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

MCCN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 930 (3 March 2020)
Division:GENERAL DIVISION
File Number: 2019/8312
Re:MCCN
APPLICANT

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

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date of decision: 3 March 2020
Written reasons: 7 April 2020
Place:Melbourne

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the respondent dated 9 December 2019 to not revoke the mandatory cancellation of the applicant’s Class XB Subclass 202 Global Special Humanitarian visa.
[sgd]........................................................................
The Hon. Matthew Groom, Senior Member
Catchwords
MIGRATION – mandatory cancellation of visa under section 501CA – whether mandatory cancellation should be revoked – Ministerial Direction 79 – primary considerations – other considerations – decision under review affirmed
Legislation
Migration Act 1985
Cases
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Minister for Home Affairs v Omar [2019] FCAFC 188
Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 79 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
7 April 2020
INTRODUCTION

This is an expedited review of a decision made by a delegate of the respondent dated 9 December 2019 to not revoke the mandatory cancellation of the applicant’s Class XB Subclass 202 Global Special Humanitarian visa (the “visa”).
The applicant’s visa was mandatorily cancelled on 16 February 2017 under section 501(3A) of the Migration Act 1958 (the “Act”) as a consequence of the applicant having a substantial criminal record in accordance with section 501(6)(a) of the Act. On 16 March 2017 the applicant made representations in accordance with the invitation of the respondent as required by section 501CA(4)(a) of the Act. The delegate of the respondent then made the decision to not revoke the mandatory cancellation of the applicant’s visa.
The applicant sought review of the decision by application to the Tribunal on 13 December 2019.
The hearing in this matter was held on 24 and 25 February 2020. The applicant was represented by Mr Guy Gilbert of counsel, instructed by Ms Olga Nahza of Bardo Lawyers. The respondent was represented by Mr David Brown, a Senior Executive Lawyer with the Australian Government Solicitor.
On 3 March 2020 the Tribunal made a decision to affirm the decision under review. Set out below are the written reasons for the Tribunal’s decision.
BACKGROUND
General Background
The following factual background information is drawn substantially from the written submissions of the parties together with the direct evidence of the applicant and is accepted by the Tribunal.
The applicant is a 29-year-old Iraqi citizen who was born in Iraq and arrived in Australia as a 12-year-old in September 2003. The applicant is a Christian. His parents, two sisters and younger brother all reside in Australia. The applicant’s parents as well as both his older sister and younger sister were born in Iraq. His younger brother who is aged 14 was born in Australia.
The family lived for some portion of the applicant’s early childhood in Baghdad but for a number of years prior to his resettlement to Australia the family had lived predominantly in Kurdistan where the applicant’s father ran a jewellery business. The applicant described the family at that time as having been “reasonably” well off.
The applicant gave evidence that, during the time the family lived in Kurdistan, some members of the family, including the applicant, spent some periods of time during the year when school was out with the applicant’s mother’s family in Baghdad. The Tribunal accepts the applicant’s evidence on this point.
The applicant told the Tribunal that he is not Kurdish nor does he speak the Kurdish language. This was inconsistent with details provided in the applicant’s earlier submissions. The applicant told the Tribunal that he speaks Assyrian, Chaldean and Arabic. While acknowledging that it was unfortunate that this inconsistency had not been picked up at an earlier stage, the lawyer for the respondent did not directly challenge the applicant’s evidence in this regard. The Tribunal accepts the applicant’s evidence on this point.
In his evidence the applicant described school in Kurdistan as difficult, as he was picked on and bullied for being Christian. He told the Tribunal that he was reasonably good at his studies in his early years, although that changed after an incident that occurred when he was nine years of age.
The applicant told the Tribunal that when he was approximately nine years of age he was abducted from his home in Kurdistan by a gang of criminals who extorted his family for ransom money. The applicant was held hostage for three days and during that time he was sexually abused by one of his captors. The applicant’s family paid the ransom money and the applicant was subsequently released.
In his evidence before the Tribunal, the applicant described the experience of being kidnapped and suffering the sexual assault as having a very big impact on him. He told the Tribunal that he found it very difficult to speak about the incident and that he had only fully acknowledged the impact it had on him during his recent one-on-one counselling. He described the incident as having “changed his life” and that upon returning to school, he struggled with his studies and had even further issues with his peers due to people telling stories about the incident. He told the Tribunal that after the incident he saw people differently, felt guilty and did not feel normal. He told the Tribunal that as a result of his counselling, he now understands that the incident was not his fault. He told the Tribunal that he found it very difficult to speak to his family about the incident and in particular the sexual assault.
The applicant’s family fled Iraq when the US Government announced its intention to enter Iraq in 2003. The family subsequently travelled to Syria and resided there for about six months before obtaining humanitarian visas to come to Australia. They arrived in Australia in September 2003. The applicant told the Tribunal that he did not attend school during this period.
On his arrival in Australia the applicant and his family moved in with his grandmother and he undertook English classes for around six months. The applicant was subsequently enrolled in school which he continued to attend until year eight. The applicant told the Tribunal that school was initially very difficult because of language and cultural barriers.
The applicant then met his first girlfriend, B, at a local train station and she helped him learn English. The applicant described this period of his life as exciting, as he spent time with his new girlfriend and met new friends. He told the Tribunal that his girlfriend drank on a regular basis, but he could not do so because his parents would not allow it. At around this time the applicant ceased going to school, left home and moved in with B. He was approximately 14 or 15 years of age when this occurred. It was during this period that the applicant commenced using drugs and also started stealing. He told the Tribunal that during this period he had only intermittent contact with his family. He would occasionally go back home for a day or two and then leave again.
The applicant told the Tribunal that it was during this period that he first commenced using marijuana and after a short period of time was using every day. He then escalated his drug use into ecstasy, speed and methamphetamine or “ice”.
The applicant told the Tribunal that his drug use, in particular his use of ice, “changed” him. He told Tribunal that he could not recognise the person in the mirror. He told the Tribunal that his escalation in drug use occurred over an eight to nine month period.
The applicant told the Tribunal that he eventually went back to his parents’ house to live and stopped using ice, although he did not see a doctor or seek any medical assistance as he thought he would be “OK”. He did not tell his parents of his drug use and was not sure about the full extent of their awareness of his issues in that respect.
On returning home the applicant enrolled in TAFE to undertake a six week pre-apprenticeship in mechanics. He then started working with a local mechanic in order to complete his qualifications, but subsequently discovered that the mechanic was not properly qualified himself and would not “sign” his papers for the qualification.
The applicant subsequently went back to assisting in his family’s cleaning business and during this time he was continuing to smoke marijuana on a regular basis. The applicant then started to increase his involvement in the cleaning business and began to secure extra work for himself as a cleaner. He told the Tribunal that he was “hard worker” and that “clients liked me as a person”. The applicant told the Tribunal that he then secured his own van and began managing people under him.
It was during this period that the applicant met another girlfriend, A, who he described as being from a “good family”. He told the Tribunal that her family were very much against drugs and were very hard-working.
The applicant told the Tribunal that he eventually set up his own cleaning business which quickly grew as he secured more clients, including a substantial contract with a well-known coffee store. The applicant was 17 or 18 years of age when he commenced the business.
The applicant told the Tribunal that he continued to live at home in this period and fluctuated in his drug use. He told the Tribunal that he would spend time with old friends a couple of times each month and do drugs including ice, and then he would subsequently return home and reduce his drug use again. He told the Tribunal that A did not like his drug use and in particular his use of ice. When asked why he did drugs, the applicant told the Tribunal: “I don’t know. You hang around with people and you do what they do.… Everyone wants to escape reality from time to time”.
The applicant told the Tribunal that eventually he broke up with A in around 2011, in his very early 20s, and that this was when things really “got out of control”. He told the Tribunal that he began using drugs extensively again, including smoking ice. The applicant tried to get back with A but she refused. The applicant told the Tribunal that during this period he “hated life” and “self-medicated” with drugs. The applicant told the Tribunal that during this period while he was working long hours in his cleaning business, he was also using drugs more, and ultimately it impacted on his business and it all “spiralled out of control”. The applicant told the Tribunal that it was during this period that he began offending more significantly.
In January 2013 the applicant was convicted of a number of serious offences including unlawful assault, two instances of burglary, possess controlled weapons, possess drug of dependence and arson. He was sentenced to 30 months imprisonment.
On 17 May 2013 the applicant was issued with a notice that his visa may be liable for cancellation by reason of his criminal conduct. In a letter dated 15 August 2013, the applicant was notified that a delegate of the respondent had decided not to cancel his visa and instead he was issued with a formal warning which stated:
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.
The applicant acknowledged receipt of the warning on 20 August 2013 and confirmed receipt of the warning in his direct evidence to the Tribunal.
Shortly after being released on parole in September 2013, the applicant was shot in the face in an incident that occurred in Caroline Springs. The applicant was hospitalised and subsequently had his bail revoked and was returned to prison. The applicant was subsequently convicted of a series of further offences including aggravated burglary, unlawful assault, armed robbery, attempted aggravated burglary, and prohibited person possess a firearm.
The applicant told the Tribunal that during his first time in prison he had not used drugs as he was too scared to be involved in drugs in prison. He told the Tribunal that on his release from prison in around September 2013, he was on parole and was initially doing the “right thing”. The applicant told the Tribunal that while he was drinking a little with friends, he was not using drugs and he had recommenced his work as a cleaner.
The applicant told the Tribunal that it was during this period that a particularly impactful incident occurred, the Caroline Springs incident. The applicant described the incident as involving a car pulling up next to him, and then him being robbed and shot in the face, shattering his jaw. The applicant described being helped by a passing doctor and being taken to hospital. The applicant told the Tribunal that at this time the Parole Taskforce decided that his parole had been breached because of the incident and he was sent back to jail. The applicant told the Tribunal that he received advice that his parole should not have been determined as breached, and that he raised this with his lawyer but ultimately did not hear anything further on the issue.
The applicant told the Tribunal that during the period he was back in prison, he was in constant pain because of his jaw injury and that he started taking medication to manage his pain, and ultimately recommenced using drugs including morphine and ice. The applicant told the Tribunal that when he left prison, he left as a drug addict and he continued to use while out of prison. He was again hanging around with the “wrong crowd”. The applicant told the Tribunal that it was during this period that he was involved in a series of further offending.
More specifically, the applicant’s criminal offending as an adult includes the following:
(a)on 22 January 2013 the applicant was convicted of: dishonestly receive stolen goods; possess a drug of dependence; unlawful assault; burglary (2 charges); deal property suspected proceeds of crime; possess controlled weapon without excuse (2 charges); go equipped to steal/cheat; possess drug of dependence – prescription drug; possess dangerous article in public place; dishonestly u/take in retention stolen goods; possess cannabis; handle/receive/retention of stolen goods; theft of a motor vehicle; dealing property suspected proceeds of crime and arson. The applicant received an aggregate sentence of 30 months imprisonment for these offences;
(b)on 1 May 2015 the applicant was convicted of: burglary; drive whilst disqualified (2 charges); knowingly deal with proceeds of crime; handle/receive/dispose of stolen goods; deal property suspected proceeds of crime; theft of a motor vehicle; commit indictable offence whilst on bail and possess controlled weapon without excuse. The applicant was sentenced to a Community Corrections Order for 24 months and unpaid community work;
(c)on 30 September 2015 the applicant was convicted of: burglary; possess cannabis; deal property suspected proceeds of crime; possess amphetamine; possess methamphetamine and possess drug of dependence. The applicant was sentenced to an aggregate of six months imprisonment and a Community Corrections Order for two years;
(d)on 3 March 2016 the applicant was convicted of: theft of a motor vehicle; theft from a shop (shop steal) and commit indictable offence whilst on bail. The applicant was sentenced to three months imprisonment to be served concurrently and suspended from driving for six months;
(e)on 12 December 2016 the applicant was convicted of aggravated burglary; theft and unlawful assault. The applicant was sentenced to an aggregate term of 28 months imprisonment;
(f)on 20 December 2017 the applicant was convicted of burglary and theft and sentenced to an aggregate of four months imprisonment to be served concurrently;
(g)on 16 January 2018 the applicant was convicted of drive whilst disqualified and sentenced to two months imprisonment to be served concurrently;
(h)on 17 May 2018 the applicant was convicted of: armed robbery; attempted aggravated burglary; prohibited person possess a firearm and commit indictable offence whilst on bail. The applicant was sentenced to an aggregate term of 42 months imprisonment with a non-parole period of 27 months; and
(i)on 20 June 2018 the applicant was convicted of burglary and sentenced to four months imprisonment to be served concurrently, and convicted of theft and sentenced to seven days imprisonment to be served concurrently.
In addition, the applicant has been found guilty of multiple contraventions of community corrections orders.
ISSUE
The Tribunal accepts that the applicant does not pass the character test under section 501(6)(a) of the Act as a result of having a substantial criminal record.
Therefore, the issue before the Tribunal is whether there is “another reason” to revoke the mandatory cancellation decision, having regard to all relevant considerations, including those set out in Part C of Direction No. 79 which was issued under section 499 of the Act on 20 December 2018 (“the Direction”).
CONTENTIONS AND CONSIDERATION
In considering this matter the Tribunal has had regard to the General Guidance set out in the Direction at paragraph 6.2 (1) which provides that:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
Paragraph 6.3 of the Direction specifies a number of principles which provide a framework within which decision-makers should approach their specific task:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

