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

[2020] AATA 1968

PMJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1968 (26 June 2020)

Division:GENERAL DIVISION

File Number(s):      2020/2016

Re:PMJG

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:26 June 2020

Place:Sydney

The Tribunal decides that the decision under review is set aside and that in substitution, the cancellation of the Applicant’s Class XA Subclass 866 Protection visa is revoked.

.................................[sgd].......................................

Deputy President B W Rayment OAM QC

CATCHWORDS

MIGRATION – cancellation of visa on character grounds under s 501(3A) – where applicant involved in reckless wounding – whether to exercise discretion under Direction No. 79 – where applicant suffers from depression, anxiety and panic attacks as a result of childhood trauma – where protection of the Australian community reflected in sentencing – where applicant has low risk of recidivism – where behaviour in detention has been good – where applicant has desire to contact with daughters – where international non-refoulement obligations owed – where strength, nature and duration of ties exist – where impediments if removed exist – decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) ss 197C, 501, 501(3A)

CASES

BAL19 v Minster for Home Affairs [2019] FCA 2189

DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; (2017) 253 FCR 576
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108
Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 373 ALR 569

Veen v the Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

26 June 2020

1. PMJG had a protection visa. Because PMJG had criminal convictions, his visa was the subject of mandatory cancellation under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).

2. A threshold issue about the question whether mandatory cancellation of a protection visa is consistent with the Act had been raised before me in other pending proceedings and I drew that fact to the attention of the representatives for the parties in this case, so that submissions might be made on the issue in this case.

3. However, on 23 June 2020, the Full Court of the Federal Court in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 (‘KDSP’) decided that the decision of Rares J in BAL19 v Minster for Home Affairs [2019] FCA 2189 should be overruled. Amongst the arguments of the unsuccessful appellant in KDSP was an argument that cancellation of a protection visa under s 501 was not lawful. That argument stands rejected by the Full Court and is unavailable in these proceedings. I therefore accept that mandatory cancellation of a protection visa under s 501 is lawful and consider whether the cancellation ought to be revoked.

   PRIMARY CONSIDERATIONS

   Protection of the Australian community

4. It will be convenient to outline some of the general circumstances of the applicant, and at the same time to make primary findings relevant to the consideration of protection of the Australian community, a so-called primary consideration in Direction No. 79 (‘the Direction’), which binds a decision-maker, including the Tribunal in considering the revocation of a mandatory cancellation.

5. The applicant was born in Iraq in May 1989, when Saddam Hussein was that country’s President. Saddam Hussein was put to death following the overthrow of his Ba’athist regime in 2003, when the applicant was 13 years old. The applicant believes that he and his family were targeted by elements supporting the new Iraqi regime because of his father’s connections with the Ba’ath party. The applicant’s brother was attacked by those persons. He was set on fire and died in hospital soon afterwards. He warned the applicant, his mother, and sisters that they must leave their home immediately as they also were targeted. He had been asked by his murderers where the other members of his family were. The applicant, his mother and sisters, fearing for their lives in Iraq, moved within the country to escape from the murderers. Neighbours of the applicant’s family learned that a group was asking where they were. The applicant’s mother and sisters fled to Sweden, where they still live. The applicant fled and came here alone.

6. The applicant arrived in Australia in 2011 as an illegal maritime arrival and in 2012 he was given a protection visa. It is that visa which was the subject of mandatory cancellation.

7. The applicant was very traumatised by the attack on his brother and his death.

8. He has had no contact with his father and does not know where he is or whether he is still alive. He still has some contact with is mother and sisters by telephone and FaceTime.

9. When he was granted the protection visa, he was about 23 years of age. Today he is 31, so to the present time he has spent 8 years in this country.

10. In 2013 he married an Australian citizen and fathered two daughters, born in 2014 and 2015. Today those Australian-born daughters are 6 and almost 5 respectively. He and his former wife are now divorced and are litigating between themselves about custody and access to their daughters.

11. Since the divorce, he has met another Australian lady who is now engaged to him. They desire to marry if he is released from immigration detention.

12. For a time, when the applicant was at liberty, he conducted a hairdressing salon business. At other times, including when he was sentenced for his most serious offence, he was unemployed.

