NDMS and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2022] AATA 3909

NDMS and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3909 (20 October 2022)

Division:GENERAL DIVISION

File Number(s):      2022/6434

Re:NDMS

APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd  

RESPONDENT

Decision

Tribunal:Senior Member R Bellamy

Date:               20 October 2022

Date of Written Reasons:      21 November 2022

Place:Brisbane

For the reasons given orally at the conclusion of the hearing of this matter on 20 October 2022, the Tribunal affirms the decision made by the delegate of the Respondent dated 27 July 2022 not to revoke the cancellation of the Applicant's Class XB Subclass 202 Global Special Humanitarian visa.

.............................[SGD]...........................................

Senior Member R Bellamy

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of a Class XB Subclass 202 Global Special Humanitarian visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – sexual offences against a minor – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Migration Act 1958 (Cth)

Cases

FYBR  v Minister for Home Affairs [2019] FCAFC 185

HZCP v Minister for immigration and Border Protection [2019] FCAFC 202

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17

Secondary Materials

Direction no 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member R Bellamy

21 November 2022

1. The Applicant’s visa (a Class XB Subclass 202 Global Special Humanitarian visa) was cancelled in May 2021 under section 501(3)(a) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he was serving a sentence of imprisonment and he did not pass the character test because he had been convicted of one or more sexually based offences involving a child. Section 501(3A) of the Act relevantly provides that 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); and

   ·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.

2. Section 501(6)(e) of the Act relevantly provides that a person does not pass the character test if a court in Australia or a foreign country has convicted the person of one or more sexually based offences involving a child.

3. Under s 501CA(4) of the Act the cancellation can be revoked if the person was invited to make written representations about revocation of the cancellation, they made those representations, and 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.

4. The Applicant did make written representations and he does not pass the character test. On 27 July 2022 the Respondent decided not to revoke the cancellation. On 5 August 2022 the Applicant lodged an application in this Tribunal for review of that decision. The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(ba) of the Act.

5. If I decide there is “another reason” why the original decision should be revoked, then I must set aside the reviewable decision and revoke the cancellation of the Applicant’s visa.[1] In my determination of whether there is “another reason”, I am bound by s499(2A) of the Act to apply Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”).

   [1]     Minister for Home Affairs v Buadromo [2018] FCAFC 151.

6. This matter was heard over two days on 4 and 5 October 2022. The Applicant and his wife gave evidence with the assistance of an interpreter, and Dr Travis Wearne, clinical neuropsychologist, gave evidence by telephone. The Tribunal also received written evidence filed by the parties, listed in the attached exhibit list, marked “Annexure A”.

7. On 20 October 2022 I affirmed the decision under review and I delivered oral reasons. The Applicant is illiterate. He also cannot speak or understand English. I delivered very simplified oral reasons in the hope that the Applicant would be able to follow and understand my reasons for affirming the reviewable decision, given the need to use an interpreter to translate and given the Applicant’s complete lack of a formal education. After delivering my reasons orally, the Respondent requested written reasons. These written reasons are longer and more detailed than the reasons read out, and interpreted, on 20 October 2022.

   The Applicant’s Background

8. I accept that the Applicant was born in 1956 in Iraq and that he is 66 years old. He and his family are Chaldean Christians, which is a religious minority in Iraq. He initially lived in the Ninevah Governorate and worked on his family’s farm.  He did not go to school and he is illiterate. In the 1970s his family moved to Mosul. In adulthood he worked as a chef in the Army and as a stonemason, and he grew vegetables and grains and kept bees. He sold some of that produce.

9. In March 2003 Saddam Hussein and his Ba’ath party were removed from power in Iraq. What followed was increased religious intolerance and conflict. People of the Applicant’s religion were targeted.

10. In 2014 the Islamic State of Iraq and the Levant (referred to in these proceedings as “Daesh”) invaded Iraq. The Applicant saw Daesh behead three people in the street. In July 2014 Daesh came to his home threatening that either he convert to Islam or pay a tax (which could have included Daesh taking a female in the family) or be killed. The following month the Applicant’s family fled to Qaraqosh, around 10 miles away, then to Ankawa which is in Kurdistan. By January 2015 the Applicant, his wife, his two sons, his daughter and her husband and children were safely in Turkey. They were legally there as refugees.

11. The family lived in an apartment and the Applicant’s two adult sons worked to support the family. The Applicant, his wife and their two sons were ultimately allowed to come to Australia on a Class XB Subclass 202 Global Special Humanitarian visa because they were Chaldean Christians. That was in February 2019.

12. The Applicant’s daughter remains in Turkey with her husband and two children. She was not allowed to apply for a visa as a dependent of the Applicant. She has made several applications without success and the reasons for her lack of success are unclear.

13. The Applicant does not speak English nor does his wife. Neither are employed and they rely on benefits from Centrelink and financial support from their adult sons who live with them. The Applicant has a happy marriage of 36 years and a loving cohesive immediate family. He and his wife have several relatives who live in Australia. The Applicant holds a genuine belief that if he is returned to Iraq he will be at risk of being harmed or killed by terrorists (including Daesh) because of his religion.