In deciding whether to revoke the mandatory cancellation of the applicant’s visa, paragraph 13(2) of the Direction provides that the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
The Direction provides that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations. However, it is now well-established that the Tribunal, in exercising its discretion, can give equal or greater weight to any consideration.[1]
Primary Considerations
[1] Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303.
The protection of the Australian community from criminal or other serious conduct
Paragraph 13.1(1) of the Direction states:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non‑citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) of the Direction states that decision-makers should consider:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In considering the risk to the Australian community, the Direction provides that the Tribunal must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Based on the materials before the Tribunal and having had due regard to all of the direct evidence at the hearing, the Tribunal is satisfied that the nature of the applicant’s offending is particularly serious.
Of particular concern to the Tribunal is the fact that the offending includes assault, violence with a weapon and violence that objectively can be viewed as escalating in its seriousness over time, as well as very serious property and drug offences.
In his evidence to the Tribunal, the applicant did not dispute the details of his National Criminal History Check although he did take issue with some specific details regarding the circumstances of his offending. The Tribunal will deal with this evidence in more detail further below.
During the course of the applicant’s evidence the applicant told the Tribunal that he had also been charged with a drug possession offence while in prison and had received a concurrent sentence for that offence. Details of that offending did not appear on the National Criminal History Check. The applicant told the Tribunal that while in prison he had been found in possession of drugs and had been charged and sentenced for the offending.
The Tribunal accepts that the National Criminal History Check represents an accurate record of the applicant’s offending although acknowledging that it does not include the applicant’s more recent offending while in prison. The Tribunal accepts the applicant’s evidence with respect to the more recent offending.
The serious nature of the applicant’s offending is reinforced by the significant sentences the applicant has received for his offences.
Of particular concern to the Tribunal is the fact that the applicant’s offending involves examples of violence and threatening behaviour including in a setting which has some exposure to the general public. These characteristics of the applicant’s offending are reflected in the sentencing remarks made by His Honour Judge Taft in respect of the April 2016 offences for which the applicant was sentenced in May 2018.
The April 2016 offences included armed robbery, attempted aggravated burglary, being a prohibited person in possession of a firearm and committing an indictable offence while on bail. They also arose out of an incident whereby the applicant together with two co-offenders attended a “marijuana house” with the intention of taking possession of marijuana located at the house.
In sentencing the applicant for the April 2016 offences, His Honour Judge Taft described the incident as follows:
At around 3:43 PM, you arrived at the premises with [co-accused A], closely followed by [co-accused B], who came in a separate vehicle.
[Co-accused B] walked up the driveway holding a shortened Marlin brand lever action firearm and you and [co-accused A] followed him.
[Co-accused B] approached the front door and attempted to open it. You joined him and produced a sawn-off double barrel shot gun and also attempted to open the front door. Your possession of a firearm whilst a prohibited person founds Charge 3 of the indictment.
[Co-accused B] stepped back and tapped the end of his firearm on the windowsill while you continue to bang on the front door demanding that the door be opened.
[Victim A]- called out that he had telephoned police. He replied, “if you call the cops, we’re coming back.” Your attempt to enter the premises founds Charge 2, being an attempted aggravated burglary.
At 3:45 PM, [co-accused A] directed [co-accused B] and you to walk to the side of the premises.
At 3:47 PM, [victim B] returned to the house after having borrowed a car to drive another person to a nearby railway station. [Co-accused B] and [co-accused A] ran to the vehicle and [co-accused B] then opened the front passenger door whilst holding his firearm and said, “Whose car is this?” [co-accused A] told [victim B], “Get out of the fucking car.”
[Victim B] got out of the car and [co-accused A] directed him towards the driveway. You returned from the side of the premises, having concealed your firearm, and put your arm around [victim B] and gestured to him to walk with you.
Together with [co-accused B], you escorted [victim B] to the driveway. While you and [co-accused B] stood on either side of [victim B], you said, “Empty your pockets,” while [co-accused B] stood close by holding his firearm. [Victim B] removed a Myki card, 10 cents and some papers from his pockets and placed them on the ground. You said, “Give me fucking everything” to which [victim B] replied that that was all he had in his pockets. You momentarily produced your firearm and pointed it at [victim B] before concealing it again.
In his sentencing remarks His Honour drew a comparison between the conduct of the applicant and that of the applicant’s co-offender. His Honour stated:
In the course of my sentencing remarks [in respect of your co-offender], I said,
“The conduct in which you engaged was most serious. Together with your co-accused and in combination, you descended on a suburban house in the mid-afternoon, brandishing weapons in a menacing manner. Although your offending lacked sophistication, it reflected a level of organisation and planning, you had a common purpose, your conduct was brazen and you were not deterred by the possibility that police would attend. While you were engaging in acts of intimidation, the CCTV footage shows a small child playing in the driveway of a nearby suburban house and a further image of a uniformed student walking past a house which you had laid under siege. You are in possession of a… firearm… The community, quite understandably, is very concerned by the current spate of firearm offences. Your conduct heightens those concerns.”
Those observations are equally applicable to your conduct.
On balance, I consider there is little to distinguish your role from that of [your co-offender].
Counsel for the applicant contended, and the Tribunal accepts, that in giving his evidence the applicant did not seek to shy away from the seriousness of his offending. Not only did the applicant not seek to challenge the essential elements of his criminal offending as set out in his National Criminal History Check, he also conceded further offending that occurred in the prison setting that was not included in the National Criminal History Check, namely his drug offending while in prison referred to above.
The applicant did, however, seek to give some context to his offending and challenge some details of his offending as described in the sentencing remarks and as put to him by the lawyer for the respondent in the course of cross-examination.
The Tribunal is mindful of the fact that it would be inappropriate for it to look behind the convictions or the essential evidence on which the convictions were based, however, it accepts that it is open to the applicant to provide evidence in relation to the context of the offending.[2]
[2] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
In relation to the April 2016 incident, the applicant told the Tribunal that his pointing of the shotgun had resulted from a “fight” that had broken out when another car arrived at the house. He told the Tribunal that he had only pointed the gun at the victim once and that he had not planned to take the shotgun to the house, but rather found one in the car and decided to take it with him “to scare people”. The applicant told the Tribunal that he became aware of innocent people on the other side of the road and “snapped out of it”, and realised that he should not be doing what he was doing and said to his co-accused “let’s go”. He told the Tribunal that he recognises on reflection that what he did was “a terrible thing” to do and that he is remorseful for his actions. The applicant was at pains to point out to the Tribunal that he considers himself to be no longer under the influence of drugs and that he has now had the opportunity to properly reflect on his offending more broadly. He now better understands the impact it has had on his victims and also on his family and he is very regretful for it.
Having heard his direct evidence the Tribunal accepts the applicant’s stated remorse as being very genuine and also accepts that his remorse is strongly suggestive of significant insight into the nature of his offending.
The Tribunal also accepts that the applicant was drug affected during much of his offending. The applicant told the Tribunal that he had been a user of drugs from around 15 years of age when he first commenced his relationship with B.
The Tribunal accepts the applicant’s evidence that he has been a serious drug user for a substantial portion of his adult life and that it has contributed significantly to his offending. The Tribunal also accepts that while under the influence of drugs, the applicant has a tendency to behave in a more aggressive manner and also has a tendency to engage in less rational decision-making.
Counsel for the applicant submitted that the applicant’s broader life circumstances were also relevant in understanding the true nature of the applicant’s offending. Counsel for the applicant submitted that the applicant had real difficulty in coping at certain points in his life because of these broader circumstances, in particular noting that:
(a)the applicant suffered significant psychological trauma from his kidnapping and sexual assault as a nine year old, and consequential ongoing mental health issues including PTSD, anxiety and depression, and that this in turn has contributed to his use of drugs as a way of self-medicating;
(b)the applicant had an extremely difficult experience as a young child, arriving in Australia where he was forced to overcome significant language and cultural barriers while attending school and attempting to integrate into the broader social life of his community, and that this in turn had led him to fall in with the “wrong crowd”; and
(c)the applicant had been the victim of another serious criminal incident when he was shot in the face following his release from prison in 2013, and that the physical pain he had suffered from his injury had directly led to his take-up of drugs on his return to prison following the incident and then also afterwards on his release from prison.
Counsel for the applicant also submitted that the applicant had been particularly frank in his evidence before the Tribunal including by revealing a number of adverse matters and that his frankness should be viewed very much to his credit. Counsel for the applicant described the applicant’s evidence as displaying significant candour and that the applicant had not shied away from his wrongdoing. Counsel for the applicant submitted that while the applicant had not agreed with every specific aspect of his offending as put to him by the lawyer for the respondent in cross-examination, the applicant had acknowledged all of the essential elements of his offending and his explanations were consistent with the material before the sentencing Judges. The Tribunal accepts the submissions made by the counsel for the applicant in this respect.
The Tribunal also accepts that each of the broader life circumstances as described by counsel for the applicant have undoubtedly contributed to the applicant’s ongoing mental health issues and difficulty with coping, and in those circumstances his use of drugs had been a form of “self-medication” that in turn contributed very significantly to the applicant’s offending. The Tribunal accepts the applicant’s evidence that he recommenced drug use while in prison following the Caroline Springs incident and that he subsequently left prison as a drug addict and that this contributed significantly to his further offending in 2015.
While the Tribunal accepts that the applicant’s broader circumstances provide important context in fully understanding the nature of the applicant’s offending, the Tribunal does not accept that they in any way mitigate the very serious nature of the applicant’s offending. As described above, the applicant’s offending involves violence, the use of a firearm in a threatening manner, as well as very serious property and drug related offending. Some of the applicant’s offending has occurred in a relatively public setting which potentially could have exposed innocent members of the public to serious harm.
The Tribunal accepts that the applicant’s offending does not involve offences of a sexual nature or offences against vulnerable members of the community or government officials. The Tribunal is however satisfied that the nature of the applicant’s offending has increased in seriousness over time as reflected in the particularly significant sentence that the applicant received in May 2018. In addition, the applicant has been given a number of opportunities by the courts over the years and despite this has continued to reoffend. The Tribunal notes in particular that the applicant has acknowledged his receipt of a warning from the Department in 2013 advising him of the potential for any further offending to put his visa status at risk. Again, despite the warning the applicant reoffended. For all of these reasons the Tribunal is satisfied that the nature of the applicant’s offending is particularly serious.
There is no question in the mind of the Tribunal that should offending of this nature be repeated it has the potential to cause very significant physical and psychological harm to members of the Australian community, including potentially completely innocent members of the community.
The Tribunal now turns to the question of risk of the applicant reoffending.
While acknowledging that, on the basis of the applicant’s criminal record, it would not be surprising for someone to have a concern about the risk of the applicant reoffending, counsel for the applicant submitted that the risk was not unacceptable due to the applicant’s significantly changed circumstances. Counsel for the applicant noted in particular that the applicant:
(a)is now completely drug-free;
(b)has disassociated himself with previous friendship groups;
(c)has had the opportunity while in prison to reflect on his offending and has now demonstrated a significant insight into his offending, a recognition of the harm his offending has caused to victims, his family and the broader community, as well as expressing very genuine remorse for his offending;
(d)has had the opportunity while in prison to undertake a number of courses that have helped contribute to his rehabilitation;
(e)is now more mature and better placed to manage his behaviour;
(f)has had the benefit of one-on-one counselling and is committed to ongoing counselling and psychotherapy;
(g)has renewed his commitment to faith which represents additional support in the management of his behaviour;
(h)has the support of a strong and loving family;
(i)has a lot to lose if he were to reoffend and now recognises that this is the “end of the line”;
(j)has positive plans for the future.
Counsel for the applicant conceded that some level of risk remains in relation to the applicant reoffending, however, he submitted that the risk is mitigated by the considerations listed above to such an extent that it should be considered acceptable to the community. Counsel for the applicant noted that the consultant psychologist, Mr Tim Watson-Munro, had previously assessed the risk of the applicant reoffending as being high but subsequent to the applicant’s one-on-one counselling, the psychologist now assessed the risk as “trending towards moderate”.
Counsel for the applicant also submitted that the fact that the applicant was deemed fit for a parole period in his most recent sentence should give the Tribunal some comfort as to the manageable level of risk of reoffending. Counsel for the applicant noted that the inclusion of a parole period in the applicant’s sentence strongly suggests that the risk level can be managed and that parole should provide some comfort in relation to risk to the community because of the conditions imposed on the applicant as part of parole. Counsel for the applicant noted that if it were not for the intervention of the migration system the applicant would become eligible for parole later this year, and that if the migration system operates to deny him that opportunity then he would in effect have been denied an opportunity to demonstrate his capacity to not reoffend that was contemplated in the sentence imposed on him. Counsel for the applicant submitted that the prospect of the applicant securing parole is very real and that should he be released on parole, the applicant has demonstrated a commitment to meeting the conditions of parole as well as securing the support of ongoing counselling and that this would mitigate the risk and make it acceptable to the community.
Counsel for the applicant further submitted that as a consequence of the applicant’s changed circumstances the risk of the applicant reoffending is mitigated to the extent that justifies granting the applicant “one more chance”. Counsel for the applicant also submitted that the demonstrated frankness of the applicant in the evidence he gave should give confidence to the Tribunal that the applicant is being sincere when he says that he has changed, properly understands the nature of his offending, the triggers that gave rise to his offending and is determined to do what is necessary to ensure that he does not reoffend again if released back into the community.

