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

PYCS and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4426 (22 December 2022)
Division:GENERAL DIVISION
File Number: 2021/6459
Re:PYCS
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member D. J. Morris
Date:22 December 2022
Place:Sydney

Pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal decides to affirm the reviewable decision dated 7 September 2021 not to revoke the mandatory cancellation of the Applicant’s visa.
.....................[sgd]...................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – applicant is citizen of Afghanistan but has never lived there – applicant held Resident Return visa – visa cancelled because of substantial criminal record – applicant sought revocation of visa cancellation – delegate of Minister decided not to revoke – applicant sought review by Tribunal – Tribunal affirmed decision – Federal Court quashed decision and remitted matter for fresh determination – consideration of ministerial Direction No. 90 – primary considerations – other considerations – special consideration relating to prolonged detention – decision under review is affirmed
Legislation
Administrative Review Tribunal Act 1975 (Cth), ss 33A, 35, 43
Migration Act 1958 (Cth), ss 197C, 499, 500, 501CA
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497; 400 ALR 417
Secondary Materials
Afghanistan Mental and disability health – Situation update; ( World Health Organisation Regional Office for the Eastern Mediterranean – accessed 30 November 2022
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention Relating to the Status of Refugees, opened for signature on 28 July 1951; 189 UNTS 137 (Entered into force 22 April 1954)
Migration Act 1958 – direction under s 499 – Direction No. 90 – Visa cancellation and refusal under s 501 and revocation of mandatory cancellation of a visa under s 501CA (commenced 15 April 2021)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
REASONS FOR DECISION
Senior Member D. J. Morris
22 December 2022
BACKGROUND

