MNLR and Minister for Home Affairs (Migration) - [2020] AATA 63

MNLR and Minister for Home Affairs (Migration) [2020] AATA 63 (6 January 2020)
Division:GENERAL DIVISION
File Number(s): 2018/6577
Re:MNLR
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Date:6 January 2020
Place:Sydney

The decision of the Tribunal is to affirm the reviewable decision.
........[Sgnd]................................................................
Deputy President Britten-Jones
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – serious offending against women - whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – non-refoulement obligations - decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576
Ezegbe v Minister for Immigration and Border Protection (2019) 164 ALD 139
FYBR v Minister for Home Affairs [2019] FCAFC 185
GBV18 v Minister for Home Affairs [2019] FCA 1132
Minister for Home Affairs v Omar [2019] FCAFC 188
Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620
PRHR v Minister for Immigration and Border Protection [2017] AATA 2782
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Deputy President Britten-Jones
6 January 2020
INTRODUCTION

This hearing arises from orders made by the Federal Court on 11 April 2019 which quashed and remitted the decision of the Tribunal made on 25 January 2019 not to revoke a mandatory cancellation of the applicant’s visa under s 501(3A) of the Migration Act 1958 (the Act).
THE DECISION TO CANCEL THE VISA
On 9 November 2016, the applicant’s Class XB (Subclass 202) Special Humanitarian visa (the visa) was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) of the Act on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment.
On 5 December 2016, the applicant, through his migration agent, made representations seeking revocation of the cancellation decision. The applicant’s submissions can be summarised as follows:
·he is afraid if he goes back to Iraq that the terrorists there would kill him because of his nationality and culture as a Sabean Mandaean. He would be in great danger because of his faith;
·his family was subjected to persecution and attack in Iraq by an unknown group who raped and killed his sister in 2006;
·he has no other family left in Iraq;
·he has no other convictions other than the one which is the subject of the decision to cancel his visa; and
·he wants to stay in Australia with his family.
On 29 December 2016 further submissions were made by the applicant’s migration agent. These submissions included a reference from his employer and a letter of support from the President of the International Mandeaen Supreme Council (a professor at the University of Sydney) and various certificates of achievement. It was submitted that non-refoulement obligations arise in respect of the applicant on the basis that he has a well-founded grave fear of being either harmed or killed in Iraq given his adherence to the Sabean Mandaean faith. It was also submitted that the impediments the applicant is likely to face if removed to Iraq are nothing short of dire. Statements were attached to the written submissions which provided evidence that the applicant fled from Iraq with his family at the age of 11 years following persecution and threats to his family and the kidnapping, ransom, rape, torture and murder of his sister.
On 5 November 2018, after taking into account the above representations made by the applicant, a delegate of the Minister for Home Affairs decided under s 501CA(4) not to revoke the cancellation decision (the delegate’s decision). The delegate’s findings were on the basis that the applicant represents an unacceptable risk to the Australian community and that the protection of the Australian community outweighs the countervailing considerations relating to international non-refoulement obligations, his length of residence in Australia, his familial, employment and social ties to Australia and the hardship he and his family would endure in the event the original decision was not revoked.
On 12 November 2018, the applicant applied to the Tribunal for a review of the delegate’s decision.
At the hearing before me, the applicant was represented by Mr C Jackson. The Respondent was represented by Ms S McGee. Oral evidence was given from the applicant, his partner and Mr Watson-Munro, a clinical psychologist. I received into evidence the transcript of the earlier Tribunal hearing dated 22 January 2019 during which oral evidence was given by the applicant, his partner, his mother, two of his brothers and Mr Watson-Munro. I received into evidence statutory declarations from the applicant, his mother, his brothers and his partner. Included in the s 501G documents was a statement from the father. He said that the Sabeans were persecuted by reason of their religion and the members of their group were subjected to murder, rape and kidnapping. He told the story of his daughter being kidnapped with a request for ransom being made. He tried to bargain but his daughter was killed by gunshots to her head after she was tortured and raped. The family then fled to Syria in October 2006.
The respondent does not dispute or challenge the occurrence of the applicant’s sister having been kidnapped and killed, or that the applicant’s family genuinely hold beliefs as to similar events occurring to the applicant if he is returned to Iraq.[1]
[1] Respondent’s outline of supplementary closing submissions at [40].
I am required to give meaningful consideration to, and to actively engage with, the representations made on behalf of the applicant.[2]
[2] GBV18 v Minister for Home Affairs [2019] FCA 1132 at [74] – [76].
ISSUES BEFORE THE TRIBUNAL
The applicant does not pass the character test prescribed under s 501(6)(a) of the Act as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has “a substantial criminal record” as defined under s 501(7) of the Act. The applicant concedes the same. Therefore, the applicant cannot rely on s 501CA(4)(b)(i) of the Act in order to have the mandatory visa cancellation revoked.
