SGWS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2025] ARTA 195
•6 March 2025
SGWS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2025] ARTA 195 (6 March 2025)
Applicant:SGWS
Respondent: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Tribunal Number: 2024/9839
Tribunal:Senior Member T Simon
Place:Sydney
Date:6 March 2025
Decision:The Tribunal sets aside the decision under review, being the decision of a delegate of the Minister dated 21 November 2024 not to revoke the mandatory cancellation of the Applicant’s visa, and in substitution decides that the cancellation of the Applicant’s visa is revoked.
...................[SGD]...............................
Senior Member T Simon
CATCHWORDS
MIGRATION – mandatory cancellation of visa – Syrian citizen – Global Special Humanitarian (Class XB) (subclass 202) vis – failure to pass character test – serious offending – whether another reason mandatory cancellation should be revoked – Ministerial Direction No. 110 applied – decision set aside
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth)
Crimes Act1900 (NSW)
Migration Act 1958 (Cth)CASES
CRNL v Minister for Immigration Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116
YNPX v Minister for Immigration and Multicultural Affairs [2025] FCA 49SECONDARY MATERIALS
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
INTRODUCTION
The Applicant seeks review of a decision made on 21 November 2024, refusing to revoke the cancellation of his Global Special Humanitarian (Class XB) (subclass 202) visa under subsection 501CA(4) of the Migration Act 1958 (Cth).
On 13 February 2025, the Tribunal decided to set aside the decision of 21 November 2024 and in substitution decided that the cancellation of the Applicant’s visa was to be revoked, with a notation that the reasons would follow.
The Applicant is 20 years and was born in Syria. The applicant belongs to a minority Christian Orthodox group in Syria. In 2015, when the applicant was 11 years, his family left from Syria to Lebanon. In 2017, when the applicant was 13 years, he and members of his family were granted a XB Subclass 202 Global Special Humanitarian visa to Australia and arrived in Sydney.
The applicant’s Class XB Subclass 202 Global Special Humanitarian visa was initially cancelled on 27 October 2023 under section 501(3A) of the Migration Act 1958. The visa was cancelled on the basis that the applicant had a substantial criminal record within the meaning of sections 501(6)(a) and 501(7)(c) of the Migration Act. On 25 October 2023, he had been convicted of two counts of reckless wounding – in company.
On 21 November 2024, a delegate for the Minister administering the Migration Act decided not to revoke the cancellation. Section 13 of the Administrative Review Tribunal Act 2024 provides that legislation may provide for an application to be made to the Tribunal for review of a decision. Section 500(1)(ba) of the Migration Act allows for an application to be made to the Tribunal for review of a decision of a delegate of the Minister not to revoke a decision to cancel. The Tribunal has jurisdiction to review a decision to refuse to grant a visa under s 501(1) of the Migration Act, where the application for review is lodged within nine days after the decision is notified: s 500(6B). In this case, the applicant was notified of the decision on 22 November 2024 and the application for review was lodged on 27 November 2024, which is within nine days after the decision was notified. The Tribunal therefore has jurisdiction to hear and determine the review application.
The review application was initially scheduled to be heard on 6 and 7 February 2025. On the first day of hearing on 6 February 2025, it became apparent that the applicant had provided three statements and a series of articles within two business days of the hearing. Pursuant to subsections 500 (6H) and (6J) of the Migration Act, any information presented orally in support of the person’s case, or any document submitted in support of the person’s case, must not be considered by the Tribunal if it was given to the Minister within 2 business days before the hearing. With the consent of the parties, the Tribunal determined to vacate the hearing on 6 February 2025 and instead listed the hearing for 7 and 10 February 2025, which allowed for more than 2 business days from when those statements were served on the respondent. The review application was subsequently heard on 7 and 10 February 2025. Both parties were legally represented at the hearing. The applicant and his brother gave oral evidence at the hearing. Ms H and Ms S also gave oral evidence with the assistance of an interpreter in the Assyrian language.
In deciding the outcome of the application, I have considered:
(a)Statement of the applicant dated 4 February 2025 – Exhibit A1
(b)Statement of Ms H dated 4 February 2025 – Exhibit A2
(c)Statement of Ms S dated 4 February 2025 – Exhibit A3
(d)Various news articles provided by the applicant – Exhibit A4
(e)Bundle provided by the respondent provided pursuant to s501G – Exhibit R1
(f)Supplementary bundle provided by the respondent - Exhibit R2
Each of the parties also provided a statement of facts, issues and contentions.
The applicant gave evidence and was cross examined at the hearing. The following witnesses for the applicant also gave oral evidence and were cross examined at the hearing:
·His grandmother, Ms H;
·His brother, Mr J;
·His brother’s partner, Ms S.
CONSIDERATION
Character test
Section 501 of the Migration Act is relevant to decisions to refuse or cancel a visa on character grounds. The Minister may refuse to grant a visa if the person does not satisfy the Minister that the person passes the character test (s 501(1)). A person does not pass the character test if the person has a substantial criminal record (s 501(6)(a)). Relevantly, for the purposes of the character test, a substantial criminal record applies if the person has been sentenced to a term of imprisonment of 12 months or more (section 501(7)(c)).