The Tribunal made an order under s 35 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) to prohibit the publication of the name of the Applicant in these proceedings. He will be known as ‘PYCS’. Other details that might tend to identify him will be anonymised.
PYCS was born in Iran in May 1992. His parents and older siblings lived there as undocumented immigrants, having fled to Iran from Afghanistan. His father died when he was young. He grew up in Iran and first arrived in Australia in May 2008, aged 15, in the company of his mother and a sister.
PYCS has travelled back to Iran on more than one occasion to see family. One of his sisters continued to reside there until her recent death. Because of this travel, he held a Resident Return (Subclass 155) visa from 2014. That visa was cancelled on 22 December 2020 under s 501(3A) of the Migration Act 1958 (‘the Act’) on the basis that the Applicant had a ‘substantial criminal record’ and was, at the time of the visa cancellation, serving a sentence of full-time imprisonment.
PYCS was invited by a delegate of the Respondent to make representations as to whether there was ‘another reason’ under s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of his visa. On 7 September 2021 the delegate, who is an officer of the Department of Home Affairs (‘the Department’), refused to revoke the mandatory cancellation.
PYCS sought review by the Tribunal. The Tribunal, differently constituted, heard the matter and on 25 November 2021 affirmed the decision under review. On 30 May 2022, the Federal Court of Australia made an order remitting the matter to the Tribunal for fresh consideration.
HEARING
The Tribunal heard the remitted matter on 27 and 28 October 2022. At an earlier directions hearing, the Tribunal had agreed to a request from the Applicant’s legal representatives, not objected to by the Respondent, that the matter be transferred to the Sydney Registry of the Tribunal and that PYCS be moved to a detention centre in Sydney for the purposes of the hearing, given that his and the Minister’s lawyers and his witnesses were all in Sydney. The Tribunal appeared by video link, but the parties and witnesses appeared in person at the Sydney hearing rooms. Two of the witnesses appeared by electronic means, by leave of the Tribunal under s 33A of the AAT Act.
Ms Hannah Ryan of counsel, instructed by Ms Hannah Gray of NSW Legal Aid, appeared for PYCS. Mr Jonathan Kay-Hoyle, SC, instructed by Ms Alana Meaney of Mills Oakley Lawyers, appeared for the Minister.
The Applicant gave evidence and was cross-examined. He called his sister, Ms ZX; and Mr MH, a friend and former employer, who gave oral evidence. Mr Tim Watson-Munro, a consultant psychologist, gave evidence as an expert witness. The Tribunal was assisted by an interpreter in the Farsi language for the evidence of the Applicant and Ms ZX. The Minister did not call any witnesses.
The Tribunal took into account a Statement of Facts, Issues and Contentions from the Applicant (‘ASFIC’), and a similar document from the Respondent (‘RSFIC’). The Tribunal admitted other documents into evidence which are listed in the annexe to these reasons.
At the conclusion of the hearing, the Tribunal reserved its decision.
QUESTIONS BEFORE THE TRIBUNAL
The Tribunal must first decide whether PYCS passes the character test. If it is satisfied that he does, then the cancellation of the visa is set aside (see s 501CA(4)(b)(i) of the Act). However, if the Tribunal decides that PYCS does not pass the character test, then it is necessary to address a second question. That second question is whether the Tribunal is satisfied that the discretion available in s 501CA(4)(b)(ii) of the Act is enlivened and that the visa cancellation should be revoked.
It is important to note that the restoration of the visa is a direct consequence if the Tribunal is satisfied that the discretion is enlivened, it does not require the addressing of a third question. The Federal Court of Australia has held (North ACJ in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, at [38]) that if the Minister (or the Tribunal, standing in the Minister’s shoes) is satisfied that there is another reason to revoke the visa cancellation, then there is no residual discretion not to revoke the cancellation of the non-citizen’s visa.
Does the Applicant pass the character test?
Section 501(7)(c) of the Act provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more. Section 501(3A)(a)(i) of the Act provides that the Minister must cancel a visa that has been granted to a person if the person has a ‘substantial criminal record’ and is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State, or a Territory: s 501(3A)(b) of the Act.
Admitted in evidence was a nationally coordinated criminal check compiled by the Australian Criminal Intelligence Commission dated 17 December 2020 (‘ACIC Report’, RB, pp 28-32) in relation to PYCS. The ACIC Report records that on 11 December 2020, the Applicant was convicted before the Local Court of New South Wales of the following offences: Possess prohibited drug (three counts); Destroy or damage property with a value of less than $2,000; Enter enclosed land not prescribed premises without lawful excuse; Goods in personal custody suspected to be stolen; Stalk/intimidate intend fear physical harm etc (personal) (two counts); Larceny value less than $2,000; and Custody of knife in a public place – first offence. For this group of offences, PYCS was sentenced to an aggregate of 12 months’ imprisonment with a non-parole period of seven months.
His visa was cancelled on 22 December 2020, and he was released on parole in January 2021 and taken immediately into immigration detention at Villawood Immigration Detention Centre (‘IDC’).
Finding on the character test
The Tribunal is satisfied on the evidence that PYCS has been (a) convicted of a sentence of imprisonment of 12 months or more and that (b) he was, at the time his visa was cancelled, serving a sentence of full-time imprisonment. Therefore, the requirements of s 501(3A) of the Act were met. PYCS’s visa was cancelled by operation of law. He did not pass the character test. The Tribunal notes that the fact that PYCS does not pass the character test was conceded in the ASFIC.
The discretionary power: Is there ‘another reason’ to revoke the visa cancellation?
Section 501CA(4)(b)(ii) of the Act provides that the Minister (or, in this case, the Tribunal) may revoke the original decision if satisfied that there is “another reason why the original decision should be revoked”. Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker (including this Tribunal) must comply with a relevant direction under s 499(2) of the Act.
Such a direction was made on 8 March 2021: Direction No. 90 (‘the Direction’). It commenced on 15 April 2021 and replaced an earlier direction. In alignment with the contents of the Direction, the Tribunal must consider whether there is ‘another reason’ under s 501CA(4) to revoke the mandatory cancellation. The Direction requires that stipulated primary considerations must be taken into account where they are relevant. The Direction also lists some other considerations but makes clear that there may be other relevant factors for a decision-maker to consider, depending on the particular non-citizen’s circumstances: in other words, the Direction does not confine the Tribunal’s task.
Oral submissions and evidence
Ms Ryan first set out some facts uncontested between the parties. She noted that PYCS is aged 30 and a citizen of Afghanistan. He is Shi’a Muslim and has never been to Afghanistan. Ms Ryan submitted that he had a traumatic early life of displacement in Iran, where he was born. His father died when he was a young age and he had to leave school. His brother died after PYCS had come to Australia. He left school and started to work. He started to use illicit drugs. Ms Ryan said it was accepted that he has committed violent offences and that he admits to an uncharged violent offence against his mother.
Ms Ryan then submitted that PYCS has changed since he was sent to gaol in June 2020. He has stopped using ‘ice’ and has detoxified. He has been deeply affected by the death of his mother in June 2021. He is determined to keep up the change in his behaviour. Ms Ryan submitted that the considerations in the Direction relating to Australia’s international non-refoulement obligations and the impact on PYCS’s family in Australia strongly favour revocation of the cancellation of his visa.
