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

[2024] AATA 1301

PHGY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1301 (28 May 2024)

Division:GENERAL DIVISION

File Number(s):      2024/1504

Re:PHGY  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr Rob Reitano, Member

Date of decision:                  28 May 2024

Place:Sydney

I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of the Applicant’s Class XB Subclass 200 Refugee visa.

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

Mr Rob Reitano, Member

CATCHWORDS

MIGRATION – visa cancellation – protection of the community – very serious criminal offending – risk of reoffending – expectations of the Australian community – best interests of minor children – nature duration and ties to community – legal consequence of decision – international non-refoulment obligations – impediments if removed to Iraq – decision to refuse set aside and substituted

LEGISLATION

Migration Act 1958 (Cth), ss 499, 501, 501(CA)

CASES

CRNL v Minister Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
R v Gavel [2014] NSWCCA 56
R v Nelson [2016] NSWCCA 130

SECONDARY MATERIALS
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)

Department of Foreign Affairs and Trade, 'DFAT Country Information Report Iraq (16 January 2023)

REASONS FOR DECISION

Mr Rob Reitano, Member

28 May 2023

1. On 2 September 2008, the Applicant, who was then 25 years of age and a citizen of the Republic of Iraq (Iraq), arrived in Australia as the holder of a Class XB Subclass 200 Refugee visa (visa) which entitled him to remain in Australia indefinitely.

2. On 7 September 2021, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) was required to cancel the visa because s 501(3A) of the Migration Act 1958 (Cth) (Act) required that it be cancelled if the Minister was satisfied that the Applicant had a ‘substantial criminal record’ and that he was serving that sentence full time in a custodial institution. The Minister was satisfied about those things because the Applicant had a ‘substantial criminal record’ as he had been sentenced to an aggregate term of imprisonment of four years and nine months and was serving that sentence.

3. The Applicant asked the Minister to revoke the cancellation of the visa, but a delegate of the Minister decided not to do so. The Applicant then applied to the Tribunal to review that decision with the objective being to have the decision set aside and replaced with a decision revoking the cancellation of the visa.

4. I have decided to set aside the decision refusing to revoke the cancellation of the visa and to replace it with a decision revoking the cancellation of the visa. These are my reasons.

   WHAT IS THE ISSUE?

5. Sub-section 501CA(4)(b)(ii) of the Act provides the Minister with power to revoke a decision cancelling the visa. The only basis for doing so in this case is if the Minister is satisfied that ‘there is another reason why the original decision [the decision to cancel the visa] should be revoked’. The other basis for revocation in s 501CA(4)(b)(i) of the Act, that the Minister is satisfied that the Applicant passes the character test in s 501, is not available because of the Applicant’s sentence to more than 12 months imprisonment.  

6. In this review the Tribunal stands in the place of the Minister so that any satisfaction that the Minister was required to have is one that the Tribunal must have if the decision to cancel the visa is to be revoked.

7. It follows, that the only issue in this review is whether I am satisfied that there is ‘another reason’ to revoke the cancellation of the visa.

   IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?

8. The issue concerning satisfaction about whether there is another reason why the Minister’s decision cancelling the visa should be revoked requires the making of an evaluative judgment about whether there is a reason to revoke the visa cancellation.

9. A useful starting point for making that judgment is Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction). This is because the Tribunal is required by s 499(2A) of the Act to comply with the Direction in performing its functions and in the exercise of its powers.

10. It is helpful to make some general observations about the Direction. The Direction identifies ‘principles’ which provide a framework to decide whether a decision to revoke a decision cancelling a visa should be made, and ‘considerations’ that are the matters a decision-maker must consider in making that decision, but only to the extent that they are relevant.[1]

    [1] Paragraphs 5.2(6) and 6.

11. The ‘principles’ lay down the rule that it is the Australian Government that decides who is allowed to come to and remain in Australia and that those who engage in criminal conduct should expect to lose the right to remain in Australia. The principles also stress the importance of community expectations in the decision-making process, emphasising that people who have been living in Australia for a long time, especially since their formative years, will generally be afforded a higher degree of tolerance so far as criminal offending is concerned. The principles direct a decision-maker’s attention to the ‘considerations’ and the prospect that ‘countervailing considerations’ may justify a person being permitted to remain in Australia despite their criminal conduct or other misbehaviour.

12. The Direction refers to two categories of ‘considerations’ which are referred to as ‘primary considerations’ and ‘other considerations.’ The ‘primary considerations’ relevant to this matter are:

    ·protection of the Australian community from criminal or other serious conduct;

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

    ·the best interests of minor children in Australia; and

    ·the expectations of the Australian community.[2]

    [2] Paragraph 8.

