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

PDNF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 134 (2 February 2022)
Division:General Division
File Number(s):2021/8502
Re:PDNF
APPLICANT

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

DECISION
Tribunal:Deputy President J W Constance
Date:2 February 2022
Place:Sydney

The reviewable decision made 9 November 2021, being the decision of a delegate of the Minister not to revoke the cancellation of the Applicant’s Class XE Subclass 790 Safe Haven Enterprise visa, is set aside.
In substitution, it is decided that the original decision made 12 June 2020, being the decision to cancel the Applicant’s Class XE Subclass 790 Safe Haven Enterprise visa, is revoked.
.............................[SGD]................................
Deputy President J W Constance
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – expectations of the Australian community – strength, nature and duration of ties to Australia – non-refoulement obligations – prospect of indefinite detention – impediments to removal – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SECONDARY MATERIALS
Direction No. 90 – 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
2 February 2022
Part A: Introduction…………………………………………………………………………….[3]
Part B: Background………………………………………………………………………....….[4]
Part C: The Relevant Legislation……………………………………………………………..[7]
Part D: Direction No. 90……………………………………………………………..…………[8]
Part E: The Issue for Determination…….………………………………………………….[10]
Part F: Reasoning………………………………………………………………………….….[11]
Part G: The Balancing Exercise……………………………………………………..……...[29]
Part H: Conclusion.…………………………………………………………..………..……...[31]
A: INTRODUCTION