Mr Kay-Hoyle said the Minister accepts that some considerations tend to weigh in the Applicant’s favour. He noted that PYCS has a record of repeated offending and repeated serious offending and drug-taking. He submitted that the Tribunal should have no confidence that the Applicant is able to address the drivers of his offending in a way such that he is of no risk of re-offending. Mr Kay-Hoyle submitted that it was the Minister’s contention that the nature of PYCS’s offending would outweigh the matters that fall in his favour.
PYCS’s oral evidence
PYCS said that his family had a ‘hard and poor life’ in Iran. They did not have official documents. Discriminations against such undocumented Afghanis included that they were not permitted to get any property in their own name, purchase a car, obtain a driver’s licence, or even be issued a telephone SIM card.
PYCS said his father was working as a cobbler up until he died, and the Applicant left school to work, as well, in order to support the family. When he came to Australia, he said he attended school but lost interest in study because he was thinking about life in Iran. When his brother, who had remained in Iran, died of an illness, PYCS said this death affected him more than his father’s death. He said this was because his father was ‘very old’, but he only had one brother, and they had a close relationship, and his brother was not old when he died.
PYCS said that, when he left school, Mr MH’s father gave him work in his tiling business. Ms Ryan asked PYCS about the fact that he had been stabbed on two occasions. He said there was some residual effect from the stab injuries in that he could not sleep on his stomach and, when he went to the beach, he was ashamed to take his shirt off because of the scarring.
PYCS was asked how his actions have affected his relationship with other families and how that made him feel. He responded: “They used to listen to me and obey. When I started narcotics, they no longer listened. It was hard for them. They were witnessing my life and they were not very pleased. I was being destroyed, little by little.”
When asked by Ms Ryan whether he would continue to commit offences if released into the community, PYCS responded: “No. Of course not. I would like to have a healthy life. I cannot do it on my own. I need help. Two years challenging mind and overcoming drugs.”
PYCS said he last took ‘ice’ in June 2020 before he went to prison. “It just destroyed my life. Lost respect. Lost good days. Realistically, I need help to stop using it altogether.”
Ms Ryan asked the Applicant what kind of help he plans to seek. He responded: “I would like to talk to a psychologist twice a week to calm me down. I would like to attend rehab. I have heard they talk to you and listen to you. Also sport and exercise – it helps both physical and mental health.”
Ms Ryan said that she understood one of PYCS’s hopes is to start work again to support his sister and her family, but he might need to be in rehabilitation for six months. Was he still committed? The Applicant responded: “When I spend time in rehab, it will help me to clean up, I think. I should go out clean and rehab will help me.”
He was then asked what his plans were for the future after undergoing rehabilitation. He responded: “When I finish rehab, then I would like to live for a short while with my sister. I am healthy and can work. Then I can rent a room”. When asked how he would afford to rent accommodation, PYCS said: “I still have some non-financial credits with my friends. I can borrow some money. Can also get Centrelink before I start working.”
Ms Ryan noted that the records from the detention centre refer to PYCS missing a number of medical appointments. He said:
Yes, it is true I have missed a few appointments. I have my own reasons. I have had a tough time. The death of my father, mother, and brother and then my sister due to Covid. This has influenced my well-being. Psychologists in detention change all the time. I want to talk to one person and not have to repeat my life story all the time.
The Applicant confirmed that he had never been to Afghanistan. He said he knew of only one person there, a cousin. He said:
I don’t know anything about the people or how the life is there…I don’t think I would have a good life there. I don’t know what to do. There isn’t any work. It is dangerous. I have heard they kill Shi’ites; they are planting bombs in Shi’a mosques.
Under cross-examination, PYCS agreed that he started using ‘ice’ in 2013 and used it regularly for around seven years. He agreed that on one occasion, he supplied ‘ice’ to another person. He agreed that he smoked marijuana in immigration detention “once or twice, during the first days in detention.”
PYCS agreed that he was unable to address his drug problem until 2020, and that he had spent significant periods of time in prison since 2014.
Mr Kay-Hoyle asked about the conviction for assault using a knife in 2016. PYCS agreed that he attempted to stab his nephew and that it was a serious offence. He said he felt remorse and shame. He agreed he knew that he had to do something about his behaviour.
PYCS accepted that he was convicted of supplying ‘ice’ in 2019. He said he went back into the community on parole and had support from Mr MH to take up work again. He agreed that he continued to have support from his family, including his sister Ms ZX. He said: “Yes, my family have always supported me and have never lost hope in me.”
Mr Kay-Hoyle asked PYCS about the 2020 conviction for the assault of a person in a car, where he threatened them with a knife. The Applicant agreed it was fair to say that he offended despite being aware of previous occasions when he had committed offences. Mr Kay-Hoyle said that he took no steps to go to rehabilitation to address his drug problem. PYCS said: “Yes, you are right in saying that. I was using drugs and unable to make correct decisions.”
PYCS accepted that he can be aggressive and violent when taking drugs and that he had re-offended in spite of support from his family and his employer. Mr Kay-Hoyle said that, based on his prior conduct, an easy or likely course is that the Applicant will take up the drug habit again. He responded: “No. After spending two years in prison and seven months in detention I would like to go out with a plan…it didn’t happen before. Now I am free of drugs. My mother died; that acted as a warning to me. Now I am ready to let go of drugs.”
PYCS was asked about his involvement in a January 2022 riot at the Christmas Island detention centre. He said he was only involved to the extent that he was in the yard and ‘unwantedly hit’ the shield of a detention centre officer. “They said I hit the milk bottle, which I don’t remember.”
He agreed that he participated in the riot and that he wrote in a statement (TB, p 229): “everyone gets involved in riots”. He said he accepted it was wrong to have got involved.
In response to direct questions from the Tribunal, PYCS said he worked as a tiler; he did not do an apprenticeship but acquired skills on the job. He said he liked the work. He said he had called multiple times about residential rehabilitation and had recently arranged a telephone discussion with Odyssey House, which had to be postponed owing to the Tribunal hearing. He said he had tried two other places earlier, without success. He understood that he would be required to undertake residential rehabilitation for about six months.
PYCS said that he has been out of Australia since first arriving to settle in 2008. He said each of these trips has been to Iran “multiple times”. He said the purpose of his visits was to visit relatives of his late sister and her children, and he would take a pilgrimage. He said he had not travelled anywhere else abroad.
The Tribunal asked PYCS about his marriage. He said he had been married but was now divorced. He said his wife never came to Australia. He said there were no children of this marriage, and he has a certificate of divorce in Farsi.
Ms ZX’s oral evidence
Ms ZX gave evidence about the family growing up in Iran. She said PYCS was very affected by his brother’s death and travelled back to Iran with their mother for the burial ceremony. Ms ZX said that when he was not using drugs, “PYCS is an honest person. He works hard and helps with the household, and his social contact with people is very positive.”
She said she speaks to her brother nearly every day, especially since he has been in detention and has been able to have a mobile phone. When asked if she had noticed any changes in PYCS since he has been in detention, Ms ZX responded: “He has changed a lot with the death of our mother and sister. He now cooks for himself. He had lost his hope to a large degree and was thinking of suicide; I had to calm him down.”