14. Those are all matters that I accept. 

    The Offending

15. Police records indicate that on 15 April 2019 a woman reported to the police that she had been walking her dog along the Applicant’s street and he had kissed her on both cheeks before walking away. On previous occasions he had spoken to her briefly about her dog. The woman said she believed the interactions over the previous week were increasing and becoming more regular. The Applicant was beginning to frighten her. The police spoke with the Applicant using a friend of his to translate and they concluded that it was a misunderstanding in the sense that the Applicant thought he was being friendly. The police took no further action.[2]

    [2]     Exhibit R2, page 51

16. In the hearing the Applicant denied having kissed the woman or having done anything except say good morning to her on a handful of occasions. He said the police did not tell him what she had reported that he did. When asked if he had kissed her, he said he did not and that “If someone wants to kiss the permission should come from the person”.[3] 

    [3]     Transcript, page 21, lines 3 to 6.

17. Another police record dated 10 February 2020 records that, on that date, a woman approached the Applicant on the street and asked for a cigarette. He gave her one and she began yelling at him. She then punched him in the face, pulled his umbrella off him and grabbed him by the collar. She initially told the police she had been raped, and later said “He gave me a cigarette and accidentally brushed my tit while he gave it to me”. The police believed that she had made a previous false allegation of sexual assault, and they assessed her to be mentally unstable. Witnesses only saw her attacking the Applicant. The Applicant denied touching the woman and said the cameras could prove it. The police took no further action.[4]

    [4]     Exhibit R2, page 50 to 51.

18. In the hearing the Applicant denied having touched the woman’s breast. In fact, he claimed that she had put her hand around his neck, choking him and he pulled himself free. She had then slapped his face and hit him with his umbrella. When asked “…when the police told you that this woman accused you of touching her breast, did you think you were being accused of having done something wrong?” the Applicant replied “It is wrong, of course. It’s wrong. Touching is wrong”.[5]

    [5]     Transcript, page 25, lines 36 to 40.

19. A third complaint to the police was made on 20 June 2020. This is the index offending. Each offending act is referred to as a sequence in the Statement of Facts that was provided to the court in the sentencing proceedings, and in the remarks made by the learned Magistrate when passing sentence.[6] According to those records, the offending was as follows:

    ·A 14 year-old girl was sitting at a bus stop in the afternoon. The Applicant was at the other end of the bus stop smoking a cigarette. He went and stood in front of her. She asked him for a cigarette and he gave her one before sitting down next to her. He asked for her phone number and, not knowing how to say no, she provided it;

    ·Shortly after, he leaned over and kissed the girl on the cheek (sequence 6);

    ·He then put his arm around her and pulled her in closer to him. She tried to move away and he touched her breast over her clothes (sequence 7);

    ·He then put his hand on her face and turned her head, so she was facing him, and he kissed her on the mouth (sequence 8);

    ·About this time he grabbed her hand and placed it on the outside of his pants on his erect penis and held it there (sequence 9);

    ·He kissed her on the lips forcing his tongue into her mouth (sequence 11); and

    ·She started texting a friend telling her what had happened, and while she was doing that the Applicant touched her vagina over her clothing (sequence 10).

    [6]      Exhibit R2 pages 43 to 47; Exhibit G1, pages 35 to 44.

20. The victim got up from the seat, saying she had to check the bus timetable and she left.  She telephoned somebody to come and get her and she also called 000. The police later interviewed the Applicant. He said he was at the bus stop and he saw a female between the ages of 18 and 20 and that she had sat down next to him. He admitted that he had kissed her on the cheek but he said he saw her as a daughter and nothing more, which I take to mean he meant the kiss as a non-sexual gesture, and he denied everything else.

21. According to the contemporaneous police notes, the victim was living in a care home at the time and that was not disputed in these proceedings. 

22. The Applicant was charged with multiple offences, and he was represented for free by a lawyer from Legal Aid New South Wales with the help of an interpreter. The Applicant pleaded guilty and he was sentenced in April 2021.

23. A psychologist, Ms Kerry Watson, had interviewed the Applicant and provided a report for the sentencing proceedings.[7] Ms Watson’s report is problematic. For example, she said the Applicant was actively engaged as a soldier at war in Iraq when in fact, according to him, he was an Army chef. She said he lived in a refugee camp in Turkey when, in fact, he lived in an apartment. She referred to a progressive decline in the Applicant’s mental health from a young age but there is no evidence of trauma or mental health issues in the Applicant’s childhood.

    [7]     Exhibit G1 page 209.

24. Ms Watson said the Applicant had symptoms that met the criteria for post-traumatic stress disorder (“PTSD”) and that this was relevant to his offending. However, in these proceedings, the Applicant gave very certain evidence that he did not experience flashbacks or have trouble sleeping until he was incarcerated (after Ms Watson provided her report). There is some conflicting evidence about how the Applicant coped with the move to Australia - whether it was difficult and stressful or whether it was not. The Applicant recently told Dr Wearne that the family joined extended family who were already here and he believed this made the move easier, his life was happy and everything was okay.

