RZSN and Minister for Home Affairs (Migration)

[2019] AATA 240

RZSN and Minister for Home Affairs (Migration) [2019] AATA 240 (27 February 2019)

Division: GENERAL DIVISION

File Number:           2018/7174

Re: RZSN

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Member Richard West 

Date:27 February 2019  

Place:Melbourne

The Tribunal affirms the decision of the delegate of the Respondent made on 4 December 2018 not to revoke the mandatory cancellation of the Applicant’s Class BA Subclass 202 (Global Special Humanitarian) visa.

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

Member

Catchwords

MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of the child – expectations of the Australian community – other considerations – decision under review affirmed.

Legislation
Migration Act 1958 (Cth)

Cases

ALN17 v Minister for Immigration and Border Protection [2017] FCA 726

Do and Minister for Immigration and Border Protection, Re [2016] AATA 390
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Gordon and Minister for Immigration and Border Protection (Migration), Re [2018] AATA 39

Jupp and Minister for Immigration and Multicultural and Indigenous Affairs, Re [2002] AATA 458

NBMZ and Minister for Immigration and Border Protection [2014] 220 FCR 1

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Waits and Minister for Immigration and Multicultural and Indigenous Affairs, Re [2003] AATA 1336

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA – paras 6.1, 6.2, 6.3, 7(1), 8, 13(2), 13.1(1), 13.1(2), 13.1.1(1), 13.1.2(1), 13.2(4), 13.3(1), 14(1), 14.2(1), 14.2(1)(a)(ii), 14.2(1)(b), 14.5(1) – Part C

REASONS FOR DECISION

Member R West
27 February 2019

INTRODUCTION

1. In these proceedings the Applicant[1] seeks a review of the decision of a delegate of the Respondent made on 4 December 2018 not to revoke the mandatory cancellation of his Class BA Subclass 202 (Global Special Humanitarian) visa, which was cancelled pursuant to s.501(3A) of the Migration Act 1958 (Cth) (the Act).

   [1] The Tribunal made on order on 25 February 2019 under s.35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to restrict the publication of the name of the Applicant; to allocate the pseudonym “RZSN” in place of the Applicant’s name; and to omit details of any other persons or places which might reveal the identity of the Applicant. The Tribunal considered it appropriate to do so in order to protect the privacy of the applicant’s wife and children, as the decision will refer to a number of incidents of domestic violence.

2. The Tribunal conducted a hearing of the application on 18 and 19 February 2019.  The Applicant was represented by Mr John Maloney of Counsel, instructed by Carina Ford Immigration Lawyers. The Respondent was represented by Mr Ned Rogers, solicitor of the Australian Government Solicitor.

   EVIDENCE

3. In conducting the review the Tribunal has had regard to:

   ·the documents produced to the Tribunal by the Respondent pursuant to s.500(6F) of the Act, sequentially numbered from 1 to 520 (G Documents)[2];

   ·two bundles of material produced by Victoria Police under summons and reproduce by the Respondent as Supplementary Relevant Documents (SRD) and Further Supplementary Relevant Documents (FSRD) sequentially numbered from 521 to 781;

   ·DFAT Country Information Report Iraq dated 9 October 2018 (Exhibit R1);

   ·Iraq 2017 International Religious Freedom Report, United States Department of State - Bureau of Democracy, Human Rights, and Labor (Exhibit R2);

   ·unsworn statements of the Applicant’s parish priest (Exhibit A11), two former employers (Exhibits A12 and A13) and a counsellor (Exhibit A14);

   ·seven articles in various publications commenting on the position of the Christian minority in Iraq (Exhibits A15-A21); and ;

   ·the oral evidence and written statements of the Applicant (Exhibit A1), his wife Ms S (Exhibit A9), his daughters Child A , Child B, Child C and Child D (Exhibits A3-A6), his sister (Exhibit A7), his mother (Exhibit A10) and father[3] (Exhibit A8); and

   ·the expert report (Exhibit A2) and oral evidence of Dr Peter Cook, a clinical psychologist.

   [2] In referring to the G Documents in this decision the relevant page numbers are cited, for example, G343 refers to the document at page 343 of the G Documents as filed.

   [3] The Applicant’s father was too ill to give oral evidence at the hearing but his written statement, Exhibit A8, was admitted into evidence without objection by the Respondent.

   BACKGROUND

4. The Applicant is a citizen of Iraq.  He was born in Basra in 1974.  He is a Christian of Assyrian ethnicity.  In about 1991 the Applicant and his family fled to Syria and lived for

   
   

   five years or so in a refugee camp.  While living in the refugee camp, the Applicant married Ms S, who was also a refugee from Iraq, and together they had a daughter (Child A).  The Applicant, together with Ms S and Child A, arrived in Australia in January 1996 as the holder of a Class BA Subclass 202 (Global Special Humanitarian) visa.

5. The Applicant’s immediate family, his father, mother, three brothers and a sister, as well as members of his extended family came to Australia in or about 1995 and all continue to live in Australia.  Apart from one brother, the Applicant’s immediate family members are all Australian citizens.

6. After arriving in Australia the Applicant and Ms S had three more children, all daughters, (Child B, Child C and Child D).  The Applicant found work in the building industry and worked in bricklaying, restumping, reblocking and waterproofing.

7. On 14 August 2015 the Applicant was convicted in the Broadmeadows Magistrates Court for offences of possessing a firearm as a prohibited person, contravening a family violence intervention order, and contravening a suspended sentence order. He received a sentence of nine months’ imprisonment for possessing a firearm and had earlier suspended sentences restored.   

8. On 27 November 2015 the Applicant’s Class BA Subclass 202 (Global Special Humanitarian) visa was cancelled under s.501(3A) of the Act.

9. The Applicant was released from prison on 13 December 2015 and taken into immigration detention.

10. On or about 17 December 2015 the Applicant applied for the revocation of the cancellation decision.  The Assistant Minister for Immigration and Border Protection (the Assistant Minister) decided not to revoke the cancellation on 18 January 2017.  The decision of the Assistant Minister was quashed by order of the Federal Court of Australia in ALN17 v Minister for Immigration and Border Protection [2017] FCA 726.

11. On remittal, the question of revocation was again considered by a delegate of the Respondent; and on 4 December 2018 the delegate refused to revoke the cancellation.

12. The Applicant lodged the present application for review of the delegate’s decision by the Tribunal on 7 December 2018.

    LEGISLATIVE FRAMEWORK

13. Section 501CA(4) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation decision if it is satisfied that:

    (i) the Applicant passes the character test as defined in s.501; or

    (ii)  there is another reason why the cancellation should be revoked.

14. The Applicant has conceded that he does not pass the character test in s.501. The sole issue before the Tribunal in these proceedings is whether under s.501CA(4)(b)(ii) there is another reason why the mandatory cancellation should be revoked.

15. The existence or otherwise of ‘another reason’ should be established on the balance of probabilities[4].

    [4] Re Gordon v Minister for Immigration and Border Protection (Migration) [2018] AATA 39 at [57].

16. Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the Tribunal must comply with the directions[5]. 

    [5] Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591.

    Direction 65

17. The relevant direction under s.499 of the Act, which applies to the revocation of mandatory visa cancellation decisions, is Ministerial Direction No. 65 (the Direction).   The relevant part of Direction 65 is Part C, which identifies the considerations relevant to determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa.