The lawyer for the respondent submitted that while it may be fair to recognise that the applicant has made some progress towards rehabilitation, given that consultant psychologist Mr Watson-Munro has concluded that the applicant’s risk of reoffending is “trending towards moderate”, the Tribunal should find that there is at least a moderate risk of the applicant reoffending. Further, given the very serious harm that could be caused by the applicant reoffending, the protection of the Australian community consideration should weigh heavily against revocation.
The applicant’s evidence to the Tribunal was that there is no or very low risk of him reoffending because of his changed circumstances, the fact that he now has a better understanding of what led to his offending and the harm that it has caused victims and his family, and his strong determination to not reoffend given what is at stake.
The applicant told the Tribunal that he was no longer using drugs and was determined to remain so. He told the Tribunal that he stopped using drugs in around July or August of last year and has not used any drugs since. He told the Tribunal that he has taken the opportunity during his time in custody to properly reflect on his crimes and the impact they have had on his victims and his family. He told the Tribunal that he has reflected on all of the family experiences he is missing out on, including his sister’s engagement and marriage.
The applicant told the Tribunal that he had undertaken one-on-one counselling with a psychologist for the first time in around November last year and that this has had a very big impact on him. He told the Tribunal that through counselling he has been able to better understand the impact that his earlier life circumstances, including his kidnapping and sexual assault, have had on him personally and his mental health, and that he now has a better understanding of the triggers that have given rise to his drug use and his criminal offending. He told the Tribunal that he is committed to maintaining counselling support if released back into the community. The applicant told the Tribunal that one-on-one counselling had been very significant in his rehabilitation, given that he had previously found it very difficult to talk about his earlier life experiences with family and friends. He described the commencement of counselling and the impact that it has had on him as being a significant changed circumstance when compared to his earlier release from prison.
The applicant also told the Tribunal that various programs he had undertaken while in prison had also helped both in understanding the nature of his offending and in preparing him for the future.
The applicant told the Tribunal that while in prison and with the benefit of one-on-one counselling he has been able to reflect on his offending. The applicant told the Tribunal that he is genuinely remorseful for his offending and that he feels ashamed for the impact his offending has had on his family and for having previously fallen back into drugs. The applicant told the Tribunal that he is determined not to reoffend again given the significant impact that reoffending could have on him and his family. He told the Tribunal that when he reflected on the impact his offending had had on victims he felt low and felt genuinely sorry for the victims. He told the Tribunal “I’ve woken up” and “I’m too old” to be living this kind of life. The applicant told the Tribunal of the story of having seen an old man in prison and it causing him to reflect on his strong determination not to end up like him. The applicant acknowledged that he previously had opportunities when released from prison and he had reoffended, but noted that he was drug affected at the time.
The applicant told the Tribunal that he had been wanting a better life for himself for some time but he did not know how or what to do, but having had the benefit of counselling for the first time he has been taking steps to improve himself. He told the Tribunal “a light has come on”. He told the Tribunal that it was only when he started one-on-one counselling that he was “moved” to take positive steps to get control of his life. He told the Tribunal that through the counselling he has been given simple tools to help manage his behaviour and that he has had the opportunity to speak about his childhood and better understand what happened to him and learn to deal with it appropriately. When asked to identify some of the tools he has learnt the applicant told the Tribunal just recognising that it is normal to be sad or angry, learning to speak about what happened with his mother, the importance of remaining completely off drugs, expressing yourself and how you feel. The applicant told the Tribunal that these tools might seem simple but they were something new to him.
The applicant told the Tribunal that during his time in prison he had undertaken a number of programs and they included a drug and alcohol program he had recently undergone with Caranich Pty Ltd at Marngoneet Correctional Centre. Included in the Tribunal materials was a letter from a Tenille Dilorenzo, a forensic psychologist with Caranich Pty Ltd, confirming the applicant’s participation in the program, stating that the program was focused on issues associated with substance abuse and offending behaviour, and also noting that the applicant is currently attending weekly individual counselling sessions that will continue on “an ongoing basis until treatment goals are reached”.
The applicant told the Tribunal that “I am slowly coming back” and that “I am a work in progress”. The applicant told the Tribunal that he has cut off all of his old friends in order to ensure that he does not return to drugs. He told the Tribunal “it doesn’t mean I have recovered… I haven’t been clean for a year yet… I’m very proud of myself… I didn’t think I could control it but I did and that’s a huge thing for me”. The applicant also told the Tribunal of his renewed commitment to his faith and the important role that has played in his recovery. He told the Tribunal that he now regularly reads the Bible and prays, and that his faith helps keep him focused and keeps his mind off things.
The applicant told the Tribunal that he understands that this is his last chance. He told the Tribunal that he does not want to go to Iraq. He told the Tribunal that he is over his previous life: “I’m sick and tired of courts, police and jail”. The applicant told the Tribunal that he understands that if he is released back into the community and reoffends then he will almost certainly be sent back to Iraq and that he is determined to avoid that outcome. The applicant told the Tribunal that he understands the significant impact this would have not just for him personally but also for his family, and that he loves his family and is determined to do whatever is necessary for him to remain here in Australia with them.
The applicant told the Tribunal that he has positive plans for the future, including wanting to become an electrician and be able to provide for his family financially. The applicant told the Tribunal that he considers himself to be a hard worker who has previously been successful in business and is determined to work hard to secure his financial future for himself and his family. The applicant told the Tribunal that he wants to get out on parole and that he is aware that it would involve conditions and he is determined to meet all of those conditions. He told the Tribunal that he will “take advantage of it” including by taking advantage of the opportunity for ongoing counselling. The applicant told the Tribunal that if released back into the community he will initially do some cleaning work and will then try to get work through his sister and brother in law. He told the Tribunal that he wants to get married and have children.
The applicant told Tribunal “I consider Australia my home”. He told the Tribunal that he had taken Australia for granted and that he had had a lot of chances, however he was seeking another chance because he is now a changed person. He told the Tribunal that while statistically speaking someone like him is likely to reoffend he is determined not to. He told the Tribunal that he is a changed man and “I am now more mature… My life was hard and I did not know how to deal with it but now I do…. I want to prove that I can succeed…. I have the strong support of my loving family”.
The applicant told the Tribunal that being free from drugs has also been a significant change in his circumstances. The applicant told the Tribunal that when he was previously released from prison, he was a drug addict. He told the Tribunal that if released back into the community this time he would be doing so drug-free. He told the Tribunal that being drug-free allows him to think more clearly and better manage his behaviour. He told the Tribunal that he considers himself to be a “loving and caring person” when in a straight state of mind, and that he does not consider himself to be violent by nature when free from drugs.
The applicant told the Tribunal that he accepted responsibility for his offending but that he genuinely believes he is a changed person and is seeking another chance to prove himself in the community. The applicant acknowledged that he had previously been given a warning from the Department in relation to future offending. When asked why he ignored the warning, the applicant told the Tribunal that he was initially doing the right thing. While he was drinking a little with friends from time to time he was not on drugs was also doing some work in the cleaning business. He told the Tribunal that that was when the Caroline Springs incident occurred and that because of the significant pain he was in, he recommenced using medication which subsequently led to his take-up of drugs while in prison. He told the Tribunal that those circumstances would no longer exist if he were to be released back into the community again.
In his evidence before the Tribunal, consultant psychologist, Mr Watson-Munro, affirmed the contents of his written report in relation to the applicant dated 10 February 2020. He confirmed that he interviewed the applicant at the Marngoneet Correctional Centre in February of this year. Mr Watson-Munro confirmed in his written report and in his direct evidence to the Tribunal that notwithstanding the applicant’s extensive criminal history, the applicant expressed “appropriate remorse for his past ways and attendant to this, a strong desire to not reoffend if given the opportunity to remain in Australia.” Mr Watson-Munro noted that the applicant had not had the benefit of one-on-one psychotherapy to address his underlying issues until very recently.