The only issue for the Tribunal to determine is whether, having regard to Ministerial Direction No. 79 (Direction 79), there is another reason why the cancellation decision should be revoked. Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must decide to revoke the decision.[3]
[3] Gasper v Minister for Immigration and Border Protection [2016] FCA 1166 at [38].
THE OFFENDING
On 23 October 2015, the applicant was sentenced in the District Court of New South Wales to three years imprisonment commencing on 3 June 2015, with a non-parole period of 18 months, in respect of his conviction for aggravated sexual assault. Conviction for this offence required proof that the applicant had sexual intercourse with another person without her consent, knowing that she was not consenting, in circumstances of aggravation, namely, being in company of another person. The applicant had pleaded not guilty and the trial was heard in May 2015. He was found guilty by the jury. He appealed the verdict and the sentence. The appeal was dismissed by the Court of Criminal Appeal on 29 June 2018.
The trial judge in his sentencing remarks dated 23 October 2015 noted that the applicant did not concede the correctness of the verdict. The trial judge described the circumstances of the offending including that the applicant continued to have intercourse with the victim even after she had put her hand in the middle of his chest trying to push him off and after she had asked the other person present to get him off her. The trial judge accepted that the jury was satisfied that the applicant sufficiently understood what was said in English and her actions to know that she was not consenting. When she got home the victim drank nearly a bottle of vodka, drafted a suicide note to her family and cut her arms with a blade causing significant bleeding. She was taken to hospital and treated. The trial judge found that this was a case in which there was a lack of consent from the beginning and knowledge of a lack of consent from the beginning which elevated the significance of the offence.
Further relevant passages from the trial judge’s sentencing remarks follow:
However, it nonetheless was an offence which occurred in a somewhat unusual context, including the prior consensual intercourse with the offender [X]. Furthermore, this was an episode … where the conduct of the offenders was not accompanied by any violence or threats of violence, by the administration of drugs or alcohol or by any acts constituting any actual deprivation of liberty or threats thereof. There were no acts on the part of either of the offenders intended to discourage the complainant from leaving the premises or making phone calls had she chosen to do so. The offence was one of brief duration, without any related aspects of degradation or denigratory language towards the victim.[4]
[4] Exhibit 1 at G8 p 65.
…
In assessing the objective circumstances of the offence the Court needs also to take into account what was occasioned to the complainant by the offenders. It is, of course, axiomatic that the commission of a sexual assault such as the offence here is itself a significant invasion of privacy, dignity and person of the victim. The complainant was entitled to say no. She made it clear that she was saying no, but the offender [the applicant], with the encouragement of the co-offender, went ahead nonetheless and had intercourse with her. The fact that she may have previously had consensual intercourse with the offender [X] gave no general permission or licence to either of the men to assume that they could have sex with her as they so desired. She was entitled at all stages to decline to participate in any further activity and she made it clear on this occasion that she was doing just that.[5]
[5] G8 p66 -67.
…
Clearly an offence of this type will have an impact on a victim. A court may properly assume that there is at least the possibility of a continuing psychological harm flowing from such a traumatic event.[6] … In the end, it is difficult to avoid the conclusion that the non-consensual intercourse, which the jury found had occurred in count 1, was at least a contributing factor to her behaviour in the hours following the offence.[7]
[6] G8 p 67.
[7] G8 p 68.
…
In all of the circumstances, the Crown, in my view, is correct to concede that there are unusual features in this case and that the offence here is an instance of the offence which falls below the midrange of objective seriousness of such offences. Nevertheless, the maximum penalty and the standard non-parole period do still stand as significant markers in assessing what may be an appropriate punishment for these offences.[8]
[8] G8 p 68 – 69.
…
The offender is 21 years of age now and was 19 at the date of the offence. He was born on 23 January 1994. He has no previous criminal history and has no gaol infractions on his custodial history. He has been the subject of a presentence report prepared at the request of the Community Corrections service and a psychological report prepared … by Tim Watson-Munro, consultant forensic psychologist. The presentence report notes the troubled and traumatic upbringing that the offender had. His early life was in Iraq from where the family fled to Syria. In each of those countries his family was subjected to some measure of violence and abuse. Notwithstanding those external unpleasant acts, the family remained close, loving and supportive. At about the age of 17, the offender and his family came to Australia as refugees. He maintains the support of his family and is welcome to return to the family home upon his release. He completed his year 10 certificate in circumstances which were discussed in the course of the trial, in particular, as some evidence of his proficiency in English at or about the time of the offences. ….
The presentence report notes that the offender disputed what are described as ‘the police facts.’ In the view of the author of the report, he failed to accept responsibility for his behaviour … The author went on to state,” What is of further concern is that to date [the applicant] still cannot comprehend there to be any misjudgment in his actions that led to the events that took place.”
