criterion. Certainly, when regard is had to the various maximum penalties for the range of his many offences, the preponderance of them merit that characterisation:- see Schedule 1 column F. Conversely, at least since 2009, none of his offences has involved violence. It is also appropriate to observe that the actual sentences involved were typically very much at the lower end of the permissible sentence range. What is not clear is the extent to which the use of sentences of that order reflected informed assessments of the underlying comparative gravity of the particular offences, or optimism about the degree of risk of re-offending. That lack of clarity is contributed to by the paucity of available evidence about the circumstances of the offences. Such obscurity in the evidence about the circumstances of the offences, and the considerations that actually informed the sentences imposed, may preclude a rational assessment of the seriousness of a non-citizen’s offences:- see Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; 240 FCR 29 at [91]-[93].
The available evidence was substantially confined to (i) police fact sheets for the March 2009 and May 2016 offences, and (ii) a short transcript of the Local Court sentencing hearing on 1 September 2016 (but nothing involved in the subsequent District Court appeal). The March 2009 fact sheet involved several altercations at a tavern on a Friday night in March 2009. MAH is recorded as having (i) verbally threatened to shoot one of the other patrons, (ii) subsequently head-butted another and, (iii) been twice escorted from the premises because of his conduct. Several hours later, when apprehended by the police, MAH was described as “moderately” affected by alcohol, and incapable of being interviewed. He was kept in custody until the following Tuesday, when he was granted bail at the Nowra Local Court.
MAH’s March 2009 offences were the third occasion when his conduct involved violence, or threats of violence. But they occurred almost ten years ago. Furthermore, and despite the fact that two of his convictions were for assault “occasioning actual bodily harm” (offences that attract a potential maximum sentence of more than three year’s imprisonment) there is no evidence that any of his offences involved substantial injury or incapacity to any of the victims.
The May 2016 offences involved the theft of various tools from the tray of a utility parked in the driveway of a person who lived at Granville, a couple of streets away from MAH. The police fact sheet details suggest the basis for the conviction was the presence of MAH’s handprints on a toolbox from which the tools had been removed. The September 2016 Local Court transcript indicates that MAH had initially been convicted in his absence, but then asserted his innocence. He claimed that his handprint related to an earlier occasion when he had helped the utility owner fix a flat tyre. If that assertion had been true (and if the handprint was the only evidence implicating MAH), it might have afforded a defence to the two charges. However, three months later, in circumstances the current evidence did not reveal, the Parramatta District Court confirmed both MAH’s convictions and sentences.
The May 2016 offences highlight the fact that MAH has a long history of dishonesty related offences. Moreover, they occurred against the background of prohibited drug possession offences going back to 2008. That is a significant consideration because MAH (i) has a history of intravenous illicit drug use, (ii) is recorded in the November 2016 police fact sheet as having a drug habit that he was funding by “continual property related offences” and (iii) continued to misuse opioids even after his September 2016 incarcerations and later immigration detention.
In his July 2017 statement (see paragraphs 53 & 60 below) MAH disclosed that he had started on the methadone program at Villawood, and that he wanted to decrease the dose until he did not need it any more. In his oral evidence in the present proceedings he insisted that his drug misuse was behind him. Relying on that insistence, the submission made on MAH’s behalf was that his criminal record should be evaluated against the background of previously untreated mental illness and dependence on alcohol and drugs. The submission was that MAH had significantly reformed, as a result of the length of his 2016 custodial sentence, and the support he had received both then and during his subsequent immigration detention. The ultimate contention was that MAH should be characterised as having a low risk of re-offending.
The reality is that MAH’s asserted disavowal of future illicit drug use must be regarded as significantly motivated by appreciation of the ramifications of the visa cancellation decision. It may be no less genuinely asserted because of that motivation, but its actual reliability is very questionable. It is brought into question by its similarity to the representations he made in 2010 (see paragraphs 76 & 77 below), his past behaviour (especially since 2010), his apparently limited employment prospects (he has been receiving a disability support pension since 2014) and by his lack of any significant relationship support in Australia. More significantly, the fact is that MAH has resorted to illicit drug use not only during his prison incarceration but even during his current immigration detention. In one of his first health consultations at Villawood in March 2017 MAH asserted that he had not used heroin in gaol. But by 9 April 2017 he had returned to intravenous heroin use, and he continued to do so even after he started on the methadone program at Villawood on 21 April 2017. Furthermore, in a psychiatric assessment a few days later MAH said he had used heroin and other drugs right up until his recent transfer to Villawood.
It is also significant that MAH’s asserted disavowal of future illicit drug use is related to his participation in the methadone program that is available to him in immigration detention. After starting the program in late April 2017, by 2 June 2017 MAH had actually quadrupled his daily methadone dose – and it has continued at that rate. The evidence shows that his illicit intravenous drug use goes back to at least 2012. (And his drug possession convictions in 2008 suggest the likelihood that his use had an even longer history.) The evidence also shows that April 2017 was the third time (since 2014) that MAH had participated in a methadone program. On each previous occasion he had abandoned the program and opted instead to return to illicit intravenous opioid use. The likely reality is that the methadone program at Villawood provides MAH with the easiest means of access to opioids whilst he remains in immigration detention. The totality of that evidence means it would be naïve to conclude that MAH has finally and credibly resolved to disavow illicit drug use. There is a very real and substantial risk that, once released from immigration detention, MAH would return to illicit drug use and to the offending that has been associated with it in the past.
Against the scale of the sentence ranges for his various offences MAH’s individual offences can reasonably be regarded as at the lower end of the range of conduct that merits description as materially “serious”. But his offences are impressive in their 15 year time span, number and diversity. Taken together they convey the impression of a person who either has no real subjective commitment to, or very problematic ability to achieve, a law abiding existence. The fact of his past re-offending (particularly since his May 2010 representations – see paragraph 77 below – and the August 2010 warning) and his apparent lack of financial and family support in Australia, all point to a real risk that he would reoffend if his visa cancellation decision were to be revoked, and he were to retain a right of Australian residence under his Resolution of Status visa. His risk of re-offending is a primary consideration that weighs significantly in favour of non-revocation of the visa cancellation decision.
The concept of community expectation articulated in Direction no. 65 cl 13 is essentially one of lawful conduct by non-citizens. Where that expectation has been disappointed, both the nature of the conduct involved, and the likelihood of its repetition, may inform an assessment about whether the person’s revived visa status should be seen as appropriate. The greater the number, and the period, of a person’s offending, and the greater the apprehension that it may be repeated, the less appropriate is the retention of the person’s visa status. In the present matter, essentially for the reasons set out in the two preceding paragraphs of these reasons, the community expectation concept also weighs in favour of non-revocation.
MAH’s Australian contribution and relationships
In his 2009 protection visa application MAH stated he had worked for formwork companies in Sydney between 2000 and 2007. The March 2009 police fact sheet described him as a construction industry formworker with weekly earnings of $1,000. In his December 2016 submission MAH claimed to have worked as a formworker throughout the period from 2008 to 2013 – employment that must have been punctuated by the various periods during which he was on remand, and by the period of his return to Iraq (in 2011). In an assessment note after he began his custodial sentence in September 2016, there is a reference to MAH having been granted a disability support pension at some time in 2014, and having last worked “2 years ago”.
The evidence of MAH’s Australian employment is thus rather vague. Nevertheless, there is a basis for accepting that he was able to secure, and retain, employment for substantial periods of time (despite the health issues to which I later refer). On the other hand, there is no basis for concluding that the outcome of the present revocation refusal decision will have any relevant bearing on any Australian businesses. Nor is there a basis for concluding that it would have any impact on persons who were victims of MAH’s past offences.
There are notes in both the 2012 remand assessment, and the September 2016 assessment, to the effect that MAH had supportive friends. It also appears that he was living at a friend’s house at the time of his May 2016 offences. But, with two exceptions, those fleeting references appear to be the only indicators of the nature and extent of MAH’s Australian relationships.
