QDQY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 125

QDQY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 125 (31 January 2020)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2017/1341

GENERAL DIVISION  )
Re: QDQY
Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DIRECTION
TRIBUNAL:                 Deputy President Britten-Jones
DATE OF CORRIGENDUM:            11 February 2020
PLACE:  Adelaide
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

to change paragraph number ‘12(l)’ and ‘12(m)’ respectively to ‘12(a)’ and ‘12(b)’ respectively;

to change paragraph ‘33’ in the second instance to paragraph ‘36’ and to similarly correct every paragraph number thereafter to count sequentially from ‘36’ onwards.
….....[Sgnd]......................
P BRITTEN-JONES
(Deputy President)

Division:GENERAL DIVISION
File Number(s): 2017/1341
Re:QDQY
APPLICANT

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

DECISION
Tribunal:Deputy President Britten-Jones
Date:31 January 2020
Place:Adelaide

The decision under review is affirmed
..........[Sgnd]............................................
Deputy President Britten-Jones
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record –- whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – non-refoulement obligations– decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gasper v Minister for Immigration and Border Protection [2016] FCA 1166
Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620
PRHR v Minister for Immigration and Border Protection [2017] AATA 2782
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Deputy President Britten-Jones
31 January 2020

This is an application for review of a decision of a delegate of the Respondent not to revoke a mandatory cancellation of the applicant’s visa under s 501(3A) of the Migration Act 1958 (the Act).
THE DECISION TO CANCEL THE VISA
On 14 December 2016, the applicant’s Five Year Resident Return visa (Class BB, subclass 155) (the visa) was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) of the Act on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment.
On 19 December 2016, the applicant, through his migration agent, made representations seeking revocation of the cancellation decision.
On 24 February 2017 a delegate of the respondent decided not to revoke the cancellation decision. That decision was affirmed by the Administrative Appeals Tribunal (AAT) in May 2017 (the 2017 AAT decision). The 2017 AAT decision was quashed by consent by the Federal Court on 12 September 2018 and remitted to the AAT. The respondent conceded that the 2017 AAT decision was affected by jurisdictional error due to the judgment in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 which was handed down about one month after the 2017 AAT decision.
After the 2017 AAT decision was quashed, the applicant applied for an Onshore Protection visa (Class XA, subclass 866) (the protection visa). The hearing of this current application was adjourned to allow the protection visa application to be heard and determined. The protection visa application was refused on 11 September 2019 and the Migration and Refugee Division of the AAT affirmed the decision not to grant the applicant a protection visa (the MRD decision).
The applicant relied upon the material provided to the AAT for the hearing in 2017 together with further material including a statement of the applicant stated 16 December 2019 and a letter from the partner of the applicant dated 21 March 2019. Further materials provided for the purposes of this hearing were attached to the applicant’s statement of facts issues and contentions. The respondent also provided additional material, which included client incident reports in immigration detention and the decision of the Migration and Refugee Division of the AAT which affirmed the decision not to grant the applicant a protection visa.
THE MRD DECISION
On 11 September 2019 the AAT affirmed the decision not to grant the applicant a protection visa. The reasons for the MRD decision disclose the following matters:
(a)At the MRD hearing the applicant told the AAT that his family is living in Basra. This includes his mother and father, two brothers and two sisters and their families including six nieces and nephews. His mother works at home and his father retired from the Iraqi army in 2016. One of his brothers is a barber and the other works in an import export business in Basra. His brothers live with his parents. His sisters live with their husbands. One is a pathologist and the other provides beauty treatments.
(b)The applicant’s claims for protection were based upon a fear of being killed by terrorists as a result of his Shia religion; a fear of persecution as a returnee from a Western country; a fear of persecution because his father was a member of the military; a fear arising from the chaos in Iraq and recent elections; a fear of conscription into the Iraqi security forces; a fear of harm as a result of his relationship with his Australian partner who is a Buddhist.
(c)The applicant submitted material which detailed the protest activity which occurred in Basra in mid to late 2018. These reports detailed the death of protesters during violent clashes with security forces. The protests focused on the lack of basic services in the city including electricity shortages and water pollution.
(d)It was noted that the applicant has returned to Iraq on two occasions since coming to Australia. He returned to Iraq in 2011 staying around 23 days with his family in Basra. In 2013, he again visited his family and remained in Iraq for four months.