However she also says:
“He stated to be really sorry for his behaviour although he appeared to display limited victim empathy, constantly reiterating that he was unaware of the victim’s failure to consent. He also insinuated on a number of occasions his belief that he is innocent and should not be being charged for the offence.”
The author notes that on a risk assessment tool used by the Community Corrections service he assessed as a low to medium risk of reoffending. He was regarded as cooperative during the interview and also noted that despite the fact that he consistently protested his innocence he indicated that he would willingly comply with Community Corrections and engage in targeted interventions if so directed. He is unlikely to benefit from a period of supervision due to his assessed low to medium risk of reoffending however the report notes that, should a supervision order be imposed, case management strategies would target sex offending.[9]
[9] G8 p 70 -72.
…
As part of the preparation of the presentence report the psychologist at Parklea Correctional Centre prepared a report on [the applicant]. She also set out his difficult upbringing in Iraq and Syria and some of the traumatic events which he witnessed in those countries. He gave her an account of the circumstances surrounding the present event and was under the belief that the sexual acts were consensual. The psychologist conducted a psychometric assessment, the depression and anxiety and stress scale assessment result being indicative of severe depression, extremely severe anxiety and severe stress. There was also a risk assessment process … the assessment was he fell into the low to moderate risk category by virtue of three aspects of the process of testing, relating to his age at release, whether he had ever lived with a partner and whether there were any unrelated victims. The report deals also with the possible impact of dynamic as distinct from static factors. Taking the dynamic factors into account, along with the static scores, he was considered to be at low risk of sexual reoffending. … the report makes no suggestion that he is in need of any treatment for mental health issues, rather it concentrates on the need for involvement in sex offender programs, whether in custody or in the community.
Mr. Watson-Munro, on the other hand, concluded that the primary diagnosis in his case was post-traumatic stress disorder arising from his formative years in Iraq with integral features of major depression and anxiety which were noted clinically and confirmed through appropriate psychological testing. Although Mr. Watson-Munroe also said, “beyond the diagnosis I have made, there is nothing to indicate major psychiatric disturbance in this case.”[10]
[10] G8 p 72 -74.
…
Clearly [the applicant is] in need of intervention in relation to the risk of the offending by the commission of sex offences. It is, however, difficult to see any significant risk of reoffending in relation to any other type of offence having regard to the generally stable and previously law abiding lifestyle.[11]
…
The offence of sexual intercourse without consent, particularly when it is committed in company, is a serious offence. I have already explained some of the reasons why that is so. The maximum penalties provided for such offences and that the offence carries a standard non-parole period reflect the attitude of the community, reflected through Parliament’s legislation, and given effect to in the sentencing of offenders in the Courts.[12]
…
Here, despite the strong subjective features in respect of each of the accused, it is nonetheless necessary for a sentence of full-time imprisonment to be imposed. … However, the fulltime sentence of imprisonment to be imposed is one which could be regarded as a relatively modest one compared with other sentences which have been or may be imposed for offences within this general category. Clearly, for a number of reasons, this offence was one which would not attract the most severe punishment for offences in the category.
In respect of each of the accused, there is a range of special circumstances, including the age of the offender, the fact that this is the offender’s first time in custody, the fact each of them has good prospects of rehabilitation and the need in each case for a period of treatment and supervision in the community.[13]
…
It is clear, in the case of each of the offenders, that provision needs to be made in any order for imprisonment for the offenders to be able to participate in a sex offender program.[14]
…
Accordingly, I intend to impose in each case an overall term of imprisonment of three years with a non-parole period of 18 months… That will enable the offenders to spend 18 months on parole and during that period there will be sufficient time for them to undergo a community sex offenders program if they are assessed as suitable for and recommended for such a program.[15]
[11] G8 p 78.
[12] G8 p 79.
[13] G8 p 80 -81.
[14] G8 p 82.
[15] G8 p 83.
LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in (3A) is outlined in s 501(6) of the Act. Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)).
For the purposes of subsection (6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[16]
[16] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled under s 501(3A), the Minister has a power to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked.[17] The discretion to revoke the cancellation on the grounds that ‘the Minister is satisfied that there is another reason why the original decision should be revoked’ is a broad one.
[17] Ibid s 501CA(4).
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?

When considering whether to revoke the delegate’s decision, the Tribunal must have regard to Direction 79. The objective of Direction 79 is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[18]
[18] Direction 79 at 6.1.
The guiding principles in Direction 79 that the Tribunal must apply in determining whether or not to revoke a visa cancellation include:
·Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia bearing in mind that being allowed to remain in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law abiding.
·The Australian community expects that the Australian Government can and should cancel a non-citizen’s visa if they commit serious crimes in Australia or elsewhere.
·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 have to forfeit the privilege of staying in Australia.