The first of those exceptions concerns MAH’s claim (first made in his December 2016 representations) that he had formed a partner relationship with another man (“ST”) in late 2014. He said they had lived together for about six months prior to his incarceration in September 2016. This asserted relationship was the basis of another claim, that MAH feared his sexuality would expose him to the risk of persecution in the event he was returned to Iraq. The second of the two exceptions was MAH’s claim to have converted to Christianity, and to have given up his Shia Muslim faith, at some stage in 2013. This asserted conversion provided the basis for another claimed apprehension about religious persecution if he returned to Iraq.
There is no substance in MAH’s claimed homosexuality. His personal history is that of a married heterosexual male with at least four children:- see paragraphs 71 to 80 below. The only evidence of homosexuality is contained in parts of his December 2016 representations, and his 20 July 2017 statement:- see paragraphs 78 & 79 below. But the relevant parts of that material are both vague and unconvincing. More importantly MAH recounted or contradicted material parts of those claims in the course of his oral evidence. Contrary to his earlier claims, in his oral evidence MAH denied that he and ST had a sexual relationship. He said that they had never lived together (ST had merely visited him a couple of times a week). He also said that they had not shared any financial assets, income or accounts.
In the light of this evidence, there is no substance in MAH’s claim to have formed a partner relationship with ST. ST is a Malaysian citizen who was in Australia on a student visa. He left in 2016, perhaps after MAH was incarcerated. MAH has not heard from him since, has no means of contacting him, and does not know whether he has even returned to Australia. The totality of this evidence suggests that ST was, at best, a passing acquaintance – and one whose Australian connection is unknown. Nor is there any substance in the assertion of homosexual orientation underlying the relationship claim. There is no significant evidence to provide a basis for a finding that MAH is homosexual or that he has any apprehensions about being so characterised if he were returned to Iraq.
Nor is there any substance in MAH’s claim to have converted to Christianity. He asserted (again in his December 2016 representation) that he had been volunteering for six months at his “local church” (a Burmese Christian Church) near where he was living at the time of his May 2016 offences. That timing of his attendances is rather inconsistent with his claimed “conversion” in 2013, and tends to suggest the lack of substance in the claim. That suggestion is rather confirmed by the facts that MAH, (i) was not able to name or describe the denomination of the “local church”, (ii) did not know the name of its pastor, and (iii) produced no evidence of any kind to corroborate his asserted Christian conversion. I do not accept that he would encounter any risk of persecution or harm, on account of his asserted espousal of Christian religious values, if he were to be returned to Iraq.
Refoulement issues
MAH’s former status as the holder of a Temporary Protection (subclass 785) visa, and its sufficiency in satisfying criteria relevant to the permanent Resolution of Status (subclass 851) visa he was granted in December 2010 (see Migration Regulations 1994 (MigReg1994), Schedule 1 cl 1127AA(3)), focus attention on the potential application of the “international non-refoulement obligations” pointed to in Direction no. 65 cl 14.1(1). The essence of those obligations is embodied in the statutory eligibility criteria for protection visas. Those criteria can be summarised as follows:-
(a)the visa applicant is neither a security risk nor a danger to the community: MigAct58 s 36(1B) & 1(C);
(b)the visa applicant is either:
(i)a refugee who has a well founded fear of “serious harm” from persecution because of their race, religion, nationality, political opinion, or membership of a social group: see MigAct58 ss5H, 5J, 36(2)(a)
(ii)(after the 24 March 2012 implementation of the Migration Amendment (Complementary Protection) Act 2011 – and subject to certain qualifications) a person who would be at risk of “significant harm” if removed from Australia,:- MigAct58 36(2)(aa),(2A),(2B) & (2C), or
(iii)a family member of a person who already holds a protection visa:- MigAc58 s 36(2)(b)&(c);
(c)the visa applicant has not failed to take all possible steps to avail themselves of entry and residence rights in other countries, where they would not be subject to a well-founded fear of (typically) racial, religious or political persecution:- MigAct58 s 36(3) to (5A); and
(d)the visa applicant, when they make their application, must claim to satisfy one of the criteria summarised in subparagraph (b) above, and make specific claims as to why that criterion is satisfied: see MigAct58 s 40; MigReg1994 reg 2.04 & Schedule 2 cl 866.211.
MAH’s status as a former Temporary Protection visa holder was a fact that contributed to his eligibility for a permanent Resolution of Status visa. But the grant of that visa in 2010 made him ineligible to obtain a Permanent Protection visa (subclass 866):- see MigReg1994 2.03 & Schedule 2 Item 866.232.
The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (“the 2014 Act”) made a number of extensive amendments to MigAct58 and to the MigReg1994 in relation to protection visas. The Act maintained a distinction between permanent protection visas (formerly Class XA visas) and temporary protection visas (formerly Class XD visas), but declared that they were visa classes determined by the Act itself, rather than by the Migration Regulations:- see MigAct58 s 35A. Another of the changes made by the 2014 Act was to preclude anyone who had held a temporary protection visa from applying for a permanent protection visa:- see Mig Reg Schedule 1 cl 1401(3)(d). Another amendment was to deem any undetermined permanent protection visa application as an application for a temporary protection visa:- MigReg1994 2.08F.

The combined effect of the provisions summarised in the two preceding paragraphs (together with the effect of the prohibition in MigAct58 s 198(5A)) may explain (i) why a Protection Visa application MAH lodged in August 2009 was not addressed until after the cancellation of his Resolution of Status visa, (ii) why it was then deemed a valid application for a Temporary Protection visa and, (iii) why it was then considered necessary to determine the application.
The criteria for the grant of a Temporary Protection visa include the requirement that, at the time of the visa application decision, the Minister was satisfied that the applicant met the “persecution” or “significant harm” criteria in MigAct58 s 36(2)(a)&(aa):- see MigReg1994 2.03 Schedule 2 Item 785.221(2). A ministerial delegate was not so satisfied, and rejected MAH’s deemed Temporary Protection Visa application in September 2017 – despite noting MAH’s previous success in being granted temporary protection visas (in July 2000, July 2003 and August 2006).
Direction no. 65 contemplates that non-refoulement obligations should be taken into account where a revocation applicant could not make a valid protection visa application, but were otherwise unnecessary to be assessed in considering revocation representations. Even if that contemplation was consistent with the proper scope of the MigAct58 s 501CA(4) “another reason” criterion it would not dispense with the need to consider MAH’s “non-refoulement” contentions in the present case. (This is because the September 2017 refusal decision precludes him from making another valid visa application:- see paragraph 10 above.) However, MAH’s submissions emphasised that Direction no. 65’s contemplation was in fact inconsistent with the “another reason” criterion in MigAct58 s 501CA(4). The width of that criterion made it necessary for a visa cancellation revocation decision maker to take any relevant “non-refoulement” considerations into account:- see BCR16 v Minister for Immigration and Border Protection [2016] FCA 965.
The Minister did not dispute the width of the “another reason” criterion or the general accuracy of MAH’s submissions about the potential relevance of the persecution and harm claims that they involved. But the Minister emphasised that the claims had already been substantially assessed in the September 2017 refusal reasons. The Minister contended that in the present proceedings the Tribunal should accept the findings made in the September 2017 protection visa refusal decision, at least in the absence of material additional evidence, including evidence of altered circumstances.
On the other hand MAH’s submissions criticised the September 2017 refusal decision on several bases. These included complaints that (i) MAH had not been given sufficient notice of the August 2017 interview that preceded the decision, (ii) MAH had been given insufficient time to comply with the request to provide the additional information requested on 21 August 2017 (relating to MAH’s asserted Christianity), (iii) the Ministerial delegate had inadequate regard to those insufficiencies in evaluating MAH’s evidence and claims, and (iv) the delegate had relied on outdated country information relating to the contemporary situation in Iraq.
These competing submissions make it necessary to address both the substance of MAH’s claims, and the content of the September 2017 refusal decision reasons.