(e)The tribunal found on the evidence and country information that the presence of ISIS or associated Muslim extremist groups in southern Iraq is minimal. The tribunal found that southern Iraq, including Basra is more secure than other areas of Iraq. While incidents of extremist violence still occur, southern Iraq has been experiencing significantly fewer incidents of extremist violence since the defeat of ISIL and in particular most recently during 2018 and 2019. The tribunal found that the applicant does not face a well-founded fear of persecution from Shia extremists in Basra due to his Shia faith. Further, the tribunal found that the applicant as a member of the Shia population does not face a real risk of significant harm from ISIL or other Muslim extremist groups in Basra on return to Iraq or in the reasonably foreseeable future.
(f)The tribunal found that the applicant does not face a well-founded fear of persecution in Iraq or a real risk of significant harm due to his father’s former role with the Iraqi army on return to Iraq or in the reasonably foreseeable future.
(g)The tribunal did not accept that the applicant’s Western appearance or behaviours would bring him to adverse attention of extremists in Basra. The tribunal found the applicant has a well-established family network in Basra which will assist with his reintegration into Iraqi society. His family network could also assist him to avoid adverse attention in Iraq and navigate any practices or cultural issues with which he is unfamiliar. For these reasons, the tribunal found the applicant did not face a real chance of persecution or significant harm for being a failed asylum seeker from a Western country, a returnee who has spent significant time in a Western country or for actual or imputed secular political opinions on account of having spent significant time in a Western country.
(h)The tribunal found that the applicant does not have a well-founded fear of persecution or face a real risk of serious harm on return to Iraq due to his conscription into the Iraqi army now or in the foreseeable future. The tribunal found that the applicant’s claims do not demonstrate that the applicant would face a real risk of suffering significant harm now or in the reasonably foreseeable future as a result of separation from his current partner or her children if he was to be removed from Australia to Iraq.
(i)The tribunal found based on credible country information that there is no longer a high level of indiscriminate violence in Iraq such that substantial grounds exist for believing that an applicant for protection would, solely by being present there, face a real risk which threatens their life or person. The tribunal was satisfied that any risk is one faced by the population of Iraq generally and not faced by the applicant personally. The tribunal found that there were no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that he will suffer harm on account of his Shia religion, his father’s working in the Army, his time spent in a Western country or because of his relationship with his Buddhist partner, or for any other reason on return to Iraq or in the reasonably foreseeable future.
(j)The tribunal accepted that the security situation has been unstable in some parts of Iraq but was not satisfied that this alone constituted a real risk of significant harm. Credible country information suggests that ISIS has essentially been defeated and Iraqi government control reasserted over those areas previously held by ISIS. In any event, the applicant and his family reside in an area of Iraq which country information considers to be significantly more safe and stable than areas previously held by ISIS. His family have continued to live in Basra since returning there in 2003. The applicant has returned there twice since coming to Australia without suffering harm. The tribunal was satisfied that the applicant would be able to return and live safely in Iraq.
(k)In conclusion, the tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations.
These findings were not challenged by the applicant in these proceedings. I rely upon and adopt them.
ISSUES BEFORE THE TRIBUNAL
The applicant does not pass the character test prescribed under s 501(6)(a) of the Act as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has “a substantial criminal record” as defined under s 501(7) of the Act. The applicant concedes the same. Therefore, the applicant cannot rely on s 501CA(4)(b)(i) of the Act in order to have the mandatory visa cancellation revoked.
The only issue for the Tribunal to determine is whether having regard to Ministerial Direction No. 79 (Direction 79) there is another reason why the cancellation decision should be revoked. Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must decide to revoke the decision.[1]
[1] Gasper v Minister for Immigration and Border Protection [2016] FCA 1166 at [38].
THE OFFENDING
The reasons for the 2017 AAT decision summarised the offences for which the applicant was convicted at [28] – [48]. I adopt those reasons and set them out below:[2]
[2] Identifiers have been removed for the purpose of publication, and insertions are indicated by [square brackets].
The matters the subject of convictions
28.The circumstances of the conduct discussed below are drawn from the Certificate, the SAPOL records relied upon by the respondent, a written statement provided by [the applicant] and his oral evidence to the Tribunal. In relation to the 2012 and 2014 offences, I have also had careful regard to the remarks of the sentencing judges.
29.The following consideration of the evidence as to the circumstances of [the applicant]’s offending is ordered by reference to the date of the offence (in bold).
30.On 6 March 2008, when he was 22 years old, [the applicant] was convicted for exceeding the speed limit by 15-29 kilometres per hour and fined. The SAPOL records indicate the offence occurred on 29 November 2004.