13. The ‘other considerations’ are:

    ·legal consequences of the decision;

    ·extent of impediments if removed from Australia.

14. The Direction says, ‘primary considerations should generally be given greater weight than the other considerations.’[3] The word ‘generally’ contemplates cases where it may not be appropriate to do that.[4] No single ‘primary consideration’ or ‘other consideration’ is required to be given greater importance than any other; the importance attaching to each consideration is left to the decision-maker. Further, the Direction lays down within each consideration particular matters that must be taken into account.

    [3] Paragraph 7(2).

    [4] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [76] (per Charlesworth J).

15. The process of weighing involves considering the matters to which the Direction refers and giving them importance, comparing them one to the other in order to determine which of them, or in some cases group or groups of them is, or are, of greater or lesser importance. The process is focused upon arriving at a decision about whether there is another reason, in simple terms some other rational basis, to revoke a visa cancellation.[5]

    [5] CRNL v Minister Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [34].

16. Obviously enough, there are real and practical consequences for people and the community resulting from a decision not to revoke, or to revoke, the cancelation of a visa. The obligation ‘to consider’ does not involve the completion of a checklist and is not formulaic.[6] The decision will have a real impact on many people other than an Applicant, such as an applicant’s children, immediate and extended family, friends and potentially others such that it is important to give genuine consideration to all matters.[7] In this case it will be seen that children and family are an important matter. There are also potential serious ramifications for members of the Australian community more generally. This means it is necessary to consider the protection of the community against future criminal offending and misconduct, especially where past criminal behaviour or misconduct has been egregious. There is a need to pay regard to community expectations about a non-citizen’s offending.

    [6] Ibid at [38].

    [7] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].

17. The need to consider things must be undertaken with care, weighing up the importance of the private and public interests that will be affected, and reaching a firm and reasoned conclusion about their respective and relative importance. It is ultimately that to which the Direction is focused which when applied ensures that all relevant public and private interests are considered and weighed, given their respective importance, properly and appropriately so that in the end the guiding principle of reason produces the correct or preferable result.

18. I will deal with the considerations that are relevant in turn, and ascribe them weight, before weighing and balancing them against each other to determine whether there is another reason to revoke the decision cancelling the visa.

    PROTECTION OF THE AUSTRALIAN COMMUNITY

19. I am required to consider the nature and seriousness of the Applicant’s criminal and other conduct, the consequences and risk to the Australian community, should he commit further offences or engage in other serious conduct if permitted to remain in Australia. I must have regard to the fact that the Australian Government and community regard offences that involve crimes of a sexual nature against children as very serious regardless of the sentence imposed.

20. In assessing the nature and seriousness of the Applicant’s offending I must have regard to the sentence imposed (although because this case involves crimes of a sexual nature against a child they are very serious irrespective of the sentence imposed), the frequency of the offending, the existence of any increased trend in seriousness, the cumulative effect of repeat offending, whether false or misleading information has been provided to the Department by not disclosing prior criminal offending and whether there has been reoffending after being warned in writing about the consequence of reoffending.

21. I should immediately dispose of some matters that I am required to consider by observing that there is one circumstance involving offending so there is no escalation in seriousness or question about frequency of offending. Similarly, misleading statements, non-disclosure of criminal offending and prior warnings play no part in this matter.

22. Turning then to the criminal offending for which the Applicant was convicted. There were four offences, all of a sexual nature, that had as their victim a cognitively impaired child who was 15 years of age. The impairment was autism spectrum disorder of which the Applicant was unaware. The first offence was sexual intercourse with a child of or above the age of 14 years and under the age of 16 years in circumstances of aggravation. The circumstance of aggravation was the child’s impairment. There were also two offences of sexually touching a child of or above the age of ten years and under the age of 16 years. There was a fourth offence of incite a child of or above the age of ten years and under the age of 16 years to sexually touch another person. All the offences were offences under the Crimes Act 1900 (NSW) and carried maximum penalties of 12 years imprisonment for the first offence and each of the others had a maximum penalty of 10 years imprisonment.

23. The facts of the offending are set out in the sentencing remarks of Judge Woodburne SC sitting in the District Court of New South Wales. At about 2.30pm on 21 October 2019, the Applicant went into a pizza shop to collect and eat a pizza. He met the victim for the first time, who had also purchased food from the pizza shop. The victim was wearing a school uniform and carrying a school bag. The two sat at a table together at the Applicant’s request and had a conversation. The victim told the Applicant she was 15 years old and turning 16 years old the following week. The Applicant told the victim he was 24 years of age which was not true as he was then 36 years of age.  The two had a conversation in which the Applicant talked about sexual things that were inappropriate for conversation between an adult and a child. He then asked the victim to walk with him to his shop which was a barber shop and was close by. He did so with a view to engaging in sexual activity with her.