Pursuant to section 501CA(4) of the Migration Act, the decision to cancel the visa may be revoked if the applicant made representations seeking revocation of the mandatory visa cancellation decision and the Tribunal is satisfied that:
(a)the person makes the necessary representations - paragraph 501(CA)(4)(a); and
(b)The Tribunal is satisfied that:
(i)that the person passes the character test as defined by section 501 of the Migration Act - subparagraph 501CA(4)(b)(i); or
(ii)that there is another reason why the original decision should be revoked - subparagraph 501CA(4)(b)(ii).
The applicant made representations seeking revocation of the mandatory visa cancellation decision as is required by section 501(CA)(4)(a).[1] His court records identify that he had pleaded guilty to two offences for reckless wounding - in company.[2] He was sentenced in the District Court of NSW to an aggregate term of imprisonment of 2 years, 6 months’ imprisonment commencing on 2 August 2022 and expiring on 1 February 2025 with a non-parole period of 16 months. On that basis, the applicant does not pass the character test as defined by section 501 and subparagraph 501(CA)(4)(b)(i) is not satisfied.
[1] Exhibit R1, p 151-162.
[2] Exhibit R2 p 55-56.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED? SUBPARAGRAPH 501CA(4)(B)(II)
As the applicant does not pass the character test as required by section 501 of the Migration Act, the issue for this Tribunal to consider is whether there is another reason why the original decision should be revoked as required by subparagraph 501CA(4)(b)(ii).
In Viane v Minister for Immigration and Border Protection [2018] FCAFC 116, a decision of the Full Court of the Federal Court of Australia, the task of identifying “another reason” was elaborated on by Colvin J at [64]:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
Pursuant to section 499(1) of the Migration Act, the Minister may give written directions to a body having functions or powers under Migration Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) requires the Tribunal to comply with any directions made under section 499(1). In this case, the Tribunal is required to comply with “Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (the Direction), made under s 499(1).
Clause 5.2 of the Direction sets out the factors, that must be considered in making a decision under section 501 of the Migration Act. The principles are:
(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 non-citizen 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.
Clause 6 requires that informed by the principles in paragraph 5.2, the Tribunal must take into account the considerations identified in sections 8 and 9 where they are relevant to the decision.
Clause 8 provides the primary considerations when making the decision. A non-exclusive list of other considerations is set out in clause 9 of the Direction.
The applicant submits there are other reasons which carry sufficient weight or significance to satisfy the Tribunal that the original decision should be revoked. The Minister contends there are no other reasons that carries sufficient weight or significance to satisfy the Tribunal that the original decision should be revoked.
PRIMARY CONSIDERATIONS
The primary considerations the Tribunal must consider are set out in clause 8 of the Direction. They are:
(1) Protection of the Australian community from criminal or other serious conduct;
(2) Whether the conduct engaged in constituted family violence;
(3) The strength, nature and duration of ties to Australia;
(4) The best interests of minor children in Australia; and
(5) Expectations of the Australian community.
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct – 8.1
In accordance with subclause 8.1(1) of the Direction, when considering the protection of the Australian community, the Tribunal has kept in my mind that the safety of the Australian community is the highest priority of the Australian Government, and that the Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens. Entering or remaining in Australia is a privilege and there is an expectation that non-citizens are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
As required by 8.1(2) of the Direction, The Tribunal has also considered:
(a)the nature and seriousness of the applicant’s conduct to date; and
(b)the risk to the Australian community, should the applicant commit further offences or engage in other serious conduct.
Nature and seriousness of the applicant’s conduct - 8.1.1
Subclause 8.1.1(1) (a) of the direction provides that violent crimes are viewed very seriously by the Australian Government and the Australian community. In submissions, the applicant agrees that his offending should be viewed very seriously.
As already noted, the applicant’s conviction of 25 October 2023 relates to two offences of reckless wounding in company contrary to section 33(3) of the Crimes Act 1900 (NSW). The Tribunal finds those crimes are violent and are viewed very seriously by the Australian Government and the Australian community - subparagraph 8.1.1(1) (a)(i).
Subclause 8.1.1(1)(c) of the Direction provides that in considering the nature and seriousness of the applciant’s criminal offending, The Tribunal must have regard to the sentence imposed by the courts for the crimes. The applicant was sentenced to an aggregate sentence of imprisonment of 2 years and 6 months. In the sentencing judge’s remarks,[3] he noted that the offence of reckless wounding in company carries a penalty of a maximum term of imprisonment of ten years and a standard non-parole period of four years. The aggregate sentence imposed in relation to the two offences, was at the lower end of the maximum sentence.