The Applicant was born in the Islamic Republic of Iran in 1986 and is a citizen of that country. He arrived in Australia as an unauthorised maritime arrival in 2013. As a result, he was held in immigration detention until 2015, when he was granted a Subclass 050 Bridging visa E.
In 2018 the Applicant was assessed as being owed protection obligations by Australia and was granted a Class XE Subclass 790 Safe Haven Enterprise visa.
In April 2020 the Applicant was convicted of the offence of reckless grievous bodily harm. The offence occurred earlier that year. He was sentenced to imprisonment for 16 months with a non-parole period of eight months. In July 2020 his appeal against the severity of the sentence was dismissed.
By reason of his sentence being for 12 months or more, in June 2020 the Applicant’s visa was cancelled in accordance with subsection 501(3A) of the Migration Act 1958 (Cth) (the Act).[1] This decision is referred to in the Act as “the original decision”.
[1] Exhibit R1 at G7.
On 9 November 2021, a delegate of the Minister decided not to revoke the original decision.[2] The decision of 9 November 2021, referred to as the “reviewable decision”, is the subject of this application for review.
[2] Exhibit R1 at G3, 13.
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.
For the reasons which follow, the reviewable decision will be set aside, and the original decision will be revoked.
B: BACKGROUND
The Applicant provided a statement dated 13 December 2021[3] and gave evidence at the hearing. Having observed and listened to him give evidence, I am satisfied that he was an honest witness who gave his evidence to the best of his recollection. I accept his evidence. Unless stated otherwise, findings of fact are made based on that evidence.
[3] Exhibit A1 at 1.
In accepting the Applicant’s evidence, I am aware that his recollection of events, particularly those leading up to the commission of the offence, varies from that of others who were present. This is not an unusual situation, particularly as the incident occurred in a very short period of time.
The Applicant was released on parole on 14 November 2020.[4] Since then he has been held in immigration detention.
[4] Exhibit R1 at SM1, 99.
The Applicant’s evidence
The Applicant lived in Iran until 2013. He did not complete his secondary education as he left school to gain employment and help support his family. He describes his family as having a “hard life”.[5]
[5] Exhibit A3 at 4.
In his statement dated 13 December 2021, the Applicant described his life in Iran; I have taken this evidence into account. However, in the interests of the Applicant and his family I have not reproduced this evidence in these reasons.[6]
[6] Exhibit A1 at 1-2.
After the Applicant received the Bridging visa in 2015 and lived in the Australian community, he undertook the necessary training and gained employment as a security guard. He also worked as a house painter, a sports coach, and an Uber driver.
Since living in the Australian community, the Applicant has become part of the LGBTQI+ community and, at the time of his imprisonment, had been in a same-sex relationship for two years. He described the change in his environment as follows:
Before this relationship, I hadn’t been able to feel safe being myself. In Iran, you cannot have a same-sex relationship, it is not allowed. ……. it can be a very bad culture for men who are attracted to men. So for most of my life I have been in environments where it is only acceptable to be attracted to women and I have never felt like I could explore the feelings I was having, it just had to be secret and I couldn’t do anything about it.
………………..
In Australia, and through this relationship with [name redacted], I have been able to explore my sexuality, and become a part of the LGBTQI+ community in Sydney. It is a very loving community that I feel very happy to be a part of, and I am not at risk of persecution here for being myself.[7]
The Applicant’s criminal record
[7] Exhibit A1 at A1, 3-4.
Offence committed in February 2020
On 22 July 2020 the District Court of New South Wales sentenced the Applicant to a term of imprisonment of 16 months commencing on 15 March 2020 and expiring on 14 July 2021, with a non-parole period of eight months. The Court further ordered that he be released on parole on 14 November 2020. These orders confirmed the sentence imposed by the Local Court on 4 March 2020 when the Applicant pleaded guilty to the offence charged.[8]
[8] Exhibit R1 at S1, 1.
The Applicant has no other convictions in Australia or elsewhere.
NSW Police Facts Sheet
The Facts Sheet provided to the Courts includes the following:
About 4:30am on Sunday 23rd February 2020, the accused along with several friends have attended [an event at a nightclub]. The event was being held on the rooftop. Also present at the event was the victim and his friend [Mr C (name redacted)].
About 6:20am, the accused has entered into a conversation with [Mr Z (name redacted)] a friend who he ran into at the event in the outdoor smoking area. Whilst speaking, the pair have pointed out the similarities [Mr C] had with a friend of theirs who had returned home to China. The accused and [Mr Z] approached [Mr C] to clarify as to why they were talking about him.
The victim overheard the conversation and approached the accused, standing in close proximity. The victim stated "Fuck off, you're being racist". The victim and accused have engaged in an argument where the accused has attempted at calm the victim down.
Witnesses described the accused 'slapping' the victim to the face, however during his interview the accused claimed he used both hands to push the victim, connecting with his shoulders. In response to this the victim has used his right hand to slap the accused across his face, connecting with his left cheek.
Immediately following, the accused has used a clenched and thrown three punches in quick succession. The first punch, thrown by the accused with his left hand has struck the victim to the face. The second punch struck the victim to the rib area and a further punch to the victims left temple region with his right clenched fist. As a result, both the accused and victim have fallen to the ground. It is unclear which of the three punches has caused the injuries to the eye of the victim, however the injury was occasioned during this flurry of punches.
The victim has walked away from the area. The accused has attempted to follow the victim however was restrained by a friend who later walked him from the venue.
An ambulance was contacted for the victim as his eye began bleeding and a white substance began leaking from his eye. The victim was conveyed to Sydney Eye Hospital where initial scans from Doctors have determined that he currently has a ruptured globe, meaning he has a laceration to the eye ball. The victim is scheduled for surgery this afternoon (23/02/2020) and he will require further surgeries over the coming weeks. The victim will most certainly lose a certain amount of vision in this eye and it is possible he may lose all sight from that eye.
The accused took part in an electronically recorded interview where he made full admissions. The accused stated “I wanted to punch him but controlled myself”. He further stated that after the victim slapped him "I couldn't control myself any more" and the assault occurred due to the actions and provocation of the victim. The accused showed genuine contrition for his actions and asked Police to apologise to the victim on his behalf.[9]
[9] Exhibit R1 at S1, 42-44.
I am satisfied that the offence occurred in the circumstances set out above. The Applicant gave evidence before me that he did not slap the victim but acknowledged that his hand may have made slight contact with the victim’s face when he (the Applicant) attempted to push the victim away.
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. 90
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. 90 – 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 15 April 2021. Pursuant to subsection 499(2A) of the Act, the Tribunal is bound to comply with the terms of the Direction.
Subparagraph 5.1(2) of the Direction provides, in part:
Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
Paragraph 5.2 provides general guidance and directs that the “factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2”.
Paragraph 5.2 also 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)   Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)   The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens 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 by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)   Decision-makers must take into account the primary and other considerations relevant to the individual case. 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 may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction, contained in Part 2, sets out how the discretion is to be exercised. “Informed by” the principles in paragraph 5.2, I must “take into account” the relevant primary and other considerations in sections 8 and 9 to determine whether the mandatory cancellation of the Applicant’s visa should be revoked. Primary considerations should generally be given greater weight than the other considerations.[10]
[10] Direction at 7(2).
Section 8 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)   protection of the Australian community from criminal or other serious conduct;
(2)   whether the conduct engaged in constituted family violence;
(3)   the best interests of minor children in Australia;
(4)   expectations of the Australian community.
Section 9 sets out other considerations to be taken into account where relevant. It provides:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i. strength, nature and duration of ties to Australia;
ii. impact on Australian business interests.
E: THE ISSUE FOR DETERMINATION
I have set out subsection 501CA(4) of the Act earlier in these reasons (see paragraph 23). 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, the issue to decide is whether “there is another reason [i.e. other than the Applicant passing the character test] why the original decision should be revoked”.[11]
[11] 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”.[12]
[12] 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
Paragraph 8.1(1) of the Direction provides that I should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or 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.
I should also consider:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.[13]
Serious conduct “includes behaviour or conduct of concern that does not constitute any criminal offence.” Examples are provided in the Direction.[14]
F1.1: The nature and seriousness of the Applicant’s conduct to date
[13] Direction at 8.1(2).
[14] Paragraph 4(2).
Paragraph 8.1.1 of the Direction
Paragraph 8.1.1 provides, in part:
(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.       violent and/or sexual crimes;
ii.      crimes of a violent nature against women or children, regardless of the sentence imposed;
iii.      acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.       causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.      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;
iii.      any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
…
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g) 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).
Discussion

