Ranjbarian and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] ARTA 351
•29 November 2024
Ranjbarian and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] ARTA 351 (29 November 2024)
Decision and Reasons for Decision
Applicant/s: Hamid Reza Ranjbarian
Respondent: Minister for Immigration, Citizenship and Multicultural
Affairs
Tribunal Number: 2024/6892
Tribunal: General Member S. Fenwick
Place: Sydney
Date: 29 November 2024
Decision:The Tribunal sets aside the decision dated 9 September 2024 not to revoke the mandatory cancellation of the Applicant’s Class XB Subclass 200 Refugee visa and substitutes it with the decision that there is another reason why the mandatory cancellation should be revoked.
......................[SGD].................................................
General Member S. Fenwick
Catchwords
MIGRATION – mandatory cancellation of visa – national of The Islamic Republic of Iran – Class XB Subclass 200 Refugee visa – failure to pass character test – serious drug offending – whether another reason mandatory cancellation should be revoked – Ministerial Direction No. 110 applied – ties to Australia – best interest of minor children – legal consequences of the decision – decision set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
JYVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 3617
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
BACKGROUND
Mr Ranjbarian applied on 11 September 2024 for review of a decision dated 9 September 2024 not to revoke the mandatory cancellation of his Class XB Subclass 200 Refugee visa. This decision followed the prior mandatory cancellation of his visa on ‘character grounds’ under s 501(3A) of the Migration Act 1958 (Cth) (the Act).
The Applicant was granted his visa in 2013 having been recognised in Indonesia by the United Nations High Commissioner for Refugees in 2012 as a person who faced persecution in Iran. Mr Ranjbarian fled Iran with his wife, Ms Rajabali, and his eldest daughter, in 2011 then travelling to Indonesia. The family sought to come to Australia by boat and survived the capsize of their vessel. They ultimately travelled to Australia by plane arriving in mid-2013 when Mr Ranjbarian was aged 31. He and his wife subsequently had a second child. Their daughters are now aged sixteen and nine years of age respectively. The Applicant and Ms Rajabali have divorced since his imprisonment.
The offending which resulted in the Applicant failing the character test was his involvement in a conspiracy to import drugs, and also to his supply of drugs, across the period from mid- July 2018 to February 2019. Relevantly, Mr Ranjbarian’s offending with a co-offender was revealed to authorities by an informant who was ostensibly also part of the conspiracy. The informant was a former business partner. Mr Ranjbarian was sentenced in 2021 to a total effective sentence of eight years and nine months. He has been granted parole and is due for release on 31 December 2024.
Mr Ranjbarian was represented at the Tribunal and lodged a Statement of Facts, Issues and Contentions (ASFIC), and a Tender Bundle (ATB). The Respondent lodged documents under the Act (G-Documents), a SFIC (RSFIC), and a Tender Bundle (RTB) comprising material produced under summons.
Shortly after the hearing both parties lodged brief further submissions addressing the legal consequences of a decision, with particular focus on the specified criteria for the grant of a refugee visa and a protection visa under the Act.
Both Mr Ranjbarian and Ms Rajabali gave evidence at the hearing. His eldest daughter also briefly appeared. Mr Warwick Aston, a corrections officer, also gave evidence. Assistance was provided at the hearing by an interpreter in the Farsi language, primarily to Ms Rajabali.
LEGISLATION
The Act provides that a person may fail the character test in a number of ways, and the test is defined in s 501(6). Mandatory visa cancellation in circumstances of a substantial criminal record arises under s 501(3A) of the Act. In this instance, Mr Ranjbarian has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
As noted, a decision may be made to revoke the mandatory cancellation. Under s 501CA(4), revocation can be on grounds that a person passes the character test, or where there is another reason to revoke the decision. A compulsory source of guidance has been issued in the form of Direction No. 110 (the Direction). I set out here the principles that are to inform the application of factors specified in the Direction:
(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)The safety of the Australian Community is the highest priority of the Australian Government.
(3)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.
(4)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 noncitizen poses a measureable risk of causing physical harm to the Australian community.
(5)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 non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)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.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
ISSUES
As noted, Mr Ranjbarian has failed the character test due to his criminal record, which is confirmed by the official extract (G3). Accordingly, the sole issue for determination is whether there is another reason to revoke the mandatory cancellation. I am not confined to the factors specified in the Direction, however in this instance no additional factors arise for consideration.