When asked what support she could offer if PYCS was released into the community, Ms ZX responded: “I will be happy to provide any support in my capacity”. She expanded that her brother needs to get rehabilitation services, “As well as being drug-addicted he is now depressed and has lost hope. He could see a doctor and a psychologist. Find a place for him to live and find a job for him – he wants to work.”
When asked if she believed PYCS was sincere in his desire to stop using drugs, Ms ZX said:
Yes, I do believe him. He has really changed. Even if he hasn’t changed, I’d like to believe he has. I witness it when I talk to him every day. Because I talk to him every day, I can see he’s changed. He cooks. He talks to relatives. He says he will help me with my young child.
Ms ZX said that PYCS does not know Afghanistan and is scared when he watches news stories about that country and is under the impression he would be killed if he is sent to Afghanistan.
Under cross-examination, Ms ZX agreed that she had done her best to support PYCS, and on previous occasions when he had got into trouble, she had believed he would change. She agreed that PYCS becomes aggressive and violent when using drugs but said that, during a period when he was in the community, he was not using drugs, and for a period had no trouble at home or at work. “Mum was sad when PYCS was using drugs. I’d talk to him. He’d promise to stop. He was ready to go to hospital to help him stop. Sometimes not under his own control, he had bad friends and he’d go back to drugs.”
Ms ZX said PYCS has always had a supportive family, and there has never been any domestic violence in her family. Mr Kay-Hoyle said, despite all of that, the Applicant got into trouble multiple times. She responded:
Yes, that’s true, but he’s very sorry. He has thought about his problems. Would never go back to the troubles in his life. My Mum used to be a mountain on his back. After her death, he’s standing on his own feet. He has come to the conclusion he’s made mistakes. He wants to have a peaceful life.
Mr MH’s oral evidence
Mr MH told the Tribunal he works in his father’s tiling business. He said he is Afghani and came to Australia in the same year as PYCS, and they met through a mutual friend. Mr MH said he has worked in the past with the Applicant “on and off for six months, it started in 2011 or 2012.”
Mr MH said that PYCS was “an employer’s dream. He is smart, and you don’t need to supervise him. He is a fun guy. Mr MH said he spoke to the Applicant two or three times a fortnight.”
When asked what his impression is of how PYCS is faring mentally, Mr MH said: “He’s more stable now. He realizes he has heaps of friends. He’s trying to get on the right path and seek direction. He’s seeking help.”
When asked whether he had sought help in the past, Mr MH responded: “Not really. He used to never listen. Took drugs. Now I see a difference. Before, he never listened. Now he wants to change his life and keep busy.”
Mr MH said that he and his father would be prepared to offer PYCS employment, even if there was a six month wait while the Applicant undertook residential rehabilitation.
When asked if he had seen PYCS affected by drugs, Mr MH responded: “Yes. His Mum used to call and ask me to come down. He would be acting crazy and wouldn’t listen”. Mr MH confirmed that the drug in question was ‘ice’. He confirmed that PYCS could be violent “to me, to family, to people in his circle.”
Primary consideration: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)
The nature and seriousness of the conduct
The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether PYCS has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence. He committed violent crimes, and there is one crime where the victim was a woman. There is no evidence of crimes in the other categories.
The offending which triggered the visa cancellation
The Magistrate summarised the offences at the Court hearing (RB, p 38). The first related to PYCS being in possession of a quantity of methylamphetamine. The second was a series of events that His Honour described as ‘a little unusual’. The Applicant was invited by a victim to his unit to have a drink. He was then asked to leave, and there was an indication the victim would contact him the next day. The following day, the victim returned to his unit with his father and found PYCS sitting on the bed in front of the victim’s safe. This was a trespass. He was asked to leave, and he did. The next day, PYCS was in a car hired by the victim. The car would not start, so PYCS sought assistance from the management of the place. The victim came down from his accommodation. PYCS produced a knife with a five-centimetre blade which belonged to the victim. PYCS motioned to the victim with the knife. He then slapped the victim to the right side of his face, causing an injury. That led to the intimidation charge. The possession of the knife was an offence, and the larceny was the taking of the knife. The victim went to reception at the place. PYCS left. Police arrived, and the victim said PYCS stabbed the victim’s tyres. Later on, PYCS was located by police and found to be in possession of some drugs. He also had a visa card, not in his name and some other cards, which led to other charges.
His Honour said:
They are in my view serious offences. People who have weapons on themselves and threaten other people must put these people in considerable fear and there has to be a strong element of general deterrence to deter other people…. The accused has not a good record. He was released from parole in January, some four months before the commission of the first offence in May for supplying prohibited drugs and he is back in Court again for possessing prohibited drugs. He has got a sentence of imprisonment for being armed with intent to commit an indictable offence…he has got other matters of violence on his record.
The Magistrate said PYCS warranted a term of imprisonment. His Honour said that his record ‘is not the longest record that is around’ and noted that PYCS has a drug problem and that he desired to rid himself of drugs and remarked that the Applicant needs to actually do something about it rather than talking about it.
Other offending
PYCS was first before the Local Court in November 2012 and fined for the offence of Possess prohibited drug. In March 2013, he was before the Local Court and convicted of Break and enter house etc steal, value less than $60,000. For this offence, he was sentenced to imprisonment for seven months with a non-parole period of four months. However, he was released subject to supervision as he had lodged a severity appeal.
A week later, he was before the Local Court on other charges. He was convicted of Possess prohibited drug, and Custody of knife in public place – first offence. He was fined for these two offences.
In June 2013, PYCS was before the Local Court and fined for the offence of Destroy or damage property, value less than $2,000. In September 2013, the Local Court issued a bench warrant confirming the March 2013 conviction for break and enter. That offence was dealt with substantively later in September, and the Applicant was given a suspended sentence of six months and one week, including probationary requirements to undertake reasonable mental health directions and drug rehabilitation.
In February 2014, PYCS was fined in relation to a litter offence. In May 2014, the break and enter offence was called up and the suspended prison sentence of six months, and one week made substantive, with a non-parole period of three months.
In August 2014, PYCS was fined for using offensive language in or near a public place or school. In October 2015, he was before the Local Court convicted of: Contravene prohibition/restriction in AVO (Domestic); Armed with intent to commit indictable offence; and Assault occasioning actual bodily harm. For this group of offences, he was sentenced to 12 months’ imprisonment with a non-parole period of nine months. He was released pending lodgement of a severity appeal. These matters were before the District Court in February 2016, and he was re-sentenced to 12 months’ imprisonment with a non-parole period of six months. The Judge, referred to the circumstances of the offending (RB, p 46), which were as follows.
PYCS, his nephew and other family members lived together in a residence. A domestic dispute arose between the Applicant and others, not initially involving the nephew. As the dispute developed during the evening, a ‘substantial conflict’ arose between PYCS and the nephew. The Applicant pushed the nephew onto a sofa. There was a scuffle. PYCS then tried to punch his nephew several times with a closed fist. Then he put his hands around his nephew’s neck, and, in effect, the Judge said, tried to choke him. Other family members intervened. PYCS then went to the kitchen and armed himself with a 40 cm serrated knife. He returned to the room where the nephew and other family members were, and three times tried to stab his nephew. On the third occasion, the victim moved his head at the last minute, avoiding the blade.
The Judge noted previous offences where PYCS was found in possession of a knife in a public place and other offences of violence. The Judge noted that, as himself being a victim of a knife attack, PYCS should know what that is like. The Judge also noted PYCS had been diagnosed with post-traumatic stress disorder (‘PTSD’) but was not persuaded that PYCS’s PTSD was causally connected to the offending against the nephew.
In April 2017, the Applicant was fined for possessing a prohibited drug. In July 2019, PYCS was before the Court and convicted of the offence of Supply prohibited drug, less than indictable quantity (not cannabis). He was sentenced to 18 months’ imprisonment with a non-parole period of 13 months and two weeks.
In February 2020, PYCS was convicted of Possess prohibited drug and Goods in personal custody suspected of being stolen (not motor vehicle). He was fined in relation to each offence.