13. His most serious offence took place in 2014 when he was attacked in the street outside his former business partner’s premises, by relatives of the business partner, including her brother. Those relatives were themselves armed with knives, although they inflicted only minor injuries on the applicant. The judge who sentenced the applicant had to consider a self-defence issue and with very limited evidence, rejected it.

14. The aspect of the altercation which led to his imprisonment was a wound which he inflicted on a person attacking him. The wound was substantial but not deep and was inflicted by a hunting knife which the applicant had in his car. There was no question of the offending being premeditated, and the criminality was described as reckless. The attack on the applicant which preceded the wounding by the applicant followed his driving to the house. He told the police that he went there in an effort to recover money, which he said his former business partner had stolen from him. He repeated that evidence on affirmation before me. He did not give evidence before the sentencing judge. Before me, the respondent did not call any evidence from the former business partner or any other person involved. The sentencing judge described the applicant as believing that the former business partner had stolen money from him. The evidence does not permit me to reject his evidence about the stolen money, although I would hesitate to make an affirmative finding in his favour on the matter without additional evidence. The sentencing judge treated his having driven to the house as unexplained, presumably because the applicant gave no oral evidence in his sentencing hearing. Driving there to seek to recover stolen money would not lessen the criminality of the wounding in any event.

15. The sentencing judge referred to deficiencies in the cogency of the psychological evidence led before him. Her Honour referred to the troubled childhood of the applicant and to depression, anxiety, and panic attacks suffered as a result of his childhood trauma and his inability to have access to his daughters. Her Honour was unable to find that the moral culpability of the applicant for the wounding was reduced because of deficiencies in the mental health evidence. Her Honour was concerned that the applicant had falsely tried to minimise the criminality of what he did, including by denying that he had possession of a knife, until his plea of guilty.

16. The sentencing judge found special circumstances existed in the applicant’s background of deprivation and abuse. Her Honour found no evidence of recidivism in the three years which had elapsed before the sentencing hearing. Her Honour found a need for rehabilitation. He assessed the crime to be between low and medium gravity. The applicant was sentenced to 27 months in gaol with a non-parole period of 15 months.

17. One consideration always relevant for the sentencing judge is the protection of the community. Her Honour mentioned the decision in Veen v the Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14, which stresses the protection of the community as a material matter to be taken into account when fixing a sentence.

18. That aspect of the sentencing, reflected in the duration of the sentence, should be taken into account by a decision-maker in considering the protection of the community under the Direction.

19. When I consider the nature and seriousness of the offending, it is also proper to take into account the sentencing judge’s description of the offending as non-premeditated, and spontaneous, and as between low and medium gravity.

20. The offending I have described took place in November 2014.

21. Subsequently in December 2016, the applicant was convicted in the Blacktown Local Court of offences involving his ex-wife. There was a physical attack on the wife and was said to have involved a punch to the ribs, a hit with an open hand to the face and a kick to the leg. That was said to follow a dispute about dinner that had escalated. There was also an attack on the applicant by the ex-wife’s family several days later, and a telephone call from the applicant to the ex-wife in which he threatened to take the children and called her a slut.

22. The magistrate extended his existing imprisonment for six months, three of which were to be served concurrently with the non-parole period fixed for the wounding offence. As a result, after his non-parole period ended, he remained in gaol for a further three months last year.

23. The applicant’s marriage to his ex-wife has now been dissolved. The applicant and his ex‑wife are currently litigating on the question of access to the daughters under the Family Law Act 1975 (Cth).

24. The applicant now has a fiancée, and further attacks on his ex-wife are not threatened. The applicant, in evidence before me, denied the attacks on his ex-wife except for the slap. There is no evidence to the contrary before me but the terms of the remarks of the magistrate probably do not leave it open to me to accept that evidence. I do not doubt that the applicant has been appropriately dealt with for the violence upon his ex-wife.

25. The applicant was also dealt with by fine for telephoning his ex-wife in breach of an apprehended violence order. The fine was imposed in March 2017.

26. There are also several convictions in 2017 for driving while disqualified. In one of those, he was given a community service order and in the last of them he was imprisoned for one month in December 2017. In another case, he was fined in February 2016 for making a false document to obtain a financial advantage.

