QBXR and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2022] AATA 2828

QBXR and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 2828 (1 August 2022)
Division:GENERAL DIVISION
File Number(s): 2022/3878
Re:QBXR
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member Dr Linda Kirk
Date:1 August 2022
Date of written reasons: 26 August 2022
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 9 May 2022 to refuse the Applicant a Protection (subclass 866) visa on character grounds is set aside; and it is remitted to the Respondent for reconsideration with a direction not to refuse the Applicant’s visa under subsection 501(1) of the Migration Act 1958 (Cth).
....................................[SGD]....................................
Senior Member Dr Linda Kirk
Catchwords
MIGRATION – refusal to grant visa on character grounds – whether the applicant passes the character test - where applicant has a sentence of imprisonment of twelve months or greater - Direction No. 90 considered - where risk of reoffending is low - where offending is very serious - domestic violence – best interests of minor children - where applicant is owed protection obligations - where applicant has links to Australian community through friends and family - where applicant faces indefinite detention - decision set aside and remitted.
Legislation
Crimes Act 1900 (NSW) ss 59(1), 13(1) and 37(1)
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth)
The Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Cases
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
DMDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 993
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775.
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
Jal v Minister for Immigration and Border Protection [2016] AATA 789
MNLR v Minister for Immigration, Citizenship and Multicultural Affairs [2021] FCAFC 35
Nyemah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2107
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Soames and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1955
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385
ZFZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1633
Secondary Materials
Asylum Legacy Caseload) Bill 2014 (Cth)
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Explanatory Memorandum, Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth).
REASONS FOR DECISION
Senior Member Dr Linda Kirk
26 August 2022
BACKGROUND

QBXR (‘the Applicant’) was born in Bagdad in Iraq in March 1982.[1] He has three brothers and a sister. He and his family members are Assyrian Christians.[2] His mother passed away in 1997 and his father died in 2005.[3] The Applicant completed primary school and high school in Baghdad from 1987 to 1997.[4]
[1] Exhibit A1, Tab 1, [4].
[2] Ibid at [5].
[3] Ibid at [7].
[4] Ibid at [8].
In 1998, the Applicant’s father took the Applicant and his younger brother to Jordan because they were required to do compulsory military service in Iraq from the age of 18 years.[5] The Applicant worked as a furniture removalist in Jordan. They returned to Iraq in 1999 and resided there until 2004.[6] In 2000 the Applicant had to join the Iraqi army and he served for three years. As an Assyrian Christian, he and others of his faith were not allowed weapons or weapon training. He spent these three years washing trucks and in other support roles.[7] After the Iraq war began, the Applicant quit the army and fled to Syria in 2004 because Assyrian Christians were being persecuted after the fall of Saddam Hussein.[8] When he was not in the army, the Applicant worked painting houses and in a restaurant.[9] In Syria he worked in construction, as a handyman, and driving trucks.[10]
[5] Ibid at [9].
[6] Ibid.
[7] Exhibit A1, Tab 31, 3.
[8] Exhibit A1, Tab 1, at [10].
[9] Exhibit A1, Tab 31, 3.
[10] Exhibit A1, Tab 1, at [11].
The Applicant met his Australian citizen wife, MS, when he was living in Syria. MS’s sister knows the Applicant’s brother, RG’s, wife. They were introduced and they started to talk on the phone and via the internet. After about two years, MS travelled to Syria and they were married in February 2007.[11]
[11] Transcript of Proceedings, 16; Exhibit A1, Tab 1, at [12].
The Applicant applied for a spouse visa and remained in Syria while he waited for the visa to be granted. He travelled back to Iraq once for a few months in about 2008 to collect original documents for his visa application.[12] The Applicant arrived in Australia on 13 March 2010 as the holder of a Spouse (subclass 309) visa, and has not since departed.[13] On 2 August 2012, the Applicant was granted a Spouse (subclass 100) visa (‘spouse visa’).[14] The Applicant and MS were divorced effective from 4 March 2021.[15]
[12] Exhibit A1, Tab 1, at [11].
[13] Ibid, 304-305.
[14] Applicant’s Statement of Facts, Issues, and Contentions (ASFIC) at [12].
[15] Exhibit R1, G4, 268-269.
On 6 November 2019, the Applicant’s spouse visa was mandatorily cancelled pursuant to s 501(3A) of the Act (‘cancellation decision’), and he was invited to make representations supporting a request for revocation of the cancellation decision. The Applicant’s former representative submitted the revocation request to the Tribunal instead of the Department and therefore did not seek revocation within the statutory timeframe.[16]
[16] Exhibit A1, Tab 5.
On 15 December 2021, the Applicant was re-notified of the cancellation decision because of defective notification.[17]
[17] In calculating the period to make representation and have those representations to be ‘received’ by the Department, as a result of EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174.
On 30 April 2020, the Applicant completed his non-parole period for his criminal sentence and was transferred to immigration detention, where he has remained to date.[18]
[18] Exhibit R1, G4, 115-118.
On 30 July 2020, the Applicant applied for a Protection (subclass 866) visa (‘the protection visa’),[19] claiming fear of pressure to convert to Islam and persecution as a Christian. Part of his claim was that his Christianity is evident because of multiple Christian themed tattoos on his body.[20]
[19] Exhibit R1, G4, 91.
[20] Exhibit R1, G4, 63-94; see also G4 97, 105, and 233.
On 7 October 2020, the Applicant received an invitation to comment on information adverse to his application for a protection visa on the basis that the Applicant has been convicted of criminal offences which may require consideration of his application against the provisions outlined at ss 36(1C) and 36(2C)(b) of the Act.
On 27 October 2020, a delegate of the Respondent made a protection visa assessment finding that the Applicant was found to be a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act.[21]
[21] Exhibit R2, G1, 1-22.
On 23 December 2020, the Department sent the Applicant a Notice of Intention to Consider Refusal (‘NOICR’) of the protection visa.[22] On 13 January 2021, the Applicant through his former representative responded to the NOICR.[23]
[22] Exhibit R1, G4, 110-114.
[23] Exhibit R1, G4, 222-269; also G4 280-294, 298-300 (undated responses).
On 11 January 2022, the Applicant sought revocation of the mandatory cancellation of his partner visa.[24] A decision on the revocation request remains outstanding.
[24] Exhibit R3, G2.
On 6 May 2022 a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Respondent’) made a decision which was notified to him on 9 May 2022. (‘the Reviewable Decision’). The delegate’s decision pursuant to s 501(1) of the Migration Act 1958 (Cth) (‘the Act’) was to refuse the Applicant’s application for a protection visa.[25]
[25] Exhibit R1, G2, 10.
On 13 May 2022, the Applicant sought review of the Reviewable Decision in the Tribunal.[26]
[26] Exhibit R1, G1, 1.
The matter was heard by the Tribunal on 27 and 28 July 2022. The Applicant attended the hearing by video-conference from Christmas Island Immigration Detention Centre (CIIDC) and was represented by counsel. The following persons gave oral evidence and were cross-examined at the hearing:
- The Applicant
- Pamela Matthews, Forensic psychologist
- Brother, RG
- Fiancée, TH
The material before the Tribunal consists of:
- Section 501G-Documents (G1-G5, pages 1-338) filed 25 May 2022 – Exhibit R1
- Supplementary G-Documents (G1, pages 1-22) filed 24 June 2022 – Exhibit R2
- Further Supplementary G-Documents (G1-G2, pages 1-28) filed 29 June 2022 – Exhibit R3
- Respondent’s Tender Bundle filed 27 June 2022 – Exhibit R4
- Applicant’s Bundle of Supporting Documents (Tabs 1-33, pages 1-331) filed 22 July 2022 – Exhibit A1
- Applicant’s Bundle of Summons Material filed 22 July 2022 – Exhibit A2
The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.
LEGISLATION
Section 501(1) of the Act provides that:
… The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Subsection 501(7) of the Act relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution.
MINISTERIAL DIRECTION NO. 90
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, except for the Minister acting personally, such as the Minister’s delegates and the Tribunal.[27]
[27] Subsection 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
On 8 March 2021, the Minister signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[28]
[28] The Direction [2-3].
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)Whether the conduct engaged in constituted family violence;
c)The best interests of minor children in Australia; and
d)Expectations of the Australian community.
Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:
a)International non-refoulement obligations;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘information and evidence from independent and authoritative sources should be given appropriate weight.’
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give a ‘other’ consideration the equivalent of or greater weight than a primary consideration.[29] Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as [which judge] stated in Jagroop v Minister for Immigration and Border Protection and Another: ‘the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501’.[30]
[29] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
[30] (2016) 241 FCR 461 at [57].