The Applicant’s conduct must be regarded as serious. I am satisfied that the Facts Sheet prepared by the Police accurately sets out the facts giving rise to his conviction. Although the Applicant did not intend to inflict the serious injury which he did, he was reckless as to the outcome of his violence, particularly in aiming a blow to the victim’s head.
On appeal the District Court confirmed the sentence of 16 months imprisonment. The maximum sentence for the offence was 10 years. The sentence imposed was towards the lower end of the scale of possible sentences.
The Applicant has no other criminal convictions. Issues relating to an increasing seriousness of offending or the effect of cumulative offending do not arise. I have considered the Applicant’s prison and immigration detention records and they do not contain any information which indicates that the Applicant has been guilty of other serious conduct.
F1.2: The risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction provides, in part:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers 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.
(2)    In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.       information and evidence on the risk of the noncitizen re-offending; and
ii.      evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Under this heading, it is the seriousness of potential harm to the Australian community arising from future conduct which is to be considered rather than the seriousness of the conduct itself.
The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct
Should the Applicant engage in further conduct of the nature of his past offending, members of the Australian community would be subject to fear and physical injury. Taking into account the injury received by the victim, an injury could be very serious. Further, there would be financial loss associated with the treatment of victims and with their inability to attend work.
In addition to the financial cost already referred to, further offending or other serious conduct would result in financial harm to the Australian community in enforcing Australian laws, in dealing with the Applicant through the Courts and in incurring the cost of possible further imprisonment.
The likelihood of the Applicant engaging in further criminal or other serious conduct
The Applicant’s evidence
In his statement and in his oral evidence the Applicant said that he is remorseful for his offending and that he will not re-offend. I am satisfied that the Applicant’s remorse is genuine and that he is truly sorry for the pain and suffering inflicted upon his victim. I have taken into account the statement by the investigating Police Officer in the Police Facts Sheet that the Applicant “showed genuine contrition for his actions and asked Police to apologise to the victim on his behalf.”[15]The Applicant’s remorse makes it less likely he will re-offend.
[15] Exhibit R1 at S1, 17.
In his statement, the Applicant said, in part:
I am not a violent person and I feel so disappointed in myself that I responded in this moment in the way that I did. It is not normal for me and the consequences of my actions have shocked me so much that I know it will never happen again.
I am both so upset to learn I injured this man, but also I have been to jail, and have faced the prospect of being returned to a country I would be killed [sic], or kept in detention forever, so the consequences for me are so severe, I know I can ever [sic] afford to make a mistake again.[16]
I accept this evidence.
Sentencing Assessment Report dated 7 April 2020[17]
[16] Exhibit A1 at A1, 5.
[17] Exhibit R1 at S1, 21.
In this report, prepared for the Local Court, Ms Wilson, a Community Corrections Officer, assessed the Applicant’s risk of re-offending as low.
Sentencing Remarks of Magistrate Love in the Local Court 15 April 2020
In sentencing the Applicant, His Honour noted that his plea of guilty was a sign of contrition and remorse and indicated that the Applicant was taking responsibility for his actions. He noted also that the Applicant lost his employment after the offence. His Honour concluded that the Applicant was unlikely to re-offend.[18]
[18] At 29.
Evidence of Ms Howell, Registered Forensic Psychologist
Ms Howell holds a Master’s Degree in Psychology. She provided a report dated 10 January 2022[19] and gave evidence at the hearing.
[19] Exhibit A3.
The Applicant was assessed by Ms Howell on three separate occasions in December 2021. The assessment was made at the request of the Applicant’s Solicitors for the purpose of these proceedings. In making the assessment Ms Howell used the following formal instruments:
• Violence Risk Scale (VRS) – 2nd edition Wong & Gordon (2006).
• DASS 42 - Lovibond, S.H. & Lovibond, P.F. (1995) Manual for the Depression Anxiety and Stress Scales. (2nd ED) Sydney: Psychology Foundation.
Ms Howell obtained the following drug and alcohol history from the Applicant:
[The Applicant] said he last consumed alcohol about 2.5 years ago saying at that time he was drinking once or twice a week.
With respect to illicit substance use [the Applicant] said he used opium once or twice a month and at times that increased, however, he did not develop an addiction. During his time working in night clubs as a security guard, he was offered and tried MDMA, and cocaine adding he did not experience addiction, and has never required treatment for his use of illicit substances. MDMA is a synthetic drug that acts as a stimulant and hallucinogen. It produces an energizing effect, distortions in time and perception, and enhances enjoyment from sensory experiences. It has also been described as a drug that can increase self-awareness and empathy. When asked to describe his drug use, [the Applicant] said he believes it was “purely social” and “common” within the security industry where he was employed.[20]
[20] At 6.
In relation to the assessment of the risk of the Applicant committing further acts of violence, Ms Howell reported:
The Violent Risk Scale (VRS) is a conceptual actuarial tool based on risk, need and responsivity principles. It was specifically developed to assess the risk of violence, to measure changes in violence after treatment and to make treatment decisions. The VRS assesses 6 static and 20 dynamic risk factors to provide a comprehensive evaluation of an individual’s risk for violence, relevant treatment readiness, areas of strength, and changes in risk level over time and following treatment.
[The Applicant] was assessed using the VRS. His score on both Static and Dynamic factors identifies him as having a minimal risk (there is not a no risk category) to offend relative to the sample population. [The Applicant] grew up in an intact family, has no history of interpersonal violence however he was arrested in Iran after he joined others in protest. He has no juvenile convictions or prior release failures.
The dynamic risk factors identified by the VRS include:
Criminal personality – [the Applicant] does not exemplify the prototype for criminal personality as defined in the VRS. There is no grandiosity, manipulation, or an unrealistic sense of self-worth in his presentation.
Criminal attitudes - [the Applicant] does not have a history of criminal behaviour and has been anchored by prosocial values, a consistent history of employment within the conventional social rules. [The Applicant] appears to have lived and is oriented towards a conventional life on release from custody.
Work ethic – [the Applicant] has a history of steady employment suggesting a work ethic of some strength.
Criminal peers – [the Applicant] does not have a history of antisocial peer associations.
Interpersonal aggression – I found no evidence of a history of verbal or physical aggression and hostility in [the Applicant]’s interpersonal relationships.
Emotional regulation – [the Applicant]’s emotional regulation during the assessment was appropriate and whilst he was at times emotionally effected, he demonstrated no issues of disinhibited anger or frustration.
Insight into violence – [the Applicant] demonstrates a level of insight into his behaviour in general and I understand him to be a person with a non-violent history.
Mental disorder – [the Applicant] is currently prescribed Avanza (Mirtazapine) used in the treatment of major depressive disorder and generalised anxiety disorder. Assessment with the Depression, Anxiety and Stress Scale (DASS-42) suggests he is currently experiencing elevated levels of depression, anxiety and stress which appear strongly related to his current circumstances. I understand from [the Applicant] that he seeks appropriate interaction with the medical staff at the detention centre as required at the mental [sic].