    General Guidance

18. The Preamble to the Direction sets out objectives and general guidance for the decision-maker and relevantly provides as follows:

    6.1 Objectives

    (1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

    (2)…

    (3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against the law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

    (4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

    6.2 General Guidance

    (1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

    (2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

    (3) The principles provide a framework within which decision-makers should approach their task of deciding … whether to revoke a mandatory cancellation under section 501CA ...

19. The principles referred to in the General Guidance are reproduced below and constitute a framework within which decision-makers must apply the considerations in Part A, B, or C of the Direction:

    6.3 Principles

    (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 Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4) 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.

    (5) 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 only 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.

    (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or 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, or their visa application refused.

20. Paragraph 8(1) of the Direction requires decision-makers to take account of the primary and other considerations relevant to an individual case.  Paragraph 8(4) of the Direction states that “Primary considerations should generally be given greater weight than the other considerations.” Paragraph 8(5) states that “One or more primary considerations may outweigh other primary considerations.”

21. Paragraph 8(1) further explains that the considerations in Part A and Part C for existing visa holders, and in Part B for visa applicants, are different:

    … Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

    Part C

22. Part C of the Direction (paragraphs 13 and 14) sets out considerations that are relevant when determining whether to exercise the discretion in s.501CA(4) of the Act.

23. The primary considerations that the Tribunal must take into account in deciding whether to revoke the cancellation of an applicant’s visa are set out in paragraph 13(2) of Part C of the Direction.  They are:

    (a) protection of the Australian community from criminal or other serious conduct;

    (b) the best interests of minor children in Australia; and

    (c) the expectations of the Australian community.

24. Paragraph 14(1) of Part C of the Direction requires that other considerations  be taken into account, where relevant, including (but not limited to):

    (a) international non-refoulement obligations;

    (b) strength, nature and duration of ties;

    (c) impact on Australian business interests;

    (d) impact on victims; and

    (e) extent of impediments if removed.

    PRIMARY CONSIDERATIONS

    Protection of the Australian community from criminal or other serious conduct

25. Paragraph 13.1(1) of Part C of the Direction provides that:

    When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens...

26. In doing so a decision-maker is required by paragraph 13.1(2) to consider the seriousness of the person’s conduct to date and the risk to the Australian community should the person commit further offences or engage in other serious conduct.

    Nature and seriousness of the person’s conduct to date

27. The Applicant’s police records were in evidence as part of the G Documents[6], and records produced on summons from Victoria Police and reproduced by the Respondent as SRD and FSRD[7]. The police records show that the Applicant has a criminal record commencing in 1998 and continuing until his incarceration in 2015.

    [6] G39-46

    [7] SRD521-633; FSRD 634-781

28. On 23 July 1998 the Applicant was convicted in the Melbourne Magistrates Court of intentionally cause injury and recklessly cause serious injury, resulting in sentences of 3 months imprisonment for each, wholly suspended for 18 months. The offences were committed against a police officer[8].

    [8] G79

29. On 14 April 1999 he faced the Melbourne County Court on charges of common law assault and criminal damage. The first charge was adjourned without conviction; he was convicted on the second charge and fined $500.

30. On 10 December 1999 he was convicted in the Broadmeadows Magistrates Court of obstruct/resist police and fined $250.

31. On 14 February 2000 in the Broadmeadows Magistrates Court he was convicted of
    13 charges of obtain property by deception, and placed on a community based order for 12 months.

32. On 19 March 2002 in the Broadmeadows Magistrates Court he was convicted of behave in an offensive manner in a public place, assault police/person assisting police
    (2 charges), fail to answer bail and obtain property by deception and fined $1500.

33. On 18 June 2002 he was convicted in the Broadmeadows Magistrates Court of breaching a community based order and was sentenced to an aggregate 3 months imprisonment, to be served by way of an intensive corrections order.

34. On 10 February 2003 he was convicted in the Melbourne Magistrates Court of exceed/have PCA within 3 hour breath test and drive whilst disqualified. He received 3 months imprisonment on each, to be served concurrently; and his licence was cancelled and he was disqualified for 2 years.

35. On 10 September 2004 he was convicted in the Broadmeadows Magistrates Court of criminal damage, drive whilst disqualified (2 charges) and exceed prescribed concentration of blood alcohol. He was sentenced to 35 days imprisonment on each charge to be served concurrently. His licence was also cancelled and he was disqualified for 18 months.

36. On 14 December 2004, in the Melbourne County Court, he was convicted of affray and sentenced to 2 years imprisonment, intentionally cause injury for which he was sentenced to 2 years imprisonment (with 1 year 3 months concurrent) and criminal damage for which he was sentenced to 12 months imprisonment (with 9 months concurrent). The Sentencing Judge’s remarks[9] included the following: 

    The incident involved a brutal and protracted display of violence orchestrated by the applicant.  The applicant had harassed 2 young women at a charitable event. He then provoked a fight with the husband of 1 of the women in the car park after the end of the function. When the victim tried to escape the scene by car, the applicant pursued him and continued the attack.

    [9] G70-87

37. He was described by the sentencing judge as the “principal assailant” and “ringleader” in “an ugly and vicious demonstration of fighting and violence and force”. The sentencing Judge found that the affray (and the applicant’s “leadership of it”) “was brutal and protracted and carried out with an abandon and a determination to offer violence to [the victim] and to make a display to any person who happened to be in the vicinity”[10].

    [10] G77

1. In sentencing the Applicant, the Judge noted his already substantial criminal history (at that point comprising some 13 prior convictions) and held that it demonstrated a concerning disregard for Australian requirements for social conduct[11]. The Judge noted and took into account the hardships the applicant had faced in his early life, but found that when he came to commit the offences in 2003, given his prior convictions, he would have been well aware of the risks in resorting to such behaviour[12].

   [11] G79

   [12] G81

2. On 4 March 2010, the applicant was convicted in the Broadmeadows Magistrates Court of intentionally cause injury (12 months imprisonment, concurrent and partially suspended with operational period of 18 months) and 2 charges of resist police (resulting in a community based order).

3. On 6 September 2010 he was convicted in the Broadmeadows Magistrates Court of contravening family violence intervention order and sentenced to 7 days imprisonment.

4. On 20 September 2010 he was convicted in the Melbourne County Court of 5 charges of contravening family violence intervention orders and sentenced to an aggregate 105 days imprisonment.

5. On 18 January 2011 in the Wagga Wagga Local Court, he was convicted of driving on the road when his licence was cancelled and speeding and fined and disqualified for 12 months.

6. On 11 April 2012 he was convicted of shop theft – less than $600 and fined in the Mildura Magistrates Court.

7. On 31 May 2012, he was convicted in the Broadmeadows Magistrates Court of intentionally damage property, wilful damage property, 3 charges of contravening family violence intervention orders, contravening a family violence final intervention order, and unlicensed driving. He was given a community corrections order, his licence was cancelled and he was disqualified for 12 months.

8. On 18 September 2012 he was convicted in the Ringwood Magistrates Court of recklessly causing injury (9 months imprisonment), unlawful assault (3 months cumulative) and using a carriage service to harass (fined).

9. On 2 October 2012 he was convicted in the Mildura Magistrates Court of contravening a family violence intervention order (42 days imprisonment) and possess cannabis (discharged).

10. On 5 December 2012 he was found by the Broadmeadows Magistrates Court to have contravened a community corrections order and breached his 31 May 2012 orders, and given 6 months imprisonment (suspended).