24. Once at the shop he kissed the victim. He then asked her if he could touch her ‘pussy’ to which the victim answered ‘yes’ because, as Judge Woodburn SC described it, ‘she was afraid and out of her depth’. The Applicant then put his hand under the victim’s clothing and inserted a finger into her vagina. The victim suffered pain. The penetration was only for a short time. That formed the basis of the charge concerned with sexual intercourse with a child under 16 years of age which the Applicant pleaded not guilty to, denying that he inserted his finger into her vagina, but he was eventually found guilty by a jury. He maintained in his evidence before me that he did not insert his finger into the victim’s vagina and that what he had done involved touching her vagina. 

25. The Applicant then touched the victim’s bottom. He undid the back of her school uniform, put his hands inside her uniform and under her bra and touched both her breasts.  The actions of touching her bottom and her breasts were the two sexual touching charges to which the Applicant pleaded guilty. The victim started to cry. After a short time, the Applicant grabbed the victim’s wrist and forcefully made her touch his penis through his clothing. He continued kissing her whilst doing so. That conduct was the subject of the charge of inciting a child to sexually touch another person to which the Applicant also pleaded guilty. Before the victim left, the Applicant tried to arrange with her for her to return so they could do the same again. The victim left. She was distressed and crying.  

26. After the Applicant was apprehended, he gave a version of events which cast responsibility for everything that happened on the victim. It was, according to him, she who initiated the walk to the shop as she wanted to see it, she who asked the Applicant to touch her on the vagina and she who placed her hand on his penis ‘for only one second’. The Applicant also denied that he knew that what he was doing was wrong as he did not know consensual sexual activity with a child was illegal. Judge Woodburn SC rejected that suggestion as disingenuous and inconsistent with the Applicant, on several occasions, checking outside the shop to make sure ‘no one was coming and would see what he was doing.’

27. Judge Woodburne SC considered that the first offence was in the midrange of objective seriousness, the second and third offences below the midrange of objective seriousness and the fourth offence towards the midrange of objective seriousness. An aggregate sentence of four years and nine months imprisonment was imposed with a non-parole period of three years and one month.

28. The Applicant’s criminal offending is of a sexual nature committed against a child with an intellectual impairment. It is very serious. It is regarded as such by the Australian government and the Australian community. The offending was opportunistic. It was committed for personal sexual gratification. There was no concern or regard to the victim even when she was distressed and started to cry. The sentence to more than four years imprisonment confirms the seriousness of the offending. Four years is a long time out of anyone’s life. The consequences for the victim and her ongoing psychological conditions reflect the seriousness of the offences. The Applicant’s criminal offending is very serious.

29. Despite the Applicant’s offending being egregious, I do not regard it as so serious as to fall into the category of offences that are so serious that any risk of re-offending is unacceptable, I proceed on the basis that the offences are at the high end of gravity.

30. Next, I must consider the nature of the harm to individuals should the Applicant reoffend. This is because the Australian community’s tolerance for future harm diminishes as the potential seriousness of the consequences of harm become more serious. The Applicant’s offending involved immediate distress to the victim. It involved physical pain. It also involved causing ongoing suffering such as difficulties sleeping and ongoing psychological issues. In the sentencing process the victim provided a victim’s impact statement that referred to her feelings of not being safe, her lack of trust and her insecurity on public transport. Those are, in one sense, the very immediate consequences of the conduct. It has been long recognised that the consequences of child sex offences may give rise to psychological damage for many years, if not for life (see the discussion in R v Gavel [2014] NSWCCA 56 at [110]). In R v Nelson [2016] NSWCCA 130 at [23] Basten AJ observed that even where the activity was:

    . . . not opposed by the victim, it will be damaging. Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have lifelong consequences, including an inability to form stable partnerships in adulthood and possible self-destructive behaviour.

31. It also should not be forgotten that although the most immediate and direct harm of such offending is to the victim, there is also, albeit less serious, often inevitable harm to others. The victim’s immediate family, friends and associates which often involves them in emotional and psychological distress of its own. The harm to members of the community should such offending occur again is significant.

32. Finally, I must consider the likelihood of the Applicant engaging in criminal conduct in the future. I am required to assess this having regard to the available evidence and information. This task is often a difficult one and no less so in this matter even though there is much assistance provided by the views of the sentencing judge and several psychologists.