PRIMARY CONSIDERATIONS
Of the primary considerations specified in the Direction, there is no evidence in this matter relating to the second such consideration addressing whether the conduct engaged in constituted family violence. Accordingly this consideration weighs neutrally.
Protection of the Australian community
The nature and seriousness of the conduct
Mr Ranjbarian plead guilty to a series of state and federal offences just prior to the commencement of his trial. The circumstances of the offending are set out in detail in an Agreed Statement of Facts (RTB, 51) and in the remarks of the sentencing judge (G5). For simplicity, I will rely initially on the former document for a description of the offences (RTB, 51 [1]-[8]):
(a)between July 2018 and February 2019, the Applicant, a co-offender, the informant and persons unknown, conspired to import a commercial quantity of methamphetamine. It was to be impregnated into coconuts and a company was set up for this purpose and a dry-run importation of the fruit undertaken in late 2018;
(b)in early 2019 the co-offender proposed a plan to import between 1-2kg of methamphetamine in dishwashing tables, a scheme already underway when the Applicant became involved. Upon arrival the shipment contained no drugs;
(c)in late 2018 and early 2019, the Applicant supplied the informant on three occasions with quantities of methamphetamine provided for this purpose by the co-offender;
(d)by way of background, the informant had worked in a painting business with the Applicant but became disgruntled and in June 2018 approached police about
Mr Ranjbarian allegedly importing methamphetamine, and the informant explained his assistance by saying words to the effect ‘I want to fuck him’ (meaning the Applicant); and
(e)under a controlled operation authority and surveillance device warrants, covert recordings were made of conversations between the conspirators.
I now refer to the matters taken into account by the sentencing judge (G5 [81]-[119]:
(a)the Applicant played an active role in the conspiracy, it was a serious offence, and was not intended as a ‘one-off’ but a regular bi-monthly shipment;
(b)he was more than a go-between with the other parties as he told the informant when the ‘right time’ would be to proceed, advised about the need for a company, about the profits arising, and was involved in aspects of the logistics including visiting storage facilities;
(c)the Applicant’s intermediate management role and expected some benefit from the importation, and denials of benefit appearing in records of conversations were disingenuous, given the large profits available;
(d)the multiple offences cannot be regarded as isolated lapses in otherwise law-abiding conduct, and the objective seriousness of the supply charges is considerable as the Applicant must have expected some benefit;
(e)the Applicant was diagnosed as suffering Post-Traumatic Stress Disorder (PTSD) arising from his experience at sea off Indonesia, and a depressive illness or adjustment disorder arising from his arrest and imprisonment;
(f)he had made a real success of his life before offending, bult up a successful business and appeared in a documentary about his life as a refugee, and character references were positive as to his good character; and
(g)there was evidence advanced of remorse and contrition and his exemplary conduct during pre-trial detention and lack of prior offending angered well for rehabilitation.
In his most recent statement (ATB,1), Mr Ranjbarian takes full responsibility for his offending and expresses regret for his actions. In his evidence, the Applicant explained that prior
statements (G13, 14) which focused on the actions of the informant encouraging his offending, reflected the circumstances as described in the Agreed Statement of Facts.
Some time was taken in cross-examination to elaborate upon Mr Ranjbarian’s involvement. In nearly all instances the Applicant agreed with specifics that were put to him. He denied one recorded statement suggested that he hoped to continue importing with impunity after obtaining Australian citizenship. When it was put to him that he did intend to participate in multiple repeat shipments, Mr Ranjbarian again stated that he was not going to continue with future shipments.
Mr Ranjbarian was also asked about an incident in which he was found in possession of a knife while he was on bail before his trial. The Applicant stated that this occurred when he was, in compliance with bail conditions, making an authorised trip outside of his residence. He placed his wallet in his pocket prior to driving to a court date. Upon security screening a ‘credit card knife’ was detected which he stated he was not aware of. The matter was dealt with as a ‘s 10A’ conviction with no other penalty.
For the Applicant it was acknowledged in submissions that his offending is to be considered very serious. It was also acknowledged that the multiple charges may be a relevant matter in respect of the cumulative impact of offending, and it is accepted they led to a significant term of imprisonment (ASFIC [9]-[10], [12]). In short, this element of this consideration should weigh heavily against Mr Ranjbarian’s character (ASFIC [15]).