25. The transcript of the sentencing proceedings indicates that the prosecution cautioned the Magistrate not to accept Ms Watson’s opinion that PTSD contributed to the offending because she was not qualified to give that opinion. The Magistrate agreed. His Honour did not accept that the offending was related to PTSD symptoms. I do not think Ms Watson’s report is reliable and I do not accept that the Applicant was experiencing PTSD symptoms at the time of the offending. 

26. The Applicant’s lawyer told the Magistrate that the Applicant would not be giving evidence. Therefore, the sentencing proceedings went ahead without the Magistrate seeking any information directly from the Applicant. The Applicant’s lawyer told the Magistrate that it had taken him a while to explain the law in relation to recklessness and consent to the Applicant.

27. The Applicant was convicted, upon pleas of guilty, of:

    ·Four counts of “intentionally sexually touch a child >= 10 yrs & < 16 yrs”; 

    ·One count of “intentionally incite child >= 10 yrs & < 16 yrs sexual touch”; and

    ·One count of “sexually touch another person without consent”. 

28. The Applicant was given a total effective sentence of 10 months’ imprisonment with a non-parole period of four months and supervision by the Community Corrections Service for two years.[8] The learned Magistrate thought there were special circumstances because of the Applicant’s age, because it was his first time in custody, and because of his mental health at the time of the sentencing. His Honour accepted that the Applicant believed, albeit unreasonably, that the victim was over 16.

    [8]     When giving my reasons orally, I misspoke and called it “Community service”.

29. The convictions and the sentences of imprisonment led to the mandatory cancellation of the Applicant’s visa. He was released on parole and taken into immigration detention in August 2021.

30. Apart from the index offending the Applicant has no other criminal history.

31. The Applicant has, with reasonable consistency, denied most of the offending. He told the police that the victim approached him, that he did nothing except kiss her on the cheek, and that he regarded her as like a daughter. He told a Corrective Services officer that the victim approached him, she leaned on him, he looked to console her and “one thing led to another”.[9]

    [9]     Exhibit R2, page 4.

32. The Applicant told Dr Wearne (a clinical neuropsychologist who interviewed the Applicant in September 2022 for the purpose of assessing risk of re-offending and capacity to instruct lawyers in these proceedings) that he thought the victim was at least 25 years old. In the hearing, the Applicant was adamant that he did not say “at least”. I do not think it makes much difference whether he did or not. He told Dr Wearne that he thought the victim was interested in sexual contact with him, that he knew it was illegal to have sexual contact with a person under 17 in Australia, and he said “I have to be honest, I started to touch her, her breast, and I did kiss her”.[10] The Applicant expressed general remorse to Dr Wearne but he did not specifically address the other allegations.

    [10]    Exhibit A4 pages 1 to 18.

33. In the hearing the Applicant admitted to having kissed the victim on the cheek but he denied having touched her breast or her vagina, putting his tongue into her mouth or putting her hand on his penis. He said she had put her hand in his lap in his groin area and rested it there. He said she had blood on her legs below the knee and he motioned to her legs when he asked her about that. His evidence seemed to be that he thought his wrongdoing lay in giving an underage girl a cigarette and that the thing he was sorry for was putting himself in a position where she could make allegations against him.

34. The Applicant claimed he had pleaded guilty to all the offences because his lawyer forced him to. I accept that that is how he could have perceived it. He does not speak English and he has a very thick accent, which is bound to cause communication problems even with a good translator, which I observed in the hearing where the interpreter sometimes had to repeat a question or ask the Applicant to repeat an answer. The Applicant is illiterate and uneducated. He had never before had any contact with the Iraqi or Australian criminal justice systems. Dr Wearne did not really give an opinion about the Applicant’s cognitive capacity: he merely said there was no overt evidence of cognitive impairment based on his interview with the Applicant. But Dr Wearne did say he thought the Applicant was capable of instructing lawyers in relation to these proceedings.

35. The Applicant is an expert at bee-keeping and he can grow produce. That requires a kind of skill and intelligence but it is not the kind of intelligence a person needs when facing criminal charges in a foreign country in an unfamiliar legal system. Culturally it is very embarrassing for the Applicant to talk about inappropriately touching a young female, which probably partly explains why the Applicant often used general, non-specific language when he seemed to express remorse for the alleged offending, and it later transpired that his remorse related to other things.

36. The Applicant said that on the day he went to court his lawyer told him:

    “You have to plead guilty…If you don’t plead guilty I don’t want to represent you anymore, go and find another solicitor, I won’t defend you…”.[11]

    [11]    Transcript page 36 lines 34 to 37.

37. That might be true to the Applicant. It might be that there was an explanation that the Applicant was not given or did not understand. Legal Aid might have only been prepared to cover,[12] a guilty plea and not a trial, or his lawyer might have thought the best outcome for the Applicant was to plead guilty rather than risk losing a trial and getting a more severe penalty.

    [12]    Meaning authorise the work or funding involved

38. Having said that, even if the Applicant only pleaded guilty because he felt pressured, that does not necessarily mean he was not guilty. Also, he did not tell Dr Wearne that he was pressured into pleading guilty to things he did not do even though Dr Wearne discussed the offending with him.