MAH’s claims
MAH is sufficiently fluent in oral English to have participated in the review hearing with only occasional assistance from an Arabic interpreter. He cannot read or write English, but he has signed various documents, written in English by others, that provide information about his reasons for fleeing Iraq. They include the following documents:-
(a)18 November 1999:- a four page, hand completed note of “Initial Interview for Unauthorised Boat Arrivals.”
(b)9 January 2000:- a 26 page Protection Visa application, completed with typewritten details, prepared with the assistance of an interpreter whilst MAH was in immigration detention, prior to being granted a Temporary Protection visa in July 2000.
(c)13 July 2000 to 23 September 2005:- at some stage in this period MAH provided a further statement in support of his permanent protection visa application. The contents of this statement are summarised in part of the September 2017 refusal decision reasons.
(d)30 July 2009:- a 17 page application for a Resolution of Status visa, completed with both typed and handwritten details, prepared with the assistance of a registered migration agent.
(e)July and August 2009:- a 17 page application for a Resolution of Status visa and a 15 page Protection Visa application.
(f)14 December 2016:- a four page form of visa cancellation revocation application, with a handwritten statement of reasons supporting the application.
(g)14 December 2016:- an eleven page “personal circumstances” form, completed in handwriting by a welfare officer at the Long Bay Correctional Centre, in support of MAH’s visa cancellation revocation application.
(h)20 July 2017:- a six page typewritten letter prepared by his solicitor.
Within these documents are various accounts of the reasons why MAH left Iraq in 1998. They are far from consistent. In his November 1999 interview MAH claimed he fled Najaf (a town several hundred kilometres south of Bagdad where he had been born, and had lived most of his life) because he had delivered letters for a friend who was opposed to the government, and was consequently thought to have a similar opposition. Nine months later he fled from Zakho (a town north of Bagdad) because people, whom he thought were from the government, came to his house and beat him.
In his January 2000 application MAH gave a number of reasons to explain why he had left Iraq. His first stated reason was because he had deserted the army in 1992, without completing his military training. In the following six years he had avoided arrest by hiding and, ultimately, by obtaining a false military service record, which he had successfully used on various occasions. His second reason was that as a Shia muslim he was liable to be persecuted in Iraq. He cited one occasion when one of his brothers had been arrested for taking part in a food distribution charity event. His third asserted reason for leaving Iraq was the 1998 incident involving the distribution of his friend’s letters. In relation to his employment history, MAH detailed a three month period of military service in early 1992, followed by a six year period working in a garage.
The further statement MAH gave in support of his January 2000 protection visa application involved a claim that he had sheltered a high ranking member of a political party opposed to Saddam Hussein. That person had been arrested and, after the collapse of the Bath party government, their body had been found in a mass grave. After that discovery the person’s family and party members accused MAH of having been responsible for informing the Hussein security forces of the person’s whereabouts. They threatened MAH and his family.
Neither of MAH’s 2009 visa applications contained any details about either his reasons for leaving Iraq, or about any apprehensions he had about returning to Iraq. Moreover, employment details provided in the August 2009 Protection Visa application recorded that MAH had worked in Najaf throughout the entire period from 1986 to 1999. For most of that time (from 1986 to 1997) he had worked as an assistant bus driver. In the last two years (from 1997 to 1999) he had worked in the family’s electrical retail business.
In his May 2010 response to the Minister’s April 2010 notice, MAH stated that his reason for leaving Iraq was that he had “suffered persecution from the previous regime”. His asserted apprehension about returning to Iraq was that he “would be followed by the fundamentalists and armed militia”. That assertion seems to be rather different from the thrust of his earlier claims, which involved apprehensions about the conduct of (i) the previous government security forces and, (ii) friends and family who suspected him of being a supporter of the previous government.
In his December 2016 representations MAH asserted that he had left Iraq because of the “high levels of trauma endured and fear that this could also incur violence against me”. In a later passage he asserted that the “current government” was under the false impression that he had worked as an informant for the Hussein regime. (These documents also contained MAH’s homosexuality and Christianity claims – to which I have already referred:- see paragraphs 40 to 43 above.)
Prior to July 2017, none of MAH’s claims had included the kinds of detailed assertions that were recorded in the psychological assessment that I have summarised in a later part of these reasons:- see paragraph 112 below. Those assertions involve actual periods of gaoling and torture, and a fortuitous avoidance of being shot by the authorities. They are remarkably inconsistent with the claims that MAH had previously advanced in explaining the reasons for his flight from Iraq. Yet they were partly taken up in the July 2017 statement MAH signed in support of the representations to the Minister in response to the December 2016 cancellation decision. (With the notable difference that, in the July 2017 submissions MAH asserted he had been released from gaol by his family’s bribery of a guard – rather than the “feigned death” explanation he had previously given to the psychologist.) Moreover, the July 2017 submissions also included, for the first time, the claim that MAH’s flight from Iraq had been prompted by the arrest and death of his father’s cousin at the hands of the authorities. MAH asserted that the friend’s family regarded him as an informant and had threatened to kill him. (This claim also figured in the later counsellor’s report of November 2017:- see paragraph 117 below.)
What emerges from these various accounts is remarkable inconsistency. On one hand, despite never having actually been arrested and imprisoned, MAH feared apprehension by the military authorities for deserting from the Iraqi army – apparently in the early 1990’s – and had narrowly avoided arrest on numerous occasions in the ensuing six or seven years. On the other hand, MAH had fled Iraq after years of mistreatment and imprisonment by the authorities, and finally as a result of threats from relatives, because of his suspected involvement in the death of a relative opposed to the Saddam Hussein government. On another version of events, he feared apprehension because he was (wrongly) thought by the authorities to have been actively involved in assisting a friend who was opposed to the Saddam Hussein regime. On yet another version of events, he feared persecution because of the authorities’ intolerance of the charitable activities required by adherence to his Shia Moslem faith.
The September 2017 protection visa refusal decision
The rejection decision reasons noted the many inconsistencies in MAH’s proffered explanations for having left Iraq. But the reasons proceeded on the basis of substantially accepting the “main aspects” of what MAH had proffered in his July 2017 submission. The decision reasons included specific findings that (i) MAH had deserted the Iraqi military in about 1991, (ii) MAH had subsequently been caught, imprisoned and tortured, and (ii) it was plausible MAH had been targeted by authorities as a suspected supporter of the Al Dawa party opposed to the Saddam Hussein regime.
Nevertheless MAH’s Temporary Protection visa application was rejected for the following stated reasons:-
(a)radical political changes in Iraq since 2003 had resulted in the fall of the Hussein regime, the dominance of Shia political leaders and, in particular, the acceptance of the Al Dawa party as a “powerful player in the Iraqi government”;
(b)it was unlikely that MAH’s relatives would have regarded him as a supporter of the Hussein regime and more likely that they would have attributed his flight from Iraq as related to his fear of the Hussein authorities;
(c)his return to Iraq in 2011 (see paragraph 79 below) was inconsistent with the dangers and risks he asserted to support his protection visa application;
(d)whilst sectarian violence between Shia and Sunni factions in Iraq had continued after the USA troop withdrawals in 2011, it was more prevalent in the northern and central areas of the country and not the southern areas (including Najaf where MAH and his family had lived), and that there was no real risk of MAH being persecuted as a Shia muslim;
(e)there was no “real risk” that MAH would face significant harm in Iraq either as a suspected supporter, or opponent, of the Hussein regime – or as a failed asylum seeker in Australia; and
(f)there was no substance in MAH’s claims that he feared persecution because of either his asserted homosexuality or his claimed conversion to Christianity.
Against that background understanding of the refusal decision reasons, there is no presently material substance in the criticisms that were advanced on MAH’s behalf. Some of the criticisms were matters of fairness relating to the short notice that MAH was given of the August 2017 departmental interview, and the very limited time within which he was invited to submit any further material. But the fact is that, despite the significant passage of time that had elapsed since the September 2017 decision, no significant additional evidence was proffered in the present proceedings for the purpose of substantiating the credibility of MAH’s protection visa claims.