In December 2020, the Applicant was before the Court in relation to the convictions which triggered the visa cancellation.
The Tribunal finds that PYCS has committed some violent crimes against the person and has been sentenced to more than one custodial sentence. While his drug taking has clearly been a significant factor, it is also evident that he has used a knife on more than one occasion, including in an apparently unprovoked attack on his nephew in a house, which could have led to serious injury.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Direction states that 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. The Direction states that some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated is unacceptable.
The ASFIC conceded that PYCS had a record of offending, including drug possession, break and enter and domestic violence, but urged the Tribunal to view his offending in the context of significant trauma the Applicant has faced in his life and his addiction to drugs, particularly methamphetamine (‘ice’).
The ASFIC set out the personal and family background of the Applicant, which the Respondent did not contest. As mentioned above, PYCS was born in Iran in 1992. His parents were from Mazar Sharif in Afghanistan and had fled that country in the wake of the USSR invasion. He is Shi’a Muslim. In Iran, the family were treated as refugees and faced discrimination. PYCS attended school there, but it was submitted he was bullied for his background.
When he was aged 11, the Applicant’s father died. He had worked as a cobbler. After his father’s death, life became more difficult for the family. PYCS left school and undertook some work, such as bricklaying and painting.
In 2008, PYCS, together with his mother, Mrs MX, his sisters, Ms FX and Ms ZX and a niece, migrated to Australia. An older brother, Mr IX, remained in Iran. Soon after they arrived in Australia, Mrs MX began to develop health problems, including rheumatism and cardiac difficulties.
In 2010, Mr IX died in Iran as the result of a pre-existing illness. His brother’s death affected PYCS deeply, and he left school in Australia as a result. After leaving school, the Applicant worked for a tiling company owned by Mr MH’s father.
In 2017, PYCS returned to Iran with his mother. His mother had arranged for him to marry a woman who will be called Ms WX. While in Iran, PYCS was travelling on a bus with his mother and other extended family members. The bus crashed and turned over several times. Some members of the family were able to escape the wreckage, but one nephew was badly injured, and PYCS saw him die in front of him. Later, Ms WX decided she would not come to Australia. PYCS said that the tragic death of his nephew caused him significant stress, and Ms WX’s refusal to come to Australia made him “really depressed”.
The ASFIC submitted that PYCS started using illicit drugs in 2012, mainly cannabis. Two years later, he began using methylamphetamine (‘ice’). This led to his first conviction before the Courts. The ASFIC submitted that in 2015 PYCS committed his first domestic violence offences after a fight with two of his nephews when he was affected by ‘ice’.
As mentioned above in his oral evidence, on two occasions PYCS has been stabbed. In 2014 he was stabbed in the stomach. In 2016, he was stabbed in a kidney and spent seven days in intensive care. In the aftermath, he saw a psychologist who told him he was suffering from depression and anxiety because of his background of trauma.
Mr Tim Watson-Munro, psychologist, examined PYCS on two occasions. His report dated 13 October 2021 (RB, p 310 et seq) was in evidence. Mr Watson-Munro examined PYCS over two days. In setting out the Applicant’s history of drug misuse, he referred to cannabis use which escalated to ‘ice’ use. PYCS denied addiction to ‘ice’ to Mr Watson-Munro, stating he would typically use ‘ice’ every fortnight and, when he did, be awake for three days at a time. He told Mr Watson-Munro that he would experience ‘severe rebound depression, high levels of anxiety and sometimes paranoia’. PYCS also reported abuse of alcohol, including binge drinking American whisky and that he had a history of alcoholic blackouts. The Applicant also reported occasional abuse of benzodiazepines.
Mr Watson-Munro wrote that he did not undertake formal testing because of logistic and language difficulties but was of the view that PYCS continued to suffer a severe and recurring Depressive Disorder, according to the criteria in DSM-5.
Mr Watson-Munro referred to documents relating to the Applicant’s mother, Mrs MX. Mrs MX was diagnosed with terminal cancer in 2015 and suffered years of ill-health before entering palliative care in 2021. In June 2021, Mrs MX sadly died.
In terms of psychological conditions, Mr Watson-Munro said:
He is suffering from a range of psychological conditions, including features of Post Traumatic Stress Disorder, a severe and recurring Depressive Disorder, a Generalised Anxiety Disorder and ongoing symptoms of an Adjustment Disorder. As an overarching consideration, he has also suffered a Substance Use Disorder, although this is now in Partial Remission in the context of him detoxifying whist in custody.
[PYCS] is also experiencing ongoing grief referable to the death of his mother in June 2021, with the symptoms associated with her passing being compounded by the fact that he was not able to see her prior to her death, nor indeed attend her funeral. There are significant cultural nuances associated with his absence, which are adding to his strong sense of guilt.
In respect of risk of re-offending, Mr Watson-Munro wrote (RB, p 322):
It is arguable that if the underlying causality of his drug use is addressed, then the likelihood of him relapsing into illicit substance abuse will be minimised and attendant to this, the likelihood of him reoffending will be reduced. In this regard, I believe that he is trending from high risk of reoffending to moderate. His ultimate prognosis in this regard will depend upon his sustained motivation for treatment and maintaining a drug free existence.
The report outlined some protective factors, including the support of his family, an offer of employment, improvement of his mood with consistent treatment and the fact that PYCS has expressed remorse and has matured and is aware of the consequences of re-offending.
Mr Watson-Munro provided a supplementary report dated 27 September 2022. He was asked to comment on the effect of prolonged detention on PYCS. He also expressed the view (at paragraph 10 of his report):
It is clear that with treatment, an absence of substance use and with support in the community, the risk of him reoffending will continue to trend towards low.
In his oral evidence, Mr Watson-Munro said that PYCS’s problems would prevail and escalate if not treated. He said he had read the Applicant’s criminal record and assessed general immaturity, a lack of guidance in life and that he was on a “treadmill of drug use and offending. If he ceases using drugs, his judgement will be restored to some extent. He will be in a better position to respond to treatment.”
Mr Watson-Munro said that when he first saw the Applicant in October 2021, his assessment was that his risk of offending was:
Trending towards moderate. Twelve months on he has continued to make progress and has firmly said he is keen to have treatment in the community, he now understands the nexus. With that caveat, he is now trending from moderate to low.
Mr Watson-Munro said that PYCS could technically be said to be in full remission, in terms of detoxification.
He continues to mature. The real work would commence on release with psychotherapy, reintegration. He still needs psychological treatment, CBT, social skills training. Plus, treatment for PTSD. I would suggest residential rehabilitation. He is motivated because he is looking down the barrel of deportation.
Under cross-examination, Mr Watson-Munro agreed that protective factors such as family and employment did not prevent the Applicant offending. He responded: “Quite true. Time has passed. He was drinking a lot of alcohol then. He now has better understanding and judgment.”
Mr Watson-Munro agreed that there was a significant risk of PYCS re-offending related directly to him relapsing into drug use and the criminal milieu. He said that part of the precipitator of his PTSD is the two stabbings and remarked that PYCS ‘has been exposed to a lot of death in his life’. When it was put to the witness that a lot of people face dealing with death, he said: “PYCS has faced a lot at an early age. He was quite vulnerable anyway, which arises from his history, compounded by his personality and substance abuse.”
In a direct question to Mr Watson-Munro, the Tribunal noted that the accepted criminogenic risk assessments are ‘high’, ‘high-moderate’, ‘moderate’, ‘moderate-low’ and ‘low’. Mr Watson-Munro agreed that those were the well-established categories of risk assessment. The Tribunal then asked whether it should interpret his more recent description of PYCS’s risk of reoffending as ‘trending towards low’ as actually a ‘moderate’ assessment of risk. Mr Watson-Munro agreed.
Ms Ryan submitted that if the Applicant’s offending is due to treatable factors, that effects the risk of re-offending. The Tribunal agrees with that, so far as it goes. The difficulty for the Applicant is that he has several times promised to give up drugs and then re-offended. The Tribunal does not place any weight on the minor offences in the Applicant’s record, such as the littering violation, in terms of assessing risk. I also do not consider on the material before me that PYCS’s involvement in the riot on Christmas Island early this year was significant or noteworthy. There is a single trafficking conviction, for a non-commercial quantity, but the Applicant does not appear to have been involved in the drug trade in any major way, other than for his own consumption.