11. On 28 August 2013 in the Broadmeadows Magistrates Court he was convicted of failing to answer bail and fined $1000.

12. On 3 September 2014 he was convicted in the Broadmeadows Magistrates Court of a range of offences including unlawful assault (3 charges), contravene family violence intervention order, driving whilst disqualified (2 charges), possess amphetamines, possess controlled weapon without excuse and contravening suspended sentence orders. The Court imposed sentences of imprisonment of between 1 to 8 months.

13. On 14 August 2015, the Broadmeadows Magistrates Court convicted him of possessing a firearm as a prohibited person, contravene family violence intervention orders, and contravene suspended sentence orders. He received a sentence of 9 months imprisonment for possessing a firearm and had suspended sentences restored. The transcript of the proceeding in the Broadmeadows Magistrates Court[13], stated that the applicant was visited by the victim, Ms Z, with whom he had had an on-again off-again relationship. At the time, there was a family violence intervention order in place which the applicant breached by remaining at the premises with the victim. The applicant and victim smoked ice, and they remained together for a period of 2 weeks before the applicant was arrested at the premises on 24 February 2015. At that time, the victim was found hiding behind a door and said she was being held against her will. She was attended by an ambulance and taken to hospital for assessment of her injuries. Police located a handgun loaded with 14 rounds, including 1 round in the chamber so that the weapon was ready to discharge.

    [13] G122

14. The Magistrate expressed grave concern that the Applicant’s wife had previously been the victim of domestic violence at his hands, and that the victim in this case had suffered the same fate[14]. The Magistrate found that the Applicant’s offending was aggravated by a number of factors, including his possession (as a prohibited person) of a loaded firearm, and that the offences were committed whilst the Applicant was subject to a suspended sentence[15].

    [14] G134

    [15] G138-139

15. Of particular concern to the Tribunal are the Applicant’s convictions for:

    a.possession of a loaded handgun on 14 August 2015;

    b.offences of violence including domestic violence on 14 April 1999, 14 December 2004, 18 September 2012 and 3 September 2014;

    c.offences against the police on 23 July 1998, 10 December 1999, 19 March 2002 and 4 March 2010; and

    d.repeated breaches of court orders, including breaches of community based orders on 18 June 2002 and 5 December 2012, breaches of family violence intervention orders on 6 September 2010, 31 May 2012, 2 October 2012, 3 September 2014 and 14 August 2015, failure to answer bail on 28 August 2013 and the contravention of a suspended sentence order on 14 August 2015.

16. In assessing the nature and seriousness of the Applicant’s conduct the Tribunal has had regard to the matters set out in paragraph 13.1.1 of the Direction. This paragraph gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of a person's criminal conduct.  Of those matters the most relevant to the Applicant’s application are those in paragraphs (a), (b), (c), (d), (e) and (g).

    Paragraph 13.1.1(1)(a) – violent and/or sexual crimes are to be viewed very seriously

17. Of the convictions recorded against the Applicant from his arrival in Australia until his incarceration in 2015, six are for offences involving violence.  In addition, the police record establishes over that period that the Applicant repeatedly breached family violence intervention orders taken out for the protection of his wife Ms S and his former partner Ms Z. The Applicant accepted in his evidence to the Tribunal that he had repeatedly acted in a violent manner toward both Ms S and Ms Z.

18. The Tribunal regards these offences as very serious.

19. Paragraph 13.1.1(1)(b) – crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are to be regarded as serious.

20. The Applicant’s criminal record includes three instances where he was convicted of offences against the police in the discharge of their duties. They involve intentionally and recklessly causing injury, obstructing police and resisting arrest and assault.  A report of a psychiatric review of the Applicant conducted on 6 March 2015 by the Mobile Forensic Mental Health Service[16] noted :

    [The Applicant] explains he has a very bad relation with the local police.  He told me he was ones (sic) pulled in by the police and he they called him Turkish, the discussion went wrong from that point and ended up in assault charges.  This happened years ago and reports that if police see him, they pull him over.  He moved to another area of Melbourne, but still he kept running into problems with the Police which always turns out wrongly for him.  Called them ‘‘pigs’’ and ‘‘dogs’’ doesn’t like the justice system in Victoria and seems to have little respect for the Law, Magistrate and Police.

    The Applicant confirmed under cross-examination that this reflected his views in 2015 but said that he has changed and he now respects the police.

    [16] G269

21. In addition, the Applicant’s repeated breaches of family violence intervention orders involved the infliction of violence on two of his partners Ms S and Ms Z, both of whom were in vulnerable positions.

22. Having regard to these matters, the Tribunal regards the offences against the police and the Applicant’s partners as serious offences.

    Paragraph 13.1.1(1)(c) – the sentence imposed by the court for a crime or crimes

23. The evidence establishes that the Applicant was sentenced to terms of imprisonment on multiple occasions: 

    a.On 23 July 1998 he was convicted of intentionally causing injury and recklessly causing serious injury and received a 3 month sentence, wholly suspended for 18 months, in relation to each charge. 

    b.On 18 June 2002 he was convicted of offences of obtaining property by deception and received an aggregate 3 month sentence.

    c.On 10 February 2003 he was convicted of two serious driving offences and received two 3 month sentences to be served concurrently by way of an intensive correction order. 

    d.On 10 September 2004 he was convicted of 2 serious driving offences and one offence of criminal damage and was sentenced to three 35 day periods of imprisonment to be served concurrently. 

    e.On 14 December 2004 he was convicted of three offences and sentenced to terms of 2 years imprisonment for affray, 2 years imprisonment (1 year and 9 months to be concurrent) for intentionally causing injury and 12 months imprisonment (9 months to be concurrent) for criminal damage. 

    f.On 4 March 2010 he was convicted of intentionally causing injury and sentenced to 12 months imprisonment, partially suspended.

    g.On 6 September 2010 he received a 7-day sentence for breaching a family violence intervention order, and on 20 September 2010 he received a 105-day sentence for further breaches of the order.

    h.On 18 September 2012 he was convicted of unlawful assault and recklessly causing injury and received sentences of 3 months and 9 months imprisonment respectively, to be served concurrently.

    i.On 3 September 2014 he was convicted on two serious driving offences, one count of possession of amphetamines and one of possession of a weapon for which he received a one month imprisonment sentence for each offence to be served concurrently.  He was also convicted of three offences of unlawful assault and received two sentences of 8 months imprisonment each partially suspended and to be served concurrently.

    j.On 14 August 2015 he was convicted of possession of a firearm and sentenced to 9 months imprisonment and suspended sentences of four and one month was restored upon conviction for various offences.

24. These sentences clearly establish that the Applicant’s crimes were serious, and regarded as such by the courts.

25. In addition to the custodial sentences, the Applicant received fines and community based orders in respect of numerous other convictions and had his driver’s license cancelled on several occasions.

26. Paragraph 13.1.1(1)(d) – the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness

27. The Applicant’s criminal record demonstrates a pattern of continuous offending from 1998 to 2015.  During that time he faced the courts on twenty-two separate occasions and was convicted of a range of offences.  The level of criminality over the entire period is consistent and serious in its nature. While there is no clear trend of increasing seriousness in relation to the offending over that period, is the Tribunal notes that the most recent conviction on 14 August 2015 included the serious charge of possession of a loaded firearm. Given the Applicant’s history of violent offending and his admitted drug and alcohol abuse, the possession of a loaded firearm represents a potential escalation of the level of criminality by the Applicant.

