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

MPRP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3004 (18 August 2020)
Division:GENERAL DIVISION
File Number(s): 2020/3334
Re:MPRP
APPLICANT

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

DECISION
Tribunal:Deputy President J W Constance
Date:18 August 2020
Place:Sydney

The reviewable decision made 27 May 2020, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the Applicant’s Class XA Subclass 866 Protection visa, is set aside. In substitution it is decided that the decision to cancel the Applicant’s Class XA Subclass 866 Protection visa made on 7 December 2016, is revoked.
.............................[SGD]...........................................
Deputy President J W Constance
CATCHWORDS
MIGRATION – mandatory cancellation – protection visa – where offending very serious – where offending involved domestic violence – where low risk of reoffending – protection of the Australian community – best interests of minor children in Australia affected by the decision – expectations of the Australian community – international non-refoulement obligations – strength, nature and duration of ties to Australia – impediments to return – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCAFC 185
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296
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 s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Deputy President J W Constance
18 August 2020
A: INTRODUCTION
A contentious issue

I urge anyone who wishes to comment on the decision in this application to read these reasons for the decision before doing so.
The cancellation of the visa of a person who is a resident of Australia is a contentious issue and one which arouses public interest and invites public comment. The Tribunal’s decisions in this jurisdiction are regularly subjected to public scrutiny. This is how it should be. However, in fairness to the parties in such proceedings, the public comment should be well-informed.
I have no doubt that some in the Australian community will disagree with the decision I have reached, but it is the task of the Tribunal to apply the law and to exercise any discretion given to it in accordance with the law. Contrary to the views often expressed in the media, it is not the law of this country that every visa holder who commits a serious offence should be deported. Had Parliament intended such a result it would have said so.
Events leading up to this application
The Applicant was born in Iran in 1985. He is stateless.[1]
[1] Exhibit R2 at 3.
The Applicant arrived on Christmas Island as an unauthorised maritime arrival in April 2010. He was granted a Class XA Subclass 866 Protection visa in April 2011 and was released from immigration detention. He has lived in Australia since that time.
On 9 August 2016, the Applicant was sentenced to imprisonment for 14 months for the offence of common assault involving domestic violence.[2]
[2] Exhibit R1 at 24-25.
By reason of his sentence being for 12 months or more, on 7 December 2016 the Applicant’s visa was cancelled in accordance with subsection 501(3A) of the Migration Act 1958 (Cth) (the Act).[3] This decision is referred to in the Act as “the original decision”.
[3] Exhibit R1 at 67.
On 27 May 2020, a delegate of the Minister decided not to revoke the original decision.[4] The decision of 27 May 2020, referred to as the “reviewable decision”, is the subject of this application for review.
[4] Exhibit R1 at 10.
The reviewable decision was made on the basis that the delegate was satisfied that the Applicant did not pass the “character test” set out in the Act, and that there was not another reason why the original decision should be revoked.
The Applicant was released from prison in December 2016.[5] He was immediately transferred to immigration detention where he was being held at the time of the hearing of this application.
[5] Exhibit A1 at 3.
In his application to the Tribunal for a review of the reviewable decision, the Applicant stated his reasons as follows:
I have two little kids who are Australian citizens. If you give me another chance I will prove that I have changed. I have learnt from what I have done wrong and I will not do it again.[6]
[6] Exhibit R1 at 5.
For the reasons which follow, the reviewable decision will be set aside and it will be decided that the cancellation of the Applicant’s visa be revoked.
B: BACKGROUND
Unless otherwise stated, the findings of fact in these reasons are based on the evidence of the Applicant. I am satisfied that he was an honest witness who gave his evidence to the best of his recollection. He provided statements dated 30 April 2020[7] and 14 July 2020[8] and gave evidence at the hearing.
[7] Exhibit R1 at 77.
[8] Exhibit A1 at 2.
The Applicant was born in Iran to parents of Faili Kurd ethnicity who had been expelled from Iraq. He left school when he was about 9 years old and worked as a street seller to help support his family.
He left Iran using a fake passport when he was about 24. He travelled to Indonesia where he engaged the services of a people smuggler to travel to Australia. On the way the boat on which he was a passenger was intercepted by the Royal Australian Navy and taken to Christmas Island.
After 17 months in immigration detention the Applicant was released. He made his home in Adelaide. He obtained casual employment in a cake shop and in a meatworks. He attended classes and learnt to speak English. He later moved to Perth in the hope of finding employment in the mining industry but was unable to do so. He then moved to Sydney and gained full-time employment as a truck driver.
The Applicant’s relationship with Ms H and the birth of their children
Soon after he moved to Sydney the Applicant met Ms H. They became partners and Ms H fell pregnant with their first child. Their son was born in June 2015.[9]
[9] Exhibit R1 at 61.
Before his son was born the Applicant began to feel unwell and to experience difficulties in his relationship with Ms H. He was smoking marijuana and hearing voices in his head.
In July 2015, shortly after his son was born, the Applicant was hospitalised for about 10 days and treated for mental illness. However, after he was discharged from hospital he ceased taking his medication as it was making him drowsy and he was concerned that he would not be able to continue working. He and his partner separated.
In December 2015 the Applicant assaulted Ms H. At the time she was pregnant with their daughter. The circumstances of the assault are set out in the following extract from the judgement of Judge Sides QC who heard the Applicant’s appeal against the sentences imposed:
She had come to where he was living with her sister and, at the time, she was pregnant. She asked her sister to leave so she could talk to the appellant. He asked her for her phone, which she handed over. He then began accusing her of sleeping with one of his friends. He then punched her head with a fist, called her names, alleged that she was sleeping with a mate and punched her twice again. Even though she attempted to block them, they made contact. She tried to get some help but was not successful.
He approached her, grabbed her by the hair and pulled her to the ground and dragged her across the lawn and down for steps to the street. She was shouting for help. She ultimately went to a neighbour’s place where a child handed her a phone and she was able to contact police and waited for them.