In submissions, the Respondent contended that the Applicant was engaged in multiple importations and instances of supply, and that he had intended to continue to offend. It is also contended that the objective seriousness of the offending is marked by the significant penalty, and the nature of harm arising from drug importation is serious (RSFIC [18], [21]). It was also contended that the incident with the knife should be considered as a further factor relevant to the Applicant’s regard for the law (RSFIC [23]).
I agree that the offending should be considered as of a very serious type (8.1.1(1) a)). While the offending is relatively confined in scope, meaning it is not particularly frequent (8.1.1(1) e)), the conspiracy included multiple elements which speaks relevantly to a cumulative impact that is of concern (8.1.1(1) f)). I note also the sentencing judge appeared to accept that the scheme would be ongoing.
While I have not elaborated here in detail the numerous steps in which Mr Ranjbarian was involved, which are outlined in the materials and were addressed in cross-examination, I take these into account as evidence of the protracted and carefully developed nature of the offending.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
As noted, the sentencing judge considered the report of a psychologist, Dr Olav Nielssen (G46). This report contains a quite detailed personal history of the Applicant, and Dr Nielssen reports no history of drug use or any forms of addiction. Dr Nielssen also makes no finding of any major psychiatric disorder. The report does not appear to address the circumstances of the offending in any specific way, nor does it include an opinion about the risk of future offending.
What I understand to be the most comprehensive record of programs and activities undertaken by the Applicant since sentencing appears in Mr Ranjbarian’s Pre-release report, prepared by Corrective Services NSW, Community Corrections (ATB,5). Mr Ranjbarian was reportedly not eligible for programs targeted at his offending but nonetheless attended a program while on remand. Following incarceration he attended programs including Thinking Skills, and a Positive Lifestyles Program through the Salvation Army.
The report further records the Applicant as engaging in various educational programs, notes significant periods of employment. Further, his classification level has permitted him to have both pre-release leave and to participate in an off-complex project of community work. Mr Ranjbarian is also recorded as identifying plans for release that include reconnecting with his family, accepting an offer of employment as a painter, and eventually re- establishing his own business. Written offers of employment are in the materials (ATB 11).
The report also addresses supervision arrangements upon release. Mr Ranjbarian is described as having been assessed as at a low risk of reoffending, according to a standard assessment tool. His release is subject to supervision by Community Corrections and will be at a low level following an initial 6 week period. The Applicant’s post-release plan includes referral for psychological intervention, financial counselling, and certain intervention modules have been identified.
Other records of Mr Ranjbarian’s activities are found in extensive case notes from the Applicant’s corrections facility among materials produced under summons (RTB3).
In his latest statement (ATB1), Mr Ranjbarian identifies both personal reflection and programs and other activities while incarcerated as mitigating his risk of re-offending [5]-[7]. He also states that he understands the need to distance himself from environments and individuals that pose a risk of criminal activity and that he has learned about how to manage his behaviour, and is committed to improve himself [8]-[12].
The Applicant states further that he has come to understand how greed drove his bad decisions in the past, has demonstrated good conduct and the ability to adhere to rules in custody [13]-[22]. Mr Ranjbarian also identifies his family as a source of strength and expresses determination to support them in the future [25]-[26].
In cross-examination, Mr Ranjbarian accepted that his offending was motivated by greed. He also accepted that he has stated that at that time, his life was ‘perfect’ and he led a happy, healthy, and financially secure life. The Applicant agreed that he intended to rebuild his business, but did not accept that this process would put strain upon the process of reestablishing himself in the community, and rebuilding his family relationships.
Mr Ranjbarian noted at this point that he spent seven months in the community on bail. He also stated that after five years in prison he had the courage and motivation to do what he can to succeed in future.
Some attention was given in cross-examination to the timing and nature of various programs undertaken by Mr Ranjbarian in prison. He acknowledged that the majority had been conducted in or after 2022, but stated that he has also undertaken community work prior to this. I asked the Applicant to explain the significance of communication with the Salvation Army (ATB,13). Mr Ranjbarian stated that as part of his parole planning, he has arranged to obtain assistance around money management, including assistance with obtaining a credit report and ensuring a financial plan is in place.