ISSUES FOR DETERMINATION
The two issues for determination by the Tribunal:
1)whether the Applicant can satisfy the Tribunal that he passes the character test; and, if not,
2)whether the Tribunal should exercise its discretion conferred by s 501(1) of the Act to refuse to grant the visa to the Applicant.
If the Applicant satisfies the Tribunal that he passes the character test, the weight of authority indicates that the Tribunal must not refuse to grant the visa to the Applicant. If the Applicant does not satisfy the Tribunal that he passes the character test, the Tribunal must consider whether to exercise its discretion to refuse to grant the visa.
EVIDENCE BEFORE THE TRIBUNAL
Criminal history in Australia
A copy of the Applicant’s National Criminal History Check report dated 3 March 2022 is before the Tribunal.[31]
[31] Exhibit R1, G4, 26-28.
Road traffic offences
On 20 July 2011 the Applicant was convicted in the Fairfield Local Court of the offences Obtain/renew licence by Misrepresentation; Possess Australian driver licence w/o authority/excuse; Drive with middle range PCA; Class A m/v exceed speed > 45 km/h. His driver’s license was disqualified for 12 months and he was fined.[32] In his evidence at the hearing, the Applicant confirmed that he was caught by the police speeding and under the influence of alcohol.[33] He agreed that following the disqualification of his driver’s license he went to the Roads and Traffic Authority to obtain a photo ID. A friend helped him to fill in the forms and he wrote that the Applicant had physically lost his license.[34] A new license was issued to the Applicant instead of a proof of age card. The police contacted him and asked him to attend the station so they could confiscate the licence. He was subsequently convicted of an offence for making a false statement in relation to obtaining a licence.[35]
[32] Ibid, 28.
[33] Transcript of Proceedings, 34.
[34] Transcript of proceedings, 35.
[35] Exhibit R1, G4, 28; Exhibit A1, Tab 1, 4.
On 28 May 2018 the Applicant was convicted in the Fairfield Local Court of the offence Fail to comply with notice displaying mass requirements and was fined $500.[36]
[36] Exhibit R1, G4, 28.
Domestic violence offences
On 17 April 2013 the Applicant was convicted in the Fairfield Local Court of the offences Stalk/intimidate intend fear physical etc harm (domestic) -T2, which he committed in November 2012. A section 9 bond was imposed for two years and he was fined $600.[37] An Apprehended Violence Order (AVO) was imposed for the protection of MS following this offence. The Applicant was questioned about this offence during cross-examination at the hearing. He said that he did not remember what happened as the offending occurred a decade ago, but he does recall that he lived with his brother until he was able to return home.[38] The Applicant was asked about the circumstances of the Contravene prohibition/restriction in AVO (Domestic) and Common Assault offence which he committed against MS in February 2013. He told the Tribunal that their ‘problems’ started when he wanted to do tax work and she did not want him to do so as she was a carer for her father. In addition, his brother wanted to marry her sister ‘and things started to happen since then.’ He ‘made the mistake that started with arguments and hitting her, assaulting her’.[39] After these offences the Applicant and MS reconciled.[40]
[37] Ibid.
[38] Transcript of proceedings, 39.
[39] Transcript of proceedings, 41.
[40] Transcript of proceedings, 41.

On 1 October 2019 the Applicant pleaded guilty and was convicted in the Local Court of New South Wales at Liverpool for the offences Assault occasioning actual bodily harm, Intentionally choke etc person with recklessness (DV) and Stalk/intimidate intend fear physical etc harm (domestic) for which he was sentenced to two years imprisonment. The Applicant appealed the decision to the District Court of New South Wales. On 16 October 2019, the appeal was upheld for the head sentence of two years. The non-parole period was varied to seven months, commencing on 1 October 2019. The two-year sentence commenced on 1 October 2019 and expired on 30 September 2021, with a parole release date of 30 April 2020.[41] A three year Apprehended Domestic Violence Order (ADVO) was issued against the Applicant for the protection of MS.[42] This ADVO ceases on 30 September 2022.[43]
[41] Exhibit R1, G4, 34.
[42] Exhibit R1, G4, 38, 42-44.
[43] Exhibit R1, G4, 38.
The specific details of the Applicant’s offending that resulted in this conviction are contained the New South Wales Police Fact Sheet.[44] On 14 July 2019, the Applicant was intoxicated after attending a wedding with MS. When driving home, they had a verbal altercation, during which the Applicant punched MS in the face a number of times while she pleaded with him to stop. They made a stop at a service station to buy food, and when he was leaving the station the Applicant reversed his car and hit a pole. Later when they arrived home, the Applicant pushed MS on the bed inside their room. He then stood over MS and grabbed her around the neck with both hands choking her for about five seconds. MS claims she could not breathe during that time. She escaped and went to the police with their children.
[44] Exhibit R1, G4, 41-44.
The Applicant was questioned about this offending during cross-examination at the hearing. He told the Tribunal that his offending against MS was triggered when he saw her talking to another man with whom she had been in a relationship with when she was 16 years old. When he saw them together they were ‘very close’ and ‘talking’, and he could not control himself.[45] He agreed that jealously was a ‘trigger’ for his offending.[46] The Applicant told the Tribunal that he cannot remember whether he slapped or punched MS when they were in the car, but he agreed that he did so multiple times.[47] He confirmed that when they arrived home, he followed MS into their bedroom and grabbed her around the neck with both hands and choked her. However, he claimed that his grip was not so firm that she was unable to breathe. He denied that the offence occurred in front of their children.[48] He said that he was intoxicated and could not recall exactly what occurred nor whether she kicked him in the stomach to get him off her. He stated that he ‘made a mistake’ for which he is ‘very regretful’.[49] During cross-examination the Applicant agreed that his daughters were indirect victims of the violence he committed against MS.[50]
[45] Transcript of proceedings, 43.
[46] Ibid, 44.
[47] Ibid.
[48] Transcript of proceedings, 49
[49] Ibid, 51.
[50] Ibid, 83.
After the incident, the Applicant admitted to the police when they arrived at their house that he had hit MS. He was granted bail and he resided with a friend from 16 July 2019 to 1 October 2019.[51] During this period, he did not commit any further offences. He continued to see his daughters at least once a week for between one and four hours. MS would bring their daughters to stay with the Applicant’s brother-in-law so that he could see them.[52]
[51] Ibid, 52.
[52] Exhibit A1, Tab 1, at [30].
Remorse and responsibility for offending
In his statement dated 21 July 2022, the Applicant stated the following in relation to his traffic offences:
I know that it is very important to follow the road rules and that people can be hurt from speeding and drink driving. I also know that it is important that I read and understand forms so that they are correct when I deal with Government bodies. I have not had any further traffic offences because I learnt my lesson and I was a very careful driver.[53]
[53] Ibid at [32].
In relation to his family violence offending against MS, the Applicant stated:
I have accepted full responsibility for my offending against my ex-wife. I was a husband and a human being and I had a responsibility to protect my family and treat them with respect. I am sorry that I had to put her through a situation that would have obviously impacted her psychological wellbeing and emotional wellbeing immensely. There is no excuse for what I did. It is not acceptable to harm anyone and it is not acceptable to harm your wife. I know that Australia rejects domestic violence and violence against women. I reject that as well.[54]
[54] Ibid at [22].
Rehabilitation
Following the offending that led to his most recent conviction, the Applicant made the decision to stop drinking alcohol and he has been sober since 15 July 2019. His evidence is that he does not wish to drink alcohol again as he knows that ‘drinking excessively leads to bad behaviour.’[55] When he was in prison, he started to attend Alcoholics Anonymous (AA) meetings and has lost count of how many of these he has attended.[56] Since he has been in immigration detention, the Applicant has been unable to attend AA meetings in person, so he has attended these online. He does not take any prescribed medications.[57]
[55] Exhibit A1, Tab 1, at [34].
[56] Ibid at [35].
[57] Transcript of proceedings, 27.
The Applicant completed the NSW Engage Program on 20 July 2019 when he was in prison. This program is a six-hour voluntary domestic and family violence program for perpetrators of violence. It consists of six modules: Coping managing emotions, distress, tolerance; Change – identifying abuse; Caring – healthy lifestyles; Connections – family, friends and community; Communication; and Choices – action planning.[58] The program was delivered in English, however the instructor spoke Arabic and she would translate for the Applicant when required.[59] The Applicant’s evidence is that the tools that he learnt from this program will help him to manage stress and make positive changes in his life.[60]
[58] Exhibit A1, Tab 1, at [36]; Transcript of proceedings, 52-54.
[59] Transcript of proceedings, 54.
[60] Exhibit A1, Tab 1, at [36].