39. Both parties agreed that the Tribunal must accept that the Applicant committed the offences of which he was convicted. That because of the decision of the Full Federal Court in HZCP v Minister for immigration and Border Protection [2019] FCAFC 202 (“HZCP”) which relevantly provides that, where a conviction and/or sentence enlivens the Tribunal’s decision-making power, the Tribunal may not make findings that are inconsistent with the convictions or the essential findings of fact upon which the convictions and/or sentences are based. Each and all the convictions triggered the mandatory cancellation of the Applicant’s visa, then the Applicant’s right to seek revocation, then the Respondent’s obligation to decide whether or not to revoke the cancellation and finally the Tribunal’s obligation to decide whether or not to revoke the cancellation.

1. However, the Tribunal has obligations under the Administrative Appeals Tribunal Act 1975 (Cth) to carry out its functions in a manner that promotes public trust and confidence in its decision making, as the Applicant’s Legal Aid lawyer pointed out in the hearing. The Tribunal must also make the correct or preferable decision. How can the Tribunal discharge those obligations if it applies the Direction to a set of facts that are not real, i.e. if I proceed on the basis that the Applicant committed offences that he did not commit? The language and cultural difficulties that the Applicant experiences are highly conducive to a potential miscarriage of justice. He is exactly the kind of person who needs help from bodies like Legal Aid and who needs the Tribunal to be very careful when dealing with him.

2. However, I am not convinced there was a miscarriage of justice in this case. The Applicant made some specific admissions to Dr Wearne about things which he then denied in the hearing (e.g. touching the victim’s breast), which damages his credibility. There are some other comments that he made around the offending that implicitly acknowledge that he touched the victim sexually – not just a fatherly kiss on the cheek. One example is the comment he made to a Corrective Services officer on 8 March 2021 that that it is culturally common in Iraq to be attracted to younger women.[13]

   [13]    Exhibit R2, page 4.

3. As the lawyer for the Respondent pointed out, the alleged prior incidents in 2019 and early 2020 are eerily similar to the index offending. It would be most unlikely that more than one woman, who are apparently unknown to each other, would have fabricated allegations of a broadly similar nature against the Applicant. The second complaint involved a woman who had apparently made false allegations of sexual assault against someone else, and she did the same to the Applicant - she accused him of raping her. Clearly that was false, and she admitted it. But that does not necessarily mean she was lying when she corrected herself and said the Applicant touched her breast. I make no finding about that complaint. It is flimsy. There does not appear to be anything questionable about the first complaint and I am satisfied that the Applicant did what the first woman alleged.

4. Looking at all the evidence together I can comfortably apply HZCP – there is not a tension between HZCP and my other obligations – and I accept that the Applicant did what he was convicted of doing.

   Application of the Direction

5. I will not re-state all the relevant paragraphs in the Direction in these reasons, and I will not address parts of the Direction that do not apply,[14] but I will state the following key principles in the Direction that influence my decision:

   ·Being able to come to Australia or remain in Australia is a privilege Australia confers on non-citizens.

   ·Non-citizens who engage in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia.

   ·The Australian community expects that the Australian Government can and should cancel non-citizens’ visas, if they engaged in conduct that raises serious character concerns.

   ·Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to the Australian community only for a short period of time.

   ·In some circumstances the nature of the non-citizen’s conduct or the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations might not be enough to justify not revoking a mandatory cancellation.

   ·The Primary Considerations should generally be given greater weight than the Other Considerations.

   ·One or more Primary Considerations may outweigh other Primary considerations.

   Primary Consideration 1 - Protection of the Australian Community

   [14]    Those are Primary Considerations 2 and 3, Other Consideration C and some sub-paragraphs of the rest of the mandatory considerations.

6. Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In determining the weight applicable to this Primary Consideration, paragraph 8.1(2) of the Direction requires me to give consideration to:

   a)The nature and seriousness of the Applicant’s conduct to date; and

   b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.

7. According to paragraph 8.1.2(1), in considering the risk to the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

8. In accordance with paragraph 8.1.2(2), I must have regard to the following relevant factors on a cumulative basis:

   a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.

The type of offences the Applicant committed, being sexual crimes, are considered to be very serious under the Direction. In addition, the actual offences were very serious. These offences must have been repulsive and demeaning to the victim, effectively being an attack on her dignity and physical integrity at an age where young people are typically still in the process of developing robust personal boundaries. Further, by forcing his tongue into the victim’s mouth, the Applicant could have passed harmful germs to her. As the victim was living in a care home at the time, I accept the Respondent’s submission that she was vulnerable, which is another aspect of the offending that makes it serious.

When passing sentence, the learned sentencing Magistrate referred to “section 5”, which is a provision in theCrimes (Sentencing Procedure) Act 1999 (NSW) that essentially provides that imprisonment should only be imposed if no other sentence is appropriate. His Honour imposed aggregate sentences of imprisonment for the offences that he considered to be more serious, being sequences 9 (five months), 10 (five months) and 11 (four months). The total effective sentence was 10 months with a non-parole period of four months. The other offences were dealt with by way of a two year Community Corrections Order.