33. Judge Woodburne SC in her sentencing remarks expressed the opinion albeit with some reservation that the Applicant:

    . . . is unlikely to reoffend given the serious consequences he has already suffered by reason of his own conduct, particularly the failure of his marriage and the fact that he has not been able to see his young daughters.

34. That opinion was expressed after having regard to a range of matters and included a report prepared by Mr Borenstein, a clinical psychologist who assessed the Applicant’s risk of re-offending as being in the low-risk category of reoffending. Mr Borenstien’s opinion was informed by a detailed history which included reference to the Applicant’s lack of any prior criminal offending, stable history of employment, the support he received from his immediate and extended family, the fact that he did not use illicit drugs or alcohol and does not gamble, the fact that he had no history of psychiatric illness and that he had shown remorse for his wrongdoing. Judge Woodburne SC’s ‘reservations’ arose from the Applicant maintaining that he did not know that engaging in sexual activity with a child under 16 years of age was against the law. Despite that reservation Judge Woodburne SC expressed the view, as I have said, that the risk of reoffending was ‘unlikely’.

35. Added to these factors since then are the facts that the Applicant has actively engaged in prison life in a productive and meaningful way. He has worked as a barber whilst in gaol and in delivering groceries, he has worked on improving his English and has studied courses in information technology. It is true that he has not undertaken any courses targeted at ensuring he does not reoffend but that is only of little concern given all the other positive things that strongly suggest the Applicant is not at a high risk of reoffending. He has a strong extended family and the support of both of his parents who he proposes to live with, at least initially, after his release. He has plans for resuming his chosen occupation as a barber. He has a strong desire to resume his relationship with his wife and children, but so far as his relationship with his wife is concerned, that will only be after a period with his parents and a cultural requirement involving a meeting of the families. His wife, despite something of a troubled past with the Applicant, was optimistic about the Applicant resuming his role as a father and husband. The Applicant also recognises that he needs ‘help’ from a psychologist which he intends to obtain upon his release on parole, although, this is different to what he said to a corrections officer earlier this year.  

1. Finally, I have a lengthy report from a specialist forensic psychologist, Mr Patrick Sheehan, that deals with Mr Sheehan’s opinion about the Applicant’s risk of reoffending. Mr Sheehan has placed the risk of re-offending in the ‘low to average or low to mid-range depending on the terminology used’. In particular, Mr Sheehan observed of the Applicant that:

   He has none of the risk factors associated with antisociality, general lifestyle instability, social maladjustment, mental disorder, paraphilia, absence of intimate relationships or substance abuse. [The Applicant’s] poor sexual knowledge has been noted in file material and it may have played a minor role, but I cannot accept that his ignorance was such that he did not understand that his behaviour was morally wrong and against the law. The risk factors pertinent to [The Applicant] would appear to relate to vulnerability to stress, limited ability to resolve internal tension and an absence of psychological mindedness as observed by Mr Borenstein (5 June 2021). In my view there are also likely to have been distorted perceptions held by [The Applicant] at the time of offending that enabled him to act in an exploitative way (such as deceiving himself that the victim was coming onto him). Otherwise, there is little else to explain why he would behave in this way on that occasion, in the absence of any other known history of exploitation or sexual disinhibition/impoverished boundaries.

2. The other aspect of Mr Sheehan’s opinion that is significant concerns the issue about the relevance of the Applicant’s lack of insight into his offending. Mr Sheehan said:

   The significance of [the Applicant’s] poor insight is that if he cannot clearly understand the processes that led him to offend, this limits his ability to devise clear plans to offset any residual risk of future reoffence. This feature does not elevate his risk but limits his ability to mitigate his risk through targeted awareness. In all, the totality of evidence leads me to estimate [the Applicant’s] risk to be in the low-average range, relative to other offenders.

3. The Minister referred to some evidence that was gathered for the District Court trial that referred to the Applicant’s phone containing an internet history for searches on a web browser for ‘young girl’ and ‘young teen forced’ on what was a pornographic website.  That evidence was excluded by Judge Woodbourne SC at least in part because there was no evidence that the Applicant looked at the pages. Mr Sheehan in preparing his opinion was aware of the Applicant’s engagement with pornography more generally. Although Mr Sheehan would have explored the question of the Applicant searching the two entries identified, he was unable to express any conclusion based on what was found on the Applicant’s phone. I am unable to draw anything from those searches either. They do not, in the view I take, necessarily undermine the various opinions expressed about the Applicant’s likelihood of reoffending. The available evidence and information that I have does not include any analysis of the relevance or otherwise of those searches and I have no information that considers them one way or another.