Her sister did return and, when he sister’s boyfriend came to help, he assaulted the boyfriend by pushing the boyfriend and he kicked the rear of the vehicle causing a dent.[10]
The Court dismissed the appeals against the sentences of 14 months imprisonment for the assault on his partner and three months for assaulting the person who attempted to intervene. The Court adjusted the commencement date and the non-parole period of the sentence for the assault on the Applicant’s partner.
[10] Exhibit R1 at 31-32.
The Applicant’s daughter was born in April 2016.[11]
[11] Exhibit R1 at 58.
Further findings as to the present relationship between the Applicant and his partner are set out later in these reasons.
The Applicant’s criminal record
A summary of the Applicant’s criminal record is set out in paragraph 43 of these reasons.
Failure to pass the character test
It is not in dispute that, by reason of his criminal record, the Applicant does not pass the character test set out in the Act.
C: THE RELEVANT LEGISLATION
Subsection 501(3A) of the Act provides:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(7)(c) provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more …
Subsection 501CA(3) provides:
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The power of the Tribunal to review the decision to refuse to revoke the cancellation of the Applicant’s visa is provided by section 500 of the Act.
D: DIRECTION NO. 79
Pursuant to subsection 499(1) of the Act, the Minister has given written directions as to the exercise of the power to revoke a mandatory cancellation, and thus the Tribunal’s power on review. The relevant direction is Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction), which commenced on 28 February 2019. Pursuant to subsection 499(2A) of the Act, the Tribunal is bound to comply with the terms of the Direction.
Subparagraph 6.1(3) of the Direction provides, in part:
Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 provides general guidance and directs that the “factors that must be considered in making a revocation decision are identified in Part C of this Direction”.
Under the heading General Guidance, subparagraph (1) provides:
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 7 of the Direction sets out how the discretion is to be exercised. “Informed by” the principles in paragraph 6.3, I must “take into account” the considerations in Part C in order to determine whether the mandatory cancellation of the Applicant’s visa should be revoked. A copy of Part C is “Annexure A” to these reasons.
In paragraph 6.3, the Minister sets out the principles that provide the framework within which the task of exercising the discretion to revoke the cancellation of a visa is to be approached. The principles are:
(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.
The Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case.[12] Primary considerations should generally be given greater weight than the other considerations.[13]
[12] Direction at [6.2(3)] and [8(1)].
[13] Direction at [8(4)].
Paragraph 13(2) provides:
In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, 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.
Paragraph 14(1) sets out other considerations to be taken into account where relevant. It provides:
In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
E: THE ISSUE FOR DETERMINATION
I have set out subsection 501CA(4) of the Act earlier in these reasons (see paragraph 28). Before the power to revoke the original decision is enlivened, it is necessary for the decision-maker to be satisfied that the preconditions to the exercise of the power have been met.
It is not in dispute that the Applicant has made representations of the kind referred to in paragraph (a) of subsection 501CA(4). It is also not in dispute that he does not pass the character test in subparagraph (b)(i) of the subsection. Therefore, it is necessary to decide whether “there is another reason [i.e. other than the Applicant’s passing the character test] why the original decision should be revoked”.[14]
[14] Subparagraph 501CA(4)(b)(ii) of the Act.
If I am satisfied of all the relevant requirements of paragraph 501CA(4)(b), then the cancellation must be revoked. To this extent, “may” in the subsection means “must”.[15]
[15] Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 at [31].
F: REASONING
F1: Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
I must have regard to matters set out in paragraph 13.1, which include:
·… 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 …;
·[t]he nature and seriousness of the non-citizen’s conduct to date;
·[t]he risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[16]
F1.1: The nature and seriousness of the Applicant’s conduct to date
[16] ‘Serious conduct’ is defined in Annex B to the Direction to include conduct of concern which may not constitute a criminal offence.
Criminal history
The Applicant commenced offending in 2013. He agrees that the report dated 26 February 2020[17] accurately records his criminal history. I am satisfied that the following summary of his offences taken from paragraph 5 of the Respondent’s Statement of Facts, Issues and Contentions[18] is accurate:
5.1. On 7 June 2013 the applicant was placed on a good behaviour bond and fined $900 for drive with excess blood alcohol, and fined $200 for carry an offensive weapon and commit an offence that causes harm – basic offence.
5.2. On 28 April 2014 he was convicted of unlawful wounding with a circumstance of aggravation, and was fined $2,500.
5.3. On 2 June 2014 he was convicted of failing to comply with bail conditions, driving with excess alcohol and public order offences, and fined $1,000.
5.4. On 22 June 2015 the applicant was convicted of 2 counts of Stalk/intimidate intend fear physical etc harm (personal). These offences involved the intimidation of 2 officers of the Department of Housing. The applicant received a section 9 bond with 18 months’ supervised probation.
5.5. On 9 August 2016 the applicant was convicted of Common assault (dv) and sentenced to 14 months imprisonment with a non-parole period of 10 months. That offence was committed during his probation period and involved the applicant punching his former partner 3 times to the head while she was pregnant. On the same day he was convicted of Destroy or damage property (dv), Common assault and 2 counts of Fail to appear in accordance with Bail Granted acknowledgment, and Destroy or damage property (dv). The applicant received sentences of 1 to 3 months’ imprisonment for these convictions. In addition, the 2 previous matters of Stalk/Intimidate were called up and he was required to serve 3 months imprisonment for those offences.
5.6. On 11 December 2019 the applicant was convicted of Affray …… resulting in a sentence of 6 months imprisonment. The offence occurred over 2 separate instances on 28 March 2019 when a brawl broke out in immigration detention between Iranian and Iraqi detainees. The applicant grabbed his first victim, dragged him against a wall and punched him in the head; he punched his second victim with a closed fist.
[17] Exhibit R1 at 24.
[18] Dated 27 July 2020.
Providing false information to the Department of Immigration and Citizenship