50.Repeated offending of this type would likely cause immediate distress and possibly long term emotional and psychological harm. It is not uncommon for victims to avoid the places where they were abused because of the trauma and fear associated with those places, and if those places involve public transport or places they would otherwise attend frequently, that can substantially impact their lives. The harm is far reaching and serious.

1. Under the Direction some conduct and the harm that would be caused if it were to be repeated is so serious that any risk of it being repeated may be unacceptable. This sort of offending is very close to that category where any risk is unacceptable.

2. There have been some risk assessments conducted. Leading up to the Applicant’s sentencing, a tool called the “STATIC-99R” (“STATIC”) was administered.  It uses non-changeable (i.e. static) factors to predict the risk of re-offending. It uses data based on recidivism within groups, and it may not accurately predict the risk relating to an individual. It has a moderate predictive accuracy. According to this assessment, the Applicant is in the “below average” risk category relative to other male sex offenders.[15]

   [15]    Exhibit R2 pages 7 to 8.

3. The Level of Service Inventory – Revised (“LSI-R”) was also administered. This tool takes into account changing (dynamic) and non-changing (static) factors to predict the risk of re-offending. It is not specifically targeted at sex offenders. The Applicant scored in the low to medium risk category.[16]

   [16]    Exhibit R2 page 21.

4. A sentencing assessment report was done based on multiple interviews with the Applicant, including an interview by a psychologist. That report noted that the Applicant said if he had done something wrong the victim would have screamed or left, and he emphasised the harshness of Australian law compared to Iraq in relation to younger women, which I take to be a reference to Iraqi law in relation to crimes against younger women.

5. The sentencing Magistrate thought the Applicant had relatively good prospects of rehabilitation although he was not aware of the two prior complaints to the police (being unproven allegations separate to the offending).

6. Dr Wearne interviewed the Applicant in September 2022. He spent approximately one hour administering tests and assessment tools, and another two hours were spent interviewing the Applicant. He used an interpreter. Dr Wearne also administered the STATIC and again the Applicant scored in the below average risk category for sexual recidivism. His risk rating when compared to other sexual offenders was 38%. Were it 100% he would be just as likely to re-offend as anyone else in that group. At 38% he is less than half as likely to re-offend as anyone else in the group.[17]

   [17]    Transcript, page 80, lines 4 to 10.

7. “Below average” is not the lowest category. There is a “very low” category, and, according to Dr Wearne, a person’s risk can be higher or lower depending on other risk factors that are not measured by the STATIC.[18] In the hearing, the prior complaints were described to Dr Wearne. He pointed out that a bare allegation is not taken into account in the STATIC so it could not affect the result.[19] But his opinion was that if there is a history of prior similar behaviour, and the behaviour is escalating, that would increase the risk of reoffending.[20] I have accepted that the first complaint was accurate. That means there is prior behaviour and that it escalated. 

   [18]    Exhibit A4, page 11. 

   [19]    Transcript, page 83.

   [20]    Transcript, page 84, lines 5 to 10; page 85, lines 22 to 30.

8. There is some other evidence that, in my opinion, is relevant to risk of reoffending. The Applicant admitted that kissing another female is considered to be infidelity in his marriage and that he considered it to be wrong to kiss or touch a female without her permission.[21] When asked if a man is allowed to touch a woman he does not know in Iraq he said “No”.[22]  Despite those beliefs he committed the offences – he knowingly did the wrong thing. The Applicant also considers that he is the victim as he has been held in prison and immigration detention.[23] There is an unwillingness to face the reality of his behaviour and a lack of insight into his contribution to his predicament. 

   [21]    Transcript page 40 lines 15 to 17.

   [22]    Transcript page 41 lines 35 to 38.

   [23]    t Transcript page 38 lines 31 to 38.

9. At the same time as denying most of the offending, the Applicant has expressed a great deal of remorse, shame and embarrassment apparently for things around the edges of the offending, like giving a cigarette to the victim and giving her his phone number. The remorse also relates to the consequences for him and his family, which are not only that they are separated from each other, but that his family’s reputation has been damaged in their community. I believe his remorse about these things is genuine.

10. The Applicant has not been in trouble while in gaol or detention, and I accept that he has never been in trouble with the law in Iraq. He is now on the sex offender register and he will be subject to comprehensive reporting obligations for eight years.[24] The Applicant demonstrated a good understanding of those obligations and an awareness that non-compliance could result in him being sent back to prison. However, reporting his whereabouts and significant movements will not stop him from encountering girls or women in everyday life and reoffending in the opportunistic way that he did.

    [24]    Exhibit A2 pages 12 to 18.

11. If the Applicant gets his visa back he will live in the family home with his wife and sons as he did before. He will take his medication and he is open to engaging in psychological treatment for trauma arising from conditions in Iraq and for sexual offending.

12. The Applicant’s wife believes he is innocent. They are first cousins and they have been married for 36 years. She said as long as she has known him he has never done anything wrong before and that he is a kind person with a good heart.[25] The Applicant’s sons express a similar sentiment in their letters of support. They are shocked by the offences. (I mention here that I was mindful of this evidence when I evaluated the Applicant’s claims of innocence and the accounts he gave in relation to the three separate complaints). The Applicant’s sons both indicated that the Applicant has their full support, so I am willing to assume that they would drive him to psychological appointments and do other things to assist in his rehabilitation. I doubt that the Applicant’s wife would assist in any rehabilitation given her belief that he is innocent.