27. The inability of the applicant to contact his daughters in recent times because of his family law dispute is a continuing source of depression and anxiety to him. Furthermore, the trauma suffered by the applicant in Iraq as a result of the death of his brother and the pursuit of his mother, his sisters and him in Iraq have caused him to seek professional help.

28. The Family Court proceedings, which he has commenced in order to have access to his daughters, have been adjourned to a date after these proceedings have been resolved, because of the possibility that he may be sent back to Iraq.

29. The strong desire to resume regular contact with the daughters is but one of the reasons why the applicant fears the consequences of his possible return to Iraq. It has been some five or six months since the applicant has been able to speak on the telephone to his daughters, because his ex-wife will not allow him to speak to them by phone.

30. He fled Iraq because he feared for his life, and so did his mother and sisters. They learned from their neighbours, after they had left their home and settled elsewhere, that unnamed persons had been asking where they had gone to. The applicant fears that if he is returned to Iraq he may be killed. I accept that evidence. That fear relates to the same persons or group who killed his brother by pouring petrol over him and causing burns to 90% of his body. As I have said, just before he died, the brother warned them not to stay in their house, because they kept asking him about them.

31. That fear alone is likely to bring about the result that the applicant will not engage in unspecified wrongdoing in this country if he is released into the community. He is a man who well knows, because of his imprisonment and subsequent immigration detention with a view to his return to Iraq, that if he offends again he will face deportation.

32. The applicant told me that his friend, who employed him in 2016 to 2017, has a job as a hairdresser immediately available to him if he is released. The friend has also promised accommodation to the applicant in his own home until he gets on his feet.

33. Evidence was called by the applicant from Mr Payne, a social worker at Villawood Immigration Detention Centre employed by the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS). He has been counselling the applicant after-hours and has met with him on 23 occasions. The applicant expressed remorse to him about his offending. The respondent submitted that the applicant minimised his wrongdoing. That submission was intended to persuade me that he has no or little remorse about his conduct. I do not make such a finding. He accepted responsibility for his misconduct. The events involving violence were spontaneous and precisely what the applicant recollects about them today is uncertain. Mr Payne understands that the applicant’s behaviour in detention has been good. He stays out of any situations that could lead to trouble. He treats the Serco guards respectfully. He avoids emotional discussions with other detainees.

34. Mr Payne described the applicant as emotionally vulnerable, because of the childhood trauma, the loss of contact with his daughters, the loss of his business and livelihood, and the uncertainties facing him including his possible deportation and with his daughters.

35. He intends to continue to counsel the applicant on a weekly basis if he is released from Villawood. He sees the applicant as an intelligent man who will be able to get on top of those things from the past, as he put it. He assesses the applicant as having the emotional ability to maintain a relationship with his children. He said that the applicant talks about them a lot, with affection, and expects him to be a good father to his children.

36. As to whether he expects the applicant to be law-abiding, Mr Payne said that he has been reflecting a lot on his previous actions and knows very well the consequences of not doing so. He said that the applicant has got a very good chance of being law-abiding.

37. I derived considerable assistance from Mr Payne’s evidence in this case. In particular, Mr Payne has spent a lot of time with the applicant, and I think his appreciation of the applicant’s prospects of being law-abiding in the future is likely to be sound.

38. The risks to the community should the applicant engage in any similar criminal conduct are serious, but the likelihood that he will do so is low in my opinion.

    Best interests of the minor children in Australia

39. Having regard to the evidence of the applicant and of Mr Payne to which I have referred, I find that it is in the best interests of the two daughters that the cancellation of the applicant’s visa should be revoked. His deportation would result in the permanent deprivation of meaningful contact with their father. They have, for various periods in the past, had meaningful contact with him. He loves them and desires to have regular contact with them.

    Expectations of the Australian community

40. The statements in the Direction are taken to be a statement of the government’s position and are not, in general, to be canvassed by a decision-maker. The weight to be given to this factor is however a matter for decision-makers in the light of the full facts and circumstances of the case.

    OTHER CONSIDERATIONS

    International non-refoulement obligations

41. This consideration is the first-mentioned “other” consideration in the Direction. The weight to be given to an “other consideration” will vary according to the circumstances of the case.

42. Australia has treaty obligations and has a long-standing policy of adhering to them. It would be a very large step to decide not to do so, and one which would not ordinarily be regarded as consistent with the dictates of good government.