In April 2015 the Applicant completed an application for Australian citizenship which was submitted to the Department on 8 April 2015.[19] In that application he stated that he had not been convicted of any offence in Australia.[20] At the time the application was lodged with the Department the Applicant had been convicted of several offences.
[19] Exhibit R2 at 81.
[20] Exhibit R2 at 86.
Paragraph 13.1.1 of Direction No.79
Paragraph 13.1.1 provides:
1In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
Discussion
The Applicant’s conduct must be regarded as very serious. He has committed offences which involve:
·violence, including domestic violence against his former partner when she was pregnant;
·conduct against government officials in the performance of their duties;
·violence while in immigration detention.
The cumulative effect of the Applicant’s conduct over seven years indicates a disregard for the laws and institutions of Australia. The sentences of imprisonment imposed upon him and the fact that he was on a good behaviour bond when he assaulted his former partner shows a trend of increasing seriousness.
In addition to the conduct which led to the Applicant being convicted of criminal offences, he was involved in several incidents in prison and in immigration detention which add to the seriousness of his conduct. These included fighting, bribery, and possession of cigarettes. He was disciplined by being confined to his cell and being denied purchasing privileges. In addition he had provided false and misleading information to the Department.
In May 2019 the Applicant was involved in an incident at the Yongah Hill Detention Centre during which it is alleged that he shouted at a nurse who was dispensing medications to detainees, including the Applicant. He admits that there was an exchange between the nurse and himself but he denies shouting. As a result of the exchange the nurse refused to dispense the medication until he apologised and the Applicant says that he did not receive his medication for that day.
In the absence of evidence other than the written report, I do not make any finding adverse to the Applicant. However, I recommend that the alleged failure to dispense the Applicant’s medication be further investigated. On the face of it, the refusal to dispense prescribed medication for a detainee’s medical condition appears to be an inappropriate form of discipline.
F1.2: The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Direction states that I must have regard to the following considerations cumulatively:
(a)[t]he nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)[t]he 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).[21]
[21] Direction at [13.1.2(1)].
F1.2.1: The nature of future harm
Should the Applicant further engage in conduct similar to that in which he has engaged in the past, there would be a significant risk of death or serious physical and/or psychological harm to members of the community and the risk of financial loss. In addition, significant public resources would be expended in dealing with his anti-social conduct.
F1.2.2: The likelihood of the Applicant engaging in further criminal or other serious conduct
Evidence of the Applicant
In a statement made 14 July 2020, the Applicant said, in part:
11. I was in prison for 8 months. I had never been in prison before, I found it scary and horrible, there are a lot of violent people in there and I was always scared tor my safety.
12. In December 2016 I was paroled and went to Villawood detention centre. I was there for about 5 weeks and then was sent to Christmas Island. After being there for about one or two months I saw a psychiatrist who said I was unwell and that I needed to go to hospital, so I was transferred to a mental health hospital in Perth. Then I was taken to Yongah Hill detention centre for about 18 months before being transferred back to Villawood.
13. In 2019 there was a fight between people at Villawood, and, stupidly, I got involved in the fight and was charged with affray. Because of this fight, a few months later, I was taken from Villawood to prison. Again, I found prison difficult and was worried about my safety, I saw people be beaten up in front of me. But I tried to do my best in there and I worked in the store room packing food
14. My mental health is really good now. I no longer smoke marijuana. I take olanzapine every day, and I know how important it is to keep taking it, I have seen psychiatrists and psychologists in detention who help me as well. Just as importantly though, since coming back to detention from prison, I have worked nard to further change my attitude. In the past, if someone did something to bother me, like called me a name, I would get sucked in and sometimes get involved in a fight, Now I have grown up. I no longer get involved with other people and their problems, I am quiet and do my own thing. I participate in activities in detention like going to the gym, painting and playing soccer.
My relationship with my kids
15. I love my kids, they are my everything. One of the reasons why [Ms H] and I started to have trouble in our relationship, was because when [Ms H] became pregnant with [the Applicant’s son], I did not feel ready to have kids. But then when [the Applicant’s son] was born I was so excited and I changed my mind. I tried my best to be a good dad, though I was struggling a bit with my mental health. I would help with changing nappies and looking after him. Then when [Ms H] was pregnant with [the Applicant’s daughter] we separated and stopped living together. I went to prison when [the Applicant’s daughter] was about two weeks old.
16. After I was released from prison and sent to Villawood, [Ms H] and I got back in contact with each other. She and the kids would come and visit me about once every fortnight. I always felt so happy to see them. After I was moved to Christmas Island and Western Australia we stayed in contact by phone and then when I was transferred back to Villawood, they started visiting me again.
17. I talk to [Ms H] and my kids every day on the phone from detention. The kids are young so they don't understand what is happening. My son sometimes says, 'my dad left us', which makes me so upset. I just want to be with them. I am very worried about the possibility of not being able to be there with them in the future, and the impact it might have on their mental health.
My plans for my future
18. I feel so sorry and so much regret for the things I have done in the past. I have spoken to [Ms H] about what happened between us and told her how sorry I am for what I did to her. We are close friends now. She is a really good woman, she has looked after me, supported me. I made a mistake and am to blame. I want to be able to return her kindness by being good to her and the kids in the future.
19. I still have my truck licence and if I get my visa back I plan to get work as a truck driver again. I know how to manage my medication now so that it does not make me sleepy. I plan to live in Sydney near [Ms H] and the kids so that I can see them regularly. I will look after them, support them financially, and do all the things that a good father does.
20. I know that if I am released I need to keep on top of my mental health, I need to keep taking my medication and stay in contact with a GP. I am able to recognise when I am not feeling entirely well, I tend to feel stressed. At these times, I always request to see a psychiatrist.
The Applicant’s mental health
The clinical notes of the International Health and Medical Services[22] from 5 April 2017 show that the Applicant has been diagnosed with a mental condition or conditions described as schizophrenia, schizoaffective disorder and bipolar disorder. He is being treated with counselling sessions and medication.
[22] Exhibit R2 at 117ff.
When he gave evidence, the Applicant said that recently he had been prescribed an additional drug to assist his sleeping. He now realises the importance of continuing to take his prescribed medications and that if he does so he feels much better. Prior to taking his medication regularly he had been admitted to hospital on at least four occasions.
The Applicant believes he no longer has problems with anger management. He believes those problems were associated with his failure to address his mental health issues.
Evidence of the Applicant’s former partner (Ms H)
Ms H provided statements dated 5 August 2020[23] and 29 May 2020[24] and gave evidence. I am satisfied that she was an honest witness who gave her evidence to the best of her recollection. I accept her evidence.
[23] Exhibit A3 at 2.
[24] Exhibit A2.
In her statement dated 29 May 2020 Ms H said, in part:
I am writing to say I will be supporting [the Applicant] once he is released from the detention centre. We have 2 kids together a 5 year old and 4 year old. Our kids speak to there dad every night , they miss there dad they get excited when he video calls them and they never want to hang up. [The Applicant] is an awesome dad and I can't wait till he is released so he can be physically here with his kids instead of been just on Video call. I can see he's lonely in there as he has no family here besides my self , our kids and my family. So the reason for this letter is to say that my self and my family are 100% here to support [the Applicant] what ever the outcome is.
[Errors in the original].
Ms H referred to the Applicant’s mental health issues ion her statement of 5 August 2020:
43. I did not know [the Applicant] had mental health problems until I gave birth to our son and he was hospitalised for two weeks. I am now fully aware of his diagnosis of schizophrenia.
44. When I talk to the Applicant] now I can hear the change in the way he talks. He is very different to how he was on the outside and even in Villawood. My family talk to him too when he rings, as I live with them. They also think he sounds a lot better. He is no longer paranoid. I believe there is a very big change in him when he is on his medication.
45. Before when I talked to him on the phone in Villawood he would often be paranoid about other people, thinking they are sneaking in his room and touching his stuff. I told him it was all in head but he didn’t believe me. Now he even has friends in Yongah Hill. There is a big difference and his communication with other people is much better.
46. [The Applicant] needs to talk to a mental health professional like a psychiatrist or a counsellor regularly as he has kept a lot in. He told me about growing up in Iran and the things he has gone through. I think he needs to see someone regularly. I will support and encourage him to see a psychiatrist. I would pick him up and take him to the appointments.
47. I will also support and encourage [the Applicant] to take his medication regularly if he were released. I will remind me and ask him. I have already told him, “you take it everyday in there why can’t you do it when out and if you did it when you were out before you would not be where you are now.” He has acknowledged that he was an idiot and stupid not to. I said “look where stupid got you.” I believe he fully understands how important it is to stay on his medication now.
48. I have told [the Applicant] that he needs to understand for him to be in the children’s lives he needs to keep himself better, go to appointments, open up and talk to someone and stay on his medication. We have already talked about this and he agrees.
………………..
50. I think [the Applicant] has learnt his lesson and gown up a lot. After speaking to him all the time I have definitely seen a difference. He always says to me “I am not that old person any more, that is not me anymore, that person is gone.” I believe it. The old [Applicant] would never have even said anything like that. The way he talks is different. He is softer, calmer. We can have a good conversation and a laugh.
51. I think he has learnt his lesson. I trust he will be a good person and a good father who is compliant with his medication if he were to be released. I do not have any concerns about him around the children or feel that he poses any risk.
[Errors as in the original.]
Having heard and observed Ms H give evidence I am satisfied that she will assist and support the Applicant to reintegrate into the Australian community should he be free to do so.
Ms H has forgiven the Applicant for assaulting her. This was the only occasion on which he has been violent to her in any way.
In the time Ms H knew the Applicant before he was imprisoned, he was a hard worker. He worked six days per week and had a good reputation as an employee. He provided for the family.
Ms H was unaware of the Applicant’s convictions prior to 2015 until the hearing of this application. Having been made aware of them she did not change her opinion of him and will still assist him if she is able.
Sentencing remarks of Judge Sides QC on 16 November 2016
His Honour made the following remarks when considering the Appeal by the Applicant against the severity of the sentence imposed for the assault on his former partner:
He has mental health issues. It seems that he was suffering from drug-induced psychosis when he was admitted to the mental health unit at St George Hospital in July last year. He was discharged. According to the report, he was supposed to report to Liverpool Mental Health and did not keep an appointment. He claims that people from St George saw him a number of times. He has been on a variety of medications since, as the Court understands it, going into custody and his mental health has improved.
…………..
It seems from his evidence at least that he has some insight into his mental health issues that made his time in custody more burdensome. Unfortunately, there is no report that the Court ordered because of administrative error. As to what his state of mental health was at the time of the offences that is not clear. It may be that he had mental health issues at the time, but his behaviour is equally explicable by mere jealousy absent any mental health issues, but he clearly needs an extended period of supervised parole.[25]
[25] Exhibit R1 at 32-33.
Sentencing remarks of Magistrate Walsh on 11 December 2019
Magistrate Walsh made the following remarks when sentencing the Applicant for the offence of affray committed while he was in immigration detention on 29 March 2019:
So far as his mental health is concerned, I accept the contents of the mental
health report of 29 November 2019. I accept that he suffers from a significant
schizoaffective disorder and that there was some correlation between that
disorder and his perception of what was happening on 28 March and his
inability to exercise sound judgment. I accept there is a causal relationship
which reduces the moral culpability of the offender and renders him an
inappropriate vehicle for great weight to be given to general deterrence or
specific deterrence.[26]
[26] Exhibit R1 at 76.
F1.3. Discussion
In considering the evidence I have referred to in the preceding paragraphs, I have had 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.” [27] As I have found, the Applicant’s past conduct is very serious.
[27] Direction at [13.1(1)].
Given the potential harm to the community should the Applicant again conduct himself in the way he has done in the past, the Australian community’s tolerance for the risk of any such harm normally would be towards the lower end of the scale.
I now turn to the question of the likelihood of the Applicant engaging in further criminal or other serious conduct.
The Applicant has repeatedly expressed remorse for his past conduct and has assured the Tribunal that he will not re-offend.
Several factors support a finding that the Applicant is unlikely to re-offend should he return to live in the Australian community:
(i)his desire to maintain close contact with his two young children and to be able to fulfil his role as their father to the greatest extent possible;
(ii)the knowledge that if he is deported, he will have no physical contact with his children as they grow up and will be unable to take part in many of their activities;
(iii)the experience of incarceration and migration detention over the past three years;
(iv)his fear for his safety if he returns to Iran to which I shall refer later in these reasons;
(v)the support which will be available to him from Ms H and her family should he be released;
(vi)his realisation that he needs ongoing treatment for his mental condition;
(vii)his work ethic;
(viii)his realisation that should he re-offend or engage in other serious misconduct it is likely that his visa will again be revoked.
Even though the Applicant has been guilty of serious conduct, I accept his evidence to which I have referred. I accept also the evidence of Ms H.
I am satisfied that the Applicant has a mental disorder which has affected his conduct to some extent. However, this is not to say that it caused him to offend in the way he did. At all times he has been responsible for his actions. It does highlight the importance of his continuing to seek treatment and to take the medication prescribed for him.
The willingness of Ms H to facilitate an ongoing relationship between the children and their father is a very important consideration. She has made it clear that this depends on the Applicant continuing to comply with proper treatment of his condition.
Based on the evidence to which I have referred, I am satisfied that it is unlikely that the Applicant will engage in further criminal or other serious conduct and that he does not represent an unacceptable risk of harm to individuals, groups or institutions in the Australian community.
F2: Primary Consideration 2: Best interests of minor children in Australia affected by the decision