Moreover, the September 2017 decision was not based on any adverse view of the credibility of the claims MAH had made in the 2017 submissions. On the contrary, the reasons accepted the accuracy of MAH’s claim to have been imprisoned for years and tortured for evading military service. It also accepted his claim that the arrest of a relative had been the trigger for his flight from Iraq. Both of those acceptances were, in my view, inappropriately favourable to MAH. The claims, and particularly the former, were quite inconsistent with the contents of his November 1999 interview and his January 2000 application – both in relation to the reasons he then gave, and as to the employment history. The inconsistencies are so stark that the dramatic claims MAH made so belatedly in the 2017 submissions cannot be regarded as credible.
The inconsistencies, and vagueness, in MAH’s various claims detracts from the ability to accord them any weight. Of course the undeniable fact is that MAH did flee Iraq, and apparently left not only parents and siblings, but also a young pregnant wife and dependent children. Either some exigency, or some irrationality, prompted this departure in 1998. But it does not seem likely that his departure was significantly attributable to concern about having deserted the Iraqi military. On his own account (in the January 2000 protection visa application) MAH had successfully evaded detection throughout the following six years, and in so doing he was sheltered by family and relatives.
Nor does it seem likely that the mere distribution of letters for a friend would have involved MAH being exposed to any real risk of persecution or harm, even if it had excited the interest of the security forces. MAH’s account of events was that he had no knowledge of, or involvement in, his friend’s reputedly subversive activities.
But even if any of the flight reasons MAH advanced in 1999 and 2000 were regarded as credible, it is unconvincing to conclude that MAH now faces any real risk – of either persecution or significant harm – if he were to return to Iraq. It is unconvincing essentially for the reasons the Ministerial delegate gave in the September 2017 refusal reasons – and particularly those referred to in paragraphs 63(a) to (c) above. No proper basis for any such apprehension can be extracted, with any degree of reliability, from his varying assertions.
One of the submissions made on MAH’s behalf in criticising the September 2017 protection visa refusal decision related to the matter summarised in paragraph 63(d) above. The criticism was that it failed to take into account an asserted worsening in the security situation in Iraq more recently than 2011. This submission cited a UNHCR report dated 14 November 2016, and emphasised a part of the report in which the UNHCR urged against the forcible return of Iraqis “who originate from areas of Iraq that are affected by military action” or that were either under the control of, or had recently been recovered from, ISIS. However the submission made no attempt to point to any evidence that Najaf was such an area. Moreover, the submission advanced on MAH’s behalf failed to acknowledge that the refusal decision had regard to reports published in June and July 2017, and that it cited reports dated between October 2014 and June 2017. Those reports had consistently remarked upon the relatively “insulated” position of southern Iraq, including the Najaf area, in relation to the risk of sectarian violence from Sunni muslim dissidents.
Consequently, irrespective of whether or not it would be correct for the Tribunal to defer to the findings and reasoning in the protection visa refusal decision, the evidence in the present proceedings did not provide any basis for finding that MAH would now likely encounter a “real risk” of persecution or significant harm, for the purposes of the refoulement obligations in MigAct58 s 36, if he were to be returned to Iraq.
MAH’s family relationships
MAH has been back to Iraq only once, and only for a short period in 2011, since 1999. For him to return some 19 years later, given both that long period of absence, and the difficulties to which Iraq has been subjected, would likely be very difficult. On the other hand, it is the country of his origin, and where he lived until he was about 26. It is also where his immediate family and close relatives live (with the exception of his Canadian resident wife and their four daughters). However, it is difficult to be confident about the actual current extent and location of the significant members of his family. That is partly because of inconsistencies in accounts he has given, and partly because of his asserted lack of recent contact with his family members.
At the time of his November 1999 arrival in Australia MAH provided information in the course of an initial departmental interview, with the assistance of an Arabic speaking interpreter. The handwritten English notes of that interview ascribe to MAH a claim to have six children. Three of them had been born to a first wife, who had died. His second wife had three children, and was expecting a fourth. They lived in Zakho in Iraq. His parents and siblings lived in Najaf. He claimed to have some Australian resident friends, but no resident relatives.
In January 2000 MAH completed a protection visa application, with the aid of a registered migration agent and an Arabic interpreter. The immediate family details in that application corresponded with those in the November 1999 interview record. MAH claimed that his first wife had been killed in the “intifada” (an event the parties agreed referred to a time after operation Desert Storm and in early 1991). He had three children by his first wife, and three daughters by his second wife (the eldest of the latter having been born in 1992).
In July 2009, with the assistance of a registered migration agent in Fairfield, MAH submitted his Resolution of Status visa application. In that application MAH included his (second) wife and four daughters as the immediate members of his family. He reported that they were all Iraqi citizens and residents. In relation to his parents and siblings, the application omitted any reference to one of his brothers, but included updated details about some of his other siblings (the death of one his brothers, and the marriage of two of his sisters). All of his parents and surviving siblings were stated to be Iraqi citizens and residents.

On 12 August 2009, with the assistance of the same migration agent, MAH completed a Protection Visa application. It included the same family details as those in his July 2009 application. But it also indicated that he had lived in Najaf until 1999, and had there worked in his family’s electrical equipment retail shop for two years between 1997 and 1999.
In May 2010, in response to the Minister’s April 2010 notice (see paragraph 2 above), MAH provided further details of his family. In relation to his parents and siblings, it was to substantially the same effect as the information in the July and August 2009 documents. In relation to his wife and children it was more detailed than the earlier documents and contained significant new information. The additional details included the date (June 1991) of his marriage to his (second) wife, the names of their four daughters, and the each of their respective years of birth. (In another part of the “personal data” form MAH submitted to the Minister, he denied having children from any previous relationship.) The significant new information was that all five of MAH’s wife and daughters were said to be Canadian citizens, but currently living with him at an address in Auburn.
The new information about MAH’s wife and children’s Canadian citizenship was a matter of emphasis in his response to the Minister’s April 2010 notice. MAH specifically acknowledged his 2003 convictions and, in general terms, the subsequent “bad behaviours” that had resulted in his having a “bad record with the police”. He attributed this to the combined effect of (i) having lost contact with his family, (ii) resorting to alcohol as a means of coping with that loss, and concern about their possible fate, and (iii) becoming violent when affected by alcohol. Against that background he reported his happiness at having recently discovered that his wife and children had gone to live in Canada. Even more significantly, he claimed that since his family had joined him in Australia he had resolved to become a responsible father, had given up drinking, and was determined to undertake rehabilitation programs and, in the future, comply with the law.
MAH’s December 2016 response to the Minister’s revocation representation invitation referred to his “ex wife”, gave dates of birth for the four children that differed from information he had previously provided, and stated that they were all living in Canada, but at an address unknown to him. He also claimed, inaccurately, that his children came to visit him “every two years”. The information provided in relation to MAH’s parents and siblings included only his parents and two of his brothers (the name of one of whom had been entirely omitted from the information he had provided in 2009 and 2010). However, in previous notes of an assessment at the Metropolitan Remand Centre in September 2016 MAH was recorded as reporting that he had four brothers and four sisters in Iraq. According to the interviewing nurse’s notes, MAH said he had plans to return to Iraq. Apart from parents and siblings, MAH indicated in the December 2016 response that his extended family in Iraq included two grandparents, three uncles and aunts, six cousins and 15 nieces and nephews.
In a July 2017 “personal statement” to the Minister (a document prepared by his solicitor, but signed by him) MAH reported that he had gone back to Iraq and visited his family in “around 2010 or 2012”. (Departmental movement records indicate that MAH left Australia for six weeks during 2011, and a February 2012 report noted that he was in contact with his family in Iraq.) He claimed his last contact with anyone from his family had been “about two years ago” (ie., mid 2015), he no longer had any contact with anyone in Iraq, and did not even know if any members of his family were still alive.