43. Section 197C of the Act has been construed in the courts to mandate removal as soon as practicable, even if non-refoulement obligations are found to be owed: see DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 at [26]; (2017) 253 FCR 576.

44. However, in this case, as in a number of previous proceedings in the Tribunal, I have been informed that the government policy of not putting this country into breach of its treaty obligations is one admitting of no exceptions. Therefore, unless a Minister exercises some non-compellable power to grant another visa, the alternative, if a protection visa is refused, appears to be that the non-citizen will continue to be detained in immigration detention, despite s 197C.

45. That practical consequence of refusal to revoke, in this case, is one which a decision-maker should, in my opinion, bear in mind in exercising discretion. Bringing about that practical consequence would be similar to a decision-maker within the executive, or standing in its shoes, trumping the sentence imposed by the criminal courts and bringing about potentially prolonged immigration detention following a term of imprisonment which the non-citizen has already served, one purpose of which imprisonment was to protect the community from recidivism.

46. The circumstances of his offending and sentencing and risk of recidivism described above do not justify such an exercise of discretion in my opinion.

47. Nor, without evidence led by the respondent from the Department is there any reason to expect that the Minister will exercise a non-compellable power to intervene and release the applicant into the community under another visa. Any such view would be a matter of speculation. One other submission of the respondent was that Sweden may accept him. There is no evidence that Sweden would do so. He would still be permanently separated from his daughters, and perhaps his fiancée. What employment he would obtain in Sweden is unknown.

48. The delegate accepted that Australia owes non-refoulement obligations in respect of the applicant. The respondent submitted in its Statement of Facts Issues and Contentions as follows:

    International non-refoulement obligations

    59In the [Applicant’s Statement of Facts, Issues and Contentions], the Applicant has not advanced specific contentions in relation to the ground/s on which Australia would owe international non-refoulement obligations towards him. However, the evidence in the G documents and the Applicant's Protection Visa file indicates that the Applicant (and later the Applicant’s former representative, Ms Fatima El-Kheir) previously raised claims which may give rise to non-refoulement obligations. The Respondent considers that the Applicant's claims can be distilled as follows:

    (a)a well founded fear of being persecuted and killed by terrorist groups (including ISIS) in Iraq because:

    (i)     he is a Sunni Muslim;

    (ii)    he is from the family of a Ba'athist teacher (and as a teenager he was a member of a local unit of the Ba'athist Saddam's Lions Clubs youth group) and is therefore regarded as an infidel and hostile to an Islamist regime in Iraq;

    (iii)   the Islamist regime had killed [the Applicant’s brother] (following a raid on the bakery he was working in by an armed Islamist group), taken his father, [his brother] "has disappeared" and the regime had seized the Applicant's home [in Iraq];

    (iv)   when he was staying with his uncle an Al-Fadhila group raided the uncle's house and demanded the surrender of [his brother] and to know the Applicant's whereabouts because they claimed he had been a member of the Ba'athist Ashbal Saddam youth group;

    (b)fears that he will be harmed by armed militia groups, specifically the Al‑Fadhila who "are targeting ex Ba'ath Party Members and those who oppose them" in Iraq;

    (c)fears that his life is in danger and that when he re-joins his family in Iraq he will be seized by the Islamists and killed; and

    (d)fears that there is a real risk that if returned to Iraq, he is likely to be detained at the Baghdad airport by government security authorities for interrogation because he will be considered to be a returnee from a Coalition country.

    60The Applicant has also made a number of claims in relation to the fear of harm he would face, should he be returned to Iraq, which the Respondent contends are more appropriately dealt with in the context of “Extent of impediments if removed” (which are subsequently dealt with in that section below).

    61The Applicant’s Protection visa file indicates that in 2012, he was found to be owed protection , on the basis of his imputed political opinion, because of his father’s ties to the Ba’ath Party and the Islamic Virtue Party’s (otherwise known as, “al-Fadhila”) persecution of ex Ba’ath Party members. The DFAT report provides:

    A broad consensus exists in Iraq that sanctions against the Ba’ath Party should not apply to Ba’athists as individuals. This consensus is based on a recognition that the dominance of the Ba’ath Party in all aspects of government forced millions of Iraqis to join the Party. Nonetheless, local sources report that imputed association with the Ba’ath Party is used as a threat against Sunnis, particularly in Shi’a majority areas such as southern Iraq. Colleagues competing for advancement in government employment may threaten Sunni civil servants with accusations of being Ba’athist.