The Applicant’s two children will be affected by the decision as to revocation of the cancellation of his visa.
The evidence of the Applicant
I accept the evidence of the Applicant that he loves his children and wishes to maintain a close relationship with them. I am satisfied that, so far as he is able, he intends to fulfil his role as their father by providing parental guidance and emotional and material support to them.
The evidence of Ms H
In her statement made 5 August 2020[28] Ms H said, in part:
[28] Exhibit A3 at 2.
25. While [the Applicant] was in prison we did not have much contact. I sent him some money for phone cards. But I did not want the children to go to prison, so I chose not to take them.
26. When [the Applicant] was released from prison he went straight to Villawood. The day he got released into Villawood I took our kids to see him. I think it was end of 2016 as he only spent 7 months in prison. They were both little.
27. When [the Applicant] was in Villawood we would go and see him twice a week. We stayed for a few hours each time. [The Applicant] would play with the children in the park and we would have lunch.
28. [The Applicant] was good with the kids. My daughter got attached to him very quickly. She was only two weeks old the last time she had seen him before he was incarcerated so she would not have remembered him, but it’s a testament to his love and care for the child that she got attached to his straight away.
29. When we would visit the children would barely pay me any attention, they were so happy to play with [the Applicant]. They would just come over to me when they wanted a drink or something to eat then go right back to playing with their father.
30. [the Applicant] was then taken to Yongah Hill, in Western Australia. We had a visit booked the day we found out he was being transferred. I asked why, as his children lived in Sydney. I was really upset as my kids had bonded with him and was getting even closer to him and he was being taken away. No one could tell me why.
31. I can see my son is affected. When we go to functions with my large family and he sees other kids with their dads, he watches them together. One day when we left my cousin’s baby’s first birthday he said to me “mum why did my dad leave me? Why don’t I have a dad?” It really broke me. He was only four at the time.
32. I tell my son that his dad did not leave him, and my son then asks me to tell his dad to come home. I don’t know what to say, I just try and change the subject. When [the Applicant] speaks to them he tells them he did not leave them, he is just away. They are constantly asking when their father would return to them.
33. Since [the Applicant] has been in Yongah Hill the children and I talk to him on Facetime every night. This is an important time for the children, however as they get older they need to be able to physically be with their father.
Plans if [the Applicant] is released:
34. If [the Applicant] is released I have told him that my family and I are here to support him. My mum and dad have said this too. My children and I are currently living with my parents and I have their support. I was working and studying last year but I am currently living with my parents and on Centrelink. I volunteer once a fortnight at a church and am studying. Our son is in school but our daughter is still with me and I take her when I volunteer.
37. When [the Applicant] gets a job he can contribute financially to the children by paying me child support and providing other assistance financial on an as need basis.
38. Once [the Applicant] gets on his feet we plan for him to start having his kids. He can pick them up, take them out, spend time with them and have them on weekends. At first every second weekend and not overnight, just for them to get used to it.
39. We will build up to it gradually though. Initially, I have said to him if he is released he can have the children for a few hours. We can meet in park like we did when he was in Villawood. I can sit there and watch until he gets on his feet, then I’ll start letting him take them on his own for couple of hours, but not straight away.
40. I have said to him “if you don’t take your medication you don’t get the kids, it is as simple as that. You can only have lunch with them until I know you are 100% on meds and doing good with yourself.”
41. He understands and he loves the children so I think it is really good motivation for him to keep going on the path he is on now.[29]
[Errors in the original].
I accept this evidence.
[29] Exhibit A3 at 4-5.
By reason of the attitude adopted by Ms H, the Applicant has been able to build a relationship with both children since December 2016, when he was released from prison and taken into immigration detention. Ms H showed the strength of her desire that the children have a father in their lives when she took the opportunity to visit the Applicant with the children within 48 hours of his arriving at Villawood Detention Centre. In that period a detainee is entitled to have visitors without an appointment. Following that visit she has ensured that the children maintain contact with their father even after he was transferred to Yongah Hill in Western Australia.
On the basis of the evidence of Ms H and the Applicant, I am satisfied that he is likely to play a positive parental role in their lives if he is able to return to live in the Australian community. In view of their young ages there are many years ahead before they turn 18. The Applicant’s son is about to start playing organised sport which will give the Applicant an additional opportunity to interact with him. His son has begun to question the physical absence of his father.
Apart from the enforced separation, it appears that the Applicant’s past conduct has not had an adverse effect on either child. In view of the evidence I have referred to in relation to the risk of the Applicant’s re-offending, I am satisfied that it is unlikely that his future conduct will have an adverse effect upon them.
Should the Applicant be deported or remain in detention, the children will be deprived of the emotional and financial support he will be able to give them should he be living and working in the community. His contact with the children would be limited to electronic communication with, at best, some visits at a detention centre while he remains in Australia. Apart from Ms H there is no other person who is filling a parental role in relation to the children.
I am satisfied that the Applicant has neither abused nor neglected his children. Apart from distress experienced by the older child, I am satisfied that neither child has suffered any physical or serious emotional trauma arising from the Applicant’s conduct. Both parents have done all they can to minimise the effects of the Applicant’s absence.
Having taken into account all of the evidence I have referred to, I am satisfied that it is in the best interests of the children that the cancellation of the Applicant’s visa be revoked.
F3: Primary Consideration 3: Expectations of the Australian community
Paragraph 13.3 of the Direction provides:
(1) 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.