Paragraph 8.1.2(2) of the Direction requires the Tribunal to have regard to, cumulatively, the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct and the likelihood of that. PYCS has committed offences against the person, as well as property and other offences. If he were to repeat offences of the nature of his assault on his nephew or others, especially if he was armed with a knife, there is a potential for real harm to others. Equally, if he were to repeat stalking and intimidation offences, there would be psychological and possibly other harm to victims. If he were to repeat property offences, there would be a cost to the owners of the affected property.
Essentially, the professional opinion of Mr Watson-Munro as the psychologist who has examined PYCS twice and most recently, was that in 2020 he was a high risk of re-offending, and now he is a moderate risk (taking into account the caveats that Mr Watson-Munro considered the Applicant is moving in a positive trajectory). It is commendable that he has not taken ‘ice’ since 2020, but this is in the context of being in a controlled environment in immigration detention. While it is clear on PYCS’s own evidence of using cannabis that certain illicit drugs are obtainable in detention, they are certainly more readily obtainable in the community, especially by a person who has a long history of promising to the Courts that he would abstain, but not following through. The Applicant’s evidence in his latest statement of October 2022 was that he had recently made contact with Odyssey House to inquire about a residential rehabilitative programme. He said:
Recently I spoke to Odyssey House. They have a residential rehab program for people who have used drugs and alcohol. I gave them my name and number. They were very nice to me on the phone. Unlike other organisations they did not tell me that they don’t have room for me. They said they would get back to me soon. My lawyer also contacted them and is helping to arrange a phone assessment with me and Odyssey House, using an interpreter.
Mr Watson-Munro’s assessment in October 2021 was that PYCS was a high risk of reoffending, which he wrote was trending towards a moderate risk. His supplementary report is that the risk of reoffending ‘will continue to trend towards low’. It was clarified in oral evidence that the October 2021 assessment was actually a high risk, and the supplementary assessment was of moderate risk. The reason for the improvement, in Mr Watson-Munro’s opinion, was that PYCS has ceased using illicit drugs, is more motivated to treatment and is more mature. The movement from high to moderate in this assessment appears to be based on two things, continued abstention from drugs in detention and what Mr Watson-Munro calls a ‘firm keenness’ to have treatment because he now understands the nexus between his drug-taking and his offending. While the Tribunal is not totally convinced that is sufficient to move what was an assessment of ‘high risk’ to ‘moderate risk’, the Tribunal finds with some reservations that there is at least a moderate risk of the Applicant re-offending if he is released into the community.
The Tribunal accepts that, with the obvious caveat that the Applicant is in detention, which is significantly protective against relapsing into drug use, as against the community. The Tribunal also accepts PYCS has very recently engaged with the possibility of residential rehabilitation, which shows some realization of what he needs to do. The impact of the Applicant’s mother’s illness seems to be suggested, on the one hand, as a pressure that somehow contributed to his drug use. In Ms ZX’s evidence, on the other hand, her view was that Mrs MX’s death was now an alleviation, with her suggestion that his mother’s ill-health was a ‘mountain on his back’. It was not contested that his late mother was upset by his drug use. It is also accepted by the Tribunal that his mother’s death has had a deep impact on PYCS. In his evidence he movingly said he very much regretted that, owing to being in detention, he could not ‘carry her on his shoulder’ at her funeral, and this absence deeply upset him.
Overall, the Tribunal finds that this primary consideration relating to the protection of the Australian community weighs relatively heavily against revoking the mandatory cancellation of the visa.
Primary consideration: Family violence committed by the non-citizen (paragraph 8.2)
The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence. The ASFIC conceded that PYCS had been convicted of domestic violence offences. In addition, Ms Ryan submitted to the Tribunal that the Applicant would also admit to an assault on his late mother, for which no offence is recorded. However, Ms Ryan also submitted that there had been no ongoing pattern of this sort of offending or conduct, and it should be viewed in the context of substance abuse.
The Tribunal notes the sentencing remarks about the attack by the Applicant on his nephew and his attempts to choke him, and stab him, referred to above. It would seem by the concession of the Applicant’s lawyers that it is accepted that this falls within the compass of this primary consideration.
In addition, PYCS has admitted to an historical incident where his mother reported his conduct to police in 2014 when he struck his mother with a cushion, picked up a knife, threatened her, and demanded money from her. This led to an arrest, and an AVO was applied for, but no charges were laid. The Tribunal finds, on this admission by the Applicant to the essential facts, that this conduct falls within the scope of paragraph 8.2(2)(b) of the Direction.
The Tribunal notes that AVOs have been issued against PYCS to protect his sister, Ms ZX, his nephew, a niece, and a cousin.
The Tribunal notes that there is more than one incident that can be characterised as family violence and that PYCS’s admissions in relation to the altercation with his late mother indicate to some extent his realisation of the wrongfulness of the conduct and an acceptance of responsibility for it. It would seem to me that PYCS’s use of ‘ice’ may have been a driver in each of these incidents and an element in the issuing of AVOs, noting that such orders are routinely issued on a lower standard of proof, because of the apprehension that someone might commit a violent act. In particular, the violent attack of PYCS on his nephew in the context of a family argument and him going to obtain a knife and then attempting to stab his nephew shows particular aggression. As the Court said, it was only fortunate that serious injury did not result.
The Tribunal finds that this primary consideration weighs relatively heavily against revoking the mandatory cancellation of the visa.
Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.
The Tribunal must take into account various factors set out in paragraph 8.3(4) of the Direction, where relevant. These include whether the Applicant has a parental relationship with the children, the extent to which he is likely to play a positive role, the impact of prior conduct on the child or children; the likely effect separation would have on the children; and whether there is another person or persons who fulfil a parental role. In addition, any known views of the child or children should be taken into account.
The ASFIC submitted that there are four minor children in Australia whose interests would be affected if the visa cancellation stands. They are the Applicant’s biological son, who will be called AZ; PYCS’s nephew, MX, who is the son of Ms ZX, and who is aged five; a two-year-old son of his niece and a four-year-old daughter of the Applicant’s other sister in Australia, Ms FX.
The Applicant’s biological son, AZ
The ASFIC submitted that PYCS has learned that he has a son, AZ, from a previous partner in Australia. AZ is now around 10 years of age. PYCS learned about the existence of his son when AZ was aged four when his former partner called him and asked for some money to assist with raising the child, which he gave. The ASFIC acknowledge that PYCS has had little contact with AZ, but that deportation would deny him the chance of developing any relationship with him. The Applicant has not met AZ.
The Applicant wrote (RB, p 299):
I would like to be released from detention so that I can meet [AZ]. I grew up without a father figure. I think I would be a good role model for [AZ] and I can take care of him, if [the child’s mother] is ok with that.
The Respondent noted that there was no statement from AZ’s mother before the Tribunal to indicate what her views would be about PYCS making contact and noted that in spite of finding out about AZ when the boy was four, the Applicant did nothing in the ensuing period (around six years) to establish contact. There is no evidence before the Tribunal about whether the mother has knowledge of the Applicant’s criminal history or drug-taking history.