    DFAT assesses that former high-ranking officials of the Ba’ath Party face a high risk of official and societal discrimination, particularly when trying to secure employment. Individuals with lower-level links to the Ba’ath Party face a lower risk of official and societal discrimination.

    62The decision-maker is required to consider all substantial or significant clearly articulated claims raised by representations made by the Applicant in the specific context of the exercise of the discretion in section 501CA(4) of the Migration Act.

    The risk of harm arising from the Applicant’s claims of harm

    63The Respondent makes the following contentions in relation to the Applicant's claims relating to the circumstance he would face if returned to Iraq:

    Sunni Muslims

    (a)The Department of Foreign Affairs and Trade has produced a Country Information Report on circumstances in Iraq dated 9 October 2018 (DFAT report), which relevantly indicates:

    (i)     Most of the population in Iraq is Shi’a Muslim, comprising 55 to 60 per cent of the population, whilst around 24 per cent of the population is Sunni Muslim (suggesting that Sunni Muslin is a minority religion); and

    (ii)    That after the removal of Saddam Hussein and the (Sunni-dominated) Ba’ath Party from government, the government has at times failed to respond firmly to acts of retribution against Sunnis by the Iraqi Security Forces (ISF) or the PMF, intensifying tensions between Sunni and Shia communities in Iraq.

    (b)Further, the DFAT report states:

    "Sunnis, including IDPs, continue to report that PMF groups harass them, accuse them of supporting ISIL and physically harm them. Sunnis report similar behaviour towards them, although to a lesser extent, by the ISF in some areas. The US State Department and international human rights groups report government aligned forces targeting Sunni males trying to flee ISIL-controlled areas, and preventing Sunnis from leaving and entering government-controlled areas. PMF-linked militia groups have looted and destroyed Sunni-owned properties following the expulsion of ISIL and, in some areas, prevented displaced Sunnis from returning to their homes. Outside ISIL-controlled areas, Sunnis have faced harassment and discrimination in the form of more intrusive inspections at checkpoints, and the provision of poorer quality services in Sunni areas.

    DFAT assesses that, outside areas recently controlled by ISIL, Sunnis face a low risk of societal violence on the basis of their religion. DFAT assesses that Sunnis face a moderate risk of official and societal discrimination in areas where they are a minority. The risk of discrimination varies according to an individual’s local influence and connections."

    (c)The Respondent accepts that the Tribunal may be satisfied that there may be some risk of harm of the basis of the Applicant's religion as a Sunni Muslim in Iraq. However, there is not sufficient evidence before the Tribunal for it to be satisfied that the applicant is owed non-refoulement obligations on this basis.

    Al-Fadhila

    (d)The Applicant has not adduced any evidence about persecution by the Al-Fadhila or any other Islamist regime of former members Ba'athist Saddam's Lions Clubs youth group. It is unclear from current country information whether such a risk of harm exists. Accordingly, there is not sufficient evidence before the Tribunal for it to be satisfied that the applicant would fear harm or be owned non-refoulement obligations on this basis.

    Targeting by ISIL and PMF forces

    (e)The DFAT report relevantly indicates:

    (i)     Remaining fighters of Islamic State of Iraq and the Levant (ISIL) and the Popular Mobilation Forces (PMF) influence the current security situation in Iraq, with up to 30,000 ISIL fighters remaining active in the region;

    (ii)    ISIL will likely continue to indiscriminately target Iraqi civilians, noting that ISIL carried out 58 attacks between December 2017 and the date of the DFAT report; and

    (iii)   Clashes between Iraqi security forces and ISIL continue and the focus of security forces will be on consolidating gains made against ISIL and containing threat of a likely ISIL insurgency in Iraq.

    (f)A country information report prepared by the US Department of State, indicates that there have been frequent reports of disappearances of individuals by nongovernment militias and criminal groups.

    (g)The Respondent accepts that the Tribunal may be satisfied that there may be some risk of harm to the Applicant of indiscriminate targeting by ISIL or PMF forces if returned to Iraq. However, there is not sufficient evidence before the Tribunal for it to be satisfied that the applicant is owed non-refoulement obligations on this basis.