Mr Watson-Munro noted that the applicant is now undertaking counselling and psychotherapy which commenced in around November of last year, and that the applicant has identified this as being of “considerable benefit to him, in terms of exploring the dynamics behind his drug use and offending and in association with this, in developing skills to recognise triggers to drug use and methods to deal with those pressures without resorting to taking drugs.” He noted that the applicant “acknowledges however that he requires ongoing treatment both in prison and should be given the opportunity, when he is released into the community.”
Mr Watson-Munro expressed the view that the applicant requires ongoing treatment involving counselling and psychotherapy, including cognitive behaviour therapy, focused on the further development of relapse prevention strategies. He stated in his report “given the nature of [the applicant’s] criminal history and protracted drug use, treatment will need to continue for a minimum of two years”. Mr Watson-Munro noted that the applicant appeared to be well aware of the consequences which would result if he were to reoffend, and that this was important to his motivation. He noted that the applicant displayed insight into his offending and empathy for the impact his offending has had on victims as well as his family. Mr Watson-Munro stated that in his view if the applicant “continues with treatment, remains drug free and returns to work, which in itself will provide structure for him, I believe his prognosis will remain on a positive trajectory”.
In terms of risk of reoffending, Mr Watson Munro expressed the view that:
Certainly, up until the time that he commenced therapy at Marngoneet Correctional Centre in an absence of addressing the dynamics and issues which have caused his behaviour, the likelihood of recidivism at that time was high. However, [the applicant] has now taken positive steps to address his offending behaviour, although it is clear that there is still considerable work to be done in this respect. He is now drug free, insightful and has some understanding of the triggers in his life, which lead to relapse. Arising from these insights and progress, he is now trending towards a moderate risk, although for this to be sustained, he will need to remain in treatment on a regular basis for a period of at least two years, in addition to remaining free of illicit substances.”
In providing his opinion in relation to the risk of the applicant reoffending, Mr Watson-Munro conceded that the risk of the applicant reoffending was very much linked to his capacity to remain free from substance abuse. He told the Tribunal that a person in the position of the applicant who relapsed back into substance abuse had a significantly higher risk of reoffending again. He conceded that the applicant’s extensive criminal history is troubling in the general sense and also acknowledged that the applicant has only had appropriate counselling and psychotherapy for a relatively short period of time. In his direct evidence Mr Watson-Munro reiterated that while prior to the commencement of counselling and psychotherapy he considered the applicant to be at high risk of reoffending, as a consequence of him having undertaken the counselling and psychotherapy, in his view the applicant is trending towards a “moderate risk”. He told the Tribunal that ongoing treatment together with strong family support will be important in the mitigation of the risk of the applicant reoffending. Mr Watson-Munro acknowledged that the applicant’s relatively young age was helpful in his endeavour to remain free from drugs noting that 30 to 40 is typically the key decade for a person extracting themselves from substance abuse.
Mr Watson-Munro also noted the importance in his view of the applicant having the benefit of release under parole conditions. He noted that parole can assist a person in the position of the applicant in their transition back into the community as it provides structure and conditions which need to be met. He noted that in his view in the absence of parole a person in the position of the applicant would need to have a “high motivation” in order to remain free from drugs and not reoffend. When asked whether the absence of parole could put his current treatment arrangements in prison at risk, including potentially his access to counselling and psychotherapy, Mr Watson-Munro conceded that it could as he understood the applicant would be required to be in maximum security if denied parole.
A number of the applicant’s family members also gave evidence to the Tribunal on the issue of the risk of the applicant reoffending.
The applicant’s father, MJ, told the Tribunal that more recently his son had changed, including by staying off drugs, disassociating himself from his old friendship group, renewing his commitment to his faith and acknowledging that there would be no more chances. He told the Tribunal that the applicant had promised him that he would not resume drug use and not reoffend. He told the Tribunal that his son wanted to get married and secure work to provide financial support to his family. MJ told the Tribunal that he was willing to do all he can to support his son in renewing his commitment to his faith and in rebuilding his life. MJ told the Tribunal that he has good relations in the community and could therefore help provide support for his son in that way also.
The applicant’s mother, SA, gave evidence to the Tribunal that she would do everything that she could to assist her son and provide him with everything he needs, either financially or in any other way, including ensuring that he gets to have regular sessions with a psychologist. SA gave evidence that she had observed a “change” in her son including that he had disconnected from his old friends and become closer to his family, expressed guilt for his offending, had renewed his commitment to his religion and had generally become more mature. SA gave evidence that she believes that her son has reflected on his offending and now acknowledges that it was wrong. SA confirmed that this change in her son’s attitude was relatively recent and estimated that it has occurred in her observation over the course last year and a half or so.
In her witness statement dated 11 February 2020, SA states:
I also know that [the applicant] will not go back to hanging around with the wrong crowd. [The applicant] has no contact with his former friends. He is not friends with the people who had a bad influence on him. When [the applicant] first went to prison in 2016, he asked my other children to contact his friends. However, he has stopped doing this. [The applicant] has told me that he has learnt the hard way. He previously thought that his friends would always be there for him, however they were not. [The applicant] said that his friends do not call or visit him. He has told me that he now knows that his family members are the only people that will be there to support him. He regrets not realising this earlier.
SA gave evidence to the Tribunal that her son had expressed a desire to get married and have kids and expressed regret for having missed out on family life. In particular she described the applicant as having become very close to his little brother and that he wants to be able to spend time with him here in Australia and also to be present when his sister has her child. SA gave evidence to the Tribunal that the applicant now regularly asks how various members of the family are doing, in particular he expresses concern for his younger brother M. The applicant also asks about his cousins, aunts and uncles. SA notes that when the applicant first went to prison he did not do this, he only asked about his friends.
SA also gave evidence to the Tribunal that with the help of her eldest daughter she has plans to open a restaurant or café and would like her son to help run the business as “he has very good business skills”.
SA acknowledged that her son’s kidnapping had had a big impact on him and she described him as having had a “hard life”. SA told the Tribunal that her son does not want to go to Iraq, that he does not have a life in Iraq and that he was determined to do what was necessary to stay in Australia which he loves and considers to be his home. SA told the Tribunal that her son has learnt from his mistakes and that she believes he will not offend again.
The applicant’s sisters, MA and DA, also expressed their strong support for the applicant and willingness to assist him in any transition back into the community. MA told the Tribunal that she would provide any necessary emotional support that her brother might require on release including if necessary, facilitating his transport to counselling. MA told the Tribunal that the applicant has “grown up so much… He is different now and has matured a lot”. MA described the applicant as now being far more focused on his family and his plans for the future. DA told the Tribunal that she is committed to supporting the applicant by helping to provide him with a place to live, helping to facilitate work opportunities and by providing financial support. Again, DA described the applicant as having completely changed, noting that he recently become more religious and is more focused on the family and his future plans for work, getting married and having children. DA told the Tribunal that she believes he has learned his lesson and will never go back to using drugs and reoffending. DA told the Tribunal that she is currently pregnant with her first child that there is nothing more that she wants than for the applicant to meet her child and for her child to be loved and cared for by the applicant. DA gave evidence to the Tribunal that the applicant has always been a “caring and generous person”. DA gave evidence that she is “very confident that with continued counselling, [the applicant] will not commit any more crimes and will positively contribute to the Australian community”.