·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 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.
·The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of 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.
Keeping those guiding principles in mind, I turn my mind to the primary considerations and other considerations set out in Part C of Direction 79:
·Primary considerations:
oProtection of the Australian community
oThe best interests of minor children in Australia
oExpectations of the Australian community
·Other considerations include (but are not limited to):
oInternational non-refoulement obligations
oStrength, nature and duration of ties
oImpact on Australian business interests
oImpact on victims
oExtent of impediments if removed
Protection of the Australian community – 13.1 of Direction 79
When considering the protection of the Australian community, I have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity. I give consideration to:
·the nature and seriousness of the non-citizen’s conduct to date; and
·the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 13.1.1 of Direction 79
Factors that I must have regard to under paragraph 13.1.1 include:
·the principle that violent and/or sexual crimes are viewed very seriously;
·the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed; and
·the sentence imposed by the courts for a crime or crimes (subject to the preceding dot point);
·the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness.
The crime committed by the applicant is plainly very serious. It was a sexual crime involving a forced act of sexual intercourse without consent against a woman who was physically incapable of preventing the rape. The victim verbally and physically protested by speaking out and hitting the applicant on the chest but to no avail. The applicant knew from the commencement and throughout the act of intercourse that she was not consenting but he nevertheless proceeded to rape her and continued after she protested.
The custodial sentence of 3 years with a non-parole period of 18 months imposed by the trial judge reflects how serious the offending was. The trial judge referred to the offence “falling below the midrange of objective seriousness of such offences”[19] namely aggravated sexual offences. Ultimately the trial judge expressed the view that “The offence of sexual intercourse without consent, particularly when it is committed in company, is a serious offence” but it was noted that there was no accompanying violence and that the offending was of brief duration. I have taken into account the whole of the sentencing remarks made by the trial judge and come to the view that the offending was most serious.
[19] The Applicant’s SOFIC dated 21 December 2018 quoted this passage omitting the part that I have put in bold.
I take into account that the applicant has no other convictions but, nevertheless, the nature and seriousness of this offence weighs heavily in favour of not revoking the visa cancellation because it involved offending of a most serious nature against a woman in the company of another person.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 13.1.2 of Direction 79
In considering whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, I have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I also have regard to:
·the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and
·the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.
Nature of harm if further criminal conduct
If the applicant were to engage in further similar offending against women, then the resulting harm would be very serious. With respect to the nature of the harm on the victim as a result of the applicant’s offending the trial Judge referred to “at least the possibility of a continuing psychological harm flowing from such a traumatic event” and concluded that the non-consensual intercourse was at least a contributing factor to her self-harm and suicidal thoughts expressed in writing in the hours following the offence.
If the applicant were to engage in similar criminal conduct, then the nature of the harm caused to any victim would clearly be very serious.
Likelihood of further criminal or other serious conduct
The respondent contends that the applicant poses a low to moderate, but real risk, of reoffending. In support of this contention the respondent referred to the applicant’s denial of guilt and long held view that the victim of his offending had consented to the sexual intercourse. The applicant maintained this view for more than 6 years after the offending. Despite being found guilty by a jury and losing his appeal, the applicant continued to not accept his guilt and denied the rape in his statutory declaration made on 12 December 2018. At the hearing before the Tribunal on 22 January 2019 he maintained his view that there was consent.[20] It was not until the hearing on 17 October 2019 that he expressed to the respondent that he admitted that he knew the victim was not consenting. He expressed regret and said that he was now prepared to accept his guilt.
[20] Exhibit 15 transcript p 20 – 23.
The applicant relies upon the expert evidence from Mr Watson-Munro. In his report dated 14 January 2019, he referred to discussions with the applicant on 18 December 2018 and said that he was impressed by his maturation and in particular, evidence that he had reflected upon his offending behaviour and that he had expressed remorse and that he had developed some insight as well as empathy for the victim. Mr Watson-Munro expressed his opinion that the likelihood of him reoffending was low.
It is hard to reconcile the 14 January 2019 report from Mr Watson-Munro with the statements of ongoing denial made by the applicant in his statutory declaration on 12 December 2018 and before the Tribunal on 22 January 2019. Consequently, I place little weight on the opinions expressed in the 14 January 2019 report.
Mr Watson-Munro saw the applicant again on 4 and 18 July 2019 and provided another written report dated 19 July 2019. He administered psychometric testing with respect to sexual violence risk which indicated a low risk of sexual offending in the future. He said that these results were consistent with his own clinical assessment and that the applicant could be considered to be a low risk of offending in the future and that if given the opportunity he would make a positive and strong contribution to the Australian community.
In oral evidence before the Tribunal, Mr Watson-Munro gave his opinion that the remorse being expressed by the applicant was genuine but that it had come late.