Mental illness – The Depression, Anxiety and Stress Scale (DASS-42) was utilised to consider [the Applicant’s] current mental health. Results indicated he is experiencing low to moderate levels of anxiety, depression, and stress consistent with his current circumstances. At times his mental health is more difficult to manage, and he is prescribed anti-depressive medication to help regulate feelings of depression stress and anxiety.
[The Applicant] sees medical staff on an “as needs” basis and indicated when needed a psychologist is available at Villawood Detention Centre.
Substance abuse – [the Applicant] said while working in night clubs as a security guard, he was offered and tried illicit substances although he never developed an addiction and has never required treatment for his use of illicit substances. He believes his use was purely social and common within the security industry where he was employed.
Stability of relationships – [the Applicant] maintains regular contact with his parents and family in Iran and describes their relationships as loving and supportive. He is a sociable man who has formed many close relationships with friends in Australia who continue to offer him support and he understands his relationships with them continue to exist whilst he has been in custody.
Community Support – [the Applicant] will require appropriate community support on release from custody particularly in relation to housing and employment. He clearly identified his wish to gain employment as a house painter and understands his friends are willing to support him to obtain appropriate housing and employment.
Impulsivity – [the Applicant] has exhibited some impulsivity exemplified by episodes of past behaviour. His use of illicit substances combined with his mental health conditions leaves him vulnerable to working through issues or problems and produce [sic] a reasonable, pro-social and effective plan of action.
It is my view based on both interviews and assessment with the VRS that [the Applicant] does not pose an unacceptable level of risk of violence to others.
……………….
· An opinion of the level of risk of [the Applicant] reoffending, having regard to his current conditions and treatment available
[The Applicant] was able to discuss the offence and said he accepted full responsibility for his behaviour. He also acknowledged feeling ashamed and remorseful for the harm his behaviour caused his family and friends.
[The Applicant’s] risk of reoffending was assessed using the VRS which utilises both static and dynamic risk measures. Static risk factors are not amenable to change and remain stable over time while dynamic risk factors form the basis for treatment. Group and individual treatment are available in the community and [the Applicant] indicated his willingness to participate in treatment. He has no prior convictions for violent offences, and he does not hold attitudes and values supportive of physical violence.
It is my view [the Applicant] exhibits a degree of insight into his decisions and behaviour that suggest he has the capacity and potential to address the factors associated with his offending behaviour and he has particularly good prospects for rehabilitation.[21]
[21] Exhibit A3 at 6-9.
When she gave evidence, Ms Howell said that she did not think that it was likely that the Applicant would re-offend and that that he would pose only a low risk to the community should he be released from detention. Prior to giving evidence, Ms Howell was unaware of the extent of the injury to the victim and that the Applicant had undertaken an opioid substitution program. She said that this additional information did not cause her to change the opinions she had expressed. She regarded his enrolment in the program as a positive factor for him in future.
Evidence of Mr SAS, friend of the Applicant
Mr SAS provided a statement dated 14 December 2021[22] and gave evidence at the hearing.
[22] Exhibit A2.
Mr SAS first met the Applicant more than four years ago. They have remained friends.
If the Applicant is released into the Australian community, Mr SAS is willing to provide him with accommodation and will support him financially until he can find employment. He has spoken to his employer who is willing to offer the Applicant employment as a painter.
I am satisfied that Mr SAS was an honest witness who gave his evidence to the best of his recollection. I accept his evidence.
Evidence of Mr JH, friend of the Applicant
Mr JH provided a statement dated 10 December 2021[23] and gave evidence at the hearing.
[23] Exhibit A1 at 60.
Mr JH first met the Applicant about three years ago. They have remained friends.
Mr JH was with the Applicant when the offence occurred. He observed the Applicant being provoked by the victim who spoke to the Applicant in an aggressive way. However, Mr JH said that he was not justifying the Applicant’s actions which were unwarranted. In his opinion the Applicant lost control when he committed the offence and regrets what he did.
While the Applicant has been in prison and immigration detention, Mr JH has been providing him with social and emotional support. He is willing to continue this support if the Applicant is able to return to the Australian community. Mr JH has a degree in psychology and stated that this qualification puts him in a better position to support the Applicant.
I am satisfied that Mr JH was an honest witness who gave his evidence to the best of his recollection. I accept his evidence.
Evidence of Mr BR, friend of the Applicant
Mr BR provided a statement dated 13 December 2021[24] and gave evidence at the hearing.
[24] Exhibit A1 at 58.
Mr BR has known the Applicant for the past four years and they have remained friends during this period. If the Applicant is released into the community, Mr BR is willing to provide him with short-term accommodation and financial support.
I am satisfied that Mr BR was an honest witness who gave his evidence to the best of his recollection. I accept his evidence.
Evidence of Mr AT, friend of the Applicant
Mr AT provided a statement dated 13 December 2021[25] and gave evidence. He has known the Applicant for about five years.
[25] Exhibit A1 at 56.
The Applicant and Mr AT first met when they worked as security guards at the same nightclub; Mr AT was the Applicant’s supervisor. Mr AT stated that the Applicant was a trustworthy and honest employee on whom he could always rely. Mr AT regularly observed the Applicant in “stressful and testing environments” [26]. The Applicant was not aggressive in his role as a security guard, despite having to deal with aggressive patrons.
[26] Exhibit A1 at 56.
As well as their professional relationship, Mr AT and the Applicant have formed a close friendship. The Applicant has visited Mr AT and his wife in their home and is regarded by them as their “little brother”.[27]Mr AT is willing to provide the Applicant with accommodation should he be able to return to live in the community.
[27] Exhibit A1 at 57.
I am satisfied that Mr AT was an honest witness who gave his evidence to the best of his recollection. I accept his evidence.
Prison and Detention records[28]
[28] Exhibit R1, Supplementary Documents.
I have considered these records and they do not contain any information which indicates that the Applicant is at risk of re-offending.
Discussion
I am satisfied that the Applicant intends not to re-offend should he be released to live in the Australian community. In addition to the Applicant’s genuine feeling of remorse, he has suffered the deterrent effect of imprisonment and immigration detention for almost two years. He has also had to live with fear that he may have to return to Iran.
The Applicant will have significant support from friends and accommodation available to him on his release and will be likely to quickly gain employment. These are factors which also mitigate against his re-offending.
The Community Corrections Officer who prepared the report for the Court in April 2020 assessed the risk of the Applicant re-offending as low. The Sentencing Magistrate and Ms Howell both formed the view that the Applicant is unlikely to re-offend.
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.
F2: Primary Consideration 2: Did the conduct engaged in constitute family violence?
The Applicant has not engaged in conduct which constituted family violence.
F3: Primary Consideration 3: Best interests of minor children in Australia
There are no minor children required to be considered.
F4: Primary Consideration 4: Expectations of the Australian community
Paragraph 8.4 of the Direction provides:
(1)   The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a)    acts of family violence; or
b)    causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)     commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)     worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)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.