In his oral evidence in response to direct questions from the Tribunal, PYCS said that AZ ‘should be around 11’. He said he has had no contact with his son and last saw the child’s mother about six or seven years ago. He said she showed him some photos of AZ. PYCS said: “It is one of my plans to look for him and be in contact with my son.”
The Applicant’s nephew, MX
PYCS has maintained contact with MX through his mother and has been in regular electronic contact with him while he has been in prison and immigration detention. The evidence supports a conclusion that PYCS and MX have a good relationship.
In his oral evidence, PYCS said he would look after MX if his sister had to go to work or run an errand, including feeding him and putting him to bed, and helping him learn to walk. He said he would see him during videocalls when he talks to his sister, and MX would show him his toys.
Ms ZX told the previous Tribunal hearing that the Applicant would sometimes look after MX when he was young, and she needed to attend to their mother. She also said that she would be happy with PYCS to have a continued relationship with MX, provided he did not revert to illicit drug use.
The son of the Applicant’s niece
This child is two years old, and the evidence was that PYCS has not met him but has seen him on a video call. There is no evidence that he has had significant contact with this child.
The Applicant’s niece
This child is the four-year-old daughter of the Applicant’s sister, Ms FX. Ms FX did not give evidence to the hearing, so there is no information on PYCS’s involvement in her daughter’s life. PYCS told the previous Tribunal he had met her a few times. The impression the Tribunal had was that PYCS is closer to his sister Ms ZX, who provided a statement and gave oral evidence, than he is to Ms FX.
Consideration in relation to the minor children
The Applicant does not have a parental role in relation to any of the children, even though he is factually the parent of AZ. The Tribunal finds that the only child in this group with whom he has had a significant relationship is Ms ZX’s son, MX. It is accepted Ms ZX would wish him to have an avuncular role towards MX if the Applicant is released into the community, but she conditioned that by saying she would not permit such a relationship if PYCS resumed drug-taking. The Tribunal concludes that there is insufficient information to make definitive determinations about the effect on each of the identified minor children if PYCS was deported.
The Tribunal finds that this primary consideration weighs very slightly in favour of revoking the cancellation of the visa, mainly because of the generally peripheral role PYCS has had in the lives of any of the relevant minor children in Australia. Some weight does attach, however, because although there has been no relationship between PYCS and his biological son, AZ, thus far, the removal of the Applicant from Australia would effectively prevent the prospects of one ever developing.
Primary consideration: Expectations of the Australian Community (paragraph 8.4)
Paragraphs 8.4(1) and (2) of the Direction state:
(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 of 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.
…
The Direction highlights specific categories of identified offences: 8.4(2)(a) – acts of family violence; 8.4(2)(c) – commission of serious crimes against, inter alia, women and children; 8.4(2)(d) – commission of crimes against government representatives due to the positions they hold, or in the performance of their duties. The Australian community’s expectation is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A superseded version of the Direction (‘Direction No. 65’) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’). The Court held that it is not for a decision-maker to make a personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed’; in other words, they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may try to derive by some other evaluative or balancing process.
The then Minister made the (current) Direction after FYBR. The fact that it imports the statement that the expectations of the Australian community are to be considered as a ‘norm’ acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant (a position accepted by the parties in this matter), the relative weight will be affected by circumstances in the individual case.
The Tribunal considers that the weight of the deemed expectations of the community would incline against the Applicant. He has persistently been warned by the Courts that his drug-taking is a major element in his offending and has made promises to end it, but he has continued to offend and take drugs, and been involved (albeit in a minor way) in the supply of drugs. He has used weapons, particularly knives, to threaten and attempt to injure people. He has been involved in property crimes and family violence. His record in adhering to Court orders has been poor. He has admitted to continuing to use illicit drugs in prison and detention. He has made recent and early contact with residential rehabilitation facilities and expressed the view that he knows this would be essential for him, if released.
Overall, the Tribunal concludes that this primary consideration weighs against the Applicant, and relatively heavily so.
Other consideration: International non-refoulement obligations (paragraph 9.1)
The Direction states that a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. It goes on to say that Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (i.e., the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘the CAT’), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (‘the ICCPR’). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, the Direction exhorts decision-makers to follow the tests enunciated in the Act.
The Respondent accepted that there is a possibility that PYCS will be owed non-refoulement obligations because of his ethnicity and noted that he has the opportunity to apply for a protection visa but has yet to do so. The Respondent further noted that, should PYCS apply for a protection visa and findings are made in his favour, he is not liable for removal to Afghanistan because of s 197C(3) of the Act and submitted that the Australian Government will not intentionally ‘return’ (in the wording of the RSFIC) a non-citizen to a place to which he is owed non-refoulement obligations.
The RSFIC noted the High Court of Australia decision in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497; 400 ALR 417. In that case, the majority stated, at [39]:
Where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being “another reason” why the Cancellation Decision should be revoked.
In submissions, the lawyers for PYCS contended that Australia has non-refoulement obligations under the Refugee Convention because, as an ethnic Sayed and Shi’a Muslim, the Applicant has a well-founded fear of persecution if he is deported to Afghanistan.
The Tribunal notes that the delegate, an officer of the Minister’s Department, stated that there is ‘at least a possibility that [PYCS] could face a real risk of suffering…harm in Afghanistan which might include personal harm or persecution at the hands of the Taliban’.
The Tribunal is satisfied that there is a real risk of personal harm to PYCS if he is deported to Afghanistan. That country is in a febrile state since the takeover by the Taliban regime. Apart from the Taliban, as a Shi’a Muslim, PYCS could face a real risk of persecution from the Islamic State in Khorasan Province (‘ISKP’). In the Tender Bundle was a DFAT Country Information Report (‘CIR’) on Afghanistan dated June 2019 (TB, p 331 et seq). The CIR states, at paragraph 3.35:
DFAT assesses that Shi’a face a high risk of being targeting by ISKP and other militant groups for attack based on their religious affiliation when assembling in large and identifiable groups, such as during demonstrations or when attending mosques during major religious festivals. This risk increases for those living in Shi’a majority or ethnic Hazara neighbourhoods in major cities such as Kabul and Herat.
The Applicant has a surname which readily identifies his ethnicity. In addition, as someone who has never lived in Afghanistan, his unfamiliarity with local groups and mores would be likely to increase his risk of being singled out for targeting. The CIR is now some three years old and was written before the Fall of Kabul in August 2021, and the Tribunal has no reason to believe that the high risk of Shi’a Muslims being targeted for attack has in any sense ameliorated. The opposite would appear to be the case.