In the same July 2017 statement MAH stated that his wife and daughters had only stayed in Australia “for about two years” and had returned to Canada. He said that after they left he had resorted to alcohol, drug use and gambling. The actual duration of any visit by MAH’s wife and children was likely significantly shorter than his two year estimate, and his subsequent resort to drug use likely to have occurred in late 2011, at the latest. This likelihood emerges from (i) the timing of his visit to Iraq in 2011 and, (ii) notes of a mental health assessment conducted at the Metropolitan Remand Centre in February 2012. (He was then on remand for other charges of which he does not appear to have been convicted.) The assessment notes indicate that (i) his wife and children were then living in Canada, and (ii) he was regularly abusing alcohol, using “ice” and smoking marijuana.
This history, despite its varying details, points to the possibility that MAH retains a substantial number of close relatives who still live in Iraq and, more specifically, in the Najaf area where MAH himself lived. His contact with his family has likely been infrequent and, in more recent years, probably non-existent. However, he did return in 2011, after a 12 year absence. And he appears to have remained in contact for some years after that.
I noted earlier the statement attributed to MAH in September 2016 that he had plans to return to Iraq. When questioned about this in the present proceedings MAH said he only ever intended to go back to Iraq for a visit, rather than to return permanently. For myself I doubt the accuracy of MAH’s current recollection or belief about what he said in September 2016, and favour the view that return to Iraq was indeed what he contemplated. One of the reasons for those views is the inference, available from MAH’s history, that he had an unhappy and isolated existence in Australia. Another reason is that in a further interview, a little over a month later, MAH reported to an interviewing psychologist that he had no current support network in Australia and would be homeless on his release from prison.
But whether or not MAH’s intention was to return permanently to Iraq, or to merely visit, it is reasonable to conclude that, as recently as September 2016 MAH expected that he would be able to re-connect with family and friends once he went to Iraq. Consequently it is appropriate to conclude that MAH would likely have some measure of family support available to him if he were to return to Iraq. It is not possible to provide a meaningful quantification of the extent of that support from the currently available evidence. And without some realistic and informed quantification of the extent of any such likely assistance, it is necessary to recognise the likelihood that MAH would encounter significant difficulties in re-establishing himself, by finding accommodation and some means of support, in Iraq.
These kinds of difficulties would not, of themselves, outweigh the significance of the primary considerations Direction no. 65 requires to be taken into account. But MAH contends they have an added, and determinative, significance in his case because of his various health issues – and specifically his:-
(a)drug use and methadone treatment
(b)chronic leg wounds, and
(c)schizophrenia.
MAH’s Minor physical health issues
MAH has an ocular prosthesis – as a result of an eye injury when he was a young child. But there is nothing to suggest his monocular vision gives rise to any consideration material to the visa cancellation revocation discretion.
MAH had been diagnosed with hepatitis C in 2004. Blood tests conducted in March 2017 indicated that he had either a “past or current” infection, and that currently approved antiviral agents (available under the pharmaceutical benefits scheme) had cure rates exceeding 90% for the most common HCV genotypes. There is no evidence to establish that MAH has been symptomatic at any time in the relevant past, or to inform a meaningful conclusion that he will become so in the future.
Neither of these conditions is a significant consideration in the exercise of the revocation discretion.
MAH’s illicit drug use
Earlier in these reasons I noted that:
(a)MAH had a long history of drug offences:- see paragraph 31 above
(b)those offences provided a background to his various other convictions:- see paragraph 31 above
(c)MAH associated his significant illicit drug use with the aftermath of his wife and daughters’ return to Canada (in about 2011):- see paragraph 80 above
(d)his opioid misuse had continued after he was taken into immigration detention:- see paragraph 33 above
(e)he had quadrupled his dosage within a short period after joining the methadone program at Villawood, and subsequently maintained that dosage, despite the resolution asserted in his July 2017 statement:- see paragraph 34 above.
In that July 2017 statement MAH said he suffered serious leg burns in a motorcycle accident in 2015, and that his difficulties with those injuries had contributed to his subsequent increased drug taking. Both the timing of that accident, and the proposition that it was a significant contributor to MAH’s illicit drug use, are of doubtful accuracy.
A January 2015 Westmead Hospital discharge summary records that, two days before Christmas 2014, MAH had presented with a number of complaints, including back pain, subdeltoid bursitis thought to be related to intravenous drug use, and chronic ulcers on both lower legs and on his right forearm. Following his presentation he had been an inpatient for about three weeks. The summary of his hospitalisation provides an informative history of the nature and extent of MAH’s illicit drug use. He was recorded as having reported a two year history of intravenous drug use (involving daily use of heroin and morphine). Consistent with that history, the notes record that twelve months earlier MAH had been placed on the methadone program at Blacktown Hospital. But he had only persevered with that program for two to three months. During his current admission he had again been provided with drug and alcohol support, and prescribed methadone (at a daily rate of 40mg). He was advised to follow up further management with his general practitioner.
A proper understanding of those observations suggests that MAH had suffered any leg injury during 2014, rather than 2015. (A 2014 timing also corresponds with the information that was when he began to receive disability support pension payments.) The observations also suggest that his intravenous drug use significantly preceded the motorcycle accident. That suggestion is rather corroborated by a later hospital note of 2 June 2017. It records a history that the motorcycle accident had occurred whilst MAH was under the influence of heroin.
In his evidence in the present proceedings MAH explained the circumstances in which he had not continued with his participation in the methadone program he had started at the Blacktown Hospital in early 2014. What he said was that he told his general practitioner that he had started on the methadone program. In the light of that disclosure the GP had refused to continue to prescribe any additional opioid medication. MAH then chose to leave the methadone program and had his GP prescribe fentanyl patches. However, rather than use that medication as prescribed, MAH soaked the patches to extract the drug, and used it intravenously. The reason he gave for this abuse of his prescription medication was that he “liked fentanyl”. He later discovered it was a practice not without risk. On one occasion he overdosed, and was taken to hospital in an ambulance. His GP’s response to this incident was to refuse to issue any further prescriptions for opioid analgesics. Undeterred by that refusal, when he could afford it, MAH would buy fentanyl from others, and continued with his intravenous drug use.
The submissions advanced on MAH’s behalf in these proceedings sought, in various places, to depict his sustained use and misuse of opioids as a kind of self medication for his physical injuries. The truth is that his opioid use substantially preceded any physical injuries he may have suffered. It also seems likely, given the history of MAH’s illicit drug use, that it is an addiction beyond his capacity to control, at least without significant assistance and support.
That likelihood led to an emphasis, in the submissions made on MAH’s behalf, to the limited treatment and support that would be available to him if he were to be returned to Iraq. The submission pointed to evidence that methadone therapy was not available in Iraq, and that whilst some other inpatient and outpatient “detoxification” treatments were available, they covered only a portion of the population and were limited in their scope.
If the absence of opioid drug therapy and the limited availability of other treatments were the only matters to take into account, I would not regard MAH’s drug addiction, and current methadone therapy, as countervailing the primary considerations favouring non-revocation of the visa cancellation decision. MAH has had ample opportunity to obtain assistance in controlling, and ending, his illicit drug use. He has been warned in the past of the visa cancellation risk that continued offending might involve. His continued illicit drug use seems not to have been significantly associated with any of his other health conditions. On the other hand, it does seem to have been contributed to by his comparative social isolation in Australia. That isolation will likely continue if he remains in Australia. Conversely, there is some (admittedly difficult to assess) likelihood that he would have a greater network of family support if he was returned to Iraq.