As required by sub-paragraph 8.4(4), I proceed on the basis of the views articulated by the Government. I am satisfied that the Australian community would expect that the Applicant should not be allowed to remain in Australia.
The Applicant accepts that this consideration weighs against revocation of the original decision.[29]
[29] Applicant’s Statement of Facts, Issues and Contentions at 64.
F5: Other considerations set out in the Direction
At paragraph 31 of these reasons, I have set out sub-paragraph 9(1) of the Direction, which mandates that I take into account the relevant other considerations.
F5.1: International non-refoulement obligations
The Minister accepts that the Applicant engages Australia’s protection obligations, consistent with the previous assessment of the Applicant by the Department, but submits that the statutory scheme, in the circumstances of this case, neither requires nor authorises the Applicant’s removal to Iran and that this factor should therefore be given neutral weight.[30] The Minister submits that the Applicant will be “statutorily barred” from applying for a protection visa which may result in the Applicant facing the prospect of indefinite detention and that this prospect carries “some weight” in favour of revocation of the original decision.[31] The Minister also submits that the Minister may consider “lifting” the statutory bar to allow the Applicant to apply for a visa, removal of the Applicant to another country, or the personal exercise of various non-compellable powers available to the Minister to grant a visa to the Applicant or make a residence determination to allow the Applicant to live in the community subject to conditions. There is no evidence before me to make an assessment as to whether the Minister is likely to exercise these powers in the Applicant’s favour.
[30] Respondent’s Statement of Facts, Issues and Contentions dated 28 December 2021 at 46; subsection 197C(3) of the Act.
[31] Respondent’s Statement of Facts, Issues and Contentions dated 28 December 2021 at 47.
I am required to consider the legal consequences of this decision arising from the operation of the statutory scheme, Australia’s non-refoulement obligations, and the prospect of indefinite detention.
In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[32] the Full Court of the Federal Court considered the approach to be taken in considering Australia’s international non-refoulement obligations. The Court considered the provisions of Ministerial Direction 79 which preceded Direction 90. The relevant provisions are the same.
[32] [2021] FCAFC 55.
The Court said, in part:
The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a visa decision maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law. As we explain below, for our own part we see no difficulty in attaching the adjective “indefinite” to such further period of detention, in circumstances where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom.
……
If a decision maker such as the Tribunal decides to revoke a visa cancellation, it is the Tribunal’s decision which restores a person’s freedom. Likewise, if a Tribunal decides not to revoke a visa cancellation, it is that decision which perpetuates the person’s detention. Decision makers in the position of the Tribunal are not entitled to ignore the continued deprivation of liberty of a person in the position of the appellant, while the executive pursues its policies to avoid refoulement. Further (and separately), if these matters are put to the decision maker as a representation, the decision maker is obliged to consider them because of the terms of s 501CA(3): Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [38]-[41], followed in GBV18 v Minister for Home Affairs [2020] FCAFC 17; 274 FCR 202 at [30].[33]
[33] At paragraphs 123 and 136.
I have taken into account that the Applicant faces indefinite detention with “no fixed chronological end point” should the original decision not be revoked. This weighs in favour of revocation of the original decision.
F5.2 Extent of impediments to the Applicant if he is removed from Australia
Subparagraph 9.2 provides:
(1) Decision-makers must consider 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 substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
Age and health
The Applicant is young and does not suffer from any significant health issues which would cause him any impediment should he return to Iran.
Language or cultural barriers
As the Applicant speaks Farsi, there would be no language barrier should he return to Iran. However, I am satisfied he would face significant cultural barriers.
Under the heading Sexual Orientation and Gender Identity, the DFAT Country Information Report (Iran, 14 April 2020) states at 3.147-3.151:
The Penal Code criminalises all sexual relations outside of traditional marriage, including heterosexual relations. Chapter 2 of the Penal Code explicitly criminalises same-sex relations, including where consensual in nature. Punishments for male homosexual acts are more severe than those given to women. Whereas a man can be executed on the first conviction in cases involving penetration, a woman can only be sentenced to death on her fourth conviction. Article 234 of the Penal Code distinguishes between the ‘active’ and ‘passive’ parties in male-on-male sexual acts involving penetration (sodomy). Whereas it allows for the execution of the passive partner in all cases, the active partner may only be executed if he is
married, if he rapes the passive partner or if he is a non-Muslim who has engaged in penetrative acts with a passive Muslim partner. Article 237 states that non-penetrative homosexual acts such as kissing or ‘touching as a result of lust’ are punishable by flogging, applicable to both men and women, while Articles 238 and 239 specifically define and prohibit sexual acts between women, stipulating flogging as punishment. Same-sex conduct not involving sexual organs – like ‘passionate kissing’ – also attracts flogging as punishment. There is no distinction between the active and passive parties or between Muslims and non-Muslims in cases involving sexual acts between women.
Iran does not publish official statistics or details relating to executions. This makes it difficult to estimate how many individuals have been executed for same-sex acts, and whether those acts were consensual. Numerous media reports relate to the execution of men who have engaged in same-sex acts. DFAT is not aware of any such executions involving women. However, in many cases, the media has reported that these acts involved non-consensual sexual encounters, including against minors. The issue is further complicated as the Penal Code does not recognise rape as a separate crime: it treats heterosexual and homosexual rape as forms of adultery and sodomy, respectively. As a result, if a consensual homosexual relationship is discovered by law enforcement, the passive partner has a significant incentive to claim that he has been raped as this may be the only way to enable him to escape a death sentence. Moreover, in an actual male-on-male rape case, the victim faces substantial risk in filing a complaint, as if the alleged rapist succeeds in arguing that the act was consensual, the victim could be executed for being the passive partner to an act of sodomy.