A more detailed assessment of the Applicant’s claims that Australia’s international obligations are agitated in his case would be able to be made if such an application for a protection visa is lodged, but the weight of evidence in the material submitted on the less in-depth assessment the Tribunal has been able to make, and the views of both parties, supports a finding that this consideration weighs in favour of the Applicant, and relatively strongly.
Other consideration: Extent of impediments if removed (paragraph 9.2)
The Direction requires decision-makers to consider the extent of impediments a non-citizen may face if removed from Australia to his home country in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of the country. The Tribunal must consider the Applicant’s age and health, any substantial language or cultural barriers and social, medical, and/or economic support available to him if repatriated.
The Respondent accepted that this consideration weighs in favour of revocation because PYCS would face substantial impediments if he was deported to Afghanistan, particularly because of his untreated substance abuse issues and mental health. On the basis of the two reports of Mr Watson-Munro and the other medical evidence, the Tribunal considers this would be a major impediment for PYCS, in a place where treatment of such conditions is very limited.
The Tribunal also notes Ms Ryan’s submissions that PYCS was born and grew up in Iran and has never been to Afghanistan, and none of his surviving immediate family lives in Afghanistan. The Tribunal accepts that the Direction requires decision-makers to apply the impediments through a lens of what would be available, in terms of support, to other citizens of the receiving country. The Tribunal is unconvinced that there is much currently available in Afghanistan for persons with significant mental health needs, nor an accepted need for intensive, desirably residential, drug rehabilitation treatment. The World Health Organisation Regional Office for the Eastern Mediterranean, in a document titled ‘Afghanistan – Mental and disability health Situation update’, stated:
Devastated by decades of war, instability and poverty, many Afghans suffer from mental health and psychosocial problems. Despite significant need, healthcare facilities attending to mental health issues are scarce…The lack of trained psychiatrists, psychiatric nurses, psychologists and social workers presents a serious challenge for mental healthcare service delivery. Nationwide, only 320 hospital beds in the public and private sector are available for people suffering from mental health problems.
…
Despite the high number of people suffering from mental health problems in the country, the mental health services available are limited and of low quality.
Accepting this authoritative assessment and the characteristics of PYCS having diagnosed mental health conditions (as well as drug addiction, in remission), the Tribunal considers that the tumultuous nature of Afghanistan would add to the mixture of impediments PYCS would face if patriated. He would be an outsider who has never been there and who has no structure of familial support, nor a circle of friends.
The Tribunal is satisfied that this consideration weighs relatively heavily in favour of revoking the mandatory cancellation of the visa.
Other consideration: Impact on victims (paragraph 9.3)
The Tribunal interprets this part of the Direction as meaning some evidence of the impact on a victim of a non-citizen’s offending on a member of the Australian community in a case where the victim has knowledge of the migration implications for the non-citizen. The Respondent submitted that regard should be had to the historically expressed views of the Applicant’s nephew (the one whom he assaulted, choked, and tried to stab), and the views of Ms ZX, who had a protective AVO issued against the Applicant.
In regard to the nephew, the Applicant submitted that he left Australia and now resides in Iran. This was not contested by the Respondent. Without knowledge of his future plans, it would seem he may not be categorised as a member of the Australian community. As such, the Tribunal considers the impact on him not to be engaged, in terms of how this consideration is set out.
In regard to Ms ZX, the Tribunal accepts the fact of the AVO but, counterbalancing that, is her willingness to give statements and oral evidence in support of her brother, both in this hearing and in the previous hearing. While she did have reservations if he returned to using illicit drugs, the Tribunal is satisfied that her support for PYCS to be in the community was genuine and heartfelt.
The Tribunal, therefore, on balance finds that this consideration weighs neutrally.
Other consideration: Links to the Australian community (paragraph 9.4)
Sub-consideration: The strength, nature, and duration of ties to Australia
The Tribunal 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 the right to remain in Australia indefinitely. The Tribunal must have regard to how long the Applicant has resided in Australia and his contribution to the Australian community.
PYCS has lived in Australia for around 16 years. He went to school in Australia and has lived in this country all his adult life. He has two sisters here, both with children of their own. The Applicant and his sisters have faced a series of very sad events – the death of their father, an older brother, their mother and – most recently – a sister as a result of Covid-19. This fracturing possibly makes the binding between remaining members stronger; that appears to be the tenor of the evidence of Ms ZX. The views of Ms FX are not known.
PYCS has a son here, albeit he is estranged from the son by circumstance. Mr MH, who is a former employer of PYCS, gave strongly supportive evidence that he was a very reliable worker, and he would be more than happy to re-employ him.
I am satisfied, especially given the displacement of the family, which led to them migrating to Australia in the first place, that PYCS’s links with this country are significant. His only other tangible connexion is with Iran, and that has diminished with the deaths of his brother and sister who resided there. This sub-consideration weighs relatively heavily in favour of revoking the mandatory cancellation of the visa.
Sub-consideration: Impact on Australian business interests
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501CA would significantly compromise the delivery of a major project or important service in Australia. Mr MH gave oral evidence that PYCS was a reliable and skilled tiler, who he was happy to allow to work unsupervised and who produced quality work. Noting that, the Tribunal does not consider that this good contribution, even if not for a very long time, rises to the level contemplated in the direction that would give it weight. This sub-consideration, therefore, weighs neutrally.
Regarding this consideration overall, I find that this consideration weighs in favour of revoking the visa cancellation and assign relatively heavy weight in favour of revocation.
Additional consideration – prospect of prolonged detention
As mentioned above, the Direction does not confine the Tribunal’s task. Any other matter relevant to the purposes of the Act and raised should be considered. Ms Ryan submitted that, if his visa was not restored, PYCS would face a prolonged period of detention. The reasons are that he could not practicably be patriated to Afghanistan and, as an illegal non-citizen, could not be released into the community.
In his first psychological report, Mr Watson-Munro wrote (TB, p 323):
What effect (if any) could prolonged immigration detention be expected to have on [PYCS’s] condition(s)?
[PYCS] will become institutionalised and inevitably there will be a serious escalation in his depression and anxiety. He has not had a chance to physically interact with family members nor to grieve properly in relation to the passing of his mother. Protracted detention will create a situation where treatment of his symptoms will become increasingly problematic with the effluxion of time.
Mr Watson-Munro was specifically asked to express an opinion on the effect on PYCS if he was to be detained for a prolonged period. He wrote in his supplementary report (para 11):
…as previously discussed in my primary report, prolonged immigration detention will have a significant and deleterious impact upon [PYCS’s] mental state and may create a dynamic where his symptoms will become increasingly difficult with the passage of time.
There are also references in International Health and Medical Services (IHMS) clinical records made by practitioners treating PYCS in detention of (a) his fears about Afghanistan and (b) the effect on him of the uncertainly regarding when his time in detention will end.
Apart from the option of PYCS himself applying for a protection visa (referred to above), there is a range of options available to the Minister in the event that the decision is affirmed, including issuing a residential determination, exercising one of his non-compellable powers to grant a visa, or arranging for PYCS to be relocated to a safe third country. It is arid for the Tribunal to speculate on the prospects of any of these occurring, in the absence of any indication from the Respondent.
I find that this special consideration weighs in favour of revoking the mandatory cancellation of the visa, and relatively strongly so, given the professional opinion expressed about the deleterious effect detention would have on PYCS’s mental state.
SUMMATION
The Tribunal has considered all the considerations relevant to PYCS as set out in the Direction. In addition, not being confined only to the contents of the Direction and able to take into account any claim articulated and considered by the Tribunal to be relevant to the purposes of the Act, the Tribunal has also separately considered the special consideration relating to prolonged detention.
The primary consideration relating to the protection of the Australian community weighs relatively heavily in favour of affirming the mandatory cancellation of the visa. The primary consideration relating to whether the Applicant’s conduct amounted to family violence also weighs against him. The primary consideration relating to the best interests of minor children in Australia weighs very slightly in favour of revocation of the visa cancellation, but not strongly because PYCS does not play a parental role in the life of any of the children, including his biological son. The primary consideration relating to the expectations of the Australian community weighs relatively strongly in favour of affirming the mandatory cancellation.
In regard to the other considerations, the Tribunal is satisfied, notwithstanding that PYCS can apply for a protection visa, that the facts point to him being owed non-refoulement obligations. This consideration, therefore, is in favour of revocation. So, too, is the consideration relating to the extent of impediments if PYCS was removed to Afghanistan. Also in favour of the Applicant’s visa being restored is the consideration relating to links with the Australian community, mainly because of the strength of his ties with his family members in Australia. The special consideration relating to the effects of prolonged detention weighs relatively strongly in favour of restoring the visa.
The Direction states at paragraph 7(2) that primary considerations should generally be given more weight than the other considerations. Even adding in the special consideration which weighs in favour of the Applicant, the calculus has three of the four primary considerations weighing against revocation, and the remaining primary consideration weighing in his favour but not strongly. Of the other and special considerations, all weigh in different degrees in his favour but not, in the Tribunal’s estimation, with sufficient weight to countervail the general exhortation in paragraph 7(2), noting the significance of a finding that non-refoulement obligations are present.
This leads the Tribunal to a finding that the discretion available in s 501CA(4) of the Act is not enlivened, and it follows that the reviewable decision should be affirmed.
DECISION
Pursuant to s 43(1)(a) of the AAT Act, the Tribunal decides to affirm the reviewable decision dated 7 September 2021 not to revoke the mandatory cancellation of the Applicant’s visa.

I certify that the preceding 159 (one hundred and fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

........................[SGD]................................................
Associate
Dated: 22 December 2022

Dates of hearing:

27 and 28 October 2022

Counsel for the Applicant:

Solicitors for the Applicant:

Ms Hannah Ryan

NSW Legal Aid

Counsel for the Respondent:

Mr Jonathan Kay-Hoyle, SC

Solicitors for the Respondent:

Mills Oakley Lawyers

Annexe – Exhibits tendered at hearing
Exhibit A1       Applicant’s tender bundle lodged 27 October 2022
Exhibit A2       Applicant’s bundle of reply evidence lodged 24 October 2022
Exhibit A3       Applicant’s submissions in reply dated 24 October 2022
Exhibit R1      Remittal bundle (‘RB’) lodged 25 August 2022
Exhibit R2      Respondent’s tender bundle (‘RTB’) lodged 18 October 2022

[2022] AATA 4426

22 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies

Dates of hearing:	27 and 28 October 2022
Counsel for the Applicant: Solicitors for the Applicant:	Ms Hannah Ryan NSW Legal Aid
Counsel for the Respondent:	Mr Jonathan Kay-Hoyle, SC
Solicitors for the Respondent:	Mills Oakley Lawyers