Mr Ranjbarian elaborated further on what he had learned from programs he has undertaken, particularly self-reflection. He has learned about the consequences of his offending for the community, and in an addiction program was confronted with people directly affected by
drugs. Mr Ranjbarian stated that he has learned how to be assertive and would no longer be passive in his relationships.
In response to further questions from myself, the Applicant pointed to his pre-release report (ATB2) which notes that he was ineligible for offence targeted programs. He stated that he has undertaken all rehabilitation voluntarily. He stated that he punishes himself every day for his poor choices.
During evidence Mr Ranjbarian also confirmed that he has already made bookings in 2025 for both a general practitioner and a psychologist, as well as support for financial counselling (confirmed in materials lodged; ATB,12).
Ms Rajabali has provided a number of statements in support of the Applicant, most recently in November 2024 (ATB,172). In her evidence, Mrs Rajabali confirmed that she and the Applicant were divorced, a situation that arose, I understood, from community pressure. She stated that, despite this, Mr Ranjbarian is the only man she can see continuing her life with. When it was put to her in cross-examination that threat of further offending would hang over their relationship, she stated that she wants to trust that he would not offend in a similar way again.
I note the oral and written evidence provided by Mr Aston (G92). Mr Aston gave evidence as to his extensive period of service in both the police force and corrections service. He stated that he had never previously been motivated to give a reference in support of an inmate. Mr Aston stated, however, that due to what he described as Mr Ranjbarian’s high moral stature he had not previously come across a person who had demonstrated such levels of rehabilitation.
I also note the written material provided by Mrs Susan Channell, most recently in November 2024 (ATB, 189). Mrs Channell is the mother of the Applicant’s son-in-law and is a registered Justice of the Peace. She states that she and her husband provided $10,000 bail for Mr Ranjbarian when arrested, and she refers to his positive character and her belief in his rehabilitation.
Her son, Mr Kane Channell, confirms in writing (ATB,185) that he and his wife have offered their home to accommodate Mr Ranjbarian upon release, an arrangement accepted by the parole authorities.
For the Applicant it was submitted that the Pre-release report should inform the revocation decision. It was also contended that the evidence demonstrates that Mr Ranjbarian has undertaken relevant rehabilitation, and has made appropriate post-release arrangements. Written submissions note that the Applicant’s history includes a background of trauma and his achievements in the community prior to offending (ASFIC [19]-[21]).
The Respondent’s submissions focussed in large part upon the contention that Mr Ranjbarian’s offending took place despite his otherwise ideal and balanced life. It was further contended that his rehabilitation has not been properly tested in the community and, indeed, rehabilitation was of a lesser significance due to the fact that greed was the motivation for the offending. It is contended in written submissions that any future offending of a similar nature has the potential to cause serious harm RSFIC [25]. It is also contended that Mr Ranjbarian’s offending showed a brazen attitude to life in Australia, and the lack of a qualified opinion concerning risk of recidivism [27]-[32].
The starting point for this consideration is having regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of potential risk increases (8.1.2(1), (2) a)). I consider the Respondent is correct to identify that drug offending has the potential to cause serous harm in the community. I consider it reasonable to find that the Applicant’s only history of criminal offending must be taken as an indicator of the potential nature of future re-offending.
There is limited, but relevant, evidence indicating that appropriate authorities have determined Mr Ranjbarian is considered a low risk for re-offending (8.1.2(2) b) i)). I consider that the Pre-release report that makes this assessment should be given due weight, including for the reason that it appears on its face to have contributed to the decision that he be granted parole.
Beyond any formal risk assessment, I consider that I am able to place weight on the wide range of evidence before me that indicates clearly that Mr Ranjbarian will have upon his release on parole formal and informal supports that will contribute positively to a reduced
risk of re-offending. That is, he will have accommodation, employment and a supportive social network.
With respect to rehabilitation (8.1.2(2) b) ii)), I do not accept the Respondent’s contention that Mr Ranjbarian has not undertaken appropriate rehabilitation relevant to his offending. I consider that he has undertaken appropriate programs, within the relative restricted range available, and that the evidence overall indicates that he has conducted himself very well in prison. The Direction does not address only formal rehabilitation programs and in this vein, I consider that the evidence overall demonstrates that Mr Ranjbarian has developed insight into his offending, both personally and with respect to its impact on the community.