In August 2016, a 19-year old man was executed in Arak (Markazi Province) after being convicted of an act of ‘forced sodomy’ (as defined in Article 234). The alleged offence occurred while the man was still a juvenile. Authorities arrested the man after receiving a complaint accusing him and two other youths of forcing a teenage boy (of undisclosed age) to have sexual intercourse with them. The executed man had maintained that the sexual acts were consensual. In January 2019, a 31-year-old gay man was reportedly executed by hanging on charges of kidnapping and raping two 15-year old adolescents (apparently boys). According to local media reporting, the man had several prior criminal records. It is difficult to find evidence of recent cases involving the execution of adults who have indisputably engaged in consensual same-sex relations. International organisations report that authorities are aware of the negative international reactions large-scale persecution and severe punishment of homosexual individuals creates. Where courts find offenders guilty in same-sex relations cases, reporters observe that, in most cases, they generally refrain from imposing the death penalty and instead order floggings.
The prevailing view among Iranian healthcare professionals is that homosexuality is a psycho-sexual illness. Official ‘treatment’ for gay men and women includes prescription medications (such as Valium) and gender reassignment surgery (GRS). International observers report that private and semi-governmental psychological and psychiatric clinics offer ‘corrective treatment’ for LGBTI persons. These clinics allegedly use electric shock therapy on the hands and genitals of LGBTI persons, prescription of psychoactive medication, hypnosis and coercive masturbation to pictures of the opposite sex. One such clinic, The Anonymous Sex Addicts Association of Iran, reportedly has branches in 18 provinces. In March 2016, the UN Committee on the Rights of the Child expressed concern at reports that children identifying as LGBTI had been subjected to electric shocks and the administration of hormones and psychoactive medications as forms of cure. Men whose homosexuality or transgenderism has been established (through an intrusive medical examination) are exempted from military service and given the designation ‘mentally ill’ on their military cards (see Military Objectors), which can lead to later difficulties when seeking employment.
There is a strong societal taboo against homosexuality, particularly among older, more conservative Iranians — one local source said it was impossible for Iranians, as Muslims, to accept homosexuals. While official rhetoric against homosexual individuals and practices has reduced since the Ayatollah Khomeini era, high-level officials (including Ayatollah Khamenei) have continued to issue derogatory statements about homosexuality. The government censors all materials related to LGBTI issues, including blocking websites or content within sites that discusses such issues. NGOs are unable to work openly on LGBTI issues. The law does not prohibit discrimination based on sexual orientation and gender identity, and no criminal justice mechanisms exist to prosecute those accused of committing hate crimes against LGBTI persons. Authorities have reportedly expelled individuals from university for alleged same-sex relations. It is not possible for an LGBTI person to seek state protection, as doing so would be an act of self-incrimination and leave them vulnerable to arrest and prosecution. Given the criminalised and hidden nature of homosexuality, harassment of and discrimination against LGBTI persons is under reported.[34]
[34] Exhibit A1 at 139.
A document issued by the United Kingdom Home Office in June 2019 included the following, in reference to Iran:
Security forces harassed, arrested, and detained individuals they suspected of being LGBTI. In some cases security forces raided houses and monitored internet sites for information on LGBTI persons. Those accused of “sodomy” often faced summary trials, and evidentiary standards were not always met. The Iranian LGBTI activist group 6Rang noted that individuals arrested under such conditions were traditionally subjected to forced anal or sodomy examinations, which the United Nations and World Health Organization said can constitute torture, and other degrading treatment and sexual insults. Punishment for same-sex sexual activity between men was more severe than between women. UNSR Jahangir reported in March receiving reports of the continued discrimination, harassment, arbitrary arrest and detention, punishment, and denial of rights of LGBTI persons.[35]
[35] Exhibit A1 Country Policy and Information Note Iran: Sexual Orientation and gender identity and expression, Version 3.0 June 2019 at paragraph 4.1.1., quoting the United States State Department ‘Iran 2018 Human Rights Report’.
I have accepted the evidence of the Applicant that he feels comfortable as a member of the LGBTQI+ community in Sydney and finds support from his friends in that community. Based on his evidence and the information in the government reports to which I have referred, I am satisfied that the Applicant would face significant cultural hurdles if he returned to Iran and attempted to live the lifestyle to which he has become accustomed in Australia.
Social, medical and/or economic support available
Based on the evidence of the Applicant and the documentary evidence as to the treatment of LGBTQI+ people, I am satisfied that the Applicant would not have the same level of social support he would have if he was able to live in the Australian community. I am satisfied that the Applicant has integrated into the LGBTQI+ community in Australia and will have the social and economic support of his friends who have given evidence.
Should the Applicant be living in the Australian community he will have available to him a high level of medical and economic support if required. I do not have evidence available to make a finding as to the medical and/or economic support which would be available to him in Iran.
F5.3 Impact on victims
I do not have sufficient evidence to make a finding as to the impact on the victim of the assault of a decision to revoke the cancellation of the Applicant’s visa.
F5.4 Links to the Australian community
Paragraph 9.4 of the Direction provides:
9.4.1. The strength, nature and duration of ties to Australia
(1)    Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, 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.