However, MAH’s submissions also pointed to the fact that in July 2017 MAH was assessed by a registered nurse as medically unfit to travel to Christmas Island – because of his methadone treatment and his chronic leg ulcers. This “not fit to travel’ assessment was limited in a number of respects:
(a)it was based only on an examination of MAH’s file, not on a physical examination or interview;
(b)the person who provided the report was not aware of the date of the most recent assessments of MAH;
(c)it contained a statement (remarkably inaccurate in view of the matters detailed later in these reasons:- see paragraphs 105 to 119) that MAH had no mental health issues;
(d)it only covered the period to 11 August 2017; and
(e)it only related to travel to Christmas Island (it expressly did not apply to any other travel destination).
Notwithstanding those limitations, the 14 July 2017 assessment did indicate a past unfitness to travel. Furthermore, both in the December 2017 non-revocation reasons, and in the Minister’s oral submissions in the present proceedings, there was an explicit acknowledgement that (if the cancellation decision was not revoked) MAH would be removed from Australia “only … if and when he is found fit to travel”.
This assurance prompts enquiry about MAH’s contemporary and prospective fitness to travel. If there is no definite prospect of his future fitness to travel to Iraq, there is the further question whether he would be at risk of indefinite detention, unless the cancellation decision is set aside. The former enquiry requires consideration of MAH’s leg wounds, and other significant health issues. The latter question I address later in these reasons:- see paragraph 124 below.
MAH’s leg wounds
I alluded earlier to MAH’s evidence about the timing and cause of these wounds, and to the fact of his presentation at Westmead Hospital in late 2014:- see paragraph 90 above. The Westmead Hospital discharge summary records that MAH was noted to be “well known” and to have a past history of chronic lower limb and right forearm ulcers that had swabbed positive for MRSA. Those wounds had been assessed as unsuitable for surgical intervention, because of his past “non-compliance” with wound care advice.
The contemporary assessment of MAH’s leg wounds in January 2015, despite the observations about the inadequacy of his past personal care, was that none of his leg and forearm ulcers appeared to be actively infected. Consistent with that appearance he denied experiencing any infective symptoms, such as fevers or rigors. At the time of his hospital discharge MAH was advised to follow through with daily wound care and dressing for his leg wounds, and to attend the “plastics” outpatient clinic in May 2015.
By the time of MAH’s arrest in May 2016 his leg wounds had not healed. The arresting police took him to Westmead hospital for assessment. There they were advised that MAH had a long history of attending at the hospital and was known to be non-compliant in relation to both appropriate wound dressing care, and antibiotic medication. They were also told, however, that MAH’s wounds were not then actively infected, and only required treatment with Betadine – a topical broad spectrum antiseptic.
In January 2017, whilst still in prison, MAH was hospitalised as a result of a pulmonary embolism and bilateral upper limb thrombophlebitis. After MAH was taken into immigration detention in March 2017 (and, inferentially, despite the antibiotic and heparin medication he received in January 2017) his leg ulcer wounds had still not healed. The nature and extent of the advice, care and treatment he has been given in immigration detention is outlined in the following sequence of events:-
(a)12 April 2017:- Pathology test results from swabs of his leg wounds recorded light and moderate MRSA growth. Those reports noted that the particular MRSA strain detected was responsive to antibiotics, as were many “community acquired” MRSA strains. The report also noted, however, that moist wounds were commonly colonised by such organisms, and that antibiotic treatment was only required if clinical features of infection were present. (I note that this appears to be consistent with the advice given to the police in May 2016:- see paragraph 101 above.)
(b)25 May to 2 June 2017:- MAH was admitted to the Prince of Wales hospital for management of his leg wounds, and skin graft surgery. On admission MAH’s leg ulcers were described as 8 cm diameter chronic wounds on the inside of his lower legs. But he was noted to have no systemic symptoms of infection. Post surgery assessment reported that the right leg graft had failed, and that the left leg graft had substantially taken. He was discharged back to the Villawood detention centre on 2 June 2017. The discharge summary noted that antibiotic treatment (apparently recently commenced at Villawood) had been discontinued, because wound swabs showed only light bacterial growth and neither of his wounds was clinically infected. The post discharge treatment recommended was leg elevation, daily wound dressings and follow up with a general practitioner.
(c)3 to 9 December 2017:- In the course of three attendances at the Villawood clinic, MAH was noted to be upset about his leg wounds. But they were noted to be pink in colour, have good surrounding blood circulation, and to be healing slowly.
(d)20 December 2017 to 11 January 2018:- MAH next attended at the Villawood medical clinic in the latter part of December, about a week after being notified of the non-revocation decision. He acknowledged that he had not been looking after himself since the decision, his wounds were uncovered, reddish and oozing. He initially refused to have the wounds dressed, and was warned of the potentially “serious consequences” of his poor wound care. A wound swab taken on 22 December 2017 showed heavy growth of staphylococcus aureus. On 27 and 28 December 2017 his wounds were dressed, he was seen by a general practitioner and given antibiotics. Between 4 and 11 January 2018 MAH attended the Villawood clinic on 5 occasions for wound care. He presented irregularly (not daily as he had been advised to do), and sometimes (because he had removed the dressings and left the wounds exposed) with lint and fibres in the wounds. Nevertheless, his wounds were reported to be neither malodorous nor weeping. His continuing wound treatment appears to have consisted only of cleaning, topical betadine and dressing.

The chronicity of MAH’s leg wounds appears to be significantly related to his lack of self care and poor personal hygiene. The treatment history summarised above shows that the forearm ulcer with which he presented in May 2017 has healed, and that his leg wounds are not chronically significantly infected. They have been shown to have the capacity to heal, albeit perhaps slowly, with topical antiseptic dressing and basic care and cleanliness. But unless and until that slow healing process progressed to completion MAH will require continued wound dressing, including at least topical antiseptic ointment.
If MAH’s current needs in relation to his wound dressing were the only material consideration I would not regard them as tending significantly in favour of revocation, having regard to the relevant primary considerations. Neither would I regard the present state of MAH’s legs as itself pointing towards the likelihood of indefinite postponement of his fitness to travel. But an underlying consideration is the extent of MAH’s actual capacity for self care – having regard to (i) the chronicity of his drug misuse, (ii) the chronicity of his leg wounds, with the repeated reports of his non-compliance with basic health care and personal hygiene advice, and (iii) his mental health history.
Mental Health assessments / history
I referred earlier to a February 2012 mental health assessment carried out at the Metropolitan Remand Centre:- see paragraph 80 above. The assessment notes record that MAH had a seven to eight year history of schizophrenia that had been formally diagnosed in 2010. However, MAH denied any psychotic symptoms and was cleared for normal cell placement. His only current medication was twice daily oxycontin (for back pain).
The reference to a 2010 formal diagnosis was to reports in March 2010. MAH’s general practitioner had provided a certificate that MAH was suffering from “schizoaffective disorder” and being medicated with Zyprexa and an anti-depressant. A psychologist to whom MAH had been referred reported that he appeared to have been suffering from “Depressive Disorder”. He had attended three cognitive behavioural therapy sessions and been encouraged to implement a number of coping strategies.
There is a further note of a mental health assessment that was carried out by a registered nurse at the Parklea Correctional Centre during MAH’s remand period in late 2012. This note recorded that MAH had previously been assessed in February 2012 and then was not regarded as having any evidence of psychotic illness. The note also referred to a documented history of “schizoaffective disorder” (and a self reported schizophrenia diagnosis 7 years earlier). Reflecting the March 2010 general practitioner’s certificate, the note recorded MAH’s previous Zyprexa prescription, his variable compliance, and the restarting of that medication whilst he was in custody. The note reported that MAH had no current or observable symptoms of psychiatric illness. It also referred to MAH’s then current employment as a formwork carpenter.
MAH’s hospitalisation at the end of 2014 did not involve any assessment of his mental health. However, the January 2015 Westmead Hospital discharge summary noted, without comment, the fact of MAH’s past history of schizoaffective disorder. In September 2016, on an initial assessment at the Metropolitan Remand Centre when MAH began his custodial sentence for the May 2016 offences, the interviewing nurse had access to MAH’s patient/inmate file, and noted he had a history of PTSD, depression and anxiety. The nurse also noted the previous diagnosis of schizoaffective disorder. His only current medication was nightly Zyprexa. The interviewing nurse’s overall assessment was that MAH presented as settled and appropriate, with no reported or apparent thought or mood disorder and no abnormal perceptions.