    Links to the Ba’ath Party

    (h)The DFAT report relevantly states:

    "Between 1968 and 2003, membership of the Ba’ath party was a precondition for employment with the government. After the removal of Saddam Hussein and his government in 2003, the US-led transitional administration implemented a de-Ba’athification process, which led to the dismissal of thousands of individuals. The Constitution prohibits the party, but provides for equality before the law for former ‘mere members’ of the Ba’ath Party.

    The post-war transitional administration established a High Commission for De-Ba’athification to steer efforts to remove the influence of the Ba’ath Party. The Accountability and Justice Act (2008) established its replacement, the Accountability and Justice Commission. The Act included measures to ensure that Sunnis, who dominated the Ba’ath Party, were not excluded from Iraq’s governance processes, including by allowing some lower-level Ba’athists to return to government service.

    Most individuals dismissed under the previous regulations were entitled to access their pensions. A broad consensus exists in Iraq that sanctions against the Ba’ath Party should not apply to Ba’athists as individuals. This consensus is based on a recognition that the dominance of the Ba’ath Party in all aspects of government forced millions of Iraqis to join the Party. Nonetheless, local sources report that imputed association with the Ba’ath Party is used as a threat against Sunnis, particularly in Shi’a majority areas such as southern Iraq. Colleagues competing for advancement in government employment may threaten Sunni civil servants with accusations of being Ba’athist. DFAT assesses that former high-ranking officials of the Ba’ath Party face a high risk of official and societal discrimination, particularly when trying to secure employment. Individuals with lower-level links to the Ba’ath Party face a lower risk of official and societal discrimination.

    (i)The Respondent accepts that the above country information indicates that there may be some risk of harm to the Applicant on the basis of an affiliation with the Ba'ath Party in Iraq. However, the Respondent notes that the Applicant has not provided evidence in this review of such an affiliation and that there is not sufficient evidence before the Tribunal to be satisfied that the applicant is owed nonrefoulement obligations on this basis.

    Region of Southern Iraq (including Basrah)

    (j)The DFAT report indicates that:

    (i)     the region of Southern Iraq (including Basrah) is more secure than other parts of the country, though the region still experiences criminality and drug abuses;

    (ii)    violence in the region is mostly intra-Shia and related to control of land and oil revenues or affects those who are actively involved in a militia or tribal group; and

    (iii)   A wide range of ethnic and religious groups live in southern Iraq and local sources claim that tolerance of religious minorities remains higher in southern Iraq than in central Iraq.

    (k)Further, the DFAT report states:

    Sources also say that internal relocation to the south is difficult for ethnic and religious minorities, and that Shi’a without local familial, tribal or political networks would face difficulty assimilating into the community. Despite this, both Shi’a and Sunni Iraqis who have sought asylum overseas and returned to southern Iraq have done so without significant difficulty.

    A person wishing to relocate to Basrah requires a relation or friend to guarantee that person ‘is free from terrorism and of good character’. The guarantor must be cleared by security services and physically attend the relevant checkpoint. If the person wanting access to the province is an IDP, that person must also register with the Ministry of Displacement and Migration.

    Employment opportunities remain limited in southern Iraq despite the large oil industry. Local sources note that people from southern Iraq are internally relocating to other areas of Iraq, such as Baghdad, in search of jobs. Local governments struggle to provide basic infrastructure services such as electricity and water. The capacity, and at times willingness, of local authorities to provide protection for minority groups in southern Iraq is limited.

    DFAT assesses that internal relocation to southern Iraq is possible for anyone with local familial, tribal or political networks. Relocation to southern Iraq is difficult for those lacking such connections.

    (l)The Respondent contends that the above country information indicates that the Applicant could return to Basrah but that there may be difficulties associated with him doing so. However, the Respondent contends that the Tribunal cannot be satisfied that these difficulties give rise to a risk of harm of to the Applicant.