    [25]     Exhibit A2, page 5.

13. I do not see any reason to depart from the risk assessments that have been conducted and I prefer the most recent assessment by Dr Wearne. I find that the risk of repeated offending is low (below average) but not very low. I think the risk is at the higher end of the “below average” category because of the prior conduct and the escalation. 

14. Primary Consideration 1 weighs heavily against revocation of the cancellation of the visa. 

    Primary Consideration 4 - Expectations of the Australian Community

15. Paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. It further stipulates that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.

16. Paragraph 8.4(2) of the Direction directs that non-revocation of the mandatory cancellation of a visa 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 be granted or continue to hold a visa. The Direction specifically refers to serious crimes against women, children or other vulnerable members of the community under this Primary Consideration.  It defines “serious crimes” to include crimes of a violent or sexual nature.

17. Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

18. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR  v Minister for Home Affairs [2019] FCAFC 185.

19. The offending was very serious, it was a very serious breach of the trust of the Australian community, and there is a real risk of it happening again.

20. There was mention in the Applicant’s filed material of visa cancellation being a punishment. The legislative scheme I am applying is protective, not punitive, so although having one’s visa cancelled might feel like punishment, it is not.

21. This Primary Consideration weighs heavily against revocation of the cancellation of the Applicant’s visa.

    Other Consideration (a) – Australia’s non-refoulement obligations

22. Paragraph 9.1(1) of the Direction provides that 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, and it refers to Australia’s 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”).

23. It goes on to say that the Act, particularly the concept of “protection obligations”, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing, and that in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.

24. Subsections 36(2)(a) and 36(2)(aa) of the Act provide the tests in relation to refugee status and entitlement to complementary protection, respectively.

25. The Applicant genuinely fears that he will be persecuted if he returns to Iraq. His fear seems to be rooted in the situation that existed in Iraq in 2014. If he satisfies those tests and he is not disqualified by exclusions that may apply, he will be someone to whom Australia owes protection and he will engage the non-refoulement obligations that Australia owes to other convention countries.

26. Christians are a minority group in Iraq. The Applicant was granted a visa based on his Christian faith and there is country information before me that indicates that during Deash’s occupation of areas of Iraq, it committed numerous atrocities, particularly against minority groups. The Iraqi Government declared final victory over Daesh in December 2017 after recapturing the last areas under Daesh control along the Syrian border. Daesh is still active in Iraq. They still kill and abduct civilians although the group is a lot smaller than it used to be and there are fewer attacks than there previously were.

27. A Chaldean Catholic Archbishop recently observed that the mentality that created ISIS remains in the region although he expressed hope for the future of Christianity in Iraq, particularly after Pope Francis’s recent visit there.[26]

    [26]    Exhibit A1, pages 44 to 45.

28. A report I have before me from the Department of Foreign Affairs and Trade, dated August 2020[27] (“DFAT report”) states that, like other minorities, Christians face a moderate risk of societal discrimination and violence in areas where there are minority.

    [27]    Exhibit G1, DFAT Country Information Report Iraq (17 August 2020).

29. The Applicant’s mother, who is elderly and not in good health, and one of his brothers live in Ankawa. Another brother is in Qaraqosh and two other brothers are in Akre. They are all Chaldean Christians and they go to church. The church is not concealed, it is a public building with a cross.[28] The Applicant communicates with them around once per month. I asked if his mother or any of his brothers had been threatened or attacked and he said in 2010 and 2014 they were threatened and they relocated.

    [28]    Transcript, page 54, lines 30 to 35.

30. The Applicant’s wife, who is a Chaldean Christian, mentioned in her written statement fears for the Applicant’s safety and wellbeing, but in her oral evidence, when she was asked why the Applicant could not return to Iraq and why she would not, she did not mention fear of harm from Daesh or terrorists. Instead, she focussed on lack of money and accommodation.  

31. Given the defeat and decline of Daesh in recent years, the inconclusive country information before me, the fact that none of the Applicant’s remaining family in Iraq have been threatened or harmed since 2014, and the fact that his brother and daughter in Turkey have not been able to get humanitarian visas on the basis of their religion, it may well be that the situation for Chaldean Christians has changed for the better since the Applicant fled in early 2015.

1. The Applicant told Dr Wearne that he is worried he will be harmed in Iraq given the changing political climate of the country, his status as a Chaldean Christian, and his fleeing of the country. The claims about the political climate and fleeing of the country were not detailed. Without enough details about those claims I cannot assess them. The Applicant’s apparent fear of harm based on having fled Iraq, if it is confined only to having fled and does not incorporate any other factors, is not supported by the country information in the DFAT report.

2. There might be a chance that the Applicant could obtain protection (if needed) from Turkey when five years has elapsed since he left there. I raise this possibility because the evidence of the Applicant and his wife indicated that Turkey will not allow them re-entry until five years have elapsed since they left, but there will not be any prohibition after that time, and their daughter and her family are still residing in Turkey, apparently legally.  