MA’s fiancé, AH, told the Tribunal that he believed he and his fiancé could assist the applicant in securing future work opportunities. Again, AH described the applicant as having changed significantly in recent times including that he was more mature and had ceased speaking to friends, and that it is clear to him that the applicant now wants to live a normal life.
The applicant’s younger brother M who is approximately 14 years of age also gave evidence to the Tribunal. M described having a very close relationship with the applicant and told the Tribunal that the applicant has changed since his most recent time in prison. He told the Tribunal that he visits him once or twice a month and that he has noticed more recently that the applicant now talks more about family, has expressed a desire to start his own family and talks more about getting a job. M described the applicant as more recently being “nicer” and “more caring”. M described having noticed a change in the applicant around the middle of last year.
Having considered all of the materials before it as well as the direct evidence of the applicant and other witnesses, the Tribunal accepts that the applicant is currently not using drugs, and that he has taken the opportunity in prison to properly reflect on his offending and the triggers that gave rise to his previous drug use and offending. The Tribunal accepts the contention put by counsel for the applicant that the applicant’s drug use and subsequent offending was very much connected to the significant impact of the applicant’s broader life circumstances including his kidnapping and sexual assault and the challenges he faced on his transition into the Australian community.
The Tribunal is satisfied that the more recent one-on-one counselling the applicant has undertaken has assisted the applicant in addressing the impact of his earlier life experiences. The Tribunal found the applicant’s evidence in relation to these earlier life challenges to be frank and compelling. It is very clear to the Tribunal that the one-on-one counselling has genuinely had a significant impact on him and in that sense his circumstances today are very different from what it was when he was previously released from prison. The Tribunal is satisfied that the applicant has also been assisted from the other programs he has undertaken while in prison. The Tribunal is satisfied that the applicant has a very genuine commitment to ongoing counselling and psychiatric therapy.
The Tribunal is satisfied that as a result of his opportunity to reflect in prison and through the assistance of the counselling and psychological therapy that the applicant has had the benefit of more recently, the applicant has developed a genuine insight into the nature of his offending, the impact the offending has had on his victims and his broader family and himself, and the triggers that have given rise to that offending, including in particular his previous substance abuse and his tendency to use drugs as a form of self-medication. The Tribunal is satisfied that the applicant has a genuine commitment to maintaining counselling and psychiatric therapy and that this commitment is very much supported by all the members of the applicant’s family. The Tribunal also accepts that if the applicant were to be released into the community subject to parole conditions, that his capacity to undertake that counselling would be well supported. The Tribunal also accepts that if a decision is made to affirm the cancellation of the applicant’s visa then the applicant will not have the benefit of parole and that his capacity to obtain ongoing counselling and psychiatric therapy may be adversely impacted.
The Tribunal is satisfied that the applicant has demonstrated that he has matured to a degree during his recent time in prison and it is also clear that he has the very strong support of a very loving family. The Tribunal is also satisfied that the applicant’s renewed commitment to his faith is also a significant positive influence in his life and an important part of his rehabilitation.
The Tribunal accepts that the applicant has, as consequence of these factors, significantly changed circumstances from those that existed when he was previously released from prison.
The Tribunal is satisfied that the applicant has a very genuine regret and remorse for his previous offending and other behaviours which have had such a significant impact on victims, his family and himself and that have caused him great shame and guilt.
It is clear to the Tribunal that the applicant now has a much better understanding of the challenge before him in ensuring that he remains free of drugs on release from prison, and the importance of that in not reoffending, than he previously understood on his early release from prison.
The Tribunal is satisfied that the applicant has very strong incentives to not reoffend, including understanding that if he were to be released into the community and reoffend, he would almost certainly be returned to Iraq with the consequential impact for himself and his family. The Tribunal is satisfied that the applicant has developed a renewed focus on family and a strong desire to engage in a “normal life” in the future, one which is very much focused around family as well as working to provide financially for his family. The Tribunal acknowledges the very strong connections the applicant has with his immediate family members in particular. The Tribunal is satisfied that the applicant has well-developed plans for the future including a strong ambition to undertake work as an electrical apprentice as well as potentially assisting his family in their business activities. The Tribunal acknowledges that the applicant has demonstrated history of business nous and a strong work ethic.
The Tribunal is satisfied that the applicant has taken proactive steps to increase his prospect of success in staying off drugs and avoiding reoffending, including by disassociating himself from previous friendship groups. The applicant has stated a strong commitment and determination to avoid such groups and this commitment and determination was reinforced through the evidence of family members.
The Tribunal acknowledges the applicant’s genuine commitment and determination not to relapse back into drug use and reoffend, and the strong expressions of confidence of him being able to do so by the applicant himself and all of his family members. Notwithstanding this genuine commitment and strong expressions of confidence, the Tribunal accepts the evidence of consultant psychologist Mr Watson-Munro and his conclusion in relation to risk where he states that the applicant, having previously been assessed as high risk, is now assessed as “trending towards moderate” in risk of relapse back into drugs and reoffending. On the basis of Mr Watson-Munro’s assessment, the Tribunal is satisfied that the risk of the applicant relapsing back into drug use and reoffending cannot be described as minimal or trivial. In fact the Tribunal is not satisfied that it can be fairly described as even being moderate.
The Tribunal forms this view accepting that the applicant’s relapse back into drugs after his first stint in prison in 2013 was significantly a consequence of his use of medication to manage the pain he was experiencing from the shooting injury that he suffered. The Tribunal recognises that those circumstances were very particular and that they are circumstances that are no longer present.
While recognising the very genuine progress that the applicant has made since undertaking one-on-one counselling and his very genuine commitment to rehabilitation, the Tribunal recognises that the applicant has previously demonstrated a significant tendency towards substance abuse for much of his adult life, and that the progress the applicant has made in addressing the triggers that have contributed to his substance abuse tendency is very recent, and that his rehabilitation can fairly be described as being in its early stages. Therefore, in the view of the Tribunal, the risk of the applicant relapsing back into drug use and reoffending if released back into the community is very real. Given this conclusion and given the Tribunal’s earlier conclusion that the risk to the community if the applicant were to relapse back into drug use and reoffend again in a similar manner would be very significant, the Tribunal is satisfied that the risk to the Australian community is unacceptable.
For these reasons the protection of the Australian community consideration weighs very heavily against a decision to revoke the mandatory cancellation of the applicant’s visa.
The best interests of minor children in Australia
There was evidence before the Tribunal of the impact a decision of the Tribunal may have on the applicant’s younger brother, M, who is 14 years of age.
The applicant gave evidence to the Tribunal that he has a close relationship with his younger brother and that part of his strong motivation to remain in Australia is to have the opportunity to spend time with his younger brother and support him growing up.
M himself gave evidence to the Tribunal in the form of witness statements and direct evidence at the hearing. M told Tribunal that he is close to his brother and scared that if the applicant is forced to return to Iraq, that he would not be able to ever talk to him again. He told the Tribunal that he was concerned that the applicant would have no capacity to pay for telephone calls and that he believes there is a high chance that something bad might happen to the applicant if he returns to Iraq.
He told the Tribunal that he visits his brother once or twice a month and has done so for the whole four years the applicant has been in prison. He told the Tribunal that when he speaks to the applicant it “makes me happy”. He gave evidence that before the applicant went to prison, he had close relationship with his brother, they would play together and have fun together and watch TV. He gave evidence that the applicant has always been there for him and has taught him some great lessons. M told the Tribunal that he wants his brother to be released back into the community so that they could spend time together “catching up on things”. He described the applicant as being a role model for him and someone he can connect with more than he can with other people.
M gave evidence that he was currently studying year nine and doing reasonably well at school, and that he had the ambition of one day maybe becoming a general practitioner. He told the Tribunal that the uncertainty surrounding his brother’s situation had made it very difficult for him at school and that he is dealing with teenage problems. He gave evidence to the Tribunal that he currently experiencing stress and anxiety as a consequence of issues associated with being a teenager. He gave evidence that the current uncertainty surrounding his brother’s circumstances has exacerbated his stress and anxiety.
The applicant’s mother, SA, gave evidence to the Tribunal that M has a very close relationship with the applicant and that M had found it very difficult to deal with his separation from his brother. SA gave evidence to the Tribunal that M is suffering from depression and that this had been adversely impacted as a consequence of the current circumstances. SA told the Tribunal that the applicant was very concerned for M and that he wishes to be with him in the community to support him and help guide him through his current issues.
The particularly close relationship between the applicant and M was reinforced through the evidence of other family members, in particular the applicant’s sisters.
Having considered all of the evidence before it the Tribunal is satisfied that the applicant has a particularly close and loving relationship with M. The Tribunal found all of the evidence by the applicant, M and the other family members on this issue to be very compelling. In particular, the Tribunal found M himself to be extremely articulate and an impressive and highly credible witness.
The Tribunal is satisfied that a decision to affirm the mandatory cancellation of the applicant’s visa will have a significant adverse impact on M. In forming this view, the Tribunal is particularly mindful of the evidence that M is currently suffering depression and that such an outcome is likely to exacerbate his condition. The Tribunal recognises that in the event that the applicant is forced to return to Iraq, the capacity of the two brothers to maintain a strong relationship is likely to be very constrained and therefore significantly adversely impacted. The Tribunal accepts that the applicant has both a capacity and determination to be supportive of his brother and play a positive role in his life.
While the Tribunal does not accept the suggestion put by M that he would be unable to maintain even telephone contact with the applicant in those circumstances, nonetheless it does recognise that the quality of the engagement M will have with the applicant if he is forced to return to Iraq will be of significantly lower quality than even his current engagement with the applicant while in prison, and materially lower in quality than would be the case if the applicant were to be released into the Australian community and have the opportunity to maintain a face-to-face personal relationship with him.
In addition, it was clear from M’s evidence that if the applicant is forced to return to Iraq it is likely to cause M significant worry and concern due to his fears about the safety of the applicant in Iraq. The Tribunal acknowledges that this concern has real substance.
There was no evidence before the Tribunal of any adverse impact that M has suffered as a consequence of the applicant’s offending directly, although obviously as a consequence of his imprisonment the nature of the engagement between the two of them has been adversely impacted due to the applicant’s extensive periods of absence from M’s day-to-day life during his terms of imprisonment.
There was no evidence before the Tribunal to suggest that the applicant is being relied upon by M to perform a parental type role, although it is accepted that given the significant age difference between the two of them the nature of the relationship has some parental like qualities. The Tribunal acknowledges that M continues to have the benefit of the current support of his parents as well as his other siblings. This factor tempers the weighting of this consideration, as does the fact that the applicant has been absent from M’s day to day life for significant periods of time due to his imprisonment.
For these reasons, the Tribunal is satisfied that it is in M’s best interests that the applicant be released into the Australian community. Accordingly, the best interests of minor children in Australia consideration weighs significantly in favour of revoking the cancellation of the applicant’s visa.
Expectations of the Australian community
Paragraph 13.3 (1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision‑makers should have due regard to the Government’s views in this respect.
The Tribunal has approached this consideration consistent with the reasoning in YNQY v Minister for Immigration and Border Protection[3] as well as the more recent Full Federal Court decision in FYBR v Minister for Home Affairs[4].
[3] [2017] FCA 1466.
[4] [2019] FCAFC 185.
In applying this consideration, the Tribunal has had due regard to:
(a)the Government’s stated views in relation to the expectations of the Australian community as set out in paragraph 13.3(1) of the Direction; and
(b)the principle set out in paragraph 6.3 (5) of the Direction which provides that:
Australia has a low tolerance of any criminal or other serious conduct by people have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
In the context of this consideration, counsel for the applicant submitted that having regard to the principal set out in paragraph 6.3 (5) of the Direction in particular, the Tribunal should consider that the applicant arrived in Australia at a young age from a war torn and fractured country, and in circumstances where he was confronted with significant language and cultural barriers to integration into the wider community. Counsel for the applicant submitted that in these circumstances the Australian community would not necessarily expect that he should be expelled to his country of origin or at the very least the Australian community would demonstrate a higher tolerance in such circumstances.
The Tribunal certainly accepts that the applicant has faced some very difficult life circumstances as has been addressed in some detail above. The Tribunal also acknowledges the risk the applicant may face if forced to relocate back to Iraq which is dealt with further below in these reasons. However, counterbalancing these considerations is the fact that the applicant’s criminal record is both serious and extensive, that his offending has increased in seriousness over time, as well as the fact that the applicant had previously been given multiple chances including a formal warning by the Department and yet has continued to reoffended.
Weighing these considerations and, in particular, acknowledging the Tribunal’s earlier conclusion that the applicant continues to represent an unacceptable risk of harm to the Australian community, the Tribunal is satisfied that the Australian community expectations consideration weighs very heavily against revoking the mandatory cancellation of the applicant’s visa.
Other Considerations
Non-refoulement obligations
Both at the hearing and in the written materials the applicant has made various claims of harm that he is likely to suffer should he be forced to return to Iraq. Further, the applicant claims that the nature of the harm and/or hardship he would be exposed to may trigger Australia’s international non-refoulement obligations.
Paragraph 14.1(1) of the Direction describes a non-refoulement obligation as “an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm”. The paragraph goes on to state that:
Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment and Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
Paragraph 14.1 (4) of the Direction states that:
where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another Visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the noncitizen for the purpose of determining whether the cancellation of their visa should be revoked.
Both of the parties contended and the Tribunal accepts that it must consider the claims of harm raised by the applicant for the purpose of determining whether there is “another reason” by the cancellation should be revoked.[5] This extends to consideration of claims of harm put by the applicant that, in the Tribunal’s view, may not rise to the level of triggering Australia’s international non-refoulement obligations.[6]
[5] Minister for Home Affairs v Omar [2019] FCAFC 188.
[6] BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456.