    Paragraph 13.1.1(1)(e) – the cumulative effect of repeated offending

28. The cumulative effect of the Applicant’s offending, and particularly his repeated breaches of court orders, and his failure to respond to departmental warnings and the opportunities offered to him by suspended sentences ordered by the courts, demonstrates a disregard and disrespect for the laws of Australia.  In addition, the cumulative effect of his repeated breaches of  family violence intervention orders taken out for the protection of his wife
    Ms S and his former partner Ms Z could reasonably be expected to increase the level of apprehension and fear engendered in those people by his violent behaviour.

    Paragraph 13.1.1(1)(g) - whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour)

29. The evidence shows that the Applicant was formally warned about the consequences of further offending in terms of his migration status on two occasions.

30. On 20 December 2005, the Department of Immigration and Multicultural Affairs (as it then was) gave the Applicant notice that his visa might be cancelled under s.501 of the Act. On 23 August 2006 a delegate of the Minister decided not to cancel the visa, but to issue a formal warning[17]. The warning noted that cancellation may be reconsidered if the Applicant was to reoffend, and that the warning would weigh heavily against him in such circumstances. The Applicant acknowledged receipt of the warning on 5 September 2006[18].

    [17] G97

    [18] G98

31. This warning was given following the Applicant’s conviction for serious violence offences on 14 December 2004 for which he received a significant custodial sentence.  Notwithstanding the warning and the fact that he had served a long prison sentence the Applicant was again convicted of intentionally causing harm and resisting police in March 2010 and two offences for contravening family violence orders on 6 and 20 September 2010.

32. On 1 October 2010, the Department of Immigration and Citizenship (as it then was) gave a further notice that it was considering cancelling the Applicant’s visa on character grounds. On 15 November 2010, the Applicant was notified that a decision had been made not to cancel his visa, and he was issued with another formal warning[19]. The warning noted cancellation might be reconsidered if he reoffended, and that disregard of the warning would weigh heavily against him.

    [19] G93 and 96

33. Despite this second warning, within the next two years the Applicant was convicted of a serious driving offence on 18 January 2011, for theft on 11 April 2012, for breaches of family violence intervention orders and wilful property damage on 31 May 2012, for recklessly causing injury and unlawful assault on 18 September 2012 and for a further offence of breaching a family violence intervention order on 2 October 2012.

34. The Applicant admitted in his evidence that he did not take either of the Department’s warning notices seriously, even though he had the assistance of a well-educated prisoner to assist him in preparing his response to the first notice.

35. Having regard to the factors set out at paragraph 13.1.1 of Part C of the Direction, the Tribunal is satisfied that the Applicant’s criminal conduct was, of its nature, a substantial threat to the welfare of individuals with whom he came into contact and to the Australian community generally.  In particular, his breaches of family violence intervention orders taken out for the protection of his wife Ms S and his former partner Ms Z and his violent behaviour to each of them at different times constituted a serious threat to their personal welfare.  The sentences handed down by the court attest to the seriousness of the Applicant’s offences.

    Risk to the Australian community should the person commit further offences or engage in other serious conduct

36. In considering whether the Applicant represents a risk to the Australian community the Tribunal has had regard to the matters set out in paragraph 13.1.2 of Part C of the Direction.

37. Paragraph 13.1.2(1) states that:

    In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should 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”. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

38. Paragraph 13.1.2(2) requires decision-makers to have regard to, cumulatively:

    (a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    (b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

    Nature of the harm

39. It is beyond dispute that should the Applicant engage in further criminal conduct of the kind he has engaged in from 1998 to 2015, he would expose members of the Australian community to serious harm.  This risk applies primarily to the Applicant’s preparedness to resort to violence, especially directed at his domestic partner, and especially when under the influence of drugs and alcohol. 

40. There is also a risk related to the Applicant’s unlawful conduct and irresponsibility in relation to the use of motor vehicles which has seen him convicted of multiple serious driving offences including driving under the influence of alcohol. 

41. The risk of harm is heightened by the Applicant’s demonstrated lack of respect for the authority of the police and the courts, as evidenced by the offences he has committed against members of the police force and in breach of various court orders.

    The likelihood of re-offending

42. The Applicant has invited the Tribunal to accept that he is a changed man who, if his visa is restored and he returns to the community, will no longer engage in criminal activity.

43. The Applicant points to a number of factors which he argues indicate that he has changed and is not at risk of re-offending.  Those factors are:

    a.he has accepted responsibility for his criminal offending and the domestic violence he has inflicted on Ms S and Ms Z and is genuinely remorseful;

    b.he has come to understand that post-traumatic stress disorder (PTSD) is the underlying cause of his mental problems and his antisocial behaviour and he has developed techniques for avoiding violence and resort to drugs;

    c.he has  participation in rehabilitation programs while in prison;

    d.he has not taken drugs since December 2015 or January 2016;

    e.he has a positive behaviour record since August 2015 while in custody both in prison and detention;

    f.he has established a respectful relationship with his wife Ms S and is prepared to see how their relationship can develop; and

    g.he has the support of his family and especially his four daughters.

    Responsibility and remorse

44. The Applicant has readily admitted to having physically abused both his wife Ms S and his former partner Ms Z with whom he had a relationship after he separated from his wife in 2010.  He gave evidence about his offending and readily accepted responsibility for his actions.  He expressed his deep-felt remorse for the harm he had caused Ms S and Ms Z.  He did not seek to shift the blame for his actions onto others, but attributed his criminal behaviour to a problem with drug and alcohol abuse which stemmed from an underlying mental condition diagnosed as PTSD resulting from his experiences in Iraq and Syria as a young man before coming to Australia.

45. Having observed the Applicant’s demeanour in the witness box and having carefully considered his evidence, the Tribunal is satisfied that he is genuine when he says that he is remorseful and that he accepts responsibility for his past criminal actions.  While this acceptance of responsibility is an important consideration in determining the likelihood that the Applicant will re-offend, it is far from the complete answer.  This is not the first time that the Applicant has expressed remorse.  The Applicant gave evidence, as did his wife Ms S and the Applicant’s daughters, that the Applicant had expressed remorse for his abuse of Ms S on many occasions in the past but he had repeatedly

    
    

    re-offended against her.

1. It is also not the first occasion upon which the Applicant has claimed to be a ‘changed man’.  In 2006 while in prison the Applicant declared in his written response to the Department’s Notice of Intention to Consider Cancelling a Visa as follows:[20]

   The big question on everyone’s mind is: have I changed.  It is hard to fathom for people who have not been to prison, but coming here is a life changing event not easily explained.  I’m can’t (sic) speaking for everyone but coming to prison once is definitely enough for me.  A lesson has been learnt, one I don’t need to learn again.  The programs I have undertaken whilst here have helped me address my offending behaviour.

   [20] G63

2. Again in July 2009 the Applicant was assessed by a psychiatrist from the Mental Health Court Liaison Service who reported that the Applicant “appeared to be motivated to change this behaviour”[21].

   [21] G155.

3. Whatever the Applicant’s current remorseful attitude may be, much of his criminal conduct stems from an underlying mental condition and his abuse of alcohol and drugs.  As the Applicant acknowledged in his evidence, if he is to avoid further criminal conduct in the future it will largely depend on his ability to manage his mental condition and address his past drug and alcohol abuse.    