9.4.2.   Impact on Australian business interests
(3)    Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The strength, nature and duration of the Applicant’s ties to Australia
Based on the evidence of the Applicant and his friends, I am satisfied that he has developed ties to friends in Australia who are Australian citizens. Some of these ties have been established over several years and are strong. In forming these friendships, the Applicant has developed ties to the LGBTQI+ community and, by reason of his feeling comfortable as to his own sexuality while living in Australia, he has developed some ties to the Australian community. However, I do not regard his ties to the Australian community, as distinct from Australian individuals, as strong. The Applicant does not have any family members or a partner living in Australia.
Although the Applicant came to Australia in 2013, he has only spent five years living freely in the Australian community. He committed a serious assault within seven years of entering Australia and only contributed positively to Australia for a short time.
Impact on Australian business interests
I am satisfied that refusing to revoke the cancellation of the Applicant’s visa will not have an impact on Australian business interests.
PART G: THE BALANCING EXERCISE
The Minister contends that “the nature of harm should the applicant engage in further criminal or other serious conduct is very serious and any risk that it may be repeated is unacceptable, noting that the applicant’s conduct involved significant violence against an individual which resulted in very serious and predicted long-term harm to the victim.” [36]It is contended that there is “a real possibility”[37] that he will re-offend.
[36] Respondent’s Statement of Facts, Issues and Contentions dated 28 December 2021 at paragraph 32.
[37] Respondent’s Statement of Facts, Issues and Contentions dated 28 December 2021 at paragraph 34.
The Minister relies upon the following circumstances in support of this submission:
(a)the assessment that the applicant was at a low risk of offending was provided at a time when the applicant had protective factors which no longer exist, such as the support of a long-term partner;
(b)the sentencing judge observed that the applicant’s ‘prospects of rehabilitation are guarded’;
(c)the applicant was allegedly sober at the time of the offending conduct which indicates that he was not impaired and consciously made a choice to violently assault the victim;
(d)this is further supported by the assessment undertaken by a consultant psychiatrist in July 2020 who determined that the applicant did not have a mental illness at the time of the assessment and that he was not cognitively impaired, which was some five months after the offending conduct;
(e)while the Minister acknowledges that the applicant has completed an ‘Anger Management 101’ course while incarcerated, the Minister notes that this course only had five contact hours;
(f)the applicant has not lived in the community for any period of time since his offence and thus the Tribunal cannot be confident that he is rehabilitated and will not reoffend if he is released into the community; and
(g)the applicant has demonstrated a previous history of disregard for court orders and Australian laws, having stated that he has accrued $4,000 in driving fines and breaching his bail conditions within less than one month of being granted bail, which the applicant explained to police as ‘I just went to the 7-11 store to get food, it’s just down the road’.[38]
[38] At paragraph 34, as above.
While I accept that there is some risk the Applicant will re-offend, I prefer the judgement of Magistrate Love and the evidence of Ms Howell that the risk of his re-offending was low, rather than a “real possibility”.
Although the Applicant does not have the support of a long-term partner, he does have the ongoing support of his friends, particularly the support of Mr AT and his wife.