I note that whilst in detention the applicant attended various courses for his mental health and trauma issues. He provided various certificates of attendance (mostly from 2017) one of which referred to a course involving “What is domestic violence?” Whilst in gaol the applicant said that he completed a few courses in English, online courses in food and nutrition and domestic violence and partially completed a carpentry course.[21] There is no evidence of misconduct whilst in prison or detention.
[21] Exhibit 8 – Psychological Assessment Report by STARTTS dated 8 January 2019.
The trial judge in his sentencing remarks had noted that the applicant had good prospects of rehabilitation but that was contingent upon him receiving appropriate treatment through a sex offender program. There is no evidence before me that the applicant has participated in a comprehensive sex offender program either whilst in prison or in detention.
Despite the applicant’s remorse expressed to Mr Watson-Munro and the Tribunal in October 2019 I am not satisfied that the applicant has meaningfully addressed underlying issues with respect to his sex offence. He has not undergone the necessary rehabilitative programs and his remorse was expressed very late. For that reason I do not accept the applicant’s contention that he poses a low risk of further offending. I conclude that the applicant poses a low to moderate risk of committing further sexual offences.
Risk to the Australian community
In considering the risk to the Australian community I must have regard to, cumulatively, the nature of the harm should the applicant reoffend and the likelihood of the applicant engaging in criminal or other serious conduct. In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[22] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[22] (2014) 225 FCR 424.
Conclusion as to protection of the Australian community
The government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[23] Given the serious nature of the harm that flows from an aggravated sexual offence of the nature committed by the applicant, I consider that even a low or moderate risk of further similar harm is unacceptable. I conclude that the primary consideration of protection of the Australian community weighs strongly in favour of non-revocation of the cancellation decision.
[23] Direction 79 at 13.1(1)
Best interests of minor children – 13.2 of Direction 79
In making a determination about the revocation of a visa cancellation, I must take into consideration the best interests of any children in Australia that are under the age of 18 years. Each child’s interests are to be considered individually to the extent that their interests may differ.
The following factors that I must consider and are relevant to this application include:
·the nature and duration of the relationship between the child and the applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
·the extent to which the applicant is likely to play a positive parental role in the future;
·the impact of the applicant’s prior conduct and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·the likely effect that any separation from the applicant would have on a child, taking into account ability to maintain contact in other ways;
·whether there are other persons who already fulfil a parental role in relation to the child; and
·any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
The applicant has no children of his own but there are four children under the age of 18 whose interests could be affected by the removal of the applicant from Australia or his ongoing detention.
The applicant’s current partner has two children aged seven and four years old. The relationship with his partner commenced sometime after December 2016 through Facebook whilst the applicant was at Christmas Island. Since the applicant moved to the Villawood Detention Centre the applicant’s partner has visited him 1 to 2 times per week. Her children have visited him 6 to 8 times in 2019. They also communicate by Facetime.
The partner of the applicant said in her statement that “I would love for us to have a future and for my children to have [the applicant] in their lives.”
I take into account the nature and duration of the relationship with the children of his partner; namely that they have only known the applicant for a relatively short period and only whilst he is in detention. There is no certainty that their mother will have an enduring relationship with him. I accept that on the current evidence the relationship between the applicant and his partner appears strong but their relationship has been limited in time and because of his incarceration and has not been tested by any time together in the community and therefore uncertainty remains with respect to it. I give less weight to his relationship with his partner’s children because it is non-parental, because there was no existing relationship with the children before the offending, and because there has been limited meaningful contact given that the children have had no time in the community with the applicant. I find that the interests of each of the children of the partner weigh slightly in favour of revoking the original decision but the weight to be attached to this factor is minimal.
The applicant also has two nephews. As at the date of the hearing these nephews were both under one year old. They are too young to have formed any relationship with the applicant. No doubt the nephews would benefit from an uncle to assist with parenting as they grow up and consequently I find that revocation is in the best interests of the nephews. However, given their age I give minimal weight to this factor.
The respondent concedes that to the extent the children would be impacted by the applicant’s removal, it would be in their best interests for the original decision to be revoked. However, those interests should be given very limited weight in light of the facts above.
I find that the interests of each of the children weigh slightly in favour of revoking the original decision but I attach very little weight to this consideration.
Expectations of the Australian community – 13.3 of Direction 79
In YNQY v Minister for Immigration and Border Protection,[24] Mortimer J held that the expectations of the Australian community was inextricably linked to the other primary consideration about the protection of the Australian community, and that the expectations referred to in Direction 79 were those espoused in clause 13.3(1), rather than any objective expectations put forward by an applicant. This position has been affirmed by the Full Court of the Federal Court in FYBRv Minister for Home Affairs.[25]
[24] [2017] FCA 1466.
[25] [2019] FCAFC 185.
In exercising my discretion, I am also informed by the principle at paragraph 6.3(1) of Direction 79 that:
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.