For these reasons, I consider it appropriate to find that the Applicant is not only at a low risk of reoffending, but that in his particular circumstances, this is not an unacceptable risk.
Summary finding
For the Applicant it is contended that this primary consideration weighs against revocation, and the Applicant does not pose an unacceptable risk of reoffending (ASFIC [32]). The Respondent contends, to the contrary, that he does pose an unacceptable risk and, therefore, this consideration weighs very significantly against Mr Ranjbarian (RSFIC [32]). The Respondent also contends here that this consideration be given greater weight pursuant to para 7(2) of the Direction.
I have found that Mr Ranjbarian’s offending is to be considered as of a very serious type. I have also taken account of evidence indicating his clear involvement over time in a relatively complex scheme. The offending was – to an extent – the result of provocation from an informer, however, its multiple elements and seriousness overall indicates that a high degree of culpability remains.
I have also found that the Applicant is at a low risk of reoffending and that his rehabilitation and community support mean that the risk of reoffending is not unacceptable.
Taking particular account of Mr Ranjbarian’s imminent parole and his positive record while incarcerated and my finding on risk, I find that this consideration weighs moderately heavily against revocation.
The strength, nature and duration of ties to Australia
The Direction requires consideration be given to the impact of a decision on an Applicant’s immediate family, and the strength, nature and duration of ties to the Australian community (8.3(1)-(2)).
I have noted briefly above a biography for Mr Ranjbarian, demonstrating his arrival in Australia as a mature adult. I have also made reference to his immediate and extended family group. I have also noted above, relevantly, the views of the Applicant and Ms Rajabali about their relationship.
There is not a substantial amount of material dealing with the Applicant’s wider ties. However, I note Mr Ranjbarian has described his former business as employing up to 15 painters (G12). Additional material indicates that Mr Ranjbarian was considered an example of a former refugee conducting a successful small business (G31-35).
It was submitted for the Applicant that this consideration be given heavy weight in favour of revocation. It was contended that Mr Ranjbarian has an ongoing relationship with his immediate and extended family and is, in short surrounded by good people. The Applicant’s past business ownership and future work prospects were also cited as indicators of his ties to Australia. Written submissions contend that business ownership in the past and the family support counterbalance the fact that Mr Ranjbarian’s offending commenced five years after his arrival in Australia (ASFIC [37]-[38]).
The Respondent noted in submissions the Applicant’s arrival in Australia as an adult, and that his offending commenced relatively soon after. It was also contended that consideration be given to the fact he has been incarcerated for almost half of his time in this country. In written submissions it is contended that this consideration weighs moderately in favour of revocation.
While the evidence throws up some ambiguity about the exact nature of the relationship between Mr Ranjbarian and his former wife, I consider it reasonable to conclude that they maintain a strong personal bond. I have also addressed above evidence concerning the Applicant’s views about the importance of family. I consider that a non-revocation decision will have a substantial impact upon his immediate family and this should be given substantial weight in favour of revocation.
Mr Ranjbarian has real and important other ties to a small extended family group. He has also made a positive contribution as a small business owner. Certainly, some consideration must be given to the fact that he arrived as a mature adult, not as a child. Conversely, the fact is that he was able to make his positive contribution in a relatively short period of time, which is admirable (8.3(2) a) ii)). I am not certain that offending after a five-year period necessarily constitutes ‘soon after arriving’ (8.3(2) a) i)).
Overall, however, I consider the weight given to Mr Ranjbarian’s other ties should be moderated somewhat due to the fact that he has been incarcerated for a large part of his time in Australia.
In short, given the particular balance of factors arising under this consideration, I find that it weighs moderately heavily in favour of revocation.
Best interests of minor children affected by the decision
I must make a determination about whether non-revocation is, or is not, in the best interests of a child affected by the decision (8.4(1)). The interests of each child should be considered individually where they may differ (8.4(3)). Mr Ranjbarian’s two daughters and the daughter of his sister- and brother-in-law are the minor children whose interests are affected by the decision.
I noted above statements made by Mr Ranjbarian concerning the importance of his family. He also attests in an early statement to frequent contact with his children (G13). The love and support of his children for their father is expressed in Mrs Rajabali’s recent statement (ATB, 1). In her evidence she confirmed that the Applicant stayed with the family while on bail. Mrs Rajabali also stated that she and the children travelled to Iran for a period of approximately six months as she needed support from her mother, but her mother is now in Australia. Mrs Rajabali stated that she considers Australia to be ‘her country’.