When he was at the Glen Innes Correctional Centre, the Applicant went to Christian Chapel. He provided a reference letter from Pastor Mark Dawson, the Chaplain.[61] The Applicant contributed to the two chapel services at the prison. These services helped him to strengthen his faith.[62] The Applicant also completed an anger management course in prison.[63] He told the Tribunal that he does not now have any problem managing his anger because he is ‘thinking beforehand’.[64]
[61] Exhibit R1, G4, 97.
[62] Exhibit A1, Tab 1, at [37].
[63] Transcript of proceedings, 52.
[64] Ibid, 82.
While he was at the Villawood Immigration Detention Centre (VIDC) the Applicant saw a psychologist on six occasions. His treatment was targeted specifically on his alcohol abuse and addiction, domestic violence, his family, and mental health. He has not been able to continue to see a psychologist since he has been at Christmas Island Immigration Detention Centre (CIIDC).[65]
[65] Exhibit A1, Tab 1, at [38].
The Applicant’s evidence is that he will continue to attend AA meetings in the community so that he can maintain his abstinence. He will continue to use the same tools to make sure that he does not drink alcohol.[66] The Applicant told the Tribunal:[67]
… I assure you. I’m not going to drink or think about drinking because for this reason I’m here. So, I learn my lesson and when a person makes a mistake, learn from the lesson.
[66] Ibid at [68].
[67] Transcript of proceedings, 94.
The Applicant plans to see his local GP so that he can get a mental health care plan to continue the treatment that he started in VIDC. This will help him with learning more tools to manage his mood and his stress.[68] He has a family that love and support him and, if he ever needs help, he knows he can reach out to them. He also knows that there are services such as alcoholic support services in the community that he can access if he needs any additional support.[69]
[68] Exhibit A1, Tab 1, at [69].
[69] Ibid at [70].
Relationship with fiancée
The Applicant has been in a relationship with his fiancée, TH, since March 2021.[70] They met on Facebook and started chatting and discovered that they had lived in the same place in Bagdad.[71] He has told her everything about his criminal history. He is confident that if they encounter problems in their relationship that they will be able to solve them.[72] If he saw her communicating with another man, he would be able to control himself and try and figure out whether there is a problem.[73]
[70] Transcript of proceedings, 89.
[71] Ibid, 17.
[72] Ibid, 92.
[73] Ibid, 93.
The Applicant’s evidence is that he and TH plan to marry within six months of his release. He is ‘so excited to start [their] married life together.’ The Applicant told the Tribunal that he plans to go to live in Melbourne once he has started working and has saved some money.[74]
[74] Transcript of proceedings, 90.
Relationship with daughters
The Applicant has three daughters who are currently residing with their mother, MS, in Sydney:
·EG born in 2010, aged 12 years
·AG born in 2011, aged 11 years
·OG born in 2015, aged 6 years.[75]
[75] Exhibit R1, G4, 254; G4, 255.
In his statement dated 21 July 2022, the Applicant described his relationship with his children:[76]
I love my three daughters very much. I miss them a lot because I have not been able to see them while I was in prison or in detention on Christmas Island.
… I have a close relationship with all three of my daughters. I loved spending time with them and taking them places like swimming, to the Zoo, shopping and being there each day to talk about how their day was. I would spoil each of my girls because I wanted them to have the best lives, which I could not have as a child in Iraq.
I have a very close relationship with my girls because I was their primary carer from 2010 until the incident in July 2019. I would do everything for them like feeding, bathing, cleaning and playing with them. As they got older, I would take them to kinder/day care and to school, dropping them off and picking them up. I did this when my wife was being the carer for her father.
[76] Exhibit A1, Tab 1, [39]-[41].
The Applicant told the Tribunal that he has not had contact with his daughters since he went to prison.[77] MS visited him at Glen Innes Correctional Centre on two occasions.[78] He is not now in contact with MS with whom his daughters are living.[79]
[77] Transcript of proceedings, 84-85; Exhibit A1, Tab 1, at [39].
[78] Transcript of proceedings, 85.
[79] Ibid, 29.
The Applicant’s evidence is that if he is granted a visa, he will take the steps necessary to gain access to his daughters.[80] He told the Tribunal that he will find a lawyer who can assist him to commence family law proceedings in relation to the children.[81] He estimates this will cost several thousand dollars, but he is not concerned about finding the necessary funds.[82]
[80] Ibid, 30.
[81] Ibid, 86
[82] Ibid, 88.
He explained why he believes it is in his daughters’ best interests for him to return to the community and be part of their lives:[83]
I think that it is in each of their best interests to have me in their lives given our very close relationship. I think this because having a loving father is really important. I think that each of my daughters would be suffering without me. This is because they need me to be in Australia with them to love them and guide them. I will not be able to rebuild our relationship from Iraq or from immigration detention.
[83] Exhibit A1, Tab 1, at [42].
During cross-examination the Applicant was asked how he will play a meaningful parental role for his daughters if he is living in Melbourne with his fiancée. He said he would travel to Sydney to visit them once a month or as often as possible.[84]
[84] Transcript, 92.
Relationship with other family members
The Applicant has two Australian citizen brothers, AG and RG. He speaks to them on the phone almost every day.[85] If he is released, he will live with RG at his house.[86]
[85] Ibid, 30.
[86] Ibid, 31.
In his statement, the Applicant stated that he has a ‘close and loving relationship’ with his two nieces and two nephews:[87]
·MD born in 2017 aged 5 years
·MG1 born in 2007 aged 15 years
·GG born 2013 aged 9 years
·MG2 born in 2018 aged 4 years
[87] Exhibit A1, Tab 1, at [44].
The Applicant was involved in the lives of his nieces and nephews ‘as a close-knit family’ prior to his incarceration. He spoke to them on the phone once or twice a week when he was in prison. Since he has been in detention, he speaks to them at least once a week to see how they are going and check in on them. He knows that they are upset without him being around and he cannot wait to be reunited with them. They have not been told that he is in detention. They think he is working interstate as a truck driver. He does not want them to get upset and feel sad because their uncle is in gaol.[88]
[88] Exhibit A1, Tab 1, at [45]; Transcript of proceedings, 30.
Mental health
The Applicant’s evidence is that his mental health has suffered since he has been in immigration detention. He became aware of this shortly after he arrived at VIDC, which is about 5-7 minutes’ drive from his family, but he was unable to leave to see them. This really hit him when his mobile phone was returned to him and he saw a picture of them on the wallpaper.[89] After this the Applicant requested to see a psychologist at VIDC, and he spoke to them about how he was feeling and explained that it was really hard for him to be away from his three daughters and that he missed all his family members.[90] The Applicant’s evidence is that his mental health has continued to decline since he has been at CIIDC. The Applicant wrote in his statement:
Anyone who has had freedom before would go crazy in detention. Now, I dream about being with my kids, imagining that they are with me. Sometimes it seems so real but then I realise that I am in detention.[91]
[89] Exhibit A1, Tab 1, at [16]
[90] Ibid, at [15].
[91] Exhibit A1, Tab 1, at [18].
Risk of re-offending
In his statement dated 21 July 2022, the Applicant stated the following in relation to his risk of re-offending:
I honestly believe that I have learnt my lesson and that I will not commit any further offences. I have shown this already when I was in the community on bail. Drinking alcohol was the context for my offending and I will never drink again. I do not take drugs either. My main priority is continuing my life with [TH] and being reunited with my children. I want to love and care for all of them and set an example for them as well as help them learn from my mistakes. I ask for a second chance to be able to do that.[92]
[92] Ibid, at [33].
At the hearing, the Applicant explained why he believes he will not reoffend:
We all make mistakes and I am really sorry for what I did. I won’t do it again because I know the results. We are human beings; we make choices and I will not do that again because as I have already said, I am an adult and I make wise choices for myself, so I won’t do it again.[93]
[93] Transcript of proceedings, 32.
In his statement, the Applicant explained what he will do if he is permitted to re-enter the community:[94]
If I am given a second chance, I will use that to take care of my fiancée and three daughters, be with my brothers and my nieces and nephews and spend time with my friends from work and soccer. I have so many positive plans in place for my future and I hope that I will be able to live out my dreams rather than remain detained for the rest of my life because I am a refugee and cannot be sent back to Iraq.
I know that this is my last chance and that if I did the wrong thing again, I would not be able to stay in Australia, the country that I call home and where my family are citizens. I never want to be in the miserable situation that I am in now where I cannot see my girls, [TH] or my family. I promise to never make the same mistake again. I am asking for a second chance to please let me live my life with my family in the community.
[94] Exhibit A1, Tab 1, at [71]-[72].