The Australian community expects non-citizens to obey Australian laws while in Australia. This expectation has not been met with respect to the applicant in the past. The applicant has breached the trust that the Australian community placed in him.
Australia has a low tolerance of any criminal conduct by a person such as the applicant who had been participating in and contributing to the Australian community only for a short period of time before offending. The offending took place about 21 months after he arrived,[26] which is a relatively short period of time. During that period the applicant commenced year 10 schooling before quitting and starting a job at a mushroom farm. I take into account this positive contribution which is reflected in references provided to the Tribunal. The applicant worked at the farm for about two years before he was imprisoned. I also take into account the numerous courses that the applicant completed whilst in detention and that there was no issue with his conduct whilst in prison or detention.
[26] The applicant arrived in Australia on 9 May 2011 and the offending took place on about 11 February 2013.
Taking into account the serious nature of the offending and risk of reoffending, I find that the expectations of the Australian community weigh strongly in favour of non-revocation of the cancellation decision. The applicant committed the serious offence of an aggravated sexual assault against a woman and should generally expect to forfeit the privilege of staying in Australia.[27]
[27] Direction 79 at 6.3(3).
Other considerations
In deciding whether to revoke the cancellation of the applicant’s visa, I must take into account the other considerations listed in Direction No. 79 but these are not exhaustive.[28]
[28] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395 [86].
I take into account that the applicant has raised a concern that because he is a member of the Sabean Mandaean community he would face persecution if returned to Iraq.
The concerns that the applicant will face if removed are relevant to international non-refoulement obligations and the extent of impediments if removed. The level of detail necessary for these considerations will depend, among other things, on the likelihood of the applicant being removed and the level of generality or specificity of the information suggesting harm.[29] In addressing these considerations I must properly understand and consider the legal consequences of the decision being made (in particular detention and removal). What the legal consequences are is a question of fact. I must also consider the adverse impact of removal upon the applicant, including the impact of harm which does not engage Australia’s non-refoulement obligations.[30]
[29] Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620 at [62].
[30] BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456.
International non-refoulement obligations

A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
The question before the Tribunal in considering any non-refoulement claims is a state of satisfaction as to whether there was “another reason” why the original decision should be revoked.[31] I am required to properly consider the claims being made and the factual material being relied upon by the applicant.[32]
[31] Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28].
[32] Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [27].
The applicant contends that he would face harm if returned to Iraq and that the Tribunal needs to consider Australia’s international non-refoulement obligations.
Paragraph 14.1(1) of Direction 79 outlines Australia’s non-refoulement obligations pursuant to international human rights treaties and the 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”. Direction 79, at paragraph 14.1(4), also states:
(4)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 non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
It is accepted by the applicant that he has the right to apply for a Protection visa.
Whilst I am satisfied that I do not fall into jurisdictional error by deferring the consideration on non-refoulement obligations until the determination of any application for a protection visa,[33] the recent decision in Minister for Home Affairs v Omar[34] means that I must give consideration to such claims raised by the applicant. The appropriate course is for the Tribunal to consider whether the existence of non-refoulement obligations is ‘another reason’ for revoking the cancellation decision. In any event, I am not released from “considering a risk of harm that would fall short of a risk of the kind of harm that may engage Australia’s non-refoulement obligations”.[35]
[33] Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [22]-[35]. See also GBV18 v Minister for Home Affairs [2019] FCA 1132 at [182] and the cases cited in [59]. See also Ministerial Direction No. 75 dated 5 September 2017.
[34] [2019] FCAFC 188.
[35] Ibid, [87]; Ezegbe v Minister for Immigration and Border Protection (2019) 164 ALD 139, [28].
In making an assessment as to the existence of non-refoulement obligations, I bear in mind the following:
(a)there is no legal impediment to the applicant applying for a Protection visa in the future, and Ministerial Direction 75 provides that when considering a Protection visa application, a delegate must first assess a person’s refugee and protection claim before considering any ineligibility grounds;
(b)I am not required to carry out the same level of analysis as would be expected in the assessment of a Protection visa application;
(c)it is open to me to give greater weight to the primary considerations in Direction 79 than to this ‘other consideration’.
The applicant has made a number of claims in expressing fear of harm if returned to Iraq.
The applicant gave evidence that Sabean Mandaeans are persecuted in Iraq as infidels and because they are considered to be religiously unclean. He has clear memories of being bullied at school because he is Mandaean. He also remembers growing up in a dangerous suburb of Baghdad where houses were bombed and neighbours were killed. He remembers fleeing to Syria with his parents and siblings where they lived for about five years before coming to Australia in May 2011. The applicant fears that he will be killed because of his faith and Mandeaen culture if he is returned to Iraq.