   PTSD and drug and alcohol abuse

4. The Applicant gave evidence that he had a problem with the abuse of alcohol and the use of illicit drugs, particularly methamphetamines, over a long period prior to his incarceration in 2015.  He stated that he began heavy drinking soon after his arrival in the refugee camp in Syria in 1991.  His alcohol abuse continued after he arrived in Australia and many of the offences he committed between 1998 and 2015 were alcohol–related.  He gave evidence that he began using drugs in 2003 when he took marijuana to ‘calm my anger’.  He said that he began using amphetamines (speed and ice) in 2004.  He indicated in his evidence that he undertook a drug and alcohol rehabilitation program while in gaol in 2004-2005 and that he was prescribed medication. But his drug and alcohol abuse continued and was a contributing factor to his convictions in 2010 and to the breakdown of his marriage to Ms S.  He gave evidence that by 2015 he was ‘completely gone’ mentally.  He hated life and had tried to commit suicide but failed.  He said that he was drinking and using drugs, in particular ice and GHB, heavily at that time.

5. The Applicant gave evidence that when he was imprisoned in 2015 he was prescribed anti-depressant, anti-psychotic and sleeping medication to assist him with his mental health issues, and he completed ‘The Road to Recovery – Mental Health Recovery Introductory Program’ in prison to assist him to address his drug addiction.  Notwithstanding these measures he admitted that he resorted to drug use (ice) while in detention on Christmas Island in 2015/2016.

6. He said that he has not taken drugs despite their availability in detention for over

   
   

   18 months; and placed substantial reliance on his abstinence to indicate that he will not resume drug taking if he is released.  The Tribunal accepts that his abstinence is a positive indicator but gives it limited weight in view of the evidence that he was able to abstain from drug and alcohol abuse during his previous time in prison[22].

   [22] G60 and 63

7. The Applicant initially continued his medication while on Christmas Island and he began seeing a torture and trauma specialist counsellor, Andres Leal, from the Indian Ocean Territories Health Service.  The Applicant gave evidence that after about

   
   

   6 months of seeing Mr Leal, he spoke to him about PTSD. He gave evidence that when he gained an understanding of PTSD, it marked a turning point for him in understanding himself. 

8. Mr Leal made a brief statement on 8 September 2017 indicating that the Applicant presented to him with addictive behaviour, depression and PTSD[23].   He noted that once the Applicant had come to understand the root of his negative behaviours, he had challenged himself over the previous year to improve physically and mentally and that the Applicant’s underlying past traumatic symptoms ‘seem to have decreased during this time due to a combination of therapy (Cognitive Behavioural Therapy & others), exercise and a personal commitment’.  He noted that over the past year the Applicant had managed his addiction, depression and increased arousal without the use of medication.

   [23] G341

9. In a more comprehensive report (undated) Mr Leal[24] documented the Applicant’s account of traumatic events he had experienced in Iraq and Syria before coming to Australia.  This included his forced recruitment into the Iraqi army at 16 years of age and his exposure to war experiences in Kuwait over a 45-day period including witnessing dead bodies and the rape of civilians by army personnel.  He also referred to an incident when his neighbours in Iraq turned on the Applicant’s family because they were Christians and threatened them with weapons, and the family’s subsequent flight to Syria.  He also referred to two incidents while the Applicant was in the refugee camp in Syria when he was arrested by Syrian authorities and imprisoned and physically tortured.  Mr Leal concluded that the Applicant ‘seems to be suffering from an underlying untreated traumatic past that may have caused his current diagnosed depression and addiction’.[25] 

   [24] G287-296

   [25] G296

10. Mr Leal noted that the Applicant had come to understand how his past traumatic memories may possibly be driving his recent past and present behaviour.  However, he noted that ‘recovering from an underlying untreated traumatic past or a dual diagnosis of PTSD and an addictive disorder usually demands intensive support from mental health professionals, addictive experts and family members’. Mr Leal recommended that the Applicant have access to long term ongoing addiction and trauma focussed counselling. He also recommended that family counselling and a 12 step group recovery programme be facilitated to strengthen relationships and educate family members.

11. Significantly, Mr Leal noted further that the Applicant ‘will be in a high risk of relapse if he does not have proper support mechanisms once released from detention, despite his best intentions’.

12. The Applicant relied on a report dated 4 February 2019 by clinical psychologist Dr Peter Cook[26].  Dr Cook also gave evidence to the Tribunal.

    [26] Exhibit A2

13. Dr Cook concluded in his report that the Applicant’s symptoms indicated the ongoing presence of a very mild adjustment disorder with anxiety and depressed mood and that a diagnosis of PTSD in remission was appropriate.  He noted further that a multiple substance use disorder was also in remission. He stated that it was entirely plausible that a lack of appropriate treatment of the Applicant’s PTSD was associated with his substance abuse and past offending. He noted that the provision of appropriate treatment for PTSD can sometimes lead to major transformative change.  Nevertheless, Dr Cook’s assessment of the risk of the Applicant re-offending was very cautious.  He stated in his report that ‘given the extent and seriousness of his past offending, considerable caution is warranted with respect to any suggestion that he will not re-offend or relapse into substance abuse in the future’[27].

    [27] Exhibit A2 at [15]

14. Dr Cook agreed with the conclusion of Mr Leal that the Applicant was at high risk of relapse if he did not have the proper support mechanisms once released.  He also acknowledged that it is very difficult for people to overcome an ice addiction.

    Participation in rehabilitation

15. The Tribunal accepts that since his conviction in 2015, the Applicant has participated in programs to rehabilitate himself.  The report of Mr Leal attests to the Applicant’s engagement with the programs run by Mr Leal on Christmas Island.  The report of Ms Boal from Foundation House[28] states that the Applicant participated in six counselling sessions after being referred to Foundation House in October 2018.  He has completed courses on understanding mental health and addiction, anger management, ‘Being a Dad’ and alcohol and drug education while in detention[29].

    [28] Exhibit A14

    [29] Exhibit A1 at [35]

16. However, the Applicant’s participation in rehabilitation programs is not new.  While in prison in 2005 he participated in a range of courses including the Alchemy Treatment Program, an alcohol rehabilitation course[30]; which the Applicant claimed at the time had allowed him to make the decision to stop drinking[31].

    Positive record in detention

    [30] G60-61

    [31] G63

17. The Tribunal accepts the Applicant’s evidence that he has a positive record while in detention and that this was recognised when he was placed in a privileged unit within the Christmas Island detention centre in January 2017.  The Tribunal also notes that his prison record immediately prior to his detention is similarly positive.  While this is a positive sign, the Tribunal notes that the Applicant’s prison record indicates that he has behaved in a similar manner during past periods of incarceration[32].

    Relationship with family

    [32] Ibid

18. The Applicant asserted that he has strong support from his family and that they will provide a protective support factor if he is released. 

19. Each of the Applicant’s daughters gave evidence to similar effect. They each said they had a close relationship with the Applicant and kept up regular contact notwithstanding his incarceration.  They all said that they had witnessed the Applicant being violent to their mother Ms S only when under the influence of drugs but that he had never been violent to them.  Each said that they wanted the Applicant to return to live with them and Ms S again as a family.  Child B gave evidence[33] that she was currently studying a Diploma of Community Services and that this would give her knowledge and skills to assist her father with his rehabilitation if he were released.  Child C also gave evidence[34] that she was studying a Diploma in Alcohol and Other Drugs which she expects to complete in June 2019.

    [33] Exhibit A3

    [34] Exhibit A6

20. The Applicant’s sister, his father and mother each gave evidence attesting to their support for the Applicant and the commitment of the wider family to support him if he were released. 