3. On the information before me I cannot make a proper assessment about whether the Applicant engages Australia’s non-refoulement obligations. He can apply for a Protection visa and, if he chooses to do that, his claims can be more fully articulated and investigated and I think it is appropriate to defer the issue to that process.[29] I do not allocate any weight to this other consideration.

   [29]   Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17.

4. If the Applicant applies for a Protection visa and he is found to be a refugee^,[30] and he is not disqualified, he will be able to return to the community. If he is disqualified, he would not get a Protection visa but he would not be returned to Iraq either.

   [30]    Or entitled to complementary protection, but his claims, if accepted, would make him a refugee.

5. An example of how he would be disqualified is if he were considered to be a danger to the community having been convicted of a particularly serious crime. That would require at least one of his offences to be classified as violent and it is not immediately apparent whether any of the offences would be so classified.

6. In the scenario where he is a refugee but he is disqualified from obtaining a Protection visa he would be kept in immigration detention unless he asked to be removed to Iraq, or there was a third country he could go to, or the Minister exercised one of his personal powers.

7. Prison and detention have activated the Applicant’s PTSD symptoms and he has not had any visits from his wife or sons because they have not had their third COVID vaccinations (although they speak with him daily). There is no immediate prospect that his family will have the third vaccination. On top of that the Applicant is finding detention difficult, and indefinite detention carries with it the stress of uncertainty. I allocate some limited weight in favour of revoking the mandatory cancellation on the basis that the Applicant might be facing indefinite detention.

   Other Consideration (b) - Extent of Impediments if Removed

8. Paragraph 9.2 of the Direction directs a decision-maker to take into account 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:

   a)the non-citizen’s age and health;

   b)whether there are any substantial language or cultural barriers; and

   c)any social, medical and/or economic support available to that non-citizen in that country.

9. The Applicant is 66 years old. I do not accept that he would face any substantial language or cultural barriers as he has spent most of his life in Iraq.

10. He will not get a pension or any government income support in Iraq and based on the DFAT report I accept that unemployment and underemployment are both high. I accept that the Applicant’s family in Iraq are poor. He mentioned that one of his brothers can only afford to eat meat once a month.

11. The Applicant’s sons are both employed and they both say they will support the Applicant in any way necessary. They both provide financial support to their parents. In March 2021 the Applicant’s wife reported to Corrective Services that she and the Applicant had no debts and no financial concerns.[31] The Applicant gave evidence that before he was incarcerated his sons gave him and his wife $500 each per fortnight. He and his wife were adamant that their sons could not provide any financial support to the Applicant if he were deported. Their reasons were unconvincing, for example, the Applicant claimed the rent had gone up since he went to gaol but his wife said it was $920 per fortnight before and it has not changed.    

    [31]    Exhibit R2, page 6.

12. The Applicant’s wife eventually said she could spare $100 or $200 for the Applicant every month if he were deported to Iraq but that it would not be enough for him. It is not clear whether she was referring to her sending money or her sons sending money from their incomes. Given the Applicant’s sons were contributing over $2,000 per month in total, I do not accept that the family could only provide $100 to $200 per month in financial support to the Applicant. I find that the Applicant’s family could send him an amount that is around $2,000 per month (what his sons contributed when he was living with them) minus an amount to make up for the shortfall from Centrelink (the difference between what the Applicant and his wife were getting from Centrelink when he was in the wider community minus what his wife is now getting) and further reduced by the amount that is needed to cover the expenses the money normally goes towards. As the lawyer for the Respondent pointed out, if the Applicant is not living in Australia, the money that would normally pay his living expenses here could be given to him in Iraq.[32] Those expenses obviously would have included food and cigarettes (in fact the Applicant was smoking two packets of cigarettes per day[33]). Without knowing exactly what the family’s current expenses are, I think it is likely that the Applicant’s sons could send the Applicant more than $200 per month. 

    [32]    Transcript, pages 96, lines 12 to 15.

    [33]    Exhibit R2, page 113.

13. The Applicant sought to give the impression that his family in Iraq, particularly his sisters-on-law, would not want to take him in because they are all struggling and he could not contribute in any way. However, he will have some money from his sons and he admitted that he is able to cook and do shopping.[34] He is able bodied enough to spend 45 minutes at the gym every second day.[35] He gave no other reasons why his relatives would not take him in. I am satisfied that the Applicant has good prospects of securing accommodation with family even if it might be cramped.

    [34]    Transcript, page 60, lines 22 to 24.

    [35]    Transcript, page 57, lines 40 to 44.

14. The Applicant also has a history of growing crops and he said he is an expert at beekeeping. If he can obtain the equipment and access to land he needs to do those activities he has some prospect of a source of income.

15. The Applicant has problems with his back and there was mention of a hernia, stomach problems, irritable bowel syndrome, colon problems, and haemorrhoids. I wonder if some of these are the same condition but the Applicant has called them different names. I accept that he has a problem with his back and that he may have one or more stomach or digestive tract problems. He also reported having high blood pressure.