The applicant was not cross examined with respect to these claims and I have no reason to doubt them. The respondent does not challenge the evidence given with respect to the rape and murder of the sister. The general claims are supported by the most recent DFAT Country Information Report on Iraq dated 9 October 2018 (DFAT report) which refers to Sabean Mandaeans being kidnapped for ransom with a high risk of being killed for refusing to pay.[36] The DFAT Report concludes that Sabean Mandaeans face a low risk of official discrimination and a moderate risk of societal discrimination and violence, similar to that faced by other religious communities in areas where they are a minority.
[36] Exhibit 3.
I accept that there is a real risk of harm if the applicant returns to Iraq and that the applicant is owed non-refoulement obligations.
I now have regard to the legal consequences of a decision to not revoke the cancellation of the applicant’s visa, bearing in mind my determination that the applicant is a person in respect of whom non-refoulement obligations are owed. Specifically, the applicant will be liable to be removed from Australia as soon as it is reasonably practicable for that to occur.[37] However, it is relevant also that the Minister may consider alternative management options, such as the possibility of granting a visa under s 195A of the Act. Further, the applicant would not be liable to be removed in the event he applied for, and was granted, a protection visa.
[37] Migration Act1958 s198.
The applicant is liable to be held in immigration detention until he is removed from Australia. Given the obligation to remove as soon as reasonably practicable his detention would not be indefinite.[38]
[38] See DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 at [26]-[30]; and PRHR v Minister for Immigration and Border Protection [2017] AATA 2782 at [158].
Given that the legal consequence is that the applicant would be returned to Iraq, subject to any successful Protection visa application, it is my assessment for the reasons set out above that there is a very real risk that the applicant will suffer significant harm if the cancellation decision is not revoked. This factor weighs heavily in favour of revoking the cancellation but I note that the applicant has the opportunity of applying for a Protection visa at which time claims as to non-refoulement obligations will be more fully explored. I accept that regardless of whether the applicant’s claims are such as to engage non-refoulement obligations, the applicant would face significant hardship including violence and a lack of support in the event that he were to return to Iraq.
Strength, nature and duration of ties
In making my decision, Direction 79 requires that I consider the following factors:
·how long the applicant has resided in Australia, including whether the applicant arrived as a young child (noting that less weight should be given where the applicant began offending soon after arriving in Australia, and more weight should be given to time the applicant has spent contributing positively to the Australian community); and
·the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant arrived in Australia aged 17 years old in May 2011 and has therefore resided in Australia for over 8 years. He committed the offence in February 2013 which is relatively soon after arriving. He started school but quit in year 10 and went to work at a mushroom farm for about 2 years before being imprisoned in June 2015. There is a positive written reference from his manager at the mushroom farm. The trial judge in his sentencing remarks said:
He was an esteemed worker as a picker and packer at a mushroom facility in the Camden area. His employer came to court today to give some evidence about his reliability as an employee and also about his general nature and character. It is clear that she regards him with some respect as an employee and as a person who has a significant capacity to demonstrate by his own actions a committed work ethic.
His employer is willing to have him return to that employment. His work ethic and the availability of employment are of significance in determining his prospects of rehabilitation as is his support within his family and also within the community in the largest sense. A number of references were provided to the court on behalf of the offender, which attest to his general good character, to his positive attitude and respect for co-workers, especially females and his solicitude for those having problems. He is regarded as a very good and peaceful person, as well as being a very hard-working person.
His involvement in these offences has come as a shock to those who know him, who see it as an event out of character for him. One of the referees has known him for more than 15 years and regards him as being a very good influence on that referee’s children. That referee also refers to the offender’s excellent work history. Other references are all along similar lines.
I must have regard to the length of time the applicant has resided in Australia,[39] namely 8 years from the age of 17. In terms of the weight to be given to the length of residence, I give less weight because the applicant commenced offending relatively soon after arriving but more weight to the 2 year period of positive contribution. These factors weigh against each other but I consider that the length of residence is a factor that weighs marginally in favour of revoking the cancellation decision.
[39] Direction 79 at 14.2(1).
The applicant has very strong family and social ties with Australian permanent residents. He has an extended and supportive family network and he has an Australian partner to whom he is committed. His parents and three brothers all live in Australia. His parents and at least one brother have become Australian citizens. There are other cousins and relatives in Australia. There are no relatives left in Iraq. I accept that the applicant’s family and his partner and her children will be negatively impacted should the applicant be returned to Iraq.
In my opinion, the strength, nature and duration of ties weigh in favour of revocation of the original decision.
Impact on Australian business interests
No evidence or argument was advanced with respect to any impact on Australian business interests.
Impact on victims
Paragraph 14.4(1) of Direction 79 provides that I must consider the impact of a decision not to revoke on members of the Australian community, including victims of the applicant’s criminal behaviour, and the family members of the victim or victims where that information is available and the applicant being considered for revocation has been afforded procedural fairness.