The Tribunal accepts that the applicant has the right to apply for a protection visa in respect of his claims of harm should he wish to do so. There was no suggestion that he had in fact made such an application.
No contention was put to the Tribunal that there exists any practical impediment that would prevent the applicant from being returned to Iraq should the decision under review be affirmed and he is required to relocate to Iraq.
The applicant is a citizen of Iraq and is a Christian. He was born in Baghdad but subsequently moved to Kurdistan where his family ran a jewellery business. The applicant speaks Assyrian, Chaldean and Arabic but he does not speak Kurdish.
The applicant claims to fear harm if forced to return to Iraq at the hands of the Iraqi government or non-State actors including criminal gangs and Islamist militants. More specifically the applicant’s claims of harm may be summarised as a risk of harm, which could amount to kidnapping for ransom or other serious physical or psychological harm or even potentially life-threatening harm, due to being a Christian and/or a Chaldean Catholic; due to a perception that he is from a wealthy family; due to him being a recent returnee from a Western country; due to the generally volatile security situation in Iraq.
In addition, the applicant has claimed to be at risk of discrimination in obtaining employment opportunities in Iraq, as well as discrimination and other hardships more broadly, due to being a Christian and/or a Chaldean Catholic, a recent returnee from a Western country and also as a consequence of what he claims is the absence of any family or social networks in Iraq.
In making his claims the applicant relies on his own evidence to the Tribunal as well as the evidence of other witnesses, the Country Information set out in the G Documents as well as a number of other documents tendered on behalf of the applicant before the Tribunal including:
(a)Smart Traveller advice, Iraq, Australian Government, 10 February 2020;
(b)Trump vows deportation relief for Iraqi Christian immigrants, Macomb Legal News, 4 February 2020;
(c)Christians in shattered Iraq are facing multiple threats, The Record, 4 February 2020;
(d)Iraq’s Assyrian’s flea in face of lawless lawlessness and sectarianism, The Telegraph, 2 February 2020;
(e)Iraq: four months of anti-regime unrest, Ahram Online, 1 February 2020;
(f)Iraq: solutions needed urgently to quell ongoing violence, break political deadlock, UN News, 30 January 2020;
(g)The end of Christianity, Catholic Herald, 16 January 2020;
(h)Why aid is not enough to save Assyrians in Iraq, Assyrian International News Agency, 16 January 2020;
(i)Iraq Travel Advisory, US State Department, 11 January 2020;
(j)Iraq Travel Information, US State Department;
(k)Soleimani airstrike could mean danger to Iraqi Christians, Catholic Herald, 4 January 2020;
(l)Nineveh Plains Traditional Justice Report, Assyrian International News Agency, January 2020;
(m)Iraq 2018 International Religious Freedom Report, United States State Department;
(n)Iraq’s Christians close to extinction, BBC News, 23 May 2019;
(o)Shocking poverty, unemployment figures, The Baghdad Herald, 31 March 2019.
The Country information included in the G Documents is comprised of:
(a)Department of Foreign Affairs and Trade, “Country Information Report-Iraq”;
(b)Iraqi Christian Relief Council, “Who Are Iraqi Christians?”;
(c)Minority Rights Group International, “World Directory of Minorities and Indigenous Peoples-Assyrians”;
(d)Janine Di Giovanni, “The Vanishing: The Plight of Christians in an Age of Intolerance”, Harper’s Magazine;
(e)Raymond Ibrahim, “The Annihilation of Iraq’s Christian Minority”, Gatestone Institute;
(f)Benedict Kiely, “The New Threat to Iraq’s Christians”, Real Clear Politics;
(g)Edward Pentin, “US Help Crucial for Iraqi Christians as New Threat Emerges”, National Catholic Register; and
(h)“Christianity in Iraq “One Wave of Persecution” From Extinction”, The Tablet.
The applicant’s written submission states as follows:
… Christians in Iraq face major difficulties. Over recent years, over 80% have emigrated. The relative few that do remain are more exposed. The state will not protect them. They are at risk from many sides, including Islamist militias, of various persuasions. Iraq is in turmoil, with warring on all sides. Someone such as the applicant cannot seek effective protection. To return him to a place where he has not lived for some 17 years, which he left when he was 12 years old, would expose him to great risk.
Additionally, as a returnee from Australia, and formerly from a wealthy family in Iraq, he may again be subject to kidnapping for ransom, as he will be perceived as having access to wealth. As he has no family in Iraq, should this happen again, there will be no one else to seek his release.
The Tribunal is satisfied that the general security situation in Iraq continues to be extremely volatile as a consequence of political unrest, conflict between militia and other tribal groups, the activities of criminal gangs as well as ongoing terrorist activity including from Islamic extremists.
This conclusion is supported by the Smartraveller guide issued by the Australian government in respect of travel to Iraq included in the Tribunal materials dated 5 January 2020 which states:
If it is safe to do so, you should leave Iraq as soon as possible. If you are in Iraq despite our advice, check media updates on new safety or security threats. The level of our advice has not changed. Do not travel to Iraq. On three January, a US air strike near the Baghdad International Airport killed and Iranians senior commander and Iraqi paramilitary leaders. The security situation could deteriorate with little warning.
… There’s a very high risk of kidnapping. Terrorist and criminal gangs may kidnap expats working Iraq.
… Large, coordinated attacks by armed groups have killed and injured 1000s of people. Terrorist attacks occur often and without warning.
… Violent crime and corruption are common. Crime includes kidnapping, murder and robbery. Organised criminal gangs, militia and tribal groups are significant threats.
… Road travel is dangerous. Risks include roadside bombs, attacks at checkpoints and robberies.
… There has also been fighting between groups and Peshmerga forces in the Kurdistan region.
The Kurdistan region, terrorists targeted official buildings in Erbil in 2018.
It is further reinforced by the observations set out in the US Department of State Travel Advisory for Iraq dated 11 January 2020 which states:
Do not travel to Iraq due to terrorism, kidnapping and armed conflict. US citizens in Iraq are at high risk for violence and kidnapping. Numerous terrorist and insurgent groups are active in Iraq and regularly attacked both Iraqi security forces and civilians.
The Tribunal is satisfied that as a consequence of this general volatile security situation, any person who travels to Iraq or resides in Iraq is at risk of personal harm. The Tribunal accepts that in this sense if the applicant is forced to return to Iraq he will be exposed to harm of this kind. However, the Tribunal is not satisfied that as a consequence of this risk of harm it is likely that the applicant will actually suffer such harm, rather that there remains some risk. The Tribunal is of the view that in this general sense the risk faced by the applicant if he is forced to return to Iraq is no different to the risk that would be faced by any other citizen of Iraq. For these reasons, while acknowledging the risk, the Tribunal is not satisfied that it rises to a level that would trigger Australia’s international protection obligations in respect of the applicant.
However, in addition to the general risk that the applicant would face, the Tribunal is satisfied that if the applicant is forced to return to Iraq he would be exposed to additional risks of serious harm as a consequence of his membership of the Christian minority in Iraq and also due to the fact that he may be perceived as being a member of a wealthy family with western connections.
There was considerable material before the Tribunal in relation to the heightened risk of serious harm faced by Christians in Iraq, in particular as a consequence of the heightened religious-based conflict within Iraq following the US arrival in 2003 as well as the rise of ISIL from around 2014. There was evidence before the Tribunal that as a consequence of these issues many Christians have left Iraq. For example, in the DFAT Country Information Report at page 198 of the G Documents states:
In 1987, the government estimated 1.4 million Christians lived in Iraq. Christian community leaders estimate this number has fallen to fewer than 250,000. Conflict in Iraq after 2003 directly affected all religious communities, and the Christian community faced a high level of violence at the hands of armed groups. The rise of ISIL exacerbated violence towards Christians and many have fled Iraq.
…ISIL subjected Christians to high levels of violence and discrimination areas under its control. ISIL forced Christians to convert to Islam, pay jizya or face death or expulsion. The 2017 US State Department Human Rights Report reports numerous abuses by ISIL against Christians (and other minority communities in ISIL-controlled areas) including execution, kidnapping, rape, enslavement, forced marriage, forced abortions, expulsion, theft and destruction of property.
There was evidence before the Tribunal that following more recent defeats against ISIL in some parts of Iraq that some Christians were returning to their homes. However, the Tribunal is satisfied that the weight of the material before it supports a conclusion, notwithstanding some progress being made in defeating ISIL in parts of Iraq, that there continues to be ongoing activities of Islamic extremists within Iraq which represent a risk for religious minorities including, in particular, Christians. For example, this conclusion is supported by the DFAT Country Information Report which states at page 194 of the G Documents:
Although ISIL has lost its self-declared “caliphate” in Iraq and Syria, it remains a threat to Iraq. A report submitted to the UN Security Council by the UN Analytical Support and Sanctions Monitoring Team in August 2018 estimated that up to 30,000 ISIL fighters remain active in Iraq and Syria.
ISIL will likely continue to indiscriminately target Iraqi civilians and commit human rights abuses as a small-scale insurgency. For example, on 15 January 2018, ISIL attacked a market in central Baghdad, killing at least 38 people and injuring 105. In Iraq’s northern region of Kirkuk, 25 people were killed by ISIL in the lead up to the national elections. ISIL claims to have carried out 58 attacks in the region since December 2017. In the Kurdistan Region, ISIL killed 12 members of one family in June 2018.
For these reasons, on the basis of the material before it, the Tribunal is satisfied that if the applicant is forced to return to Iraq then as a member of the Christian minority he is likely to be exposed to a heightened level of risk of serious harm.
In addition, there was evidence before the Tribunal that a person of perceived wealth, particularly one with western connections, is also likely to have a heightened risk of serious harm at the hands of criminal gangs engaged in kidnapping. This conclusion is supported by the statements included in the Smartraveler guide as well as the US Department of State Travel Advisory for Iraq referred to above. It was also supported by the direct evidence of the applicant and his family who of course have in part been informed by their own lived experience.
The Tribunal is satisfied that if the applicant is forced to return to Iraq there is a real risk of him being perceived to be a member of a wealthy family with strong western connections and therefore be exposed to this heightened risk.
While the Tribunal acknowledges the respondent’s contention that the risk of the applicant being perceived to be a member of the wealthy family is likely to be lower than when he previously lived in Iraq given that he is not likely to be overtly displaying signs of wealth, the Tribunal accepts that there remains a real risk that the applicant would be identified as someone with western connections and that that there remains a real risk that he would be perceived to have access to wealth through his wider family based in Australia.
Given the previous experience of the applicant, the Tribunal accepts that if the applicant were kidnapped it is likely to have very significant ongoing psychological harm for him even if he is subsequently released. Further, the Tribunal accepts that if the applicant were to be kidnapped again then there is a real risk that the family would not be in a position to meet any ransom and that such a circumstance could potentially be life-threatening for the applicant. The Tribunal draws this conclusion notwithstanding the evidence from the applicant’s father that he would do all he could to support his son in such circumstances.
While the Tribunal is not satisfied that the heightened risks that the applicant would face if return to Iraq as a consequence of his membership of the Christian minority as well as the potential for him to be perceived to be from a wealthy family are so great as to make it likely that the applicant would suffer serious harm, the Tribunal is satisfied that the risks are sufficiently real and personally identifiable to rise to a level that triggers Australia’s international non-refoulement obligations in respect of the applicant.
Further, the Tribunal is satisfied that while this risk is likely to be lower if the applicant relocates to Kurdistan as opposed to Baghdad or some other region outside of Kurdistan, in the event that the applicant does relocate to Kurdistan the risk is still sufficiently real to trigger Australia’s international non-refoulement obligations in respect of the applicant. In reaching this view, the Tribunal accepts that the applicant may be exposed to some impediment in seeking to access Kurdistan in the absence of resident papers or an appropriate sponsor although the Tribunal is of the view that it is more likely that the applicant would be able to access Kurdistan should he be committed to doing so. While the Tribunal accepts that the applicant will not have the benefit of active family connections in Iraq it does not accept that he would be without sufficient broader connections to facilitate his entry into Kurdistan should he wish to do so. The Tribunal addresses this point further in the section dealing with impediments on return.
More particularly, the Tribunal is satisfied that the applicant’s stated claims of harm relating to his membership of the Christian minority and as a consequence of the potential for him to be associated with perceived wealth, represent a risk of harm to a level covered by the Refugees Convention, the CAT and the ICCPR. The Tribunal is satisfied that these risks are substantial at the hands of criminal gangs, Islamic extremists and other non-state actors.
In addition to these stated claims of harm, the Tribunal is satisfied that the applicant would be exposed to some level of societal discrimination as a consequence of his Christian faith as well as low levels of official discrimination. Again, this conclusion is supported by information included in the Country Information Report which states at page 199 of the G Documents:
The general decline in acceptance of ethnic and religious minorities among majority communities in Iraq also affects Christians. Local sources report increased harassment and violence in areas where Christians are a minority including Shi’a areas of Baghdad or in Basrah. Christians may disengage from society for their own safety. State protection is often insufficient. Violence against Christians in the Kurdistan Region is less common, but Christians in the region continue to face discrimination in the form of intimidation and denial of access to services.
While the Tribunal is satisfied that there is a risk the applicant would suffer levels of discrimination and harassment including potentially the denial of access to services the Tribunal is not satisfied that this rises to a level that will trigger Australia’s international non-refoulement obligations. Further, the Tribunal is satisfied that the risk of the applicant being exposed to this type of discrimination and harassment is likely to be less in Kurdistan than in other parts of Iraq although the Tribunal acknowledges that the risk still exists. For example, the Iraq 2018 International Religious Freedom Report states on page 131 of the G Documents:
There were reports of KRG authorities discriminating against minorities, including Turkomans, Arabs, Yezidis, Shabaks and Christians, in territories claimed by both the KRG in the central government in northern Iraq.
The Tribunal is otherwise not satisfied that the other claims of hardship the applicant has identified rise to a level that trigger Australia’s international non-refoulement obligations. The Tribunal has given consideration to these other claims of hardship further below when dealing with impediments on return.
In light of these conclusions, the Tribunal is mindful of the consequences of the decision not to revoke the mandatory cancellation of the applicant’s visa in this context including that:
(a)the applicant would be subject to removal from Australia as soon as it is reasonably practicable for that to occur, and consequently could be exposed to the risk of harm identified in breach of Australia’s international non-refoulement obligations;
(b)it would be open to the Minister to consider alternative management options such as the possibility of granting a visa under section 195A if the Act; and
(c)the applicant would not be subject to immediate removal from Australia if he applied for and was granted a protection visa but that should he make such an application he would spend time in immigration detention pending the outcome of the application. The Tribunal recognises that in such circumstances the applicant would be denied the benefit of parole and that this in turn may adversely impact his capacity to properly manage his mental health and substance abuse issues during his period of detention.
Based on the conclusions set out above, Tribunal is satisfied that this consideration weighs very heavily in favour of revocation of the mandatory cancellation of the applicant’s visa.
Strength, nature and duration of ties
The Tribunal accepts that the applicant has resided in Australia since a relatively young age having arrived here in September 2003 as a 12-year-old, however, the Tribunal also accepts that the applicant commenced offending at 15 years of age which is a relatively short time after he first arrived here. The Tribunal is satisfied that in these circumstances less weight should be given to the period of the applicant’s residence in Australia. It forms this view recognising that the applicant faced considerable challenges when he first arrived in Australia as a young person, including significant language and cultural barriers. The Tribunal again acknowledges in this context that the applicant faced very difficult life circumstances as a young child back in Iraq.
The Tribunal accepts that the applicant has made a not insignificant contribution to the Australian community through his business activities noting that he not only worked in his family’s cleaning business but also at a very young age displayed initiative in establishing his own cleaning business, which for a period was particularly successful. There was also some evidence of the applicant having previously been involved in volunteer activities with the local Catholic Church. However, this positive contribution is offset to some extent by the significant criminal offending of the applicant over the years, recognising that offending of that kind has imposed significant burdens on the Australian criminal justice and law enforcement system.