21. The Applicant’s wife Ms S stated that she has forgiven the Applicant for the violence he had inflicted on her and that she would accept the Applicant into her home to live with her and her daughters if he is released.  She was positive about their prospects of restoring their marriage. 

22. The Tribunal accepts that the family genuinely support the Applicant and that they will do their best to support him if he is released into the community.  However, when viewed objectively, there is considerable doubt whether his family can offer the Applicant the support which would make a realistic contribution to his rehabilitation and assist him to avoid further offending. 

23. While Child B and Child C are well intentioned in saying that their chosen courses of study will enable them to assist the Applicant, what they will be able to offer falls well short of the  level of care and support that Mr Leal and Dr Cook have said the Applicant requires.

24. The optimistic picture painted by Ms S in relation to the re-establishment of her relationship with the Applicant glosses over the fact that she and the Applicant have been separated for around ten years, a large part of which the Applicant has spent in prison or detention.  It also glosses over the history of physical abuse prior to their breakup[35].  It may well be that Ms S and the Applicant can re-establish their marriage but viewed objectively there are some deep-seated issues which are likely to need to be resolved before that can occur and before the marriage will provide a protective support for the Applicant in his rehabilitation.  Ms S acknowledged that she knows very little about drugs and has no knowledge of what is required to deal with an ice addiction.  Her confidence seemed based on a bare trust that the Applicant will do what he has said he will do in relation to his rehabilitation, notwithstanding his history of failing to live up to reasonable standards of behaviour.

    [35] Ms S acknowledged in her evidence that she had made around 20 complaints to the police regarding the conduct of the Applicant in the period between 1998 and 2013.

25. As to the wider family, the Tribunal accepts that there is a willingness on the part of the family members to assist the Applicant to deal with his mental health and addiction issues.  However, the evidence does not indicate in any tangible way how that might be achieved.  The Applicant was portrayed by his sister and mother as the eldest son upon whom members of the family would look to for support and guidance.  There was no indication as to who the Applicant could look to for support. 

26. Each of the Applicant’s siblings have commitments of their own.  His sister and one of his brothers each have three young children. Another brother has five young children. 

27. Evidence was given that one of the Applicant’s younger brothers has addiction problems of his own and is currently serving a prison sentence for drug-related offences.  The Applicant asserted confidently that if he is released he could step in to assist his brother to deal with his addiction. Such a role would be likely to add an additional burden on the Applicant rather than provide him with a source of support.

28. The evidence indicates that the Applicant’s parents are in poor health.  The Applicant’s father suffers from high blood pressure and kidney failure and was unable to appear at the hearing because he was not physically able to do so.  The Applicant’s mother indicated in her evidence that she had health issues of her own, saying that she suffered from diabetes and mental health issues.  The Applicant’s wife Ms S also gave evidence of her own chronic back problems[36] for which she would look to the Applicant for support.

    [36] G162 and 164

29. Finally, the Tribunal notes that the Applicant has had the benefit of the support of his family throughout the relevant period[37] and this has not prevented him from engaging in the violent and antisocial behaviour evident in his criminal record.

    Conclusion

    [37] For example, he had regular contact visits with his family and friends nearly every week when in Loddon prison in 2005/2006, including family visits with his wife and daughters in a separate area allowing close contact every six to eight weeks (see G60).

30. The Applicant‘s claim that he is not a risk of re-offending rests largely on his assurance that he is now a changed man, who understands the cause of his mental health problems and has the resolve to address his drug and alcohol addiction.  The Tribunal accepts that the Applicant has made progress in relation to his propensity to reoffend but does not underestimate the challenges that he will face if he is released.

31. The Applicant has a long history of very serious criminal conduct and disregard for the law.  His psychological problems are manifestly significant.  His ice addiction is of

    
    

    long-standing, having begun in around 2005.  He has been a heavy drinker since the early 1990’s and has acted violently when under the influence of alcohol.

32. The Tribunal accepts that the Applicant has taken positive steps while in detention to address his mental health issues and his drug and alcohol addiction, but the question is whether he can sustain the progress he has made when he is released and is faced with the challenges that he will face in the community.  The assessments of Mr Leal and Dr Cook are cautious and both accept that there is a high risk that the Applicant will relapse into drug addiction if he does not get access to long-term ongoing addiction and trauma focussed counselling after he is released.  The Applicant has not put forward clear evidence of how he might be able to access such care. Dr Cook has confirmed that it is very difficult to overcome an ice addiction.

33. In addition, there are matters which raise a question as to whether the Applicant has the  resolve necessary to fully address his issues.  He stated in his evidence that he does not intend to abstain from the consumption of alcohol completely but rather will seek to control his consumption to a modest level, consuming only wine and beer.  He also admitted that he had used drugs while in detention even after his visa was cancelled and he made an unsuccessful attempt to overcome his drug and alcohol addiction in 2005/2006; albeit that at that time he did not appreciate that he was suffering from PTSD.

34. In addition, while the Applicant has the support of his family, the members of his family, even with their best intentions, have limited scope to assist him.  In addition, his family presents its own challenges for him.  He faces a significant challenge to re-establish his relationship with his wife from whom he has been estranged for many years following a long period of protracted family violence.  He is the eldest son with family responsibilities including his brother’s drug addiction and his parent’s health issues.

35. Taking account of all the evidence, the Tribunal is satisfied that there is a significant risk that the Applicant will re-offend if the cancellation of his visa is revoked. Having regard to this risk and the nature of the harm that would result from the Applicant reoffending, the Tribunal finds that the primary consideration of protecting the Australian community weighs strongly in favour of refusing to revoke the cancellation of the Applicant’s visa.

    Best interests of minor children in Australia

36. Paragraph 13.2 of Part C of the Direction requires the Tribunal to determine whether revocation is, or is not, in the best interests of minor children as one of the primary considerations.

37. The Respondent has conceded in submissions that this consideration weighs in favour of the Applicant.

38. In this case, the minor children are:

    a.the Applicant’s eleven nieces and nephews; and

    b.the Applicant’s biological child with Ms Z.

39. The Tribunal is required by paragraph 13.2(3) of the Direction to give individual consideration to the best interests of each child “to the extent that their interests differ”, in having regard to the factors set out in paragraph 13.2(4).

40. The Applicant’s sister has three daughters aged 6, 8 and 12. She gave evidence that the daughters have visited the Applicant in detention and the Applicant has some limited contact with the youngest daughter on Facetime or by text.  She also said that her older daughter had fond memories of the Applicant because he had taken her on her first bus ride some years earlier.  Clearly the extent of the contact between the Applicant and his sister’s children is limited.  The children are young and the Applicant has been in prison or detention for over three years.  Prior to that he was, as he admitted in his evidence, in the grips of a serious drug addiction. On the basis of this evidence the Tribunal is not satisfied that the Applicant’s sister’s three daughters have a significant existing relationship with the Applicant and that any benefit they might derive from his release back into the community is a matter of potential future benefit.  Since the Applicant is not in a position to assume any meaningful caring role in relation to the children as they are already under the care and support of their parents, the Applicant’s role in their lives is likely to be limited.  Accordingly, while the Tribunal accepts that it would be in the best interests of the three nieces to have contact with the Applicant this factor is given little weight.

41. There is little evidence regarding the circumstances of the Applicant’s other nieces and nephews and no basis to conclude that they are materially different to that of his sister’s children.  The Tribunal therefore accepts that it is in the best interests of the other nieces and nephews for the Applicant to have his visa restored but gives this factor little weight.