There are a number of written submission in the material from Mr Ranjbarian’s older daughter. Her oral evidence reinforced the emotional impact of physical separation from her father. It was also apparent that she considered her situation to have affected her schooling.
There are a limited number of references made in the materials, including Mr Ranjbarian’s Personal Circumstances Form (G12) and in statements (including ATB, 16) concerning the Applicant’s goddaughter, being the child of his sister- and brother-in-law.
It was submitted for Mr Ranjbarian that this consideration weighs heavily in favour of revocation. This was due to the role he plays in the lives of his own daughters, and the bond with the children of his sister- and brother-in-law. Written submissions acknowledge the fact that the Applicant’ children live with Mr Rajabali, but it is contended this consideration supports maintaining his presence in Australia (ASFIC [45]). Some emphasis is also placed on the hardship experienced by the Applicant’s older daughter [49].
The Respondent submitted that this consideration weighs strongly in favour of revocation. It was contended, however, that some consideration be given to the fact that Mr Ranjbarian has been incarcerated for a relatively substantial period. The relationship with his goddaughter is acknowledged in written submissions (RSFIC [56]).
I accept that Mr Ranjbarian’s parental relationship with his children is ongoing and that, despite the interruption of physical contact through incarceration, the evidence indicates it is a living relationship based upon meaningful contact (8.4(4) a)).
I consider the evidence overall to indicate both that the Applicant will play an important role in this lives of his children in the future, despite the effect of marital separation, and that the likely effect of his removal from Australia would be quite substantial upon the quality of this relationship (8.4(4) b), d)). This is confirmed by the views expressed at least by Mr Ranjbarian’s eldest daughter (8.4(4) f)).
Accordingly, I find that in respect of his biological children, this consideration weighs heavily in favour of revocation. I have limited, if any evidence, about the nature of Mr Ranjbarian’s relationship with his goddaughter, but I give this some limited weight.
Expectations of the Australian community
This consideration gives expression to the principle that non-citizens are expected to obey the law, and to the consequential normative standard that the community expects the government not to allow those who breach the principal expectation, or who pose an unacceptable risk of doing so, to remain in Australia (8.5(1)).
The Direction also provides that the nature of the character concerns arising in respect of a non-citizen alone may lead to the expectation that non-revocation is justified, particularly in relation to certain specified serious forms of conduct (8.5(2)). This expectation is to apply regardless of whether the non-citizen poses a measurable risk of causing physical harm (8.5(3)).
It was conceded in the Applicant’s submissions that Mr Ranjbarian has breached the expectation that he be law-abiding, and that this consideration weighs against revocation. It is also acknowledged that the gravity of the offending amounts to a serious violation of community standards such that the absence of a measurable risk of physical harm does not prevent this consideration weighing against revocation (ASFIC [58]-[59]).
The Respondent’s submissions were consistent with those of the Applicant. It was also contended that consideration be given here to the principle that the community have lower tolerance of criminal conduct where the offending took place a relatively short time after arrival. That is, Mr Ranjbarian had spent a considerable period of time in Australia incarcerated. Accordingly, it is contended that this consideration be given significant weight against revocation (RSFIC [62]).
I consider that Mr Ranjbarian has clearly breached the expectations of the Australian community founded in the principle that he was expected to abide by the law. It is self- evident that the Applicant has not been making a positive contribution to the community whilst in prison. However, as noted above, in the years prior to his offending he made a strong and positive start on his life in this country.
On balance, given the seriousness of the offending, I find this consideration weighs moderately heavily against revocation.
OTHER CONSIDERATIONS
Legal consequences of the decision
The Direction explains in tis consideration that an unlawful non-citizen should be removed from Australia as soon as is reasonably practicable, and will be subject to detention until that time, and that it is irrelevant whether they are at risk of harm upon return to their country of origin (9.1(1)). It explains also that there is an obligation not to forcibly return persons
where there will be a specific type of harm (non-refoulement), which harm is to be understood in the terms established by the concept of ‘protection obligation’ in the Act.