16. The Applicant gave evidence that he could not look after himself and said he had “half a lung”, without any explanation. However, there is no evidence before me to corroborate that. There is a note from the International Health and Medical Service (“IHMS”) dated in November 2021 that records an “impression” of “Lung disease - type unknown”.[36] That is quite a vague description and the record is dated only a week after another IHMS note that says the Applicant had taken up smoking again after having briefly quit.[37] It is not plausible that a person with half a lung would do that. I accept that there is probably some degree of impaired lung function but it is not enough to stop the Applicant from smoking. The Applicant said he used to have diabetes but he does not anymore. Before the Applicant was incarcerated, he used to have medication for high blood pressure but now he is also taking medication for his colon, pain in his knee, and nightmares. Despite his ailments he can still exercise regularly.

    [36]    Exhibit G1, page 86 (put forward on the Applicant’s behalf in his revocation request).

    [37]    Ibid, page 98.

17. The Applicant reported a significant deterioration in his mental health since being incarcerated, and Dr Wearne identified moderate symptoms of depression and anxiety when he saw the Applicant in September this year.  The Applicant’s mental health problems could well continue if his separation from his family continues and he has to face life in Iraq.

18. I accept that the health system in Iraq is not on par with Australia and that the Applicant could have difficulty accessing medications and treatment.

19. In terms of social support, the Applicant thinks most of the people he knew in Iraq are now in other countries. However, he will have his mother and brothers around and he will be able to attend church. 

20. Life will certainly be much more difficult for the Applicant in Iraq, but I do not think the difficulty and possible hardship that he will face will be insurmountable in terms of establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of Iraq.

21. This other consideration weighs moderately in favour of revocation of the visa cancellation.

    Other Consideration D - Links to the Australian Community

22. Paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:

    ·the strength, nature, and duration of ties to Australia; and

    ·the impact on Australian business interests.

23. The Applicant came to Australia well into his adulthood, after he had retired. He committed the offences a relatively short time after arriving. There is little evidence of any positive contribution to the Australian community. The Applicant has never been employed here and there is no evidence of voluntary work. His social links seem to be confined to his church. Otherwise, he socialises with relatives and his immediate family.

24. The Applicant’s wife and sons have the right to live here permanently. His sons, in their letters, did not say they would go to Iraq if the Applicant is removed there. His wife said she would not. They all say they will be severely impacted if the Applicant is deported or detained indefinitely and I accept that they will suffer emotional hardship if either of those things happen. I accept that they are already suffering emotional hardship because of the Applicant’s situation. As I mentioned above, they are also suffering social stigma because of the Applicant’s situation. I accept his wife’s evidence that his removal to Iraq would cause that to continue.  

25. I am not certain about the Applicant’s wife’s claims that she has some health problems arising from the Applicant’s situation. She seemed to indicate that she developed high blood pressure, cholesterol, and pain in her shoulders and back because of the stress and anxiety of what has happened to the Applicant. But later she said the COVID vaccine had given her high blood pressure, back pain and headache. In the absence of corroborative independent evidence from a suitably qualified professional I do not accept that the Applicant’s predicament has caused his wife’s physical health problems or that an unfavourable decision would cause her to suffer physical health problems. I do accept that she is suffering from stress and anxiety and will probably continue to do so if the Applicant does not get his visa back.

26. The Applicant’s family is not dependent on him financially or practically and there was no evidence that they could not visit Iraq, but I accept that visiting (if they are prepared to do that) it is not the same as having him home with them. 

27. This consideration favours the Applicant, but not to a great extent.

    Conclusion

28. Weighing up all of the relevant considerations, as the Direction requires me to do, the weightings in favour of the Applicant (which largely derive from the adverse impacts of visa cancellation on him and his immediate family) added together are not as strong as the combined weight of Primary Considerations 1 and 4 which each weigh heavily against revocation. Therefore, there is not another reason to revoke the cancellation of the Applicant’s visa.

    Decision

29. The Tribunal affirms the decision made by the delegate of the Respondent dated 27 July 2022 not to revoke the cancellation of the Applicant's Class XB Subclass 202 Global Special Humanitarian visa.

I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

................................[SGD]........................................

Associate

Dated:  21 November 2022

Date(s) of hearing:

4 and 5 October 2022

Solicitors for the Applicant:

Mr Duy Pham

Legal Aid NSW

Solicitors for the Respondent:

Ms Hervee Dejean

Australian Government Solicitor

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (1 to 32 paged 1 to 263)	R	Various	22 Aug 2022
A1	Applicant's Statement of Facts, Issues and Contentions (paged 1 to 15)	A	7 Sep 2022	7 Sep 2022
A2	Applicant’s Evidence Bundle (A1-A7, paged 1-45)	A	Various	7 Sep 2022
A3	Applicant submission in reply (paged 1-4)	A	28 Sep 2022	28 Sep 2022
A4	Applicant Supplementary Evidence Bundle (1-2, paged 1-18)	A	28 Sep 2022	28 Sep 2022
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 13)	R	20 Sep 2022	21 Sep 2022
R2	Respondent’s Tender Bundle (1 to 3, paged 1 to 51)	R	Various	28 Sep 2022