1. The Applicant also gave evidence that after he was imprisoned in 2015, he learned that his former partner Ms Z had given birth to a child and that he was the biological father.  He stated that Ms Z had now married and the child is being raised by her and her husband.  The Applicant admitted that he had no contact with the child and had no plans to do so. In the circumstances, the Tribunal can accept that it may be in the child’s interests to have the ability to contact the Applicant in the future but there is no basis to conclude that there is any immediate intention for the child to interact with the Applicant. The Tribunal therefore gives the interests of this child little weight.

   Expectations of the Australian Community  

2. The third consideration listed in the Direction is the expectations of the Australian community. In this regard, paragraph 13.3(1) of the Direction states:

   The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person.  Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa.  Decision-makers should have due regard to the Government’s views in this respect.

3. In  YNQY v Minister for Immigration and Border Protection[38],  Mortimer J said in relation to this direction that:

   ...this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community.  It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief.

   [38] [2017] FCA 1466 at [76].

4. In addition, the Tribunal is required to take into account the general principles stated in paragraph 6.3 of the Direction. These include:

   (a)the Australian community expects the Australian Government to cancel the visas of non-citizens who commit serious crimes (6.3(2));

   (b)non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia (6.3(3)); and

   (c)in some circumstances if the offence were to be repeated the consequences would be so serious that any risk of similar conduct is unacceptable (6.3(4)).

5. However, paragraph 6.3(5) of the Direction recognises that 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.  In addition, paragraph 6.3(7) recognises that the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa 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.

6. The expectation of the Australian community is to be ascertained by considering the views of reasonable members of that community, when fully apprised of the relevant facts.[39] Such members would not be vengeful and want to see visa cancellation misused to inflict further punishment[40].

   [39] Re Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36], see also Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458.

   [40] ReDo and Minister for Immigration and Border Protection [2016] AATA 390 at [23].

7. The Tribunal finds that reasonable members of the Australian community, fully appraised of the Applicant’s offences, would have little or no tolerance for his repeated criminal conduct and especially his crimes of violence; in particular his repeated physical abuse of his wife Ms S and former partner Ms Z in breach of court orders.

8. The Tribunal accepts that reasonable persons may be sympathetic to the Applicant, having regard to the fact that he has lived in Australia since 1996. However, this sympathy would be tempered by the Applicant’s continuing record of serious criminal offending, beginning shortly after his arrival. 

9. The Applicant has been in continuing employment since his arrival in Australia and his former employers have attested that he has been a hard-working and valuable employee[41].  He has also participated as a member of the Catholic Assyrian Church, although there is no evidence that his involvement went beyond being a member of the parish congregation[42].  Otherwise, there is little to suggest that he has made a positive contribution to the Australian community which would weigh against the negative effects of his repeated offending.

   [41] Exhibits A12 and A13

   [42] Exhibit A11

10. The Tribunal accepts that fair-minded Australians would also be sympathetic to the position of the Applicant’s daughters and other members of his family.  However, the Tribunal is satisfied that those interests would not outweigh the concerns of fair-minded people regarding the risks to the community of repeated offending by the Applicant.

11. Having regard to these matters, the Tribunal is satisfied that because of the nature and extent of the Applicant’s offending, the Australian community would expect that the cancellation of his visa should not be revoked.  The Tribunal finds that this consideration weighs heavily in favour of not revoking the Applicant’s visa cancellation.

    OTHER CONSIDERATIONS

12. Paragraph 14(1) of Part C of the Direction requires that other considerations be taken into account, where relevant.  These considerations include (but are not limited to):

    a.International non-refoulement obligations;

    b.Strength, nature and duration of ties;

    c.Impact on Australian business interest;

    d.Impact on victims;

    e.Extent of impediments if removed.

    International non-refoulement obligations

13. Paragraph 14.1(4) of the Direction relevantly provides as follows:

    Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

14. In this case it is open to the Applicant to apply for a protection visa if the mandatory cancellation of his Class BA Subclass 202 (Global Special Humanitarian) visa is not revoked.  However, notwithstanding Paragraph 14.1(4) of the Direction, where, as in this case, a person affected by a mandatory cancellation raises, as a reason in favour of revocation of the visa cancellation, a fear of harm in their country of nationality, the Tribunal is required to turn its mind to any international non-refoulement obligations that might arise if that affected person were returned to their home country. In undertaking this task, the Tribunal is not required to conduct an extensive assessment. The level of analysis required is less than that would be required in assessing a claim for a protection visa.

15. 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.

16. The Conventions referred to in the Direction are aimed at Australia’s obligations to avoid particular types of harm occurring to a person in the event that they were to be returned to their country of nationality.

17. In this case the Tribunal is required to assess whether the Applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion and whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Iraq, there is a real risk that the Applicant will suffer ‘significant harm’ as defined in s.36(2A) of the Act, which means to be arbitrarily deprived of life, subject to a death penalty, subjected to torture, cruel or inhuman treatment or punishment or subject to degrading treatment or punishment.

18. Paragraph 36(2B)(c) provides that there is taken not to be a real risk that a non-citizen will suffer significant harm if the Minister is satisfied that the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. Accordingly, the assessment of non-refoulement claims rests heavily on the particularity and personal circumstances of an applicant[43].

    [43] NBMZ and Minister for Immigration and Border Protection [2014] FCAFC 38; [2014] 220 FCR 1 at [22]

19. The Applicant is a citizen of Iraq.  He is a Christian of Assyrian ethnicity. He was born in Basra and moved to northern Iraq when he was seven years old. He learned Syrian Arabic while in southern Iraq but stopped speaking it when he moved to northern Iraq.  He learned Kurdish and spoke Kurdish in the north.  He also speaks Assyrian.  Only Christians speak Assyrian in Iraq.  He does not speak local Iraqi Arabic.  The Applicant left Iraq in 1991.

20. The advance of the Islamic State in Iraq and al-Sham (ISIL) from 2014 had disastrous consequences for Assyrian Christians in Iraq, causing many to flee areas occupied by ISIL[44]. With the defeat of ISIL there is evidence that the situation has improved for Christians, but there are also reports of ongoing persecution of Christians[45].

    [44] Exhibit A16

    [45] Exhibits A18, A19 and A20

21. The Tribunal has had regard to the Department of Foreign Affairs and Trade (DFAT) Country Information Report for Iraq dated 9 October 2018[46].   It notes that:

    a.Christians are a significant minority in Iraq with 97% of the population being Muslim [2.10], but the Iraqi Constitution reserves 5 seats in the country’s lower house for Christians [2.28];

    b.Assyrians are one of a number of minority ethnic groups together comprising around 10% of the population [2.9], the majority being Arab (75%) and Kurds (15%);

    c.Before 2003 different religious and ethnic communities lived together relatively peacefully, at least in urban areas [2.11];

    d.There is now increased harassment and violence against Christians in Shi’a areas of Baghdad and Basrah and state protection is insufficient.  Violence against Christians in the Kurdistan region is less common but Christians still face intimidation and denial of access to services [3.24];

    e.ISIL subjected Christians to high levels of violence and discrimination in areas under its control [3.25] but some Christians have been returning to areas previously held by ISIL since their defeat in various areas [3.26];

    f.DFAT assesses that Christians in Iraq face low levels of official discrimination, but moderate levels of societal discrimination and violence similar to that faced by other minority religious communities [3.27];

    g.Southern Iraq, including Basrah is more secure than other parts of the country [5.15];

    h.There is considerable evidence that Iraqis who are granted protection return to Iraq, sometimes only months after securing residency in Australia to reunite families, establish and manage businesses or take up or resume employment.  The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted amongst Iraqis.  DFAT has limited evidence to suggest that voluntary returnees face difficulties in assimilating back into their communities.  However, local sources have said that returning to Iraq can be difficult, particularly if the individual does not return to their original community [5.24].