31.On 2 February 2006, [the applicant] was convicted for disorderly behaviour, loitering and resisting police and a fine of $200 was imposed. The SAPOL records indicate that [the applicant] was influenced by alcohol and the offence occurred in the early hours of the morning on 10 September 2005. The records indicate that [the applicant] was removed from a club on Hindley Street, Adelaide, after he was observed by police smashing a bottle on the ground inside the club. After being removed, [the applicant] apparently continued his disorderly behaviour, continually yelling offensive words whilst “smashing his fist on a nearby galvanised iron fence”. [The applicant] was apparently requested on a number of occasions to cease loitering and refused to comply. He was subsequently arrested and whilst being arrested, he “violently resisted by jolting his body backwards and forwards in an attempt to break free from police grip”. The police records further indicate that [the applicant] was not interviewed in relation to this matter, due to his “violent and unpredictable behaviour”.
32.In his oral evidence, [the applicant] said that he was young at the time of this offence and was “drinking at that time”. He said he was drinking and “clubbing all the time every weekend”.
33.On 2 February 2006, [the applicant] was convicted of failing to comply with a bail agreement and discharged without penalty. This related to the fact that on 10 September 2005, [the applicant] entered into a bail agreement with the condition that he would not enter, attend or be in the vicinity of Hindley Street. On 11 November 2005, the Court ordered that the conditions of the bail agreement were to continue. However, he was subsequently arrested by police in the early hours of 17 December 2005, on Hindley Street, Adelaide.
34.In his oral evidence, [the applicant] indicated that at the time of this offence he was still very new to Australia and his English was poor. He said he had not understood that bail was continued after his court appearance in …2005.
35.On 12 January 2007, [the applicant] was convicted of disorderly behaviour and resisting police. The SAPOL records indicate that this offence occurred late in the evening on Saturday 28 October 2006 when [the applicant] swore loudly, placed his fist in front of his face trying to fight with police and tried to prevent police from affecting the arrest of other persons. The records further indicate that when police attempted to arrest [the applicant], he resisted them by “violently jerking his body in several directions and trying to break free of police restraining him”. Four officers and the use of capsicum spray were required to subdue and affect the arrest of [the applicant]. [The applicant] pleaded guilty and was fined a total of $350 with respect to the two offences.
36.On 23 April 2007, [the applicant] was convicted of driving under disqualification or suspension with the offence date being 14 November 2006. He was fined $200. The SAPOL records indicate that this offence occurred in the early hours of the morning when [the applicant] was stopped by police for a breath test, which was negative. However, police also conducted a driver’s licence check which revealed that he was disqualified from driving from 30 August 2006 until 28 February 2007 for breaching provisional conditions. At the time, [the applicant] apparently advised police that he was not aware that his licence had been disqualified. [The applicant] pleaded guilty to this offence and was fined $200.
37.On 5 March 2008, [the applicant] was convicted of possessing or using a prohibited weapon and fined $500. The offence is recorded as having occurred on 9 February 2008. In his oral evidence, [the applicant] indicated that this related to an extendable baton left at his place by a friend who had been a security guard. This weapon was apparently discovered by police when they searched his premises. [The applicant]’s evidence in this regard is consistent with the SAPOL records. [The applicant] pleaded guilty to this offence and was fined $500.
38.On 15 March 2012, [the applicant] was convicted of intentionally causing harm – aggravated and given a suspended sentence of two years and 10 months with a nonparole period of 18 months and a two year good behaviour bond. This offence occurred on 12 April 2009 and [the applicant] pleaded guilty to the offence.
39.The sentencing judge, Judge Lovell, explained the circumstances of this conduct as follows:
During the evening of Sunday 12 April 2009, [the victim]…attended the … cinema… to watch a movie with a friend of his and a girl whom he knew as [C], but in reality was [Ms B]. He had been set up by [C] who was friends with you, [the applicant]. I have previously sentenced [Ms B] for her role in the attack that occurred on [the victim]. It was her role to make sure that [the victim]…was in that area that night.
[Ms B] had done this as your co-accused, [Mr A], believed that [the victim] was having a relationship with his female cousin, which was bringing shame to the family. [Ms B] prearranged with [Mr A] to have [the victim] attend at the location in order that the attack may be undertaken.
40.The precise circumstances of the attack were the subject of a disputed facts hearing before the judge. In his ruling at that hearing, the judge observed as follows:
[The applicant] was an unimpressive witness. On some matters he was not truthful. As I mentioned, generally speaking I found [the victim] a generally credible witness. I am satisfied that [the victim] was probably correct with his version of events.
…
While I largely reject what [the applicant] said, I am not satisfied beyond reasonable doubt that he actually stabbed [the victim]. I will sentence him on the basis that he was aware that [H] had the knife and may use it. I reject his evidence that he counselled him not to take or use the knife. However, I will not sentence him on the basis that he carried another knife and used it. I reject his version of events that [the victim] had a knife, although I am unable to reject his version of events that at some stage [the victim] had his arms around [H’s] neck in some sort of bear hug.
41.Accordingly, the applicant was sentenced on the basis that he did not inflict any of the wounds on [the victim] personally, but was aware that [Mr A] had a knife with him.