In YNQY v Minister for Immigration and Border Protection,[30] Mortimer J said:
76. In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[30] [2017] FCA 1466.
Since the judgement in YNQY, the Federal Court delivered its judgement in DKXY v Minister for Home Affairs.[31] After referring to the relevant paragraphs of the reasons in YNQY, one of which I have set out above, Griffiths J said:
29. These paragraphs in YNQY appear in that part of her Honour’s judgment in which she was addressing a contention that the AAT had erred by failing to make findings and/or take into account as a primary consideration the expectations of the Australian community.
30. In my respectful view, her Honour’s reasoning in [76] and [77] of YNQY would be plainly incorrect if this reasoning is read as stating that the primary consideration of expectations of the Australian community will always weigh against revocation. The Minister contended that the reasoning simply reflected the facts in YNQY and did not purport to be a construction of Direction 65 as suggesting that the expectations of the Australian community can never weigh in favour of an applicant …
31. As [the Applicant] here pointed out, there are numerous statements in Direction No 65 which require the primary consideration of expectations of the Australian community to be assessed in the light of all the relevant circumstances which appertain to it and it has to be weighed against all other relevant considerations (while noting that the Direction requires that primary considerations be given more weight than other considerations). In an appropriate case, and depending upon all relevant circumstances, the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government’s view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction, including those which are referred to in [23] above.
(Emphasis in original.)
[31] [2019] FCA 495.
After referring to those paragraphs in Uelese v Minister for Immigration and Border Protection[32] relied upon by the primary Judge in YNQY to support the proposition that the primary consideration of the expectations of the Australian community will invariably weigh against revocation of a mandatory cancellation, Griffiths J continued:
33. … There is nothing in these passages from Uelese which indicates that a primary decision-maker who is bound to apply the Direction cannot also take into account any material which is before the decision-maker which is relevant to an assessment of this primary consideration. The Government’s views have to be taken into account and given “due regard”, but so must all other circumstances which are relevant in the particular case. As Robertson J pointed out in the final sentence at [64] of Uelese, cl 9.3 of the Direction ends by stating that decision-makers should have “due regard” to the Government’s views on Australian community expectations. What amounts to “due regard” will necessarily require attention to be given to all relevant circumstances in the particular case which bear upon a general assessment of Australian community expectations.
[32] (2016) 248 FCR 296.
The Full Court gave further consideration to this question in FYBR v Minister for Home Affairs and Another.[33] In that matter the Court considered clause 11.3 of Direction 65, the predecessor to the Direction which is in the same terms as clause 13.3 of the Direction currently in force.
[33] [2019] FCAFC 185.
In his reasons for dismissing the appeal, Charlesworth J said, in part:
[61] The proper construction of cl 11.3 turns on two questions. The first is whether or not the clause expresses an expectation deemed by the government to be held by the Australian community. The second is whether the clause gives expression to an expectation that must of its nature weigh against the grant of a visa in every case.
…
[67] To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”, in the sense explained by Mortimer J in the limited passage from YNQY upon which the Tribunal relied at [54] of its reasons (extracted at [20] above). It is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”. I do not understand the judgment of Griffiths J in DKXY to differ from that of Mortimer J in YNQY in that respect. For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.
…
[75] Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
[76] The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government’s assessment of community expectations is “generally” to be afforded greater weight than the “other considerations” listed non-exhaustively in cl 12. The word “generally” contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors arising for consideration under cl 12. There may be cases in which it is not appropriate to give the community expectations discerned under cl 11.3 any weight at all.
[Emphasis added]
In agreeing that the appeal should be dismissed, Steward J said, in part:
[90] However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker:…
[91] The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
[92] There is also an important structural consideration, which is identified in the reasons of the primary judge (at [39]–[41]) and Charlesworth J (at [73]). It is that community expectations are to be taken into consideration (as a primary consideration) with other factors to inform the decision-maker’s decision. The consequence of that is twofold. First, not every factor relevant to the decision will inform the content of community expectations and, second, the ultimate decision may differ from the community expectations.
…
[102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against [the Applicant]. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances. Nevertheless, an adverse character assessment is necessarily against a visa applicant, to some degree or other; no one will be awarded a visa because they are of bad character.
[103] The community expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of “what would the community expect in this case?” It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in – between the community expectation will not express or require one or the other. That is a matter for the decision-maker.
[Emphasis added.]
In light of the above, I have come to the conclusion that the expectations of the Australian community should not be given significant weight in view of the interests of the children and taking into account that it is unlikely that the Applicant will re-offend or engage in other serious conduct. In reaching this conclusion I have taken into account the views of the Australian Government that, in circumstances where a visa holder has breached the trust of the community and has disobeyed the laws of Australia by committing a serious crime (as the Applicant has), he or she would normally expect that the visa would be cancelled.
F4: Other considerations set out in the Direction
At paragraph 38 of these reasons I have set out paragraph 14 of the Direction, which mandates that I take into account such further considerations as are relevant.
F4.1 International non-refoulement obligations
Clause 14.1 provides, in part:
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