4. It was also submitted that relevant to risk of reoffending was the Applicant’s initial attempts to blame the victim, some of his comments about his attitude to women, and his claim to have not known that sexual intercourse with children was illegal. Also, it was said that the Applicant had, a short time after his offending, breached his bail conditions. So far as the latter is concerned, there was no evidence of any conviction for breaching bail conditions. It was not put to the Applicant in cross examination that he had breached those conditions. It is difficult to give much weight on the bare allegation without knowing a great deal more. In any event, each of these factors are from some time ago and have been overtaken by the qualified and expert opinions which I have before me.

5. It was submitted that the Applicant had not engaged in ‘sufficient meaningful rehabilitation’ to address the attitudes informing his conduct. In that respect, it is important that the various opinions about the Applicant’s likely risk of reoffending as being ‘low’ or ‘low to medium’ do not identify the lack of rehabilitation or meaningful rehabilitation as significant in increasing the Applicant’s risk profile. Mr Sheehan identified that supervised parole and psychological treatment with a forensic psychologist would, however, assist the Applicant in his decision- making in the future. Given that the experts have not identified this shortcoming as a matter that increases the risk of offending, I do not consider that I should do so either. I note that given the Applicant’s stated desire, which I accept as genuine, to seek such help the risk is likely to be lesser rather than greater.

6. Finally, I do not accept that the prospect of being reunited with his family, his parents, wife and children, will not be a factor that reduces the risk of re-offending in the future. Judge Woodbourne SC noted the suffering that the Applicant had suffered by losing his wife and children as a result of his offending. The evidence suggests that together with the significant deterrent effect of imprisonment and being taken to the brink of deportation are likely to be strong factors that deter the Applicant from re-offending. I consider the Applicant’s risk in reoffending to be in the low to medium range but much closer to the low range of likelihoods. I am strongly influenced in my opinion by the views expressed by Judge Woodbourne SC.

7. I am satisfied that although the nature and seriousness of the Applicant’s criminal conduct is very serious and that the consequence of him reoffending, should he do so, will be very harmful to the community and individuals, his risk of re-offending is below the mid-range of likelihoods. This means, naturally enough, that whilst this consideration weighs against revoking the decision of cancelling the visa, it is not of its own a very weighty factor in determining whether there is another reason to revoke the cancellation of the visa.

   STRENGTH NATURE AND DURATION OF TIES TO AUTRALIA

8. I must consider the impact of my decision upon the Applicant’s immediate family members in Australia where they are Australian citizens, Australian permanent residents, or people with a right to lawfully remain in Australia indefinitely.

9. I am required to give more weight to this consideration where the ties involve children who are Australian citizens, permanent residents or who are entitled to remain in Australia indefinitely. I must consider the strength, duration and nature of family ties or social links generally to people in those categories.

10. I must also consider the strength, nature, and duration of other ties that the Applicant has to the Australian community. I am to do so with reference to the length of time the Applicant has resided in the Australian community and give more weight to the time the Applicant has contributed positively to the Australian community than to the time the Applicant was not in Australia during his formative years and where the offending started soon after arriving in Australia. 

11. The Applicant’s wife is an Australian citizen as are his three daughters aged 12, eight and five years of age. I will deal with the children’s best interests separately, but it is important in assessing the strength of the Applicant’s ties to Australia to keep in mind that they are three people who all have a significant and familial tie to the Applicant and have an indefinite right to remain in Australia. So far as his wife is concerned, the Applicant and his wife married in a religious ceremony in May 2011 and a civil ceremony in April 2012. After he committed the offences there was a period of about a year or 18 months where he had no communication with his wife or children. In early 2022, the Applicant and his wife commenced talking again and communication became more regular after then. His wife visited him whilst he was in prison but the fact that he was in prison so far away probably did not help things.

12. I accept that upon his release from prison and after a cultural gathering of family members, it is intended that the Applicant and his wife despite their separation shortly before the Applicant’s incarceration which involved her not seeing or communicating with the Applicant over a few years, will live together again as husband and wife with their children. It was submitted that, given their history which involved arguments, apprehended violence orders and separation, I should not put much store in the relationship with the wife. I am not prepared to speculate much about the Applicant and his wife’s future other than to note that at present they intend to ‘give it a go’. I was impressed by the Applicant’s wife’s evidence which revealed a genuine desire to get her and her husband’s life back on track. In any event, the relationship with his daughters and the other family members referred to below is a significant tie to Australia in itself.