That initial assessment was followed by a psychologist’s report in October 2016. This report asserted (apparently incorrectly) that MAH had past hospitalisations for mental health issues. It described his current presentation - with anger issues, anxiety and depression - as consistent with PTSD. The interviewing psychologist noted that MAH reported he had no mental health issues. Because of his understanding of the contents of MAH’s medical file, the psychologist speculated that this self report, rather than being reliable, showed MAH’s possible lack of insight about his actual mental health. The psychologist also made the equivocal assessment that it was unclear whether MAH’s “low level of interest” in his health and personal care was a form of self harm or merely lack of motivation.
A further psychologist’s review in early May 2017 reported MAH’s claim that he “heard voices” talking to each other. They were said to have started 25 years ago “when he was aged 20 and in the army”. That experience was said to have involved being taken to gaol, tortured and seeing many people die.
A few days later MAH had a psychiatric assessment. The psychiatrist’s notes assert (with questionable accuracy, given the actual available records) an established 10 year diagnostic history of chronic schizophrenia. They also repeat MAH’s claim that his “voices” started when he was gaoled and tortured (but at the age of 15) for avoiding military training. The psychiatrist noted that MAH reported the “voices” stopped when he was taking Zyprexa / Olanzapine. The psychiatrist also, and understandably, doubted the reliability of MAH’s claim that he had been gaoled at the age of 15 for avoiding military service. The psychiatrist described MAH as anxious and complaining of insomnia, but alert and oriented, and neither paranoid nor manic. He noted that MAH denied any current psychotic episodes. Nevertheless, the psychiatrist expressed a conclusion that MAH suffered from chronic schizophrenia with positive symptoms (apparently the voices), negative symptoms (presumably related to his anxiety), and cognitive decline (he described MAH as a “guarded and poor historian”).
There are three psychological assessment reports of MAH in the period from July to November 2017. They concern assessments carried out by psychologists and counsellors engaged by the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”). The first assessment, in July 2017, attributed to MAH a claim that, because of his mental health issues, he had never worked when he lived in Iraq and his family had looked after him. He was also recorded as saying that (i) he had been imprisoned a number of times over his refusal to join the Iraqi army, (ii) his mental health issues had resulted in alcohol abuse, fights, arrests and imprisonment in Iraq numerous times when he was aged between 18 and 25 (ie between 1991 and 1998). His periods of imprisonment ranged from 3 months to 2 years. (I note that in all of his Australian visa applications MAH declared that he had not been convicted of any offences in Iraq.) He also claimed that he fled Iraq after his last period of imprisonment – during which a large number of his fellow inmates had been taken to a forest and shot. He claimed to have escaped by pretending to be dead. After that he had fled, first to Iran (where he had lived for a year) and then to Syria (where he had lived for two years). (I note that these various claims are conspicuously different from any MAH had previously advanced.)
The psychologist noted that MAH was fatigued by the interview process, and that he appeared to be affected by the methadone he had taken earlier in the morning. That appeared to contribute towards MAH’s lack of focus and short attention span. But the psychologist reported no evidence of delusions, paranoia or perceptual disturbance. The psychologist noted that both his own observation, and MAH’s apparent good relationships with detention centre staff, suggested that MAH had good social judgment.
The psychologist administered various tests and concluded that MAH’s test results indicated he met the diagnostic criteria for PTSD, and that he was also symptomatic for clinical anxiety and depression. The report said MAH named his current medications as Epilim (an anti-depressant), Zerbaxa (a treatment for abdominal infections) and Endone (as well as methadone). (I note that there was no reference in the report to Zyprexa / olanzapine – even though it was listed on MAH’s current medication report. I also note that Endone was not, in fact, on the current medication report.) The psychologist opined that counselling support was likely to assist MAH in dealing with his drug and alcohol problems and mental health issues, the latter of which the psychologist opined needed to be closely monitored.
In early September 2017 MAH participated in a further mental health assessment. This reported that he appeared settled, pleasant and co-operative. He was logical and coherent in his conversation, and denied any hallucinations or perceptual disturbances. The mental health nurse conducting the assessment concluded that he needed no further review, and was to continue on his current medication regime.
The 7 October 2017 STARTTS counsellor’s report covered MAH’s participation in four counselling sessions during August 2017. It noted that MAH had expressed feelings of hopelessness, particularly about his future, and that the counselling sessions had attempted to provide supportive encouragement.
The 22 November 2017 STARTTS counsellor’s report covered four further counselling sessions MAH had attended that month. In this report the counsellor noted MAH’s schizophrenia diagnosis and medication, and his assertion (in relation to the latter) that he was compliant and committed. The counsellor noted that the uncertainty of MAH’s visa status was extremely difficult for him, and was contributing to deterioration in his emotional and psychological state. The counsellor recommended ongoing counselling.
The preceding review of MAH’s mental health history and assessments points to a significant history of schizophrenia, or schizoaffective disorder. That condition, whatever its precisely correct diagnosis, appears to have been present since some time prior to 2010. At that time MAH was employed, and he continued to work for about three years after that. It seems likely that for large parts of that period his condition was unmedicated. Since about 2014 he appears to have been medicated only intermittently. Since his arrival at the Villawood Detention Centre (at least) he has been re-medicated, and there is no reason to doubt that MAH will need, for the foreseeable future continuing medication and counselling assistance.
According to the 22 November 2017 counsellor’s report, MAH’s subjective current major concerns with his mental health are focussed on the emotional and psychological anxiety related to his ongoing immigration detention. But there is clearly an underlying chronic schizophrenic condition. The reports of October 2016 and May 2017 (see paragraphs 109 & 111 above) point to the real likelihood of MAH having experienced a significant cognitive decline. That was the conclusion expressed in the May 2017 psychiatric assessment. It appears to be corroborated by the remarkable inconsistencies in MAH’s various accounts of his reasons for leaving Iraq, details of his life there, and details of his family.
The submissions made on MAH’s behalf emphasised the probability that he would require, or at least be likely to benefit from, further counselling and continuation of both his olanzapine medication and the anti-depressant medication that he has been taking – at least since his Villawood detention. The submissions also emphasise the reputedly limited mental health services and treatment generally available in Iraq. The submissions contend that MAH would be very unlikely to be able to receive either any medication, or significant counselling support, in the event of his return to Iraq. The Minister did not significantly contest that proposition. Indeed, it had been acknowledged as a likelihood in the September 2017 protection visa refusal reasons. But that likelihood was thought to be likely to equally affect “all similarly situated residents of Iraq”.
The latter finding was significant, because the relevant protection visa criteria in MigAct58 s 36 are concerned with the risks of persecution and harm for particular reasons associated with a person’s race, religion, political opinion or social group:- see paragraph 44 above. But MAH submitted that the “another reason” criterion in MigAct58 s 501CA(4)(b)(ii) permitted regard to the nature of the risks to which he would be exposed by lack of relevant treatment availability in Iraq, and the potential consequences of those risks, irrespective of whether or not they were primarily risks of much the same kind and extent as those faced by other Iraqi citizens . MAH relied on the following proposition articulated by DP Rayment in Ahmed and Minister for Immigration and Border Protection [2017] AATA 1908:
[30] If the applicant were to be returned to a country where he would be placed in a life-threatening situation, because of the unavailability of medical treatment, that would represent an “other” reason why the reviewable decision should not be affirmed. Also, such a humanitarian concern would significantly affect the expectations of the Australian community (a primary consideration) as to whether the cancellation should be revoked, and would also go to the extent of impediments faced by the applicant if he were removed (an “other” consideration).