An International Treaties Obligation Assessment carried out by the Department has found that non-refoulment obligations are engaged in relation to the Applicant. He was notified of this by letter of 2 June 2020.[34]
[34] Exhibit A1 at 41.
The Minister accepts that the non-refoulment obligations are owed to the Applicant in respect of Iran, “being his country of former habitual residence and the country in which members of his immediate family reside.”[35]
[35] Respondent’s Statement of Facts, Issues and Contentions dated 27 July 2020 at [49].
The existence of these obligations favour the revocation of the cancellation decision. However, in this application their existence has not affected the decision I have reached.
F4.2 Strength, nature and duration of ties to Australia
Paragraph 14.2 of the Direction provides:
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)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, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
By far the most significant factor in determining the Applicant’s ties to Australia is his relationship with his two children who are Australian citizens. They are entitled to his parental support to the fullest extent possible. As the children will remain living in Australia should the Applicant be deported, this factor alone means that his ties to Australia are strong. In addition, the Applicant spent the time between his release from detention in 2011 until his imprisonment in 2016 contributing positively to the Australian community by working and, for part of that time, supporting his family. The Minister concedes that the Applicant has ties to Australia.
The weight to be given to the consideration of the Applicant’s ties is lessened by the short time between his arrival in Australia and his first offence, a period of only two years. Further, his offending began within two years of his being granted a protection visa.
F4.3 Impact on Australian business interests
Although the Applicant has worked in Australia there is insufficient evidence for me to be satisfied that refusing to revoke the mandatory cancellation would have a significant impact on Australian business interests.
F4.4 Impact on victims of a decision not to revoke the cancellation
Having heard from Ms H, I am satisfied that a decision not to revoke the cancellation would have a detrimental impact on her, despite the fact that she was the victim of the Applicant’s most serious offence. She has no ill-feelings towards him. When asked why she was willing to assist the Applicant to again establish himself in the community, she replied:
…… I want my kids to have a Dad.[36]
[36] Transcript, 10 August 2020.
I do not have any evidence to enable me to make a finding as to the effect of revocation of the cancellation of the Applicant’s visa on the other victims of his criminal behaviour.
F4.5 Extent of impediments the Applicant may face if he is removed from Australia
If the Applicant is removed from Australia he will be returned to Iran where he spent the first 24 years of his life. He speaks the language of his home country and has family living there.
I am satisfied that the Applicant would be very distressed if he had to leave Australia and lose the opportunity to have ongoing physical contact with his children and to take part in many of their activities. However, I am unable to determine whether this would aggravate his existing mental condition.
I am satisfied also that it is unlikely that the Applicant would be able to obtain the same standard of treatment for his mental condition as he will be able to obtain in Australia.
The Country Information Report: Iran issued by the Department of Foreign Affairs and Trade on 14 April 2020 states, in part:
Mental Health
2.24 Need for mental health services in Iran is significant. An April 2018 study by the Ministry of Health and Medical Education found that nearly one-quarter of adults suffer from some form of mental illness, with women more likely to be affected than men.
………..
2.25 Iran has had a national policy on mental health since 1986. The policy aims to increase access to mental health services, including by building psychiatric wards in general hospitals and developing a mental health component in primary health care, and improve the availability of essential medicines. As part of its implementation of the Health System Development Plan, the government has increased the availability of counselling services and therapeutic interventions for individuals suffering from mental illness. The availability of mental health services has improved, including in rural areas, but ongoing social stigma attached to mental illness discourages people from seeking, or persisting with, professional treatment. A local source told DFAT that private mental health services are available, particularly in Tehran, but are prohibitive financially for the average person. A small number of NGOs work in the field of mental health, but these outfits are generally under-resourced.[37]
[37] Exhibit A1 at 42-43.
As a stateless Faili Kurd in Iran, the Applicant is likely to find it difficult to obtain employment and therefore difficult to maintain himself and to obtain the medical treatment he needs. Further, as a person to whom Australia owes non-refoulement obligations, I am satisfied that it is likely that he will be at risk of harm should he be returned to Iran.
This consideration weighs in favour of revoking the cancellation of the Applicant’s visa. The Minister concedes this.
PART G: THE BALANCING EXERCISE
The Minister contends that “the applicant’s offending is so serious, and the risk to the Australian community is so great, that the protection and expectation of the Australian community outweigh all other relevant considerations in this case ……”.[38]
[38] Respondent’s Statement of Facts, Issues and Contentions at para. 18.
I do not accept the Minister’s contention.
In balancing the various considerations, the need to protect the Australian community weighs in favour of refusing to revoke the mandatory cancellation of the Applicant’s visa. His repeated offending, commencing so soon after his release from immigration detention and his conviction for domestic violence are of particular concern. However, the various factors to which I have referred lessen the weight which should be given to this consideration. Taking those factors into account I conclude that the risk to the Australian community is an acceptable one.
Having weighed up all the relevant considerations, I have decided that the interests of the Applicant’s two children outweigh all of the considerations in favour of not revoking the cancellation of his visa and justify not giving significant weight to the expectations of the Australian community.
I have taken into consideration also that the Applicant’s ties to Australia and the extent of the impediments if he is removed from Australia favour revoking the cancellation.
Although I have found that the risk to the Australian community is acceptable, the risk remains. The Applicant must realise that if he is able to enjoy the privilege of continuing to reside in Australia, it is the expectation of the Australian community that he will abide by the laws of this country at all times.
PART H: CONCLUSION
The reviewable decision made 27 May 2020, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the Applicant’s Class XA Subclass 866 Protection visa, will be set aside.
In substitution it will be decided that the decision to cancel the Applicant’s Class XA Subclass 866 Protection visa made on 7 December 2016, be revoked.