Psychological assessment
The Applicant was assessed by Pamela Matthews, Forensic psychologist, on 19 July 2022 and she prepared a report dated 22 July 2022. Ms Matthews assessed the Applicant on the Inventory of Offender Risks, Needs, and Strengths (IORNS).[95] She found that the Applicant scored in the Average range on the Overall Risk Index (ORI), the Low range on the Static Risk Index (SRI), the High Range on Dynamic Risk Index (DNI), and the Average Range on the Personal Support Index (PSI). This indicated that ‘his historical risks are lower than his peers, his dynamic risk factors are higher than his peers, and his protective factors are average or similar to his peers. His overall risks are similar to his peers.’[96] She observed that the Applicant being of low Static Risk Index on the IORNS suggested ‘that his risk of re-offending could be readily remediated with the right support.’[97]
[95] The IORNS is a 130-item self-report measure that evaluates static risk, dynamic risk/need, and protective strength factors related to recidivism, treatment need and management. The IORNS provides index and scale scores that are internally consistent and stable over time, in addition to content subscales that aid in interpretive specificity among male and female offender samples. The IORNS consists of the four IORNS indexes (Overall Risk Index (ORI), Static Risk Index (SRI), Dynamic Risk Index (DRI), and Protective Strength Index (PSI)), eight scales, 14 subscales, and two validity scales (Favourable Impression (FIM) and Inconsistent Response Style (IRS)). T scores, percentiles, confidence intervals and qualitative classifications (i.e., Low - ≤33%ile, Average – 34% through 74%, High – 75% through 89%, Very High - ≥90%) are provided for the normative samples. The AUC/ROC for this instrument's Overall Risk Index is 0.77 for General Risk, 0.70 for risk of Violence and .83 for risk of Sexual Violence.
[96] Exhibit A1, Tab 31, 322.
[97] Ibid, 323.
Ms Matthews also assessed the Applicant using the Domestic Violence Risk Assessment Guide.[98] His total score indicated that 22% of family violence offenders would score lower, 20% the same, and 58% higher, and that his risk of recidivism is 34%, ‘suggesting he is a lower risk of re-offending than the average male family violence offender in Australia.’[99] She explained that ‘in terms of risk reduction over time, well-established research and statistics indicate that as offenders age, their risk of recidivism across all kinds of offending decreases. That process begins for men in their early 30s to 40s.’ She noted that the Applicant ‘has reached that point where he has been reflecting on his life and impresses as genuine in his desire to move forward.’ In her opinion, ‘[g]iven access to the right mental health and behavioural support, his risk of returning to an Australian Court is likely to be significantly lower yearly. Essentially his prognosis is good.’[100]
[98] DVRAG is the only family violence actuarial instrument, combining the Ontario Domestic Assault Risk Assessment and an abbreviated Psychopathy Check List, the PCL Facet Score. The AUC for this instrument is 0.71 to 0.78
[99] Exhibit A1, Tab 31, 323: ‘The Australian male population's average recidivism rate for family violence is between 40-60%.3’.
[100] Exhibit A1, Tab 31, 324.
At the hearing, Ms Matthews was asked whether a low level of alcohol consumption can impede memory. She said it would be unusual for it to do so, but that memory can be impeded by emotional arousal. She explained:
… high levels of emotional arousal will impede people’s memory. Because there’s a huge flood of, basically, adrenaline into the brain. And the frontal brain, the thinking part of the brain, the executive functioning part of the brain, shuts down. And it’s only the primitive brain that’s working in those instances. So if [the Applicant is] very, very aroused, emotionally, it’s more likely the memory loss is associated with that.[101]
[101] Transcript of proceedings, 59.

In her report Ms Matthews stated that in her opinion the Applicant would benefit from attendance at Men's Behavioural Change Program. She observed that the Applicant’s search for an online program ‘indicates a desire to continue appropriate treatment.’ In her view he ‘would further benefit from counselling that develops mindfulness of his emotional state and psychosocial stressors and the means to manage these in combination.’[102]
[102] Exhibit A1, Tab 31, 324.
During cross-examination Ms Matthews was asked whether the Applicant’s risk of re-offending is likely to be significantly higher if he does not obtain the right mental health and behavioural support. She stated that treatment is one factor, but a range of studies have shown that even without treatment, age is a very significant factor in the risk of re-offending. In her opinion, the Applicant has ‘already reached that age where the offence rate drops dramatically.’[103]
[103] Transcript of proceedings, 65.
Ms Matthews agreed that conflict in a domestic setting has been a risk factor for the Applicant in the past. She was asked whether the Applicant moving to Melbourne to live with his fiancée would itself represent a high-risk factor for the Applicant. She stated that this ‘would depend on the nature and quality of that relationship.’ In her opinion there is not ‘an immediate high risk, because there are many other factors that could come into play’,including whether he has someone to talk to and whether ‘he has learned to walk away.’[104]
[104] Transcript of proceedings, 70.
Employment prospects
The Applicant’s evidence is that prior to his imprisonment he was working 20 hours per fortnight as a truck driver. He started working for additional money to support his family but did not work full-time so that he could still carry out his caring obligations for his daughters. He plans to go back to work as a truck driver if he is released into the community.[105] The Applicant’s driver’s license has expired but he will get it renewed. He also has a forklift license.[106] He is confident he will find a job as there are many companies for which he can work.[107]
EVIDENCE OF WITNESSES
[105] Exhibit A1, Tab 1, at [49].
[106] Transcript of proceedings, 31.
[107] Ibid, 87.
Applicant’s fiancée, TH
The Applicant’s fiancée provided a statutory declaration dated 17 January 2022, a written statement dated 18 July 2022, and gave oral evidence at the hearing. She came to Australia from Iraq with her family in November 2004 as the holder of a Global Special Humanitarian visa and she became an Australian citizen in 2007.[108] She is an Assyrian Christian and has been recognised as a refugee.[109] She is the full-time carer of her elderly mother, and they reside together in Melbourne.[110] She has not been married.[111]
[108] Exhibit A1, Tab 7, 100 at [4].
[109] Exhibit A1, Tab 17, 116 at [1].
[110] Exhibit A1, Tab 7, 100 at [7].
[111] Transcript of proceedings, 112.
TH confirmed that she and the Applicant met via Facebook in May 2021 and they started chatting. They soon discovered that they had lived in the same area in Bagdad and that their families knew each other.[112] They became engaged in June or July 2021.[113] The Applicant is the love of her life,[114] and they plan to marry within six months of his release.[115] She has seen his criminal record and is fully aware of his offending.[116] She knows that he previously drank alcohol, and he has promised her that he will no longer do so.[117] She confirmed that the Applicant has three daughters whom she has not met.[118]
[112] Exhibit A1, Tab 7, 100 at [9].
[113] Ibid, at [5].
[114] Ibid.
[115] Ibit, 102 at [21].
[116] Transcript of proceedings, 113.
[117] Ibid.
[118] Ibid, 114.
TH told the Tribunal that when the Applicant is released, he will live with his brother in Sydney.[119] They will not live together until after they are married.[120] They plan to buy a house and have a child together.[121] She is in contact with the Applicant’s two brothers. Her mother regularly speaks to the Applicant on the phone, and he is like a son to her.[122] TH is very concerned about the prospect of the Applicant returning to Iraq and believes he will be ‘killed by the groups of extremist militia’ if he is returned there.[123] It would be so sad for her to lose the man she loves, and it would cause her to suffer significant distress.[124]
[119] Ibid.
[120] Ibid, 115.
[121] Exhibit A1, Tab 7, 102 at [21].
[122] Ibid at [22].
[123] Ibid at [25].
[124] Ibid, 100 at [2].
Applicant’s brother, RG
The Applicant’s older brother, RG, provided a statutory declaration dated 24 January 2022, a written statement dated 21 July 2022, and gave oral evidence at the hearing. RG confirmed that the Applicant will live with him at his home in Sydney when he is released.[125] They have a close relationship, and the Applicant is his best friend.[126] They speak on the phone every week.[127] He will support the Applicant financially and will help him to find a job.[128] RG has three children with whom the Applicant has a good relationship.[129] They will all be ‘very sad’ if the Applicant is required to remain in detention or is removed.[130]
[125] Exhibit A1, Tab 18, 119 at [10].
[126] Transcript of proceedings, 98.
[127] Ibid, 101.
[128] Exhibit A1, Tab 18, 120 at [11]; Transcript of proceedings, 102.
[129] Transcript of proceedings, 100.
[130] Ibid, 99.
RG told the Tribunal that the Applicant has a good relationship with his three daughters. He said that he contacted their school and was told that the Applicant’s oldest daughter is ‘depressed’. After this contact, MS moved the girls to another school in Sydney.[131]
CONSIDERATION AND REASONS
[131] Ibid, 102.
1) Does the Applicant pass the character test?