42.On 21 October 2010, [the applicant] was convicted of two counts of damaging property and given a good behaviour bond of $500 on the basis that he be of good behaviour for 12 months. The SAPOL records indicate these offences occurred on 16 September 2010. The relevant conduct consisted of smashing a perfume bottle and damaging a washing machine with a baseball bat, causing approximately $200 damage, and also hitting a bedroom door with a baseball bat causing approximately $200 damage. The SAPOL records indicate that when he was interviewed [the applicant] said that he had become angry with his girlfriend because she had lost a lot of money gambling “so he started breaking things with a baseball bat”.
43.In the course of his oral evidence, [the applicant] claimed that the perfume bottle and washing machine both belonged to him anyway, which reduced the seriousness of his actions. However, the police records and Complaint indicate that the perfume bottle and washing machine belonged to his then partner, [Ms B]. [The applicant] pleaded guilty to the two offences and was given a bond of $500 to be of good behaviour for 12 months.
44.On 6 March 2012, about a week before his 2012 conviction, [the applicant] was convicted of disorderly behaviour, hindering police and resisting police and fined $1000. The SAPOL records indicate that this offence occurred in the early hours of 28 November 2010 and [the applicant] was affected by alcohol. The relevant conduct consisted of [the applicant] behaving in a disorderly manner on Pulteney Street in Adelaide, by yelling, swearing, threatening violence and behaving in an aggressive manner. The records further indicate that [the applicant] hindered police by running away and resisted police by moving his body about, yelling profanities and trying to pull away and break free from police during the arrest procedure. Prior to being arrested, [the applicant] is also recorded to have threatened “to shoot all persons in the vicinity with a firearm that he was returning with”. The SAPOL records further record that “the accused did not conform to a protracted and detailed interview due to his level of intoxication and belligerent behaviour towards police”. [The applicant] pleaded guilty to all three offences.
45.On 10 October 2014, [the applicant] was convicted of cultivating a commercial quantity of a controlled plant, possessing prescribed equipment and breach of bond. His previously suspended sentence was revoked and he was given a head sentence of four years and four months (with a non-parole period of two years and three months) which he is still serving. [The applicant] pleaded guilty to the charges of growing cannabis plants for sale and possessing hydroponic equipment. The sentencing judge, Judge Muscat, explained the nature of this offending, on 30 January 2014, as follows:
On 30 January 2014 police officers attended at a house… which you were occupying at the time. There were four rooms specifically dedicated to the indoor cultivation of cannabis plants. I have viewed the photographs tendered by the prosecution and they reveal a typical indoor hydroponic setup for the growing of cannabis plants. In total, police found 25 cannabis plants being grown at the house.
46.He went on to observe:
This is a serious offence, carrying a maximum penalty of a fine of $200000 or imprisonment for 25 years, or both. All of the equipment seized by the police as well as the plants and dried cannabis will be forfeited to the Crown…
Your offending is made more serious because you committed it whilst you were subject to a suspended sentence. On 15 March 2012, you were sentenced for the crime of aggravated causing harm with intent to cause harm to another man.
47.As to the precise circumstances of the offending, the judge found:
The present offending occurred in the context of you being recruited by another person to live in a house specifically set up to grow cannabis plants.
I have heard evidence from you this morning as to the circumstances of your involvement in this offending. You had only recently returned from visiting your family in Iraq and found yourself homeless. A Lebanese friend of yours introduced you to a man…, who you told me was a bikie... You were offered the occupancy of a house, free of rent and any bills. You were told… that the house was to be used to grow cannabis plants and that he wanted you to occupy the house and keep an eye on things for him. He told you that, if the police caught you, you were to say nothing to them. He said that you would be looked after in terms of accommodation and being provided with the services of a lawyer in the event of the police charging you.
I accept that you were not involved in the setting up of the four rooms for the cultivation of the cannabis plants; other persons attended to that. However, I do not accept your evidence that you essentially stayed out of those rooms and had nothing to do with the care of the plants. I am satisfied that your role was to occupy the house so as to give it the appearance of legitimacy and, from time to time, to keep an eye on the plants and tend to any needs. Given the setup at the house, there would have been very little for you to do in that regard except perhaps fill the water reservoirs as required.
For your role, you were to receive $5000 in cash. It was your intention to send $3000 of that to your family in Iraq and keep the balance for your own needs, such as accommodation and so on.
You were clearly used by those involved in the commercial cultivation of these plants.
I accept your evidence that you were in desperate times when you were approached. You were clearly taken advantage of and ... once you were in and the longer you remained in the house, the harder it became to extricate yourself.
48.With respect to the breach of the suspended sentence, the judge observed:
You had been given the opportunity to reform by a judge and you have failed to do so.
LEGISLATIVE FRAMEWORK

Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in (3A) is outlined in s 501(6) of the Act. Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)).
For the purposes of subsection (6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[3]
[3] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled under s 501(3A), the Minister has a power to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked.[4] The discretion to revoke the cancellation on the grounds that ‘the Minister is satisfied that there is another reason why the original decision should be revoked’ is a broad one.
[4] Ibid s 501CA(4).
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
When considering whether to revoke the delegate’s decision, the Tribunal must have regard to Direction 79. The objective of Direction 79 is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[5]
[5] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018) at 6.1.
The guiding principles in Direction 79 that the Tribunal must apply in determining whether or not to revoke a visa cancellation include:
·Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia bearing in mind that being allowed to remain in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law abiding.
·The Australian community expects that the Australian Government can and should cancel a non-citizen’s visa if they commit serious crimes in Australia or elsewhere.
·A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to have to forfeit the privilege of staying in Australia.
·Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
·The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled.
Keeping those guiding principles in mind, I turn my mind to the primary considerations and other considerations set out in Part C of Direction 79:
·Primary considerations:
oProtection of the Australian community
oThe best interests of minor children in Australia
oExpectations of the Australian community
·Other considerations include (but are not limited to):
oInternational non-refoulement obligations
oStrength, nature and duration of ties
oImpact on Australian business interests
oImpact on victims
oExtent of impediments if removed
Protection of the Australian community – 13.1 of Direction 79
When considering the protection of the Australian community, I have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity. I give consideration to:
·the nature and seriousness of the non-citizen’s conduct to date; and
·the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 13.1.1 of Direction 79
The offences of intentionally causing harm and cultivating a commercial quantity of cannabis are serious offences. For the offence of intentionally causing harm the applicant was sentenced to 2 years and 10 months imprisonment with a non-parole period of 18 months. That sentence was suspended upon the applicant entering into a good behaviour bond for a period of 2 years. The applicant breached his good behaviour bond by committing the further offence involving the cultivation of cannabis. For this offence he was sentenced to 18 months imprisonment in 2014. The sentencing judge considered the drug offence a serious offence, which was made more serious because it was committed whilst subject to a suspended sentence.
I take into account that the offence of intentionally causing harm involved some violence albeit that the sentencing judge was not satisfied beyond reasonable doubt that the applicant actually stabbed the victim. However, the sentencing judge found that the applicant was aware that his co-accused had the knife and may use it.
These more serious offences where committed in 2009 and 2013 when the applicant was 23 and 28 years old respectively. He was not a young man at that time. The applicant was 16 years old when he arrived in Australia in 2001. Three years later he committed his first offence and he has offended regularly since then. He was convicted of disorderly behaviour and resisting police in 2006 and 2007 and again in 2012. There were other convictions for possessing and using a prohibited weapon in March 2008 and damaging property in October 2010. I take into account that his offending has been frequent and commenced soon after his arrival in Australia with a trend of increasing seriousness. The cumulative effect of his repeat offending is very relevant.
The applicant accepted during the hearing that his offending was very serious and said that he was not thinking at the time. I consider that the nature and seriousness of the applicant’s offending weighs heavily in favour of not revoking the visa cancellation.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 13.1.2 of Direction 79
In considering whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, I have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I also have regard to:
·the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and
·the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.
In considering the risk to the Australian community, I must have regard to cumulatively, the nature of the harm should the applicant reoffend and the likelihood of the applicant engaging in criminal or other serious conduct. In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[6] Her Honour states that to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[6] (2014) 225 FCR 424.
If the applicant were to engage in further similar offending, then the resulting harm would be very serious. The applicant was a knowing and willing participant to a stabbing in the course of which serious injuries were inflicted on the victim. Whilst not committing the stabbing himself, he helped facilitate it, thus showing a propensity to be involved in violent actions resulting in serious injuries to others. In addition, a number of other offences involved an element of violence and suggest he is unable to control his aggressive impulses when he is angry or intoxicated. He inflicted serious property damage with a baseball bat in 2010 and has been violent towards police on numerous occasions, generally whilst intoxicated.
The applicant says that his time out of the community (almost 6 years) has taught him a lesson and that he will not reoffend. He says that the offences occurred when he was a younger man, often under the influence of alcohol or drugs, and that he has now had time to mature and to reflect on what is important to him. He accepts responsibility for his wrongdoing. Whilst in prison, the applicant undertook a Kairos short course in Christianity and leadership. He also completed various certificates to improve his English. He now has the support of his current partner with whom he has had a committed relationship since 2018.
I do not have the benefit of any medical or psychological opinion as to the likelihood of the applicant reoffending. I am concerned that the applicant committed his drug offence whilst on a good behaviour bond and after receiving a specific warning that he would go to prison if he re-offended. The sentencing Judge noted in his remarks in October 2014 that the applicant had been given the opportunity to reform and that he had failed to do so. I am concerned that the applicant still has no family support in Australia although I take into account the benefit of his current relationship with his partner.
The applicant has been in prison or detention since being sentenced for the drug offence. I take into account the applicant’s generally good behaviour whilst in prison and in detention although I note some relatively minor incidents whilst in immigration detention involving aggressive language when interacting with the staff. I take into account some positive employment references from 2015 and 2017. A previous employer reference from October 2015 states the employer would be willing to employ the applicant and to support him upon his release.
I do not consider that there is sufficient evidence to show that the applicant has been rehabilitated or that he has genuinely learned his lesson. The applicant cannot point to any extended period when he has been at liberty and has not reoffended. He was given a chance back in 2012 when given a suspended sentence despite his involvement in a violent attack where the victim was stabbed and seriously injured. Despite the leniency of the sentence, the applicant did not learn his lesson. I consider that this shows that the applicant has a propensity for reoffending. I conclude that the applicant poses a moderate risk of committing further offences.
Conclusion as to protection of the Australian community
The government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[7] Given the serious nature of the harm that flows from the repeated offences of the nature committed by the applicant, I consider that a moderate risk of further similar harm is unacceptable. I conclude that the primary consideration of protection of the Australian community weighs strongly in favour of non-revocation of the cancellation decision.
[7] Direction 79 at 13.1(1).
Best interests of minor children – 13.2 of Direction 79
In making a determination about the revocation of a visa cancellation, I must take into consideration the best interests of any children in Australia that are under the age of 18 years. Each child’s interests are to be considered individually to the extent that their interests may differ.
The following factors that I must consider and are relevant to this application include:
·the nature and duration of the relationship between the child and the applicant. 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;
·the extent to which the applicant is likely to play a positive parental role in the future;
·the impact of the applicant’s prior conduct and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·the likely effect that any separation from the applicant would have on a child, taking into account ability to maintain contact in other ways;
·whether there are other persons who already fulfil a parental role in relation to the child; and
·any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).