I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

.............................[SGD]...........................................
Associate
Dated: 18 August 2020

Date(s) of hearing: 10 and 11 August 2020

Counsel for the Applicant: U Ramachandran

Solicitors for the Applicant: V Hewaarachchi, Refugee Legal

Solicitors for the Respondent: C Hillary, Australian Government Solicitor
ANNEXURE A
PART C
13. Primary considerations - revocation requests
(1)Under subsection 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c)) or paragraph (6)(e)) and the non-citizen 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. A non citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

(2)In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations:

(c)Protection of the Australian community from criminal or other serious conduct;
(d)The best interests of minor children in Australia;
(e)Expectations of the Australian community.

13.1 Protection of the Australian community
(1) 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 ce1iain 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.
(2) Decision-makers should also give consideration to:
(f)The nature and seriousness of the non-citizen's conduct to date; and
(g)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

13.1.1 The nature and seriousness of the conduct
In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:
(h)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(i)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(j)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(k)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(l)The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
(m)The cumulative effect of repeated offending;
(n)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(o)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);
(p)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(q)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(r)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).

13.2 Best interests of minor children in Australia affected by the decision
(1) Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
(s)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(t)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(u)The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(v)The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or
(w)non-citizen's ability to maintain contact in other ways;
(x)Whether there are other persons who already fulfil a parental role in relation to the child;
(y)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(z)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(aa)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

13.2 Expectations of the Australian community
(1) 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.

14. Other considerations - revocation requests
(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(bb)International non-refoulement obligations;
(cc)Strength, nature and duration of ties;
(dd)Impact on Australian business interests;
(ee)Impact on victims;
(ff)Extent of impediments if removed.

14.1 International non-refoulement obligations
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude non revocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(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.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

14.2 Strength, nature and duration of ties
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(gg)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(hh)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, including the effect of non revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

14.3 Impact on Australian business interests
(1) Impact on Australian business interests if the non-citizen's visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

14.4 Impact on victims
(1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

14.5 Extent of impediments if removed
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(ii)The non-citizen's age and health;
(jj)Whether there are substantial language or cultural barriers; and
(kk)Any social, medical and/or economic support available to them in that country.

[2020] AATA 3004

18 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Remedies

Jurisdiction

Statutory Construction

Date(s) of hearing:	10 and 11 August 2020
Counsel for the Applicant:	U Ramachandran
Solicitors for the Applicant:	V Hewaarachchi, Refugee Legal
Solicitors for the Respondent:	C Hillary, Australian Government Solicitor