    Treatment of returnees of Iraq

    (m)Further, the DFAT report states:

    DFAT is aware of considerable evidence that Iraqis who are granted protection return to Iraq, sometimes only months after securing residency in Australia, to reunite with families, establish and manage businesses or take up or resume employment. The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted amongst Iraqis, as evidenced by the large numbers of dual nationals from the US, Western Europe and Australia who return to Iraq. DFAT has limited evidence to suggest that voluntary returnees face difficulties in assimilating back into their communities. However, local sources have said that returning to Iraq can be difficult, particularly if the individual does not return to their original community. Integration within new communities is difficult, and complicated by the influence of patronage and nepotism on many aspects of life

    (n)The Respondent contends that the above country information indicates that it the Applicant could return to Iraq but that there may be difficulties associated with him doing so. However, the Respondent contends that the Tribunal cannot be satisfied that these difficulties give rise to a risk of harm of to the Applicant.

    64The above country information may supports a basis that the Applicant may face harm for reasons of his religion as a Sunni Muslim (however this may be dependent upon the location of the Applicant in Iraq). However, there is not enough evidence before the Tribunal to be satisfied that non-refoulement obligations are owed to the applicant.

    65To the extent that the Tribunal finds that the applicant would face harm in his country or is owed non-refoulement obligations, the Minister submits that these considerations are outweighed by consideration for the protection and the expectations of the Australian community.

    (references omitted)

1. Those submissions seem to take an agnostic position on the question of the treaty obligations. I think the respondent’s characterisation of the group which killed the applicant’s brother and pursued him and other members of his family in Iraq as terrorists may be more accurate than the applicant’s own account suggested.

2. The applicant described the group as elements supporting the new regime and as connected with the Islamic Da’wa Party (‘the Da’wa Party’). Whatever allegiances the group may then have had, it may be doubted whether they today support any political party. Open source materials suggest that the Da’wa Party has splintered and may not today exercise the control in Iraq that it once exercised. Nor can a finding be made on the evidence that the group had any concrete political association ten years ago.

3. The important point is that a group was active against the applicant’s family ten years ago and there is no reason on the evidence to believe that the group is no longer active. The country information does not show that Iraq is now well controlled by a good and efficient police force.

4. The applicant has on the evidence a well-founded fear of persecution if he is returned to Iraq, so as to attract Australia’s treaty obligations under the Convention Relating to the Status of Refugees.

5. If one has regard only to the legal consequences of refusal to revoke the cancellation, Australia is likely to be put into breach of its treaty obligations pursuant to the duty in s 197C of the Act. That consequence is inconsistent with the dictates of good government.

6. For reasons already expressed, the practical consequences of refusal to revoke would similarly be inconsistent with the dictates of good government.

7. The risks of personal harm to which the applicant would be exposed if he were returned to Iraq (for reasons explained above) also show that, consistently with the principles referred to in the reasons of the Full Court of the Federal Court in Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569, there is another reason to revoke the cancellation of the applicant’s visa on discretionary grounds, quite apart from Australia’s non-refoulement obligations, and on that ground as well, it seems to me, as will appear, that the cancellation ought to be revoked.

   Strength, nature and duration of ties to Australia

8. The principles in clause 6.3 of the Direction act as a framework for the guidance of decision-makers acting under the Direction generally and are expressly mentioned in clause 14.2 of the Direction. The applicant’s principal offending occurred several years after he began to live in this country and involved violence and later violence against his then wife.

9. The applicant has two minor Australian daughters and is engaged to marry an Australian citizen. He has others in this country who have depended on him for employment for a time.

10. Those matters also are proper to be taken into account in the case.

    Extent of impediments removed

11. Few additional matters arise under this consideration. Mr Payne’s services, at least face to face, are unlikely to be available to the applicant, and even if available by telephone, are unlikely to be as useful as they would be if the applicant is not deported.

    EXERCISING THE DISCRETION

12. In my opinion, the most important mandatory and other considerations, including the fact that the daughters are in Australia, the non-refoulement obligations and their legal and practical consequences, the harm that he may suffer if deported and the low risk of recidivism, strongly favour the revocation of the cancellation. Those considerations outweigh the impact of all considerations which favour the opposite conclusion.

13. Therefore, the revocation of the applicant’s protection visa will be revoked.

I certify that the preceding 61 (sixty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

..................................[sgd]......................................

Associate

Dated: 26 June 2020

Date(s) of hearing:	11 & 12 June 2020
Date final submissions received:	19 June 2020
Solicitors for the Applicant:	Nicopoulos Sabbagh Lawyers
Solicitors for the Respondent:	Clayton Utz