I note that at the hearing for the 2017 AAT decision the applicant relied on his relationship with the children of his former partner.

In the applicant’s current statement of facts, issues and contentions the applicant relies upon a relationship with the children of his current partner. Those children are 13 and 7 years old. It is contended that the current partner and her children would suffer hardship if the applicant were removed. I note that there is no express reference to the children in the applicant’s most recent statement of 16 December 2019 or in his current partner’s statement dated 21 March 2019. The applicant has not had the opportunity to develop any meaningful relationship with those children because he has been in detention since the commencement of his relationship with his current partner. There is no evidence of a relationship with the children before the applicant was imprisoned. There is no evidence of any meaningful contact between the applicant and the children. The applicant’s partner already fulfils a parental role for the children.
Whilst I accept that revocation would be in the best interests of the children, I give minimal weight to this factor when considering whether to exercise the discretion to revoke cancellation decision.
Expectations of the Australian community – 13.3 of Direction 79
In YNQY v Minister for Immigration and Border Protection,[8] Mortimer J held that the expectations of the Australian community were inextricably linked to the other primary consideration about the protection of the Australian community, and that the expectations referred to in Direction 79 were those espoused in clause 13.3(1), rather than any objective expectations put forward by an applicant. This position has been affirmed by the Full Court of the Federal Court in FYBRv Minister for Home Affairs.[9]
[8] [2017] FCA 1466.
[9] [2019] FCAFC 185.
In exercising my discretion, I am also informed by the principle at paragraph 6.3(1) of Direction 79 that:
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.
The Australian community expects non-citizens to obey Australian laws while in Australia. This expectation has not been met with respect to the applicant in the past. The applicant has breached the trust that the Australian community placed in him.
Australia has a low tolerance of any criminal conduct by a person such as the applicant who had been participating in and contributing to the Australian community only for a short period of time before offending. The applicant’s first offending took place about 3 years after he arrived and continued until he was finally incarcerated. There appears to be little or no period of positive contribution to the community by the applicant, although I do take into account his periods of employment. I also take into account the numerous courses that the applicant completed whilst in prison and that there was generally no issue with his conduct whilst in prison or detention.
Taking into account the serious nature of the offending and risk of reoffending, I find that the expectations of the Australian community weigh strongly in favour of non-revocation of the cancellation decision. The applicant committed repeated offences some of which involved violence and drugs and he should generally expect to forfeit the privilege of staying in Australia.[10]
[10] Direction 79 at 6.3(2).
Other considerations
In deciding whether to revoke the cancellation of the applicant’s visa, I must take into account the other considerations listed in Direction No. 79 but these are not exhaustive.[11]
[11] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395 [86].
I take into account that the applicant claims to fear serious harm if returned to Iraq and that he wants these fears to be considered under Australia’s non-refoulement obligations.
The concerns that the applicant will face if removed are relevant to international non-refoulement obligations and the extent of impediments if removed. The level of detail necessary for these considerations will depend, among other things, on the likelihood of the applicant being removed and the level of generality or specificity of the information suggesting harm.[12] In addressing these considerations I must properly understand and consider the legal consequences of the decision being made (in particular detention and removal). What the legal consequences are is a question of fact. I must also consider the adverse impact of removal upon the applicant, including the impact of harm which does not engage Australia’s non-refoulement obligations.[13]
[12] Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620 at [62].
[13] BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456.
International non-refoulement obligations
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.[14]
[14] Direction 79 at 14.1(1).
The question before the Tribunal in considering any non-refoulement claims is a state of satisfaction as to whether there was “another reason” why the original decision should be revoked.[15] I am required to properly consider the claims being made and the factual material being relied upon by the applicant.[16] The respondent submitted[17] (in my view correctly) that:
[15] Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28].
[16] Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [27].
[17] Respondent's statement of facts issues and contentions dated 13 January 2020 at [55].
While it is acknowledged that the fact that he has not been successful in relation to that application does not shut out the argument being made that such claims are also relevant in the context of a non-revocation decision, the findings by the Tribunal in relation to those claims are also relevant and can assist to inform this Tribunal when accessing the claim.
The applicant contends that he would face harm if returned to Iraq and that the Tribunal needs to consider Australia’s international non-refoulement obligations. In making this contention the applicant does not seek to disturb the findings made in the MRD decision but he says that the factual background to claims of non-refoulement and fear of harm have changed given the deteriorating circumstances in Basra since those findings were made in the MRD decision in September 2019.