Mr Ranjbarian is a person in respect of whom there has been no protection finding, as also understood in the terms of the Act (9.1.2). He confirmed in a late passage of evidence at the hearing that he understood he had been recognised as a refugee, and that he did not fully understand what a protection visa application involved. It was agreed with the parties that his evidence should be taken as indicating his desire to make a protection visa application in due course if necessary.
The Applicant has raised claims that may give rise to a non-refoulement obligation, and they must be considered (9.1.2(1)). In his latest statement, for example, Mr Ranjbarian asserts that he cannot return to Iran due to his political and religious views (ATB,1 [23]), and these are essentially the same claims made in his earlier written submissions (G13). In his evidence, he confirmed that he participated in public anti-government action during 2011. He further confirmed that he had become Zoroastrian, as I understood his evidence, also as a gesture of protest.
Mr Ranjbarian’s UNHCR Refugee Certificate is in the materials before me (G15). It states in part:
he is a person of concern to the Office of the United Nations High Commissioner for Refugees, and should, in particular, be protected from forcible return to a country where he would face threats to his life or freedom.
For the Applicant, it was submitted that the criteria for the grant of a refugee visa (offshore) and a protection visa (onshore) are essentially the same. It was acknowledged that the Applicant may choose to apply for a protection visa, but it was most likely that he would at some point be granted a form of bridging visa. This outcome would result in a form of limbo which would weigh heavily due to the uncertainty of Mr Ranjbarian’s status.
In the supplementary submissions, it was contended a finding should be made that non- refoulment obligations are owed to the Applicant, and a similar contention is found in the substantive submissions (ASFIC [63]). It is also contended that he would likely fall within an ‘NYZQ’ cohort, being a person who cannot be removed to his country of origin. Submissions also advance the approach to this consideration as adopted by the Tribunal in JYVT and
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2024] AATA 3617 (JYVT).
The Respondent’s primary and supplementary written submissions both essentially adopt the position that I should defer consideration of whether non-refoulment obligations are owed, consistent with the decision in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17. The supplementary submissions then address the legal consequences in the following way:
(a)a non-revocation decision would trigger the obligation to remove the Applicant, but he would not be removed in the event of the grant of a protection visa [6];
(b)refusal of a protection visa on character grounds following a protection finding would not lead to his removal, the Applicant would not seek voluntary removal, involuntary removal is unlikely and, following NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, he would be released into the community [7];
(c)it is most likely the Applicant would be granted a Bridging visa R (BVR) for which a range of conditions are possible depending, in particular, upon whether he might be considered to pose a particular risk of harm to the Australian community [8];
(d)ultimately, the most likely outcome is that the Applicant will not be returned to Iran and will be living in the Australian community on a bridging visa, and therefore no wight should be given to any risk of harm arising if returned to Iran [9];
(e)the Applicant would remain in detention pending determination of any protection visa application and, on balance, is likely to be released into the community and therefore neutral or limited weight should be given in favour of revocation; and
(f)JYVT should be distinguished on the basis that matter addressed both visa cancellation and protection visa refusal decisions, albeit the Tribunal did afford some limited weight to the potential outcome of remaining in the community subject to a BVR.
This consideration remains grounded in Australia’s non-refoulement obligations and the Direction requires that I give consideration to Mr Ranjbarian’s claims. His claims are clear, but not elaborated with great detail. However, I consider it appropriate to have due regard
to the fact that he has already been determined to be a refugee and, accordingly, to be at risk if returned to Iran. While I accept that grant of a protection visa is the result of a specific process (9.1.2(2)), nonetheless I consider in these circumstances that non-refoulment obligations do arise in respect of Mr Ranjbarian.
There is no doubt a number of uncertainties then arise from the somewhat complex legal pathways available, which are in turn dependent upon future decisions by Mr Ranjbarian. However, I consider it likely that in the case of a non-revocation decision, he would be subject to a period of immigration detention. This would come immediately after a fairly substantial period of incarceration.
I also consider it likely, based upon the submission of both parties, that in due course he would then be released on a BVR. This does indeed come with a relatively high degree of uncertainty, due in part to the continually evolving legal landscape, and the mere fact of its temporary nature.
Overall. I consider that this consideration carries moderately heavy weight in favour of revocation.