I have not received any direct evidence with respect to the impact non-revocation would have on the victim of the applicant’s criminal behaviour and family members. In the absence of such evidence, I cannot find this other consideration weighs in favour of, or against, revocation of the cancellation decision.
Extent of impediments if removed to home country
Direction 79 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to Iraq, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
·The applicant’s age and health;
·Whether there are substantial language or cultural barriers; and
·Any social, medical and/or economic support available to them in that country.
The applicant is 25 years old and generally in good physical health. There are some mental health issues but these are not major. In his report dated 19 July 2019 Mr Watson-Munro noted that the applicant had previously suffered features of post-traumatic stress disorder “although these are now resolving notwithstanding continuing themes of depression and anxiety referable to his current circumstances.” He added that there is no history of major psychiatric disturbance. This is consistent with a psychological assessment dated 8 January 2019 which records that the applicant did not report a history of psychiatric illness or disorders but that his symptoms are characteristic of depression, post-traumatic stress disorder and anxiety.
The applicant submitted that if deported he would face hardship in Iraq in terms of employment and support, but said that this is a minor issue compared to the fact that sending him to Iraq would be a death sentence. The applicant also contended that there was no social, medical, economic support available to the applicant should he be returned to Iraq.
The respondent noted that the applicant is a young man who is familiar with the language and culture of Iraq but accepted that the applicant would face hardship on his return by reason of his religious background, being of the Sabean Mandaean minority, and lack of familial and social support.
I have already found that there is a real risk of harm if the applicant returns to Iraq because of his religious and cultural background. He is likely to face societal discrimination which would be made worse because of his lack of family or social support in Iraq. In these circumstances he would obviously find it difficult to obtain employment and to obtain adequate medical support for his mental condition.
I conclude that there would be very real and substantial impediments for the applicant if he were removed to Iraq. This consideration weighs strongly in favour of revocation of the original decision.
Conclusion as to whether there is another reason to revoke the original decision
I have considered the specific circumstances relating to the applicant as part of my consideration whether to revoke the cancellation decision. I am now required to weigh up those considerations.
The primary considerations relating to the protection of the Australian community and the expectations of the Australian community are overwhelmingly in favour of not revoking the cancellation decision. The offending was most serious involving an aggravated sexual assault. The applicant pleaded not guilty and maintained his innocence for over 6 years after the offending. He has not undergone adequate rehabilitation. On the other hand, there are other considerations which favour revocation, namely that Australia owes him non-refoulement obligations; that he has strong ties to Australia because of his extensive and supportive family network and his partner; and that he will face the most severe impediments including risk of death if forced back to Iraq. In addition, the primary consideration with respect to the best interests of minor children weighs in favour of revocation but minimal weight should be given to that consideration.
Direction 79 at paragraph 6.2(1) provides general guidance that the Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens. I consider that the principle in Direction 79 at paragraph 6.3(4) is applicable, namely:
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.
This is a case where the risk of future harm from the applicant is unacceptable because of the serious nature of the crime committed.
I note that primary considerations should generally be given greater weight than the other considerations.[40] I consider that the primary considerations of the protection and the expectations of the Australian community outweigh the countervailing considerations.
[40] Direction 79 at 8(4).
The applicant will be at risk of being killed if returned to Iraq but the Australian community will face an unacceptable risk of further harm if the applicant remains in Australia. Being able to remain in Australia is a privilege Australia conferred on the applicant in the expectation that he is law-abiding and will not cause or threaten harm to individuals or the Australian community – by committing the aggravated sexual assault the applicant has not been law-abiding.[41] The Australian community expects that the Australian Government should cancel the visas of non-citizens who commit such serious crimes in Australia.[42] The applicant, as a non-citizen who has committed a serious crime against a woman, should generally expect to forfeit the privilege of staying in Australia.[43] Australia has a low tolerance with respect to the criminal offending of the applicant who has been participating in, and contributing to, the Australian community only for a short period of time.[44]
[41] Ibid, at Principle 6.3(1).
[42] Ibid, at Principle 6.3(2).
[43] Ibid, at Principle 6.3(3).
[44] Ibid, at Principle 6.3(5).
It follows from the application of the guiding principles in paragraph 6.3 of Direction 79 that I am not satisfied that there is another reason why the cancellation decision should be revoked.
Decision of the Tribunal
The decision of the Tribunal is to affirm the reviewable decision.

I certify that the preceding 93 paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

........[Sgnd]............................
Administrative Assistant Legal
Dated 6 January 2020
Dates of hearing:  17 October 2019
Date final submission received:                    25 November 2019
Applicant’s Representative:  Mr C Jackson (counsel) on instructions from South West Migration & Legal Services
Respondent’s Representative:  Ms. S McGee (counsel) on instructions from the Australian Government Solicitor