The applicant has made a number of claims in expressing fear of harm if returned to Iraq, which are set out in his statement dated 16 December 2019 at [2] –[7] as follows:
2. I understand that the decision to refuse my Protection visa was recently affirmed by the Administrative Appeals Tribunal. However, the situation in Iraq and in my home city of Basra has continued to deteriorate and so I confirm I still fear that I will face serious harm if I am to be removed to Iraq. I confirm that I wish for my fears of harm to be considered under Australia’s non-refoulement obligations.
3.My home city of Basra is currently facing widespread protests due to the horrible living conditions. The protests are due to the lack of safe drinking water, acute electricity shortages, government corruption, and the lack of employment opportunities.
4.I completely support these protests and have been keeping up to date by watching the news, watching videos on youtube, and talking to friends and family. My two brothers are actively participating in the protests – my brother is a victim of the lack of opportunities because even though he is well-educated there are no jobs.
5.If I am removed, I will feel compelled to join in on the protests. I am someone who feels very strongly about speaking out about corruption and abuse of power. For instance, while in immigration detention I was an active participant in the hunger strike. Our goal was to draw attention to our view that some of the guards were abusing their power, and also to highlight our concerns regarding our living conditions and lack of rights. These are the same types of issues facing the people of Iraq.
6. As a protester, I know that my life will be at risk as the protests have become extremely violent. Hundreds of people have already been killed and thousands more injured by the Iraqi security forces and militias. I fear that I will be killed, beaten, unlawfully detained, or threatened. For instance, my family’s neighbour’s husband was recently killed while attending a protest. However, I will have no choice because unless things change in Basra, there is no life or future for me or my family.
7.Even if I were not to take part in the protests, my life would still be at risk due to the generalised violence in Basra. Furthermore, the actions of the Iraqi government in violently cracking down on protestors rather than taking steps to fix the issues shows that life in Basra is going to continue to deteriorate to the extent that survival will be very difficult – soon we will have no water, power, or jobs.
In the applicant’s statement of facts issues and contentions dated 16 November 2019, the applicant relied upon country information, including reports from November 2019, in support of his contention that the current conditions in Iraq give rise to non-refoulement obligations and a real risk of harm if the applicant were returned to Iraq. The applicant contended at [33] and [34]:
33.A range of country information has now been provided that establishes that protesters throughout Iraq are subject to being killed, beaten, arrested, tortured, assassinated, silenced, and ‘disappeared’. We contend that as a protester, [the applicant] will plainly face a real risk of violation of his rights.
34.Country information also confirms that the instability has created an environment where crime and violence is thriving, and where extremism is on the rise. We therefore contend that even if [the applicant] was not actively involved in the protests, he still faces a real risk of serious harm if returned to Iraq.
Evidence of the deteriorating circumstances in Iraq is found in the updated advice from the Department of Foreign Affairs and Trade current as at 14 November 2019, which refers to large, violent protests taking place since 1 October 2019 and that security forces have used tear gas, water cannons and live ammunition against protesters. The applicant provided further evidence from journalist reports in November 2019 referring to the spread of violent protests across the country. The protests are expected to continue because the authorities in Iraq are not addressing the issues. It is reported that the Iraqi government has begun growing more authoritarian in response. There is a reference to a peaceful sit-in at Basra being broken up by security forces using live bullets, tear gas and sound bombs against demonstrators.
I accept the evidence of the applicant regarding the escalating protests in Basra and his brothers’ participation in those protests, but I note that his brothers have not been injured whilst protesting. The applicant says that he will feel compelled to join in on the protests. The respondent submits that it is the applicant’s choice as to whether he participates in these protests and that Australia’s non-refoulement obligations will not be engaged based on speculation as to what the applicant is likely to do in the future. If the applicant is returned to Basra I consider that the situation has deteriorated to the point that there is a real risk of harm to him even if he does not participate directly in the protests. It appears to me that, given the involvement of his family, it is inevitable that he would be caught up in those protests and the violent suppression of them.
I accept that there is a real risk of harm if the applicant returns to Iraq and that the applicant is owed non-refoulement obligations.
I now have regard to the legal consequences of a decision to not revoke the cancellation decision, bearing in mind my determination that the applicant is a person in respect of whom non-refoulement obligations are owed. Specifically, the applicant will be liable to be removed from Australia as soon as it is reasonably practicable for that to occur.[18]
[18] Migration Act1958 (Cth) s198.
The applicant is liable to be held in immigration detention until he is removed from Australia. Given the obligation to remove as soon as reasonably practicable, his detention would not be indefinite.[19]
[19] See DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 at [26]-[30]; and PRHR v Minister for Immigration and Border Protection [2017] AATA 2782 at [158].
Given that the legal consequence is that the applicant would be returned to Iraq, it is my assessment for the reasons set out above that there is a very real risk that the applicant will suffer significant harm if the cancellation decision is not revoked. This factor weighs heavily in favour of revoking the cancellation decision. I accept that regardless of whether the applicant’s claims are such as to engage non-refoulement obligations, the applicant would face significant hardship including a risk of violence in the event that he were to return to Iraq.
Strength, nature and duration of ties
In making my decision, Direction 79 requires that I consider the following factors:
·how long the applicant has resided in Australia, including whether the applicant arrived as a young child (noting that less weight should be given where the applicant began offending soon after arriving in Australia, and more weight should be given to time the applicant has spent contributing positively to the Australian community); and
·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.
I adopt the reasons in paragraphs [78] to [84] of the 2017 AAT decision which are set out below:[20]
[20] See above [9].
78.I take into account that the applicant arrived in Australia at the age of 16 and has resided here since then. He returned to Iraq briefly twice (in 2013 and 2014).
79.The applicant has worked in various capacities during his time in Australia... I have had regard to written statements provided by his work colleague, [Ms N], and also [Mr S] who has indicated a willingness to employ him upon his release from prison. [Mr S] is an electrical contractor and the applicant indicated that [Mr S] was willing to give him an apprenticeship.
80.The Direction requires me to have regard to how long the applicant has resided in Australia, including whether he arrived as a young child. The Direction provides that less (favourable) weight should be given when the noncitizen began offending soon after arrival and more (favourable) weight to time the applicant has spent contributing positively to the Australian community.