The applicant gave evidence to the Tribunal that he has significant family presence in Australia including his parents, his three siblings and a grandmother who are all residents in Australia. In addition, there was evidence before the Tribunal of broader family members present in Australia, including aunts and uncles, cousins as well as his sister’s fiancé. The Tribunal accepts that a decision to not revoke the cancellation of the applicant’s visa requiring the applicant to return to Iraq, is likely to have a significant adverse impact on his family members, his immediate family members in particular.
The Tribunal has already dealt with the impact on the applicant’s younger brother, M, earlier in these reasons. In addition, there was evidence before the Tribunal of the significant impact a decision forcing the applicant to return to Iraq would have on the applicant’s parents, noting their advancing age and health concerns. Both the applicant’s mother and father gave evidence in relation to the applicant’s father’s ongoing back pain as a consequence of a car accident. There was also evidence in the Tribunal materials of the applicant’s father suffering from multiple other medical issues including hypertension, heart disease, anxiety and depression, poor vision as well as knee pain. There was also evidence of the applicant’s mother suffering from anxiety and depression, thyroid issues and chronic back pain. The Tribunal accepts that prior to his incarceration the applicant had from time to time assisted in supporting his parents in the management of their medical issues.
All of the applicant’s immediate family members expressed concern for their brother if he were forced to return to Iraq, and the Tribunal accepts that this has the potential to cause significant stress and anxiety to those family members. The Tribunal accepts that if the applicant is forced to return to Iraq it is likely to be difficult for his family members to travel to Iraq to visit given the serious security volatility in Iraq.
There was also evidence before the Tribunal of a desire of the applicant’s mother and sister for the applicant to be involved in supporting them in the establishment of a new restaurant or café business. As previously has been acknowledged by the Tribunal, there was clear evidence of the applicant’s business nous and strong work ethic, and the Tribunal accepts that if the applicant were to be released back into the community he would have the capacity to make a very significant positive contribution in this respect. The Tribunal therefore acknowledges that a decision requiring the applicant to return to Iraq would deny family members the benefit of this contribution.
For these reasons, the Tribunal is satisfied that this consideration weighs moderately in favour of revocation of the cancellation of the applicant’s visa.
Impact on Australian business interests
There was no evidence before the Tribunal that Australian business interests would be impacted if the cancellation of the applicant’s visa is not revoked. Therefore, this consideration weighs neither for nor against revoking the mandatory cancellation of the visa.
Impact on victims
There was no specific evidence before the Tribunal as to the impact a revocation of the cancellation of the applicant’s visa would have on any victim of his offending. Therefore, this consideration weighs neither for nor against revoking the mandatory cancellation of the visa.
Extent of impediments if removed
The Tribunal is satisfied that the applicant is of a relatively young age and has developed significant work skills and experience, demonstrated significant business nous and a very strong work ethic. While acknowledging the applicant’s PTSD and other mental health conditions and his need to manage his substance abuse issues, the applicant is otherwise in relatively good health for his age. The Tribunal is satisfied that these attributes will assist the applicant in securing employment opportunities if he is forced to return to Iraq.
However, the Tribunal acknowledges, as described above, that as a member of the Christian minority the applicant is likely to suffer some level of discrimination in securing work opportunities in Iraq in addition to accessing other services and also housing. The Tribunal also accepts that the prospect of the applicant securing employment will be constrained by the generally high levels of unemployment and poor economic conditions in Iraq.
The Tribunal accepts that the applicant has no active family and limited social connections in Iraq and that this is also likely to impede his transition back into the Iraqi community including in relation to accessing employment opportunities and other services. However, having formed this view, the Tribunal does not accept that the applicant will have access to absolutely no connections as suggested in his evidence and the evidence of his family members. The Tribunal found this aspect of the applicant’s evidence and that of his family members to be unpersuasive. Given the very significant exposure the family has had to Iraq previously, and given their strong connections in the local community here in Australia and the connections through the Christian church, the Tribunal is satisfied that the applicant will have the benefit of some level of support through these connections if he is forced to return to Iraq.
The Tribunal accepts that the security situation in Iraq remains extremely volatile and that therefore if the applicant is forced to return to Iraq, he would be exposed to some risk of harm as a consequence of that security volatility generally. As previously noted, the Tribunal is satisfied that the general security situation in Kurdistan is more secure but the Tribunal acknowledges that it continues to be extremely volatile even in Kurdistan. In addition as a member of the Christian minority he will be exposed to risk of low level violence and harassment in addition to the risk of serious harm dealt with by the Tribunal earlier in these reasons.
The Tribunal accepts that the applicant will face some not insignificant impediments if forced to return to Iraq, including the challenges that he will face in seeking to re-establish himself in a country that is not lived in for approximately 17 years, including the potential for some language barriers. In reaching this conclusion the Tribunal acknowledges that the applicant speaks Assyrian, Chaldean and Arabic but not Kurdish.
In addition, the Tribunal accepts that the applicant will face very significant challenges in managing his mental health condition and in managing his substance abuse issues, including challenges in obtaining ongoing counselling and psychiatric therapy to manage those issues. The Tribunal acknowledges that while generally speaking it is reasonable to expect that the applicant will have access to health services equivalent to any other Iraqi citizens, as described above, the Tribunal accepts that, as a member of the Christian minority in Iraq, there is a real risk that he will experience some level of discrimination and denial of services due to his Christian faith. This may extend to obtaining medical support either for his mental health condition, his substance abuse issues or in seeking medical support for any future medical conditions that may emerge. The Tribunal also acknowledges that if forced to return to Iraq the applicant will not have the benefit of release subject to parole conditions and that given such a circumstance the applicant will face greater challenges in avoiding relapse back into drug use and criminal re-offending.
The Tribunal also accepts that the applicant will be at risk of additional stress and anxiety associated with the challenges of his transition back into the Iraqi community and his ongoing separation from family in Australia and that this in turn has the potential to exacerbate his existing mental health condition.
For these reasons, the Tribunal is satisfied that the impediments and return consideration weighs heavily in favour of revocation of cancellation of the applicant’s visa.
CONCLUSION
The Tribunal is satisfied that the applicant does not pass the character test as set out in section 501(6)(a) of the Act. Therefore, the Tribunal is required to exercise the discretion in section 501(1) of the Act in accordance with the Direction.
In weighing the relevant considerations, the Tribunal has been particularly mindful of the impact a decision not to revoke the cancellation would have for the applicant’s younger brother M. The Tribunal is satisfied that M’s best interests would be served by revoking the visa cancellation. This consideration is moderated to some degree as a consequence of the applicant having been absent in M’s day to day life for a considerable part of his life and also the fact that the applicant has no formal parental type role in respect of M.
For the reasons described above, the Tribunal accepts a real risk of serious harm to the applicant if he is forced to return to Iraq, and that this risk rises to a level that triggers Australia’s international non-refoulement obligations. The Tribunal accepts that this consideration weighs very heavily in favour of revocation of the cancellation of the applicant’s visa.
The Tribunal also acknowledges the significant impediments that the applicant is likely to face more generally if forced to return to Iraq, including difficulty in obtaining employment and issues associated with accessing health support in relation to his mental health conditions and substance abuse issues. The Tribunal acknowledges that this consideration is serious and weighs heavily in favour of revocation of the cancellation of the applicant’s visa.
The Tribunal recognises that the applicant has made some contribution to the community through his earlier business activities and has significant family connections in Australia. These considerations must be viewed in the context of the applicant’s extensive record of criminal offending and the fact that the applicant commenced his offending a relatively short time after having first arrived in Australia. However, in forming this view, the Tribunal has acknowledged that the applicant faced significant cultural barriers and a difficult transition into the community at a relatively young age. For these reasons the strength, nature and duration of ties consideration weighs moderately in favour of revoking the cancellation of the applicant’s visa.
However, counterbalancing these considerations the Tribunal has also been very mindful of the protection of the Australian community consideration and the stated commitment of the Australian Government to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In the Tribunal’s view the nature of the applicant’s offending is serious and the risk of harm he represents to the Australian community is unacceptable. For these reasons the protection of the Australian community consideration as well as the expectations of the Australian community consideration, both weigh very heavily in favour of not revoking the cancellation of the applicant’s visa.
Having carefully weighed each of the considerations, the Tribunal is satisfied that the aggregate impact of the two primary considerations of the protection of the Australian community and the expectations of the Australian community are such that, on balance, the weighing exercise falls in favour of not revoking the mandatory cancellation of the applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the respondent dated 9 December 2019 to not revoke the mandatory cancellation of the applicant’s Class XB Subclass 202 Global Special Humanitarian visa.

192.    I certify that the preceding 191 (one hundred and ninety-one) paragraphs are a true copy of the written reasons for the decision herein of The Hon. Matthew Groom, Senior Member

[sgd]..............................................................
Associate
Dated: 7 April 2020

193.    Dates of hearing:

194.    24 and 25 February 2020

195.    Counsel for the Applicant:

196.    Mr Guy Gilbert

197.    Solicitors for the Applicant:

198.    Bardo Lawyers

199.    Advocate for the Respondent:

200.    Solicitors for the Respondent:

201.    Mr David Brown

202.    Australian Government Solicitor

[2020] AATA 930

3 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

193. Dates of hearing:	194. 24 and 25 February 2020
195. Counsel for the Applicant:	196. Mr Guy Gilbert
197. Solicitors for the Applicant:	198. Bardo Lawyers
199. Advocate for the Respondent: 200. Solicitors for the Respondent:	201. Mr David Brown 202. Australian Government Solicitor