Extent of impediments if removed
The Direction requires me to consider the extent of any impediments a non-citizen may face if removed to their country of origin, but measured against the services and supports that other citizen of that country experience (and taking into account factors personal to the non- citizen) (9.2(1)).
I noted above that Mr Ranjbarian has some ongoing mental health challenges. I note from the body of material that he has also had back surgery (RTB3, 207) and partial loss of vision (G46). These matters were not the subject of detailed consideration in evidence. I understand from the evidence overall that Mr Ranjbarian has no active family connections in Iran.
Submissions for the Applicant highlighted his health issues, particularly his history of trauma. It was also contended that he is a member of a minority group, and clearly is at risk of harm due to this and his political opinion. His psychological vulnerability is similarly
addressed in written submissions, as is the limited family support available (ASFIC [72], [75]-[76]).
At the hearing, the Respondent amended the contentions originally raised in writing. While it was accepted that the Applicant would face impediments upon return, it was argued that in circumstances where there was limited or no prospect of his return to Iran, this consideration be given neutral weight.
I consider that, risk of harm aside, because Mr Ranjbarian grew to maturity in Iran that he is unlikely to suffer any substantial barriers were he to return to Iran in respect of his lifestyle in general. I consider he would potentially face difficulties in maintaining his mental health, particularly given his limited personal supports, and in the face of a risk of harm.
However, I accept the thrust of the Respondent’s submissions (drawing also upon those made in respect of the previous consideration). Accordingly, I give this consideration only limited weight in favour of revocation.
Impact on Australian business interests
It was submitted at the hearing that the existence of an offer of employment (ATB, 11) stands as evidence under this consideration. The Respondent submitted that this other consideration is not engaged, which is the position originally put for the Applicant (ASFIC [83]).
This consideration provides that ‘any impact’ on Australian business interests be taken into account, albeit weight is generally only to be given where a decision would significantly compromise delivery of a major project, or important services (9.3(1)).
I do not consider the nature of the evidence in this matter rises to a level that permits me to make a finding under this consideration. Specifically, a bare offer of employment does not give me any basis upon which to reflect upon the situation in a given industry or trade. Accordingly, this consideration weighs neutrally.
CONCLUSION
Of the primary considerations I have found that the Protection of the Australian community from criminal or other conduct and Expectations of the Australian community weigh moderately heavily against revocation. I have found that Strength, nature and duration of ties to the Australian community weighs moderately heavily in favour of revocation, and Best interests of children affected by the decision weighs heavily in favour of revocation.
Of the other considerations, I have found that Legal consequences of the decision weighs moderately heavily in favour of revocation and Extent of impediments upon return in favour of revocation to a limited extent. I found that Impact on Australian business interests weighs neutrally.
I must make a decision taking into account all considerations (6). The Direction provides that protection of the Australian community is generally to be given greater weight than other primary considerations (7(1)). Primary considerations should generally be given greater weight than other considerations, and one or more primary considerations may outweigh other primary considerations (7(2)-(3)).
There is no real dispute in this matter that Mr Ranjbarian has failed to meet community expectations, and has done so in a serious way. He was involved in a serious criminal scheme and rightly received a substantial sentence by way of punishment. I consider he should be afforded some limited tolerance for his positive contribution as a refugee small business owner. I also consider that proper account needs to be taken of his positive engagement during his time in prison, and the fact that he has been approved for release upon parole.
In the event of revocation, Mr Ranjbarian will be subject to a relatively lengthy period of several years’ community supervision as a parolee. I have found that his risk of future reoffending is not unacceptable because of his particular circumstances which include positive support and assistance from family.
For these reasons, and also based upon the primary considerations to which I have given weight in favour of revocation, I find that there is another reason why the mandatory cancellation decision should be revoked.
DECISION
For the reasons given above, the Tribunal decides to set aside the decision dated 9 September 2024 not to revoke the mandatory cancellation of the Applicant’s Class XB Subclass 200 Refugee visa and substitutes it with the decision that there is another reason why the mandatory cancellation should be revoked.
Date(s) of hearing: 20 & 21 November 2024
Date final submissions received: 25 November 2024
Solicitors for the Applicant: Ms W Milojkovic, Milojkovic Visa & Migration Legal Services
Counsel for the Respondent: Ms T Baw
Solicitors for the Respondent: Ms S Russo, HWL Ebsworth
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