81.I consider that the applicant’s circumstances fall somewhere between the two ends of this spectrum. He has spent a substantial amount of time residing in Australia, but did not arrive as a small child. He has lived his entire adult life in Australia, but still has much of his life ahead of him. The applicant’s offending began in 2004, three years after his arrival in Australia and it escalated to involvement in a violent offence in 2009. His offending has been reasonably continuous since 2004, although some of the offending was minor.
82.The applicant clearly has some good friends in Australia and appears to have maintained a relationship with [Ms B’s] extended family. He has volunteered….
83.However, the applicant has no family in Australia and no stable employment history in Australia. Accordingly, I have concluded that his existing ties with Australia are relatively weak and he has stronger personal ties to Iraq. There is continual reference in the material to his desire to send money to his family in Iraq whom he visited in 2013 and 2014. It is my understanding that he is in regular contact with his family and I consider that his connection and commitment to his family has remained strong despite the fact he left Iraq when he was 16.
84.Accordingly, the applicant has no immediate family who will be adversely impacted if he is removed from Australia. Whilst I accept there may be some impact on [Ms B], her family and perhaps some of his other friends, I expect that to be minimal. The applicant’s strongest family ties are with his family in Iraq.
Since the 2017 AAT decision, the applicant has commenced a relationship with his current partner. This relationship only began recently and has not been tested by time together in the community. Whilst I accept that his current partner will be adversely impacted by non-revocation of the applicant’s visa, I place very little weight on this consideration.
In my opinion, the strength, nature and duration of ties weigh slightly in favour of revocation of the cancellation decision.
Impact on Australian business interests
No evidence or argument was advanced with respect to any impact on Australian business interests.
Impact on victims
Paragraph 14.4(1) of Direction 79 provides that I must consider the impact of a decision not to revoke on members of the Australian community, including victims of the applicant’s criminal behaviour, and the family members of the victim or victims where that information is available and the applicant being considered for revocation has been afforded procedural fairness.
I have not received any direct evidence with respect to the impact non-revocation would have on the victim of the applicant’s criminal behaviour and family members. In the absence of such evidence, I cannot find this other consideration weighs in favour of, or against, revocation of the cancellation decision.
Extent of impediments if removed to home country
Direction 79 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to Iraq in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
·The applicant’s age and health;
·Whether there are substantial language or cultural barriers; and
·Any social, medical and/or economic support available to them in that country.
The applicant is 34 years old and generally in good physical health. The applicant’s parents and siblings live in Iraq and would support him if he were to return. No doubt the employment and general economic conditions in Iraq are much worse than in Australia, but the applicant would benefit from having the support of his family some of whom are themselves employed. There are no significant language or cultural barriers. The findings in the MRD decision are relevant in this regard; in particular that the applicant as a member of the Shia population, does not face a real risk of significant harm from extremist groups in Basra on return to Iraq or in the reasonably foreseeable future and that the tribunal found the applicant did not face a real chance of persecution or significant harm for being a failed asylum seeker from a Western country, a returnee who has spent significant time in a Western country or for actual or imputed secular political opinions on account of having spent significant time in a Western country. Nevertheless, it is a relevant factor that the situation in Iraq has deteriorated and that the protests have involved more violence.
As I have already found with respect to non-refoulement obligations, there are significant impediments that would arise if the applicant were returned to Iraq because of the deteriorating situation of violence in Iraq and particularly in Basra. Those matters raised with respect to non-refoulement are also relevant to this factor regarding impediments. The applicant faces a real risk of harm in the nature of violence due to this deteriorating situation. This factor weighs in favour of revoking the cancellation decision.
Conclusion as to whether there is another reason to revoke the original decision
I have considered the specific circumstances relating to the applicant as part of my consideration whether to revoke the cancellation decision. I am now required to weigh up those considerations.
The primary considerations relating to the protection of the Australian community and the expectations of the Australian community are overwhelmingly in favour of not revoking the cancellation decision. The offending was frequent and serious involving violence and drugs amongst other less serious offences.
Direction 79 at paragraph 6.2(1) provides general guidance that the Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens. I consider that the principle in Direction 79 at paragraph 6.3(4) is applicable, namely:
In some circumstances, criminal offending or other conduct and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
This is a case where the risk of future harm from the applicant is unacceptable because of the serious and frequent nature of the crimes committed.
I note that primary considerations should generally be given greater weight than the other considerations.[21] I consider that the primary considerations of the protection and the expectations of the Australian community outweigh the countervailing considerations.
[21] Direction 79 at 8(4).
The applicant will be at risk of harm if returned to Iraq but the Australian community will face an unacceptable risk of further harm if the applicant remains in Australia. The applicant has no children or other family in Australia. He will now be returned to his parents and other siblings who live in Basra in the country of Iraq. His current partner will be impacted negatively by his removal but that relationship has only developed recently whilst he was in detention and at least he goes to a place where his family live.
Being able to remain in Australia is a privilege Australia conferred on the applicant in the expectation that he is law-abiding and will not cause or threaten harm to individuals or the Australian community – by committing the drug and violence related offences, amongst the other less serious offences, the applicant has not been law-abiding.[22] By committing further offences after being given a suspended sentence the applicant has shown disrespect to Australia’s law enforcement framework.[23] The Australian community expects that the Australian Government should cancel the visas of non-citizens who commit such serious crimes in Australia.[24] Australia has a low tolerance with respect to the criminal offending of the applicant who has been participating in, and contributing to, the Australian community only for a short period of time.[25]
[22] Ibid, at Principle 6.3(1).
[23] Ibid, at Principle 6.3(1).
[24] Ibid, at Principle 6.3(2).
[25] Ibid, at Principle 6.3(5).
It follows from the application of the guiding principles in paragraph 6.3 of Direction 79 that I am not satisfied that there is another reason why the cancellation decision should be revoked.
Decision of the Tribunal
The decision of the Tribunal is to affirm the reviewable decision.

I certify that the preceding 74 paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

........[Sgnd]............................
Administrative Assistant Legal
Dated 31 January 2020
Dates of hearing:  23 January 2019
Applicant’s Representative:  Mr M Simmons from MSM Legal
Respondent’s Representative:  Ms. D Watson (AGS lawyer) on instructions from the Australian Government Solicitor