In the representations and documents that the Applicant submitted to the Department and the Tribunal he does not dispute the information in the National Criminal History Check report dated 3 March 2022 recording his criminal convictions and sentences. It records that on 1 October 2019 the Applicant was convicted in the Local Court of New South Wales at Liverpool for the offences Assault occasioning actual bodily harm, Intentionally choke etc person with recklessness (DV) and Stalk/intimidate intend fear physical etc harm (domestic) (‘2019 offences’) for which he was sentenced to two years imprisonment.
There is no question that the Applicant does not pass the character test by virtue of his “substantial criminal record”,[132] deriving from the imposition of a term of imprisonment upon him of 12 months or more.[133] It follows that the Applicant does not pass the character test, and the discretion to refuse to grant the Applicant a visa in s 501(1) is enlivened.
2) Should the Tribunal exercise its discretion conferred by s 501(1) of the Act to refuse to grant the visa to the Applicant?
[132] Migration Act s 501(6)(a).
[133] Migration Act ss 501(7)(d), 501(7A).
In considering whether the exercise its discretion under s 501(1) of the Act to refuse to grant the protection visa to the Applicant, the Tribunal has had regard to the following Considerations as required by the Direction.
Primary Consideration 1 – Protection of the Australian community
Reiterating the general guidance and principles in the Direction, paragraph 5.2 states that:
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
Paragraph 8.1(2) states that in considering the need for protection of the Australian community, decision-makers should also have regard to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) Nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1(1) sets out factors to be considered in determining the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Relevant to the Applicant’s conduct, the Tribunal must have regard to the following factors:
a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)   crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)    without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)   …
(ii) ...
(iii) …
(iv) …
c)     with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)    the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)    the cumulative effect of repeated offending;
f)   …
g)    ...
In determining the weight applicable to each of these two factors, it is necessary to have regard to the circumstantial totality of the Applicant’s criminal history.
The Applicant concedes that his offending is very serious. According to paragraph 8.1.1(1)(a)(i)-(iii) of the Direction, the 2019 offences must be viewed as serious in circumstances where they involved crimes of a violent nature against a woman and were acts of family violence.
Having regard to paragraph 8.1.1(1)(c) of the Direction, the Tribunal finds that the custodial sentences imposed on the Applicant by the courts are an objective indicator of the seriousness of his criminal offending. The Applicant was sentenced to two years imprisonment for the 2019 offences. This sentence is at the lower end of the scale in circumstances where the maximum sentence is five years for Assault occasioning actual bodily harm (DV) – T2 and Stalk/intimidate intend fear physical etc harm (domestic) - T2 and ten years for Intentionally choke etc person with recklessness (DV) - T2.[134] However, sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved.[135]
[134] Crimes Act 1900 (NSW) ss 59(1), 13(1) and 37(1) respectively
[135] Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50].
Having regard to paragraph 8.1.1(1)(d) and (e) of the Direction, the Tribunal notes that the Applicant was not deterred from further offending despite being convicted of a number of offences, including two family violence offences in 2013. It further notes the frequency of the Applicant’s offending and the cumulative effect of repeated offending, including a breach of an AVO, and the trend of increasing seriousness in his offending which resulted in the imposition of a term of imprisonment in October 2019. The Applicant’s earlier criminal history adds to the serious nature of his offending, as it has resulted in a cost to the community in terms of law enforcement and judicial resources.
On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant’s criminal offending is serious in nature, and this weighs in favour of the exercise of the discretion to refuse to grant the protection visa to the Applicant.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction states:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of the Direction provides that in assessing the risk that may be posed to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to reoffend in accordance with paragraph 8.1.2(2)(a) of the Direction, the Tribunal finds that the harm to individuals, including those who are in a close relationship with the Applicant, should he engage in similar conduct could include extremely serious physical or psychological injury. The Applicant has demonstrated a propensity to act violently with disregard for the harm caused to his victim. The Applicant’s criminal offending and other serious conduct has included actual and threatened physical violence against his former wife. If his previous criminal behaviour were to be repeated, this would pose a significant risk to members of the community, particularly women. The Tribunal has previously recognised the physical and psychological harm that is caused by violent behaviour in a domestic context. In XFKR and Minister for Immigration and Border Protection (Migration) (‘XFKR’),[136] the Tribunal observed at [45]:
The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women — children who, as in this instance, witness their mothers being abused, degraded and dehumanised — and sends a message to these children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.
[136] [2017] AATA 2385
Were the Applicant to commit further traffic offences, particular speeding and driving under the influence, this would place the safety of other road users at risk of serious harm including serious personal injury or death and economic loss. In addition to the potential harm to individuals, there is the significant financial cost to the community associated with emergency services and law enforcement activities of any future offending by the Applicant. For these reasons, the Tribunal finds that the nature of the harm to individuals should the Applicant engage in similar criminal offences is serious.
(c) The likelihood of the non-citizen engaging in further criminal or other serious conduct
Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 8.1.2(2)(b) of the Direction, the Tribunal notes that the Applicant’s evidence is that he has undertaken programs which have taught him how to control his anger and other emotions, and he poses a low risk of engaging in similar offending.[137] The Respondent submits that there is little evidence of the Applicant taking steps towards rehabilitation, other than his statements that he has ‘made a conscious decision to stop drinking once and for all.’[138]
[137] ASFIC at [46].
[138] Exhibit R1, G4, 106; Respondent’s Statement of Facts, Issues, and Contentions (RSFIC) at [32].
The Tribunal has considered the information and evidence before it on the risk of the Applicant re-offending, including the Applicant’s own evidence and that of Pamela Matthews, and finds for the reasons that follow that the Applicant is a low risk of re-offending. The Applicant made immediate admissions in relation to his 2019 offences and was honest and upfront with police[139] and the NSW Corrective Services.[140] He has expressed remorse for his offending, including telling authorities that his behaviour was unacceptable and deserving of punishment,[141] which is indicative that he accepts responsibility for his actions and reduces the likelihood of him reoffending. Ms Matthews concluded that the Applicant was a low risk and that it was unlikely he would re-offend. The Applicant was assessed as low risk on the PARRCC assessment by NSW Corrective Services.[142]
[139] Exhibit R1, G4, 56.
[140] Exhibit R4, 10.
[141] Ibid.
[142] A risk assessment tool to assess the interventions required to address criminogenic needs.
The Applicant engaged in rehabilitative courses whilst incarcerated, including the ENGAGE intervention program and anger management. This indicates that the Applicant wishes to ensure that he learns from his past mistakes so that he will not re-offend. He demonstrated an understanding of the importance of accessing treatment and support services on release, including speaking to his GP about obtaining a mental health care plan to continue the treatment that he started in VIDC. His evidence is that he has been abstinent from alcohol for more than three years, and he is aware that there are services such as alcoholic support services in the community that he can access if he needs any additional support.[143] His evidence is that he would continue his rehabilitation to ensure that he does not commit any further offences in the future which could also include doing further courses. Based on the evidence before it, the Tribunal finds that in the three years since his most serious offending, the Applicant has taken a number of positive steps to rehabilitate, and he is committed to continuing his rehabilitation in the community.
[143] Exhibit A1, Tab 1, at [70].
The Applicant spent three months in the community prior to commencing his term of imprisonment, during which time he did not re-offend. The Applicant was incident free in prison, being described as having ‘applied himself to all given tasks which he completes in a safe and timely manner … shows a willingness to learn different tasks and works well as a team member’ and as ‘calm and polite’.[144] Similarly there are no recorded incidents relating to the Applicant in immigration detention. The Applicant’s good behaviour during the three years since the 2019 offences supports the Tribunal’s finding that his attempts at rehabilitation have been successful.
[144] Exhibit R4, 8.
The Applicant has a number of protective factors that will ensure that he will not consume alcohol, over consumption of which being the context of his offending. Upon release, he will be under the supervision of a community corrections order for alcohol treatment and counselling. He is committed to remaining sober and has promised his fiancée that he will not recommence drinking alcohol. These factors support the Tribunal’s finding that the Applicant has rehabilitated and that accordingly his risk of offending in a similar manner is low.

On the basis of the evidence before it and taking into account available information and evidence on the risk of the Applicant re-offending and his rehabilitation, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is low. However, in the context of the potential serious harm to the Applicant’s victims should he engage in the same or similar criminal conduct in the future, the Tribunal finds even this low risk to not be acceptable.
For the reasons above and applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, the Tribunal finds that Primary Consideration 1 weighs in favour of exercising the discretion to refuse to grant the Applicant the protection visa.