13. The Applicant’s immediate family in Australia that is his mother, father, a brother, three sisters are, apart from one of his sisters who is Swedish but living in Australia on a visa, all Australian citizens. He also has a grandmother, uncles, aunts, and cousins many of whom are Australian citizens living in Australia and therefore have an indefinite right to remain in Australia. He also has many in-laws and relatives of his wife, many of whom are also Australian citizens. It is fair to say that the Applicant has an immediate and extended family that that has a large number of Australian citizens and permanent residents to whom he has familial ties.

14. The Applicant lived with his parents, his brother and one of his sisters before he went to prison. He has a close relationship with his mother, father, brother and that sister and they would undoubtedly be upset if he were excluded from Australia. Many of his family members attended court with him when he was sentenced. His ties to the community through his family appear to be strong.

15. Further, the Applicant has lived in Australia for about 15 years. He learnt English shortly after his arrival and trained as a barber. He worked as a barber in various barbershops for about nine years including in his own barbershop. He described his work as a barber as being part time. He also worked caring for an old man doing things like shopping, taking him to appointments and reminding him to take his medication. He did that for something like two to four hours a week for some time. He received a carers payment from Centrelink for that work. Those things involve an important contribution to the Australian community.

16. Although the Applicant was not present in Australia during his formative years and came to Australia as an adult, he was in Australia for a little over 10 years before he offended. That is a significant period. It cannot be said that his offending started soon after his arrival and ten years is a long time.

17. The Applicant’s strong ties especially to members of his own family and his extended family who are all Australian citizens and his contribution to the community more generally over a period of about a decade are matters which mean this consideration weighs strongly in favour of there being another reason to revoke the cancellation of the visa.

    BEST INTERESTS OF MINOR CHILDREN

18. I am required to make a determination about whether cancellation of the visa is in the best interests of minor children affected by the decision and, to the extent that their interests might differ, I must consider them separately. There are a series of matters relevant to this consideration which I will address in the context of the particular facts.

19. There are, as I noted earlier three daughters aged 12, eight and five years of age. Their  interests are very much the same especially given that they all have quite a few years to go until they are eighteen years of age.

20. Until he offended the Applicant lived with the children, noting that the youngest child had only very recently arrived. That changed at some stage after he committed the offences when he did not see his wife or the children for about a year, perhaps 18 months. The Applicant played a role in their lives before he left and then went to prison doing things like taking them to the park, beaches and participating in barbecues with them. The Applicant’s wife told of his closeness especially to the second child. Naturally enough he has not been present on a day-to-day basis with the children since he went to prison, but he has had contact with them by phone in the last few years.

21. During his first nine or so months in prison the Applicant did not have contact with the children because he did not want them to know he was in prison. That is understandable. Although they came to know that their father was in prison because he did something wrong, they do not know the nature or detail of his offending. The children have visited the Applicant in prison once a week from the beginning of this year. The Applicant has spoken to them by video or by phone every day, or every few days, since about March 2022. The Applicant’s wife gave evidence about the three girls excitement about going to see their father and how they did not sleep the night before they left to see him because of their excitement. It is fair to infer the three girls love their father dearly and very much want him to be in their lives. I do not think it is much of an answer to say that the children have their mother to care for them and fulfil a parental role. Her role as a parent is as the children’s mother, not as their father. I do not consider it would be in their best interests to be brought by their mother alone without the support of a father figure in their lives and all that he has to offer.

22. Given that I consider the Applicant is unlikely to reoffend, I consider he will be a positive influence generally if he plays a part in their lives during their childhood.  In his evidence, he spoke of his children in an affectionate and positive way taking pride in some of their achievements, such as the fact that one of the children had received awards and had become a leader at her school. As things are likely to be on his release from prison he will initially reside with his parents, after which in all likelihood, will move in with his wife and children. That last step assumes the parental or family meeting about him resuming life with his wife goes well, which from the evidence is what is most likely to happen. Even if his reunion with his wife is ultimately unsuccessful, I incline to the view, that he will in one way or another remain in his children’s lives.

23. If the decision revoking the visa is not revoked and the Applicant is returned to Iraq it is reasonable that the children may never see their father again. There is a very real likelihood about that which suggests that non-revocation is a long way from their best interests. It is true he may be able to speak to them on the phone or video call them but that is a long way from having their father day-to-day available to them in a practical way.

24. It was suggested that given the nature of the Applicant’s offending it would or may become something that has a negative impact on the children should, or even when, they find out. I do not know whether that follows or not and it may be that they never find out or do not find out until their adulthood. I incline to the view that much will depend on how and when and if they discover the truth about their fathers offending. I am not prepared to give that matter a great degree of weight in the equation as it does seem to be based very much on speculation.