Views may differ as to whether the humanitarian concerns to which the Deputy President referred either merit or are strengthened by reference to the notion of community expectation. Clause 13.3 appears to describe the primary consideration of “expectations of the Australian community” in a limited sense. And the considerations to which I referred earlier (in paragraph 17 above) require restraint, lest the evaluation required by the statutory discretion be perceived as having strayed into subjective opinion. But Direction no. 65 certainly permits, indeed it ought be regarded as mandating, regard to properly raised humanitarian issues where they arise as relevant considerations. Furthermore, Direction no. 65, in providing that primary considerations “should generally” be given greater weight than “other considerations”, necessarily contemplates that, in particular (though perhaps uncommon) situations, one or more “other” considerations may appropriately be accorded a determinative weighting.
The history I have set out, including MAH’s accounts of his life in Iraq, the (limited available) details of his various offences, and the emergence of his various medical conditions, all point to a conclusion that MAH is a very vulnerable person. He is unable to work, has no resident family and no apparent support network. He has a significant psychiatric condition that requires ongoing medication, and noticeable cognitive decline. He is unlikely to be able to rely on obtaining in Iraq the mental health treatment he requires. His prospects of fitting back into a supportive family and friendship network in Iraq, whilst possible, are uncertain – particularly having regard to (i) his long absence from Iraq, (ii) his uncertainty about the survival and location of his family, and (iii) the considerable disruption to which Iraq has been subject as a result of the notorious conflicts to which it has been subject. These considerations combine to provide an “other” consideration which favours revocation of the cancellation decision.
Indefinite immigration detention
I have referred earlier to the statutory obligation to remove unlawful non-citizens from Australia “as soon as practicable”:- see paragraph 11 above. The “reasonably practicable” qualification to the mandatory removal obligation in MigAct58 s 197C & 198(2B) permits continued detention at least for the purpose of facilitating consideration of either (i) a protection visa application (see Plaintiff M61/2010E; Plaintiff M69/2010 v Commonwealth of Australia (2010) 85 ALJR 133 ; 272 ALR 14 ; [2010] HCA 41) or, (ii) a public interest visa grant under MigAct58 s 195A:- see DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 at [17] & [24]. No doubt it also permits detention whilst the practicalities of removal are assessed and effected. But indefinite immigration detention, where the purposes of these kinds cannot be served, is unlikely to fall within the permissible limits to the scope of the statutory immigration detention power:- see Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219 at [26] & [34].
The prospect of prolonged or indefinite immigration detention is an “other” consideration relevant to the exercise of the revocation discretion. This is so whether or not the prospect arises because (i) of the legal consequences of the non-citizen entitlement to the benefit of Australia’s non-refoulement obligations, (ii) the practical consequences, in such a case, of the inability to find an alternative recipient country for the non-citizen or (iii) the practical consequences of the non-citizen’s physical and mental health:- Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; 240 FCR 29 at [104]-[107], [123], [124]-[133]; NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [16]-[18], [177]-[178].
I referred earlier to the limited “unfit to travel” assessment of 14 July 2017, and the Minister’s assurance that MAH would not be required to travel unless and until he was fit to so do:- see paragraphs 96 & 97 above. The grounds for the 2017 assessment were stated to be MAH’s methadone treatment, and his leg ulcers. But the assessment did not detail the reasons why either of those matters indicated unfitness. The possibilities include (i) that the travel itself would give rise to a risk of injury (a possibility perhaps related to MAH’s past history of thrombophlebitis), (ii) that no appropriate care would be available at the destination, (iii) that, if no appropriate care was available at the destination, MAH would be at risk of serious injury, if left unaided to undergo methadone detoxification or treat his leg wounds.
Given the absence of reasoning in the 14 July 2017 fit to travel assessment, MAH’s continuing methadone treatment and his still unhealed leg wounds, I have contemplated that the appropriate decision is to set aside the non-revocation decision and remit the matter to the Minister’s delegate for further consideration. But such a step would have two disadvantages. The first is that it might not result in shedding any meaningful light on when MAH would be fit to travel. In relation to his methadone treatment, I have earlier pointed to the quadrupling of his methadone dose by June 2017. There is no current evidence as to whether, when or if, that dosage rate might be reduced to a level consistent with fitness to travel. In relation to MAH’s legs, all of the evidence points to the chronicity of his wounds. It also points to MAH’s compromised motivation towards wound care whilst he remains in migration detention. He said at one stage of the hearing, that it was unimportant to look after his leg wounds if he was going to go back to Iraq. That absence of motivation, and MAH’s underlying anxiety, is evident in his irregular attendance for wound dressing at the Villawood detention centre, and in the reports of his deteriorating emotional and physical health as his detention has continued.
I consider that the totality of the circumstances relating to MAH’s health issues point to the conclusion that it is problematic as to whether or not he will, within the foreseeable future, be physically fit to travel to be removed from Australia. Conversely, I am satisfied that his mental health will inevitably decline further if he is left in immigration detention.
Synthesis and Decision

The fact of MAH’s various convictions and sentences, despite the paucity of the details available in relation to them, merit characterisation as “serious” for the purpose of Direction no. 65. But they also appear to merit characterisation as falling at the lower end of the range to which that pejorative applies. Significantly, it is almost 10 years since any of MAH’s convictions has involved offences relating to violence or apprehended violence. However, the number and time span of MAH’s offences, together with his drug addiction, apparent social isolation and inability to work, point to a significant risk of his re-offending. For those reasons, the first and third of the primary considerations tends to weigh in favour of non-revocation. So too does MAH’s limited relationship connections with Australian residents and organisations. However the significance of that consideration is marginally reduced by the length of time that MAH has been in Australia, his apparently significant periods of employment up until about 2013, and the approximately 10 year period that he has held a permanent visa.
MAH’s health issues are significant. If they were confined to his chronic opioid misuse or his current methadone treatment, I would be reluctant to regard them as outweighing the significance of the primary considerations. The same is true of MAH’s leg wounds. But complicating the evaluation is the combination of those factors, their currently uncertain prognosis and the likelihood that they continue to contribute to a contemporary unfitness to travel. Compounding that complication is MAH’s schizophrenia itself. That is clearly a chronic condition – whether or not correctly described as schizophrenia or schizoaffective disorder. It has led to cognitive decline, and requires ongoing medication and monitoring, which is unlikely to be available to MAH if he is returned to Iraq. Finally, there is the appearance that, so long as MAH remains in immigration detention, his mental health is likely to deteriorate. There is the further likelihood that any such deterioration will only compromise the possibility of improvement, sufficient to permit safe travel, of either his leg wounds or his dependency on drug replacement therapy.
The particular and difficult circumstances of this matter involve the Ministerial assurance to which I have referred, and no evidentiary basis for meaningful prediction as to when MAH’s detention might end (as a result of a properly informed decision about his fitness to be removed from Australia). On the other hand, MAH’s ongoing detention is likely to pose significant risk of further deterioration of his mental health. Those considerations, together with the acknowledged difficulties that MAH would be likely to encounter in obtaining and retaining health care in Iraq, combine to outweigh the considerations favouring revocation.
The delegate’s reviewable decision of the 12 December 2017 is set aside. In substitution the 8 December 2016 decision to cancel the applicant’s Resolution of Status visa (Class CD, subclass 851) is revoked.

I certify that the preceding 132 (one hundred and thirty -two) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member

.........................[sgd]...........................................
Associate
Dated: 7 March 2018

Date(s) of hearing: 6 & 7 February 2018

Counsel for the Applicant: C Palmer

Solicitors for the Applicant: A Burton, Salvos Legal Humanitarian

Solicitors for the Joined Party: A Markus, Australian Government Solicitor

Date(s) of hearing:	6 & 7 February 2018
Counsel for the Applicant:	C Palmer
Solicitors for the Applicant:	A Burton, Salvos Legal Humanitarian
Solicitors for the Joined Party:	A Markus, Australian Government Solicitor