Primary Consideration 2 – Family violence committed by the non-citizen
This Primary Consideration is relevant in the Applicant’s circumstances as he has been convicted of offences that involve family violence arising from three incidents in November 2012, February 2013 and July 2019. The victim of these offences was the Applicant’s former wife, MS, and his children who were present in the home when the Applicant committed the 2019 offences.
Family violence is referred to in the principle enunciated at paragraph 5.2(5) of the Direction as conduct which ‘is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.’ Family violence is also expressly referred to in Primary Consideration 1 of the Protection of the Australian community as conduct which is viewed very seriously by the Australian Government and the Australian community. It is also expressly referred to in Primary Consideration 4 of the Expectations of the Australian community as conduct of such seriousness that the Australian community would expect the Australian Government to refuse entry or cancel the visas of non-citizens.[145]
[145] Direction, subparagraph 8.4(2)(a).
The Tribunal has consistently found that family violence is abhorrent. It has been described as ‘a corrosive blight on the Australian community’,[146] ‘plainly abhorrent’[147] and an offence which ‘warps and destroys the healthy bonds that should exist between partners and within families.’[148] As the Tribunal observed in XFKR, family violence ‘normalises … socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.’[149]
[146] Soames and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1955 at [106].
[147] Nyemah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2107 at [56].
[148] ZFZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1633 at [136].
[149] At [45].
Paragraph 4(1) of the Direction defines ‘family violence’ as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful’. It contains a non-exhaustive list of examples of behaviour that may constitute family violence which includes:[150]
[150] Direction, paragraph 4(1).
a)an assault; or
b)a sexual assault or other sexually abusive behaviour; or
c)stalking; or
d)repeated derogatory taunts; or
e)intentionally damaging or destroying property; or
f)intentionally causing death or injury to an animal; or
g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
j)unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
Paragraph 8.2(1) of the Direction provides that the Australian Government has ‘serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia’, and that ‘[t]he Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged by the non-citizen.’
Paragraph 8.2(2) provides that this consideration is relevant in circumstances where a non-citizen has been found guilty of an offence involving family violence, or where there is information from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence (where the non-citizen has been afforded procedural fairness).
The Direction does not define a ‘family member’. However, s 4(1AB) of the Family Law Act 1975 (Cth), provides that a person is a member of the family of another person if, relevantly:
(d) the first person is or has been married to, or in a de facto relationship with, the second person; or
The Applicant’s convictions for Stalk/intimidate intend fear physical etc harm (domestic) -T2; Contravene prohibition/restriction in AVO (Domestic), Common Assault, Assault occasioning actual bodily harm, Intentionally choke etc person with recklessness (DV) and Stalk/intimidate intend fear physical etc harm (domestic) were perpetrated against his former wife, MS, and constitute acts of family violence for the purposes of the Direction. The Applicant’s 2019 offences involved very serious violent acts against MS, including punching her multiple times in the face and choking her until she could not breathe. The latter act of violence was aggravated by the fact that it was committed in the same house as the couple’s minor children.
In considering the seriousness of the family violence engaged in by the non-citizen, paragraph 8.2(3) of the Direction states that decision-makers must consider the following factors:
a)    the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b)    the cumulative effective of repeated acts of family violence;
c)     rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i.   the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement of other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence.
Having regard to the frequency of the Applicant’s family violence offending in accordance with paragraph 8.2(3)(a) of the Direction, the evidence is that the Applicant has been involved in three incidents which resulted in convictions for family violence offences. In addition, the Applicant was made subject to ADVOs in relation to MS which he breached by reoffending. These convictions and their increase in seriousness are reflected in the custodial sentence imposed on him by the Court on 1 October 2019. Guided by paragraph 8.2(3)(b) of the Direction, the Tribunal finds that the cumulative effect of the Applicant’s family violence offending is very serious as it caused fear and physical harm to his victim.
In relation to the factors in paragraph 8.2(3)(c) of the Direction, the evidence before the Tribunal is that the Applicant attributes his violent behaviour to his alcohol consumption and claims he is unable to remember the details of his offending due to him being intoxicated. The Tribunal does not accept that the Applicant was so intoxicated that he has no memory of his offending, particularly given he was able to drive on the occasion of his most serious offences in July 2019. It does however accept that his inability to recall the details of his offending may be a result of emotional arousal as suggested by Ms Matthews in her oral evidence. On the basis of the evidence before it, the Tribunal finds that the Applicant has accepted responsibility for violent offending and recognises its harmful impact on MS.
The evidence before the Tribunal is that the Applicant has taken steps to rehabilitate himself. He provided evidence of his completion of the ENGAGE program which is a specific family violence program for offenders. He has undertaken an anger management course and has been abstinent for alcohol for three years and regularly attends AA meetings. The Tribunal is satisfied that if the Applicant were to encounter problems in his relationship with his fiancée, he will have the necessary tools to avoid conflict and not engage in further acts of family violence.
On the basis of the evidence before it and applying the guidance in paragraph 8.2 of the Direction, the Tribunal finds that the Applicant’s family violence offences are serious. Accordingly, Primary Consideration 2 weighs in favour of exercising the discretion to refuse to grant the Applicant the protection visa.
Primary Consideration 3 – The best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction requires decision-makers to determine whether revocation is in the best interests of the child. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made: paragraph 8.3(2). If there is more than one child affected, the Tribunal must consider the interests of each child individually to the extent that their interests may differ: paragraph 8.3(3).
In considering the best interests of the child, paragraph 8.3(4) relevantly requires the following factors be considered:
a)    the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)    the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)    the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
e)    whether there are other persons who already fulfil a parental role in relation to the child;
f)   any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)    evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen in any way, whether physically, sexually or mentally;
h)    …
The relevant minor children are the Applicant’s three daughters, EG aged 12 years, AG aged 11 years, and OG aged six years. The Applicant’s 2019 offences were committed against the children’s mother, MS, when they were asleep in their home.
Having regard to the factors in paragraph 8.3(4)(a), the evidence before the Tribunal is that the Applicant has not been in contact with his daughters since he went to prison in October 2019. He is no longer in contact with MS with whom his daughters are living, and he is unsure of their whereabouts. The Applicant is the subject of an ADVO in respect of MS until 30 September2022. The Applicant states that he loves his children very much, and that he was their primary carer until he went to prison in October 2019. There are materials before the Tribunal of the children’s attempts to contact their father, including being facilitated by MS,[151] and of attempts by the Applicant to contact his children whilst he was in prison.[152] On the basis of this evidence, the Tribunal finds that the Applicant has a close and loving relationship with his daughters despite the fact he has not had contact with them he was imprisoned in October 2019.
[151] Exhibit R4, 3; 7; 9.
[152] Exhibit R4, 4; 12; 14; 16; Records indicate that the Applicant applied for child visits in April 2020: Exhibit R4, 18.
Having regard to the factors in paragraph 8.3(4)(b), the Applicant’s evidence is that he intends to engage a lawyer to seek family law orders to have shared parental rights for the children. If these orders are made, the Applicant can play an active parental role in the lives of the two eldest girls through their teenage years and in the life of the youngest girl from a relatively young age. It would be in the best interests of each child to have their father present in their lives and playing a parental role in their formative years. In relation to the factors in paragraph 8.3(4)(c), whereas the children were at home asleep when the Applicant committed the 2019 offences, MS is reported to have said in January 2020 that there are no problems with any of the children, and that they had not been affected by the Applicant’s offending.[153]
[153] Exhibit R4, 8.
Having regard to the factors in paragraph 8.3(4)(d), 8.3(4)(e) and 8.3(4)(f), the evidence is that the children’s mother, MS, has been their primary carer since the Applicant went to prison in October 2019. The Applicant and MS are divorced, and he is unable to contact her or his daughters. There is no evidence before the Tribunal in relation to the children’s opinion of their father nor whether they continue to wish to re-establish contact with him.
The evidence before the Tribunal is that the Applicant has two nieces and two nephews who would also be impacted by the decision to refuse the protection visa: MZ aged five years (who is the daughter of the Applicant’s brother AG); MG1 aged 14 years; GG aged nine years and MG2 aged four years (who are the children of the Applicant’s brother RG). The Applicant’s evidence and that of RG is that the Applicant has played a positive role in the lives of his nieces and nephews. Whereas the Applicant’s role in these children’s lives is non-parental, they are a close family, and he has been a loving uncle to them. He has remained in regular contact with the children since he went to prison, and he currently speaks to them at least once a week to see how they are going. They are upset that they do not see him and often ask after him. The Tribunal finds that it would be in the best interests of each child to have their uncle physically present again in their lives.
On the basis of the evidence before it, the Tribunal finds that it is in the best interests of the Applicant’s daughters, and his two nieces and two nephews, for the discretion not to be exercised to refuse the Applicant the protection visa.