25. The Applicant relied on a large number of nieces and nephews who are under 18 years of age and who are living in Australia. I do not know a great deal about these nieces and nephews, their ages, or the nature of the relationship they had with the Applicant before he went to prison. To the extent that they would lose their uncle who they probably will never see again should the visa cancellation not be revoked, that cannot be in their best interest, but it is not possible to say much more or to ascribe any weight to those interests.

26. I am satisfied that the best interests of each of the Applicant’s three children, weighs very firmly in favour of revocation even though I do not know a lot about their situation at present. It is the counterfactual that arises if the visa remains cancelled, that is the Applicant in all likelihood playing no role in their lives, that compels me to this conclusion. So far as his nieces and nephews are concerned that too weighs in favour of revocation of the cancellation but nowhere near as heavily as it does for his own children.

    EXPECTATIONS OF THE COMMUNITY

27. I am required to give weight to the expectations of the Australian community, the expectations that people who are allowed to live and be in Australia will obey Australian laws and that where someone who has been permitted to stay in Australia ’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’.

28. This means that ‘non revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the non-citizen should not … continue to hold a visa’. Specifically, the expectation is that a visa should be cancelled if character concerns are raised through conduct involving acts of family violence, the commission of serious crimes against women or children, or commission of crimes against government representatives, amongst others.

29. I must decide what weight is to be given to the community expectation of non-revocation of mandatory cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[8] This involves an evaluation about how strong this factor is in the particular circumstances of the case.

    [8] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [77] (per Charlesworth J).

30. The nature of the criminal offending is very serious because it involves sexual conduct with a child which undoubtedly means it assumes weight in favour of non-revocation. Against that is the fact that the offences are unlikely to be repeated although they are in the category of the ‘particular’ offences identified that ‘may’ make non revocation appropriate ‘simply’ because of the nature of the offences they are not in the worst category of such offences. Having regard to those things, the expectations of the Australian community firmly weigh in favour of non-revocation.

    LEGAL CONSEQUENCES

31. This consideration requires me to consider what will happen in the immediate future should the Applicant’s visa not be restored. In ordinary circumstances a person who does not have a visa will be removed from Australia as soon as is reasonably practicable under s 198 of the Act. That will not happen where a person is owed protection obligations under the Act, or where a person has made an application for a protection visa or where it is found that the person is owed non-refoulement obligations. It is necessary to consider those matters to determine what the immediate legal consequence of this decision will be.

32. First, there is at present no finding in favour of the Applicant that he is owed protection obligations. A protection obligation in broad terms is an obligation not to return a non-citizen to a country where they are at risk of harm.

33. Second, the Applicant has made an application for a protection visa which has not yet been determined. If the Applicant is unsuccessful in this application to have the cancellation of his visa revoked, he will remain in administrative immigration detention until that application is determined. The time frame in which he will remain in detention is, at present, unknown.

1. Third, the question of whether the Applicant is owed non-refoulment obligations is more difficult in this case. The Applicant, like many members of his family, is a member of the non-Islamic religious minority known as Sabean Mandaeans. The reason that the Applicant, his parents, and siblings left Iraq for Jordan in about 2005 before coming to Australia was because as Sabean Mandaeans they were targeted and threatened with death by the military arm of the Shia Islam majority. The Applicant says that is his fear.

2. A difficulty with the Applicant’s case is found in Department of Foreign Affairs and Trade Country Information for Iraq (DFAT) issued in January 2023 where it is said:

   DFAT assesses the Sabean Mandeans face a low risk of official discrimination. Like other minorities Sabean-Mandaeans face a moderate risk of societal discrimination and violence in areas where they are a minority, including targets of violent crime, kidnapping and extortion, those living in areas where violence continues or who have been displaced face a risk of societal violence similar to that faced by other groups living in those areas or situations.

3. DFAT estimates that today there are 5,000 to 10,000 Sabean Mandeans in Iraq observing that they are ‘primarily located in the southern Marshes or on the Tigris and Euphrates rivers, at al-Amara, Qal’at-Salih, Nasiriya, Suq al-Shuyukh and Qurna’ and a small community in Bagdad. There is no information offered by DFAT as to whether the areas in which Sabean Mandaeans are located are small, medium, or large and more particularly whether the communities in the place where they are ‘primarily found’ are ones where they are a minority. There was no other evidence from which it is possible to deduce where the Applicant would be returning to in Iraq and whether in that part of Iraq he would, with other Sabean Mandaeans, be in a minority. I reject the suggestion that wherever the Applicant went he would be in a minority because there are so few Sabean Mandaeans in Iraq principally because if that were the case the DFAT warning about Sabean Madanes would not be qualified by the reference to where they are minorities.