I am satisfied that the Applicant does not have an ongoing problem with the use of alcohol or illicit drugs and that he does not have a mental illness nor cognitive impairment, either at the time of the offence or at present. However, I am satisfied also that the offence was committed at a time when he lost control of his emotions, which was unusual for him, and after some provocation. I am satisfied that the Applicant did not intend to inflict the serious injury which he did. In these circumstances I consider that his sobriety at the time of the offence and his lack of cognitive impairment, has caused him to reflect on the seriousness of his actions and to be genuinely remorseful and determined not to re-offend. This reduces, rather than increases, the likelihood of the Applicant re-offending or engaging in other serious conduct.
While the Anger Management course may have been for only five hours, it is to the credit of the Applicant that he engaged in, and completed, the course which was available to him. I also note that he voluntarily engaged in a drug rehabilitation course.
I agree with the Minister’s submission that the Applicant has shown a disregard for Australian laws in accumulating the traffic fines which he did and in breaching the conditions of his bail when he was first arrested. This is a factor which weighs against revocation of the cancellation of his visa.
I accept the Minister’s argument that, as there is some risk of re-offending, the consideration of the protection of the Australian community weighs against revocation. However, as I am satisfied that this risk is low, the weight to be given to this consideration is reduced. I agree that the expectations of the Australian community also weigh against revocation, but again, in view of the low risk of re-offending, I consider it to be a factor of moderate weight, as the Minister suggests.[39]
[39] Respondent’s Statement of Facts, Issues and Contentions dated 28 December 2021 at paragraph 44.
Considering all of the evidence and weighing up the various considerations, I have come to the conclusion that the factors in favour of revocation of the original decision outweigh those against. I have reached this conclusion in view of the low risk of the Applicant re-offending, his lack of any other convictions and the support he will have on release into the Australian community. I accept his resolve not to re-offend and his genuine remorse for the injury he has caused to the victim. I am satisfied that he has learned from his experience in prison and in immigration detention, which have acted both as a deterrent and a means of rehabilitation.
In addition, I have taken into account that unless the original decision is revoked, the Applicant will continue to face the prospect of indefinite detention. The Minister concedes that the Applicant will be statutorily barred from applying for a protection visa and that this “may result in the applicant facing the prospect of being indefinitely detained”[40]. The Applicant would also continue to face the fear of being removed from Australia and the impediments he would face if he was returned to Iran. These considerations add weight to a decision to revoke the cancellation of his visa.
[40] Respondent’s Statement of Facts, Issues and Contentions dated 28 December 2021 at paragraph 47.
PART H: CONCLUSION
The reviewable decision made 9 November 2021, being the decision of a delegate of the Minister not to revoke the cancellation of the Applicant’s Class XE Subclass 790 Safe Haven Enterprise visa, will be set aside.
In substitution, it will be decided that the decision to cancel the Applicant’s Class XE Subclass 790 Safe Haven Enterprise visa, made 12 June 2020, will be revoked.

I certify that the preceding one-hundred and nine (109) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

...........................[SGD]...........................
Associate
Dated: 2 February 2022

Dates of hearing: 17 & 18 January 2022

Solicitors for the Applicant: S Blaker, H Gray – Legal Aid NSW

Solicitor for the Respondent: S Prasad – MinterEllison

[2022] AATA 134

2 February 2022

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