Primary Consideration 4 – The expectations of the Australian community
Paragraph 8.4 of the Direction states:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b)…
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature …
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(e)…
(f)…
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The Applicant contends that the Tribunal should find that the deemed expectations of the community are outweighed by his particular circumstances, namely his status as a refugee and vulnerabilities due to his mental health, and the consequences for him as a result of a non-revocation decision.[154]
[154] ASFIC at [75]-[76].
The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 8.4 of the Direction, in FYBR and Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The majority (Charlesworth and Stewart JJ) concluded as follows:
·Paragraph 11.3 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[155]
·It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations.[156]
·However, the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[157]
·It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of ‘appropriateness’.[158]
[155] Charlesworth J at [66]; Stewart J at [91].
[156] Charlesworth J at [67]; Stewart J at [104].
[157] Charlesworth J at [76].
[158] Stewart J at [97].
The effect of paragraph 8.4 is that it imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. The question to be addressed does not involve an inquiry into what the Australian community does or does not expect, because that is normatively expressed in the terms of the consideration: paragraph 8.4(4). Rather, the relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed community expectation’ of refusal of a visa ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[159] As a normative expression, this consideration indicates the likelihood that community expectations will in most cases lead to refusal of a visa, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.
[159] Charlesworth J at [77].

Given that a protection finding has been made in relation to the Applicant, he cannot be removed to Iraq and he will remain liable for detention unless and until the Minister exercises his non-compellable powers, he is removed to a third country he requests voluntary removal, or the protection findings are reversed.
Alternatives to removal to Iraq
Paragraph 9.1(3) provides that a refusal decision need not necessarily result in a non-citizen’s removal from Australia where there are other alternatives available:
(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
The Respondent accepts that, at this point in time, the Applicant is unable to be returned to Iraq and, if his visa is refused under s 501(1), he will remain in Australia, detained under s 189 of the Act until one of the following events occurs:
1) the Minister exercises his personal discretion under s 195A of the Act to grant the Applicant a visa;
2) the Minister exercises his personal discretion under s 197AB of the Act to make a residence determination in respect of the Applicant;
3)   the Minister makes a decision under s 197D that the Applicant no longer engages protection obligations;
4)   the Applicant is removed to a third country; and/or
5)   the Applicant requests to be returned to Iraq.
There is no evidence before the Tribunal that consideration has been given to removal of the Applicant to another country in circumstances in which he is unable to be removed to Iraq. Nor is there evidence that there is the potential for a decision to be made under s197D that the Act no longer is owed protection obligations, nor that the Applicant intends to voluntarily return to Iraq.
There is also no evidence that the Minister has considered exercising his discretionary powers in favour of the Applicant. As this is an alternative to removal of the Applicant to Iraq, it is relevant to the legal and practical consequences of a refusal decision. The consideration of matters such as the exercise of discretion under ss 195A or 197AB, or removal to a third country, is likely to occur after conclusion of the visa application process the subject of this review.
The Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) (‘RALC Explanatory Memorandum’) relating to the addition of s 197C into the Act, provided:
Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in s 198 of the Migration Act. For example, Australia’s non-refoulement obligations will be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under sections 46A, 195A or 417 of the Migration Act.[165]
[165] 166 at [1142].
Similarly, the CIOR Explanatory Memorandum stated:
The Government’s preference is to manage non-citizens in the community wherever possible, subject to meeting relevant requirements, including not presenting an unacceptable risk to the safety and good order of the Australian community. The Minister has a personal discretionary power under the Migration Act to intervene in an individual case and grant a visa, including a bridging visa, to a person in immigration detention, if the Minister thinks it is in the public interest to do so. What is and what is not in the public interest is for the Minister to decide.
The Minister also has a personal discretionary power to allow a detainee to reside outside of an immigration detention facility, at a specified address in the community (residence determination). While a residence determination permits an individual to be placed in the community subject to certain conditions, it continues to be a detention placement.
The Minister’s powers to consider whether to grant a visa to permit an unlawful non-citizen’s release from immigration detention, or to permit a community placement under a residence determination, until they are able to be removed from Australia consistently with non-refoulement obligations, means that the person’s individual circumstances, and the risk they may pose to the Australian community can be taken into account. This enables the least restrictive option to be implemented for the person having regard to their circumstances.[166]
[166] 13-14.
There is currently no evidence before the Tribunal that the Minister is considering an exercise of his personal powers in ss 195A or 197AB of the Act, nor is there evidence that he would do so in future. While those powers remain available to the Minister, the Tribunal cannot speculate on the Minister exercising those powers in the Applicant’s circumstances. For these reasons, the Tribunal finds that while the powers in ss 195A and 197AB of the Act remain available, the immediate legal effect of a refusal decision in the Applicant’s circumstances is him being detained in immigration detention without a fixed chronological endpoint.[167]
[167] Respondent’s Supplementary submissions at [9] citing WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [136].
Ongoing immigration detention
The CIOR Explanatory Memorandum stated as follows in relation to the detention of non-citizens who engage Australia’s non-refoulement obligations but who cannot be removed from Australia:[168]
The amendments in the Bill are primarily aimed at protecting from removal those persons who engage Australia’s non-refoulement obligations, but where character or security concerns mean they are ineligible for the grant of a protection visa. Persons who are granted a visa are not subject to removal. This means that persons affected by the amendments may be subject to ongoing immigration detention under section 189 of the Migration Act.
Immigration detention remains a key component of border management and assists in managing potential threats to the Australian community – including national security and character risks – and ensures people are available for removal.
Unlawful non-citizens who are unable to be removed due to barriers which include, but are not limited to, the situation where the amendments to section 197C made by this Bill will operate to protect them from removal in breach of non-refoulement obligations, may be detained until their removal is reasonably practicable. Removal in such cases may become possible if, for example, the circumstances in the relevant country improve such that the person no longer engages non-refoulement obligations, or if a safe third country is willing to accept the person. An unlawful non-citizen may also request in writing to be removed from Australia.
Held detention in an immigration detention centre is a last resort for the management of unlawful non-citizens, particularly individuals whose removal may not be practicable in the reasonably foreseeable future.
[168] 13.
If the Applicant is not granted a protection visa, he will remain in immigration detention whilst the Minister considers whether he can be returned to another country, or whether he will exercise one of his discretionary powers under the Act. In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘WKMZ’), Kenny and Mortimer JJ observed that consideration of these options may take some time:[169]
The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end. It may be inferred that any decision by the executive to abandon its adherence to Australia’s international obligations would, as White J said in AQM18, be a serious step and not a decision taken quickly.
[169] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 [132].
In MNLR v Minister for Immigration, Citizenship and Multicultural Affairs, Wigney J considered the potential for ‘indefinite detention’ arising from circumstances where it is not reasonably practicable to remove an unlawful non-citizen from Australia:[170]
It has also been said, in this context, that the effect of s 197C is that indefinite detention is “not a possibility” (AQM18 at [25]) or “no longer arises”: Uolilo [v Minister for Home Affairs [2020] FCA 1135] at [91]. Those statements are undoubtedly correct if “indefinite” in this context is taken to mean that the period of detention may not, or will not, ever come to an end. That is because the detention will come to an end when the unlawful non-citizen is either granted a visa (in which case they are no longer an unlawful non-citizen) or they are removed from Australia pursuant to s 198 of the Act. Those statements are, however, somewhat questionable if “indefinite” is taken to mean that the actual period in which the non-citizen may or will remain in detention is unable to be defined or determined with any precision.
There could be little doubt that the length of time that an unlawful non-citizen may spend in immigration detention may in some circumstances be very uncertain and very lengthy. That is particularly the case where the circumstances are such that it is not reasonably practicable to remove the unlawful non-citizen from Australia, for example where they are stateless or their nationality or citizenship is uncertain and no country will agree to receive them, and it cannot be said with any certainty when those circumstances may change. Detention is nonetheless to continue indefinitely in those circumstances until the person is able to be removed: Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 at [33]-[35] (per McHugh J), [227]-[231] (per Hayne J), [299], [301] (per Callinan J) and [303] (per Heydon J).
[170] [2021] FCAFC 35 at [93]–[94].
In the Applicant’s circumstances, there is most likely to be a significant delay while steps are taken to identify a country which will agree to receive him. During this period, he will be subject to ongoing immigration detention.
Having considered the circumstances referred to above, the Tribunal finds that the most likely consequence of a decision to refuse to grant the Applicant a protection visa is his ongoing immigration detention, and that the period of his loss of liberty may be very lengthy and have no chronologically fixed endpoint. This consequence would be highly detrimental to the Applicant’s psychological health and well-being, and would also be in breach of Australia’s international obligations and human rights standards. The Tribunal finds that the consequence of ongoing immigration detention is a factor that weighs very heavily against the exercise of the discretion to refuse to grant the protection visa.