4. The Minister suggested that I should in effect defer this aspect of the matter to be considered as part of the Applicant’s protection visa application. I consider that an appropriate course given that there may be more evidence that can be considered in that process concerning the Applicant’s fear of persecution, and in particular, evidence going to where in Iraq Sabean Mandaeans are at risk.

5. That is not the end of what is relevant to this consideration because in that circumstance if the visa is not restored the Applicant will remain in detention after he is released from prison, potentially in August 2024, until the protection visa application is determined. The date when that will happen is unknown such that he may be subject to prolonged immigration detention which is a denial to him of his fundamental human right to freedom potentially for some significant time. In those circumstances, this consideration weighs in favour revocation of the cancellation of the visa.

   EXTENT OF IMPEDIMENTS IF REMOVED

6. The Direction requires me to consider the extent of any impediments that the Applicant may face in establishing himself and maintaining basic living standards considering his age, health, any language barriers, and any social, medical, and economic support available to him if he is returned to Iraq.

7. The Applicant has been in Australia for about 15 years. He is relatively young at 41 years of age. He is healthy although suffers from insomnia and depression. He has not lived in Iraq for about 20 years. He speaks Arabic which is the most widely spoken language in Iraq. He would have some familiarity with Iraqi culture although Iraq is a country that has been war torn for many years. It is unlikely to be the country the Applicant left all those years ago.

8. The Applicant has no family in Iraq as most of his family now live in Australia. That lack of support will make things hard. He has skills, as a barber that will equip him well for obtaining employment. The Applicant will as an Iraqi citizen have access to the basic social, medical, and economic supports available to other Iraqi citizens. Although things might be hard to start, there is nothing much that would suggest the Applicant will confront great impediments in re-establishing himself and maintaining a basic living standard in Iraq.

9. The Applicant’s main impediments to establishing and maintaining a basic living standard in Iraq arise from his ethno-religious background as a Sabean Mandaean and that will be an impediment given the prospect that he will need to guard himself against persecution. The other impediments are not so significant and mainly arise from his lack of family and social network in Iraq which will stand in his way. This consideration weighs moderately in favour of revoking the decision cancelling the visa.

   THE RELATIVE WEIGHT OF THE CONSIDERATIONS

10. I have found that the protection of the Australian community weighs in favour of not revoking the cancellation of the visa but because the Applicant has a low likelihood of reoffending, I do not consider it to be the most important factor in evaluating the question of whether there is another reason to leave the visa cancelled. I also consider that the expectations of the community weigh firmly in favour of non-revocation. The need to protect the community and the expectations of the community are less weighty, that is less important, than the significant ties the Applicant has to Australia and the best interests of his three young daughters.

11. I consider that the best interests of the Applicant’s three young daughters favour revoking the cancellation especially because of the prospect that they might not ever see their father ever again should he be returned to Iraq. That they might not have him in their lives as their father even in what may turn out to be a broken family is entirely inimical to their best interests. I also consider that the ties the Applicant has to his family, in particular his wife and daughters, his mother and father, his sisters and brother and his contribution to the community whilst in Australia a significant matter and is more important than the other primary considerations concerning protection of the Australian community and the expectations of the community.

12. I also consider that the consequence of not revoking the cancellation of the visa for the Applicant, being detention for an indeterminate but potentially lengthy time, a factor weighing in favour of revocation. In the circumstances of this case, it is not as important as the best interest of his children or his ties to the community. I do not consider that the impediments to the Applicant establishing and maintaining a basic living standard in Iraq are as significant as the other considerations.

    THERE IS ANOTHER REASON TO REVOKE THE CANCELLATION

13. This is a case where the evaluation points, on balance, in favour of there being another reason or other reasons to revoke the cancellation of the visa. Those reasons are because it is in the best interests of the Applicant’s three young daughters that his visa be restored so he can remain in a real and practical way their father. A further reason for revoking the cancellation of the visa lay in the Applicant’s strong ties to the Australian community especially his family. I am satisfied that those two considerations both provide another reason to revoke the cancellation of the Applicants visa.

    DECISION

14. I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of the Applicant’s Class XB Subclass 200 Refugee visa.

I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

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

Associate

Dated: 28 May 2024

Date(s) of hearing:	16 and 17 May 2024
Solicitors for the Applicant:	Mr S Jeans, Jeans Lawyers
Solicitors for the Respondent:	Mr C Burke, Sparke Helmore