    [46] Exhibit R1

22. The Iraq 2017 International Religious Freedom Report[47] prepared by the United States Department of State (Bureau of Democracy, Human Rights, and Labor) states that minority religious communities report that the central government in Iraq did not generally interfere with religious observance but there is harassment, abuse and sexual assault of Christian women by Shi’a units, KRG Pershmerga and Asayish forces and by other groups.

    [47] Exhibit R2 

23. The Tribunal is satisfied on the basis of the evidence presented by the parties that currently regions of Iraq continue to have significant security concerns and Assyrian Christians in Iraq continue to be the subject of harassment and discrimination on the basis of their ethnicity and religion. However, the Tribunal was not referred to evidence that would lead to the conclusion that the violence and persecution suffered under ISIL continues to apply, and significantly the evidence did not establish that there is currently a real risk that the Applicant would suffer the type of significant harm defined in s.36(2A) of the Act if he were to return to Iraq. Further, the Applicant has not established on evidence that his particular and personal circumstances are such that he will face the risk of significant harm. On this basis the Tribunal is not satisfied, for the purpose of the current application, that the Applicant is a person to whom Australia would owe an international non-refoulement obligation within the meaning in paragraph 14.1 of the Direction.
    
    

    Extent of impediments if removed

24. Notwithstanding the finding in relation to non-refoulement obligations to the Applicant, the Tribunal is satisfied that he would be subject to significant hardship if returned to Iraq.

25. The Applicant has not lived in Iraq for over 23 years.  He fled the country with his family because of concerns for their safety.  He has memories of his forced involvement in the war in Kuwait and of other threatening situations in Iraq.  He has no family support in Iraq and does not speak the majority language.  He is likely to have difficulty obtaining employment.  As an Assyrian Christian, he is vulnerable to societal discrimination and possibly violence.

26. In addition, his forced relocation to Iraq can be expected to have a significant adverse effect on his mental health and he would have very diminished opportunities for access to counselling and other mental health services.  Dr Cook stated in his report that the Applicant’s prospects if he were forced to return to Iraq were dire and it is highly likely that his psychological condition would deteriorate profoundly and he would be at risk of harm in a number of respects[48].

    [48] Exhibit A2 at [18]

27. These issues are serious and weigh strongly in favour of revoking the cancellation of the Applicant’s visa.

    The strength, nature and duration of ties

28. The Applicant has a deep family connection with Australia.  He has lived here since 1996.  He has a wife Ms S, four adult daughters, his parents and four siblings as well as an extended family in Australia.  He has good employment prospects in Australia[49] and a connection with his local church community.

    [49] See Exhibits A12 and A13

29. The Tribunal gives this consideration moderate weight in favour of revocation.

    Impact on Australian business interests

30. This consideration is not relevant.

    Impact on victims

31. There was evidence contained in police reports of the impact of the Applicant’s violent behaviour, particularly on his wife Ms S and Ms Z.  The physical injuries and psychological effects suffered by both women were significant.  In sentencing the Applicant in December 2004, the court noted that the victim of the assault by the Applicant in that case had, in addition to significant physical injuries, also been required to visit a psychologist on 20 occasions to deal with symptoms of anxiety and depression, panic attacks, hypervigilance and difficulty sleeping and breathing[50].

    [50] G74-75

32. The Tribunal gives this consideration significant weight against revocation.

    Impact on family members

33. The interests of family are not a primary consideration under the Direction. However, the Tribunal accepts that a refusal to revoke the cancellation of the Applicant’s visa would be disadvantageous for the Applicant’s wife Ms S, his four adult children, his parents and siblings and other members of his family.  The Tribunal gives this consideration some weight in favour of revocation.

    Other considerations

34. Of the factors weighing in favour of revoking the cancellation the most significant is the impediment the Applicant would suffer if returned to Iraq.  The Tribunal is mindful that this result does not automatically follow from the revocation of the Applicant’s visa. He has the opportunity to apply for a protection visa; and even if that is refused, it is open to the Minister to find that he is a person to whom Australia’s non-refoulement obligations apply, notwithstanding the Tribunal’s findings in that regard.  The Minister has the power to grant a temporary visa under s.195A or a residential determination under s.197AB.

35. While it is not for the Tribunal in these proceedings to determine what decisions should be made if the cancellation of the Applicant’s visa is not revoked, it is appropriate in the exercise of the Tribunal’s discretion to give consideration to the possible consequences of its decision.  The detriment the Applicant would suffer if removed to Iraq is a serious matter and the Tribunal gives it substantial weight in favour of revocation.  In addition, there is the prospect that the Applicant will be required to remain in detention for a considerable time while consideration is given to his position.  Both Mr Leal and Dr Cook opined that continued detention would be likely to have a significant deleterious effect on the Applicant’s mental health.  This consideration also weighs substantially in favour of revocation.

    CONCLUSION

36. In Gaspar v Minister for Immigration and Border Protection[51]  North ACJ elaborated on how to approach the exercise of the discretion under s.501CA(4)(b)(ii):

    The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.

    [51](2016) 153 ALD 337 at [38]

37. The Tribunal is satisfied that the cancellation of the Applicant’s visa will protect the Australian community from the risk of further criminal conduct by the Applicant.  The Tribunal is also satisfied that the expectation of the Australian community would be that the cancellation of the Applicant’s visa not be revoked.  These are primary considerations under the Direction. 

38. Against this, the Tribunal has considered the significant adverse consequences likely to be endured by the Applicant if the cancellation is not revoked.  The Applicant faces a very real risk of being deported to Iraq where he will face significant hardships and be at risk of harm.  He may also face an extended period of immigration detention with the attendant risk to his mental health. These consequences also bear on the interests of the Applicant’s family and particularly his four daughters. Even though these considerations weigh strongly in favour of revocation, the Tribunal is mindful of the Applicant’s long history of antisocial and criminal conduct, especially his repeated violent behaviour and his failure to take advantage of the opportunities for reform offered by the criminal justice system, and to heed departmental warnings.

39. This has been a difficult decision but, taking all of the considerations into account, the Tribunal finds that the primary considerations of protecting the Australian community and the expectations of the Australian community outweigh the other considerations and favour the exercise of the discretion under s.501CA(4) not to revoke the mandatory cancellation of the Applicant’s visa.

1. Accordingly, the Tribunal is not satisfied that there is another reason why cancellation should be revoked as contemplated by s.501CA(4)(b)(ii) and affirms the decision under review.

   DECISION

2. The Tribunal affirms the decision of the delegate of the Respondent made on 4 December 2018 not to revoke the mandatory cancellation of the Applicant’s Class BA Subclass 202 (Global Special Humanitarian) visa.

I certify that the preceding 165 (one hundred and sixty five) paragraphs are a true copy of the reasons for the decision herein of Member Richard West.

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

Associate

Dated: 27 February 2019

Date(s) of hearing:	18 – 19 February 2019
Counsel for the Applicant:	Mr John Maloney
Solicitors for the Applicant:	Mr Dushan Nikolic Carina Ford Immigration Lawyers
Solicitors for the Respondent:	Mr Ned Rogers Australian Government Solicitor