While the Tribunal finds that ongoing immigration detention is the most likely consequence of the refusal to grant the protection visa, it cannot discount the potential that the Applicant will voluntarily return to Iraq where he will be at risk of harm inconsistently with Australia’s non-refoulement obligations. This consequence would be highly detrimental to the Applicant and weighs heavily against the exercise of the discretion to refuse to grant the protection visa.
In conclusion, the legal and practical consequences of a refusal decision is the prospect of the Applicant’s ongoing immigration detention with no chronologically fixed endpoint or his removal to Iraq contrary to Australia’s non-refoulement obligations. The Tribunal finds that these consequences both weigh very heavily against the exercise of the discretion to refuse refusal the protection visa.
Extent of impediments if removed from Australia
The Direction states in paragraph 9.2:
(1)     Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country, taking into account:
a)    the non-citizen’s age and health;
b)    whether there are substantial language or cultural barriers; and
c)     any social, medical and/or economic support available to them in that country.
The Respondent argues that the extent of the impediments that the Applicant would encounter if he was removed from Australia, including as a result of his status as a person in respect of whom Australia owes non-refoulement obligations, should be given neutral weight for reason that they are merely theoretical because there is no realistic possibility that he would be removed to Iraq.[171] The Applicant contends that whereas it does appear the Applicant will not be removed because he is owed protection obligations, this finding may be reassessed at some future point at which it may be found that he no longer engages Australia’s non-refoulement obligations. Another possibility is that the Applicant chooses to voluntarily be returned to Iraq rather than remain in prolonged detention. There is no evidence before the Tribunal that this is currently his intention. Nevertheless, the Tribunal has considered the extent of impediments the Applicant may encounter if he is returned to Iraq.
[171] Transcript of proceedings, 147, citing DMDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 993 at [149]; RSFIC [51].
Having regard to the factors in paragraph 9.2(1)(a) and (c) of the Direction, the evidence before the Tribunal is that the Applicant is aged 40 years and previously had an alcohol abuse problem. There is no evidence of the Applicant suffering any medical conditions although he has sought psychological counselling.[172] As a citizen of Iraq, the Applicant would have the same access to any social, medical and economic support as other citizens, although such services may not be of the same standard as those available in Australia. The Direction provides that the extent of any impediments to an Applicant in establishing themselves and maintaining basic living standards is to be considered in the context of what is generally available to other citizens of that country. The Applicant’s separation from his children and siblings and initial difficulties associated with establishing himself in Iraq will likely result in emotional hardship.
[172] Exhibit R4, 12.
Guided by paragraph 9.2(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on his return, as he lived in Iraq until the age of 28 years and speaks Arabic and is familiar with life in his home country. It will take time for him to readjust to life in Iraq and to find suitable employment. The Applicant’s evidence is that he has worked as a furniture removalist, in construction, as a handyman, and as a truck driver. He also was employed a kitchen staff worker in the Iraqi Army,[173] and worked in the sawmill whilst in prison.[174] As the Applicant has worked in a wide range of roles, he should be able to find suitable employment in Iraq. The Applicant’s sister resides in Iraq and she should be able to provide him with some level of support until he is able to find accommodation and employment.
[173] Exhibit R1, G4, 73.
[174] Exhibit R4, 6.
Having regard to the evidence before it, the Tribunal finds the Applicant will likely face hardship if he is required to establish himself in Iraq having not lived there for more than a decade. The extent of the hardship that the Applicant may face should he return to Iraq will depend on the degree of support that he might receive from his sister and other family members in Iraq. Accordingly, guided by the factors in paragraph 9.2 of the Direction, the Tribunal finds that this consideration weighs against exercising the discretion to refuse the protection visa.
Impact on victims
The Direction states in paragraph 9.3:
(1) Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The Applicant’s former wife and victim of his domestic violence offending provided a letter dated 15 October 2019 in which she states that she supports the Applicant and says that without alcohol, he is a ‘very good person’.[175] There is further evidence before the Tribunal that in January 2020 MS stated that she forgave the Applicant for his conduct.[176] She has not provided any evidence about the impact on her of a refusal or grant of the protection visa. The Tribunal has given this evidence limited weight for reason that since MS made these comments about the Applicant she has severed all ties with him, and therefore it is unclear whether she continues to hold the views about him that she expressed in her October 2019 and January 2020 statements.
[175] Exhibit R1, G4, 108.
[176] Exhibit R4, 8; 13.
For the reasons stated above, the Tribunal has given this other consideration neutral weight in determining whether to exercise the discretion to refuse the protection visa.
Links to the Australian community
Paragraph 9.4 of the Direction requires decision-makers to have regard to paragraphs 9.4.1 to 9.4.2 below.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1 requires consideration of the strength, nature and duration of the Applicant’s family and social ties to Australia:
(1)   Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)   Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Having regard to paragraph 9.4.1(1) and paragraph 9.4.1(2)(b) of the Direction, the evidence before the Tribunal is that the Applicant has family members in Australia, including his fiancée, three children and two brothers who are all Australian citizens. The Applicant’s fiancée, TH, gave evidence detailing the impact on her if the Applicant is not granted the protection visa. This includes being unable to commence their married lives together, her facing considerable distress and hardship over her continued separation from the Applicant, and her contemplating having to relocate to a country where she fears harm to be with the Applicant. The Applicant’s brothers, RG and AZ provided evidence detailing the impacts on them and their children if the Applicant cannot remain in Australia.

In relation to his other ties, the Applicant has resided in Australia for 12 years. However, as required by paragraph 9.4.1(2)(a)(i) of the Direction the Tribunal has attached less weight to the Applicant’s period of residence in circumstances where he began offending two years after his arrival. In relation to the factors in paragraph 9.4.1(2)(a)(ii) there is evidence that the Applicant has made a positive contribution to the Australian community through his work as a truck driver, and he has social links with Australian citizens through his membership of the church.
Impact on Australian business interests
The Applicant does not claim that any Australian business interests would be affected by his removal to Iraq. Accordingly, the Tribunal has given the factors in paragraph 9.4.2(3) no weight.
On the basis of the evidence before it, and having regard to the factors in paragraph 9.4, particularly his family members in Australia, the length of time the Applicant has resided in Australia, his employment and other positive contributions to the community, the Tribunal finds that this consideration weighs heavily against the exercise of the discretion to refuse to grant the protection visa
CONCLUSION
In summary, the Tribunal finds that Primary Considerations 1 and 2 weigh in favour of the exercise of the discretion to refuse to grant the protection visa. The Applicant’s criminal offending is serious, particularly as it has included domestic violence offences. The low risk of him committing future criminal offences coupled with the nature and seriousness of the harm this would cause to his future victims and the community is such that the protection of the Australian community is best served by the refusal of the protection visa.
Primary Consideration 3 weighs strongly against the exercise of the discretion to refuse the protection visa as it is in the best interests of the Applicant’s daughters, and his two nieces and two nephews, for the Applicant to remain in Australia.
Primary Consideration 4 weighs in favour of exercising the discretion to refuse to grant the protection visa as the expectations of the Australian community are that Applicant’s serious family violence offences should cause him to forfeit the privilege of remaining in Australia, and this is not outweighed by the duration of his residency in Australia.
In regard to the relevant Other Considerations, the potential for the Applicant to be held in immigration detention for a very lengthy period of time with no chronologically fixed endpoint weighs heavily against the refusal of the protection visa. The extent of impediments he will face if he were to return to Iraq also weigh against the refusal of the visa. Further, the Applicant’s links to the Australian community, particularly his fiancée and family, weigh heavily against exercising the discretion to refuse the visa.
For the reasons stated above, the Tribunal is satisfied that it should not exercise the discretion to refuse the Applicant the protection visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 9 May 2022 to refuse the Applicant a Protection (subclass 866) visa on character grounds is set aside; and it is remitted to the Respondent for reconsideration with a direction not to refuse the Applicant’s visa under subsection 501(1) of the Migration Act 1958 (Cth).

I certify that the preceding 169 (one hundred and sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk

.................................[SGD].......................................
Associate
Dated: 26 August 2022

Date(s) of hearing: 27 & 29 July 2022

Solicitors for the Applicant: Ms C Ford, Carina Ford Immigration Lawyers

Solicitors for the Respondent: Mr J Watts, Australian Government Solicitor

Date(s) of hearing:	27 & 29 July 2022
Solicitors for the Applicant:	Ms C Ford, Carina Ford Immigration Lawyers
Solicitors for the Respondent:	Mr J Watts, Australian Government Solicitor