[3] Exhibit R1 pp 64 - 84
Subclause 8.1.1(1)(d) of the Direction, requires the Tribunal to consider the impact of the offending on the applicant’s on the victims. The first offence occurred on 3 February 2022 (first offence) when the applciant was 17 years. The circumstances of the offence were described by the sentencing judge as follows:
Count 1, Reckless Wounding in Company
On 3 February 2022, I note at the time he was a juvenile aged 17 years of age. Having been born on 1 April 2004, he was two months shy of his 18th birthday. The co-offender in count 1, …, was 18 years of age. The victim was a juvenile… the victim was walking … he was approached by a group of five young males. In that group was the two offenders. One in the group approached the victim, addressed him by name and had a conversation with him. The details of that are unknown. The victim then fled down the boulevard …, ran to a roundabout and tried to wave down a passing car. The victim knocked that unknown male to the ground with a knee and a push. The victim turned and ran to the opposite direction across the roundabout. The offender reached the roundabout. The victim tripped and fell to the road. the offender, armed with a large knife, took two large stabs towards the victim's legs and at least one further, small stab (count 1). He walked away a few steps and ran from the scene. An unknown male and the victim wrestled on the ground. He struck the victim with his fist and knee multiple times. The co-offender arrived when this offender was leaving. The pair appeared to speak for a second. The co-offender walked over to the unknown male. The parties separated. The offender waved down a passing car, got in it and drove away. The victim was taken to hospital, where he received medical treatment for multiple large and deep cuts to his legs… There are photographs attached to the agreed facts which show the extent of the victim’s injuries which are significant, although not life-threatening.
In relation to the victim of the first offence the sentencing judge remarked:
Whatever was said to the victim, caused him to flee, after which he was pursued, particularly by the two offenders who assaulted him. This offender, with a large knife, took two large stabs towards his legs and one further small stab. He was reckless as to the resulting harm. The victim was clearly injured, and alone with no apparent means of assistance. The Crown says that is a circumstance of aggravation. I accept that submission. There was no attempt to assist the victim in any way, despite the fact he was obviously bleeding. The offence occurred over a short period of time in a public area. It involved a high degree of violence, particularly by this offender, towards the victim. There is no explanation as to why this offence occurred and I suspect there is a substory involving some degrees of immaturity to explain why they would assault an unarmed person in this manner, potentially capable of causing serious injury.
The victim suffered multiple large and deep cuts to his legs and received medical treatment. It was an unprovoked attack instigated by the unknown male. There is no evidence of any ongoing harm experienced by the victim, psychologically or medically. I accept both counsel's submission that the offence falls around the mid-range of objective seriousness.
The second offence occurred about 7 months later, on 22 July 2022 (second offence), while the applicant was on bail for the first offence. The applicant was 18 years of age.
In relation to the circumstances of the second offence the sentencing judge remarked:
Count 2, Reckless Wounding in Company
On 22 July 2022, the time of count 2, the offender was now 18 years of age. The co-offender, … born in 2005, was 17 years at the time. The victim, …, a juvenile, was 16 years at the time. On the evening of 22 July 2022, the victim was with [two friends]. They went to … McDonalds at 8. Then they went to a Speedway service station. They sat outside for a while, eating snacks. The KFC … was a short distance away, where [one of the friend’s] had worked and hoped he could get free chicken given out from the store when it was about to close. Because of that, the three decided to walk there and get some food. It started to rain. The victim and [one of his friends] decided to get undercover at the KFC. [the victims other friend’s] left, as he did not wish to be seen loitering outside his workplace.
The co-offender also worked at the KFC. He was on a shift that night. At 10.46pm and 10.48pm, the co-offender called the offender via Instagram and is seen on his phone and depicted in the photographs attached to the agreed facts. The offender walked from his house to meet the co-offender at KFC. The co-offender was armed with a yellow wrench taken from the KFC's toolbox on a shelf in the back storeroom. The offender was armed with a kitchen knife. The offender met the co-offender outside the back door of the KFC. The pair walked towards where the victim and [the friend] were waiting. They victims saw the two offenders coming towards them and recognised the offender as the co-offender's school friend, [the applicant]...
The co-offender ran after the victim and towards the road and struck him to the shoulder and blades and spine with the wrench, causing him to fall to the ground. The victim saw the offender running after [the friend] and then returned towards him. The co-offender kicked the victim whilst he was on the ground several times. The victim tried to protect himself. The offender, with a knife, stabbed and cut the victim. He cut him to his right flank and stabbed him to the buttocks (count 2)... [The victim] and [the friend] collected themselves and made their way to [the] Police Station. The offender and the co-offender ran away.
The victim and his friend attended the police station. The victim was bleeding heavily down his rear right leg from the wound to his buttocks. He was transported to Liverpool Hospital. The wounds were dealt with surgically and irrigated and sutured. He was discharged the following day…
In relation to the victim of the second offence, the sentencing judge remarked:
The victim was rendered helpless by being struck by the co-offender, who was in company with this offender. He was struck with a wrench. He fell to the ground and kicked, unprovoked, on the ground whilst he was unable to defend himself. Whilst there, this offender then stabbed him - cutting him to the right flank and buttocks, with a knife he carried. It was deliberate. The Crown conceded he was reckless as to the resulting harm. There was a short period of time involved in the offence, through no act of the offender or his cooffender, but because of the other friend of the victim coming to his assistance, pushing a trolley against them. They did not offer any assistance or aid to the victim. Again, it occurred in public and involved a high degree of violence. The injuries were significant and caused the victim to bleed heavily. It was a five-centimetre wound to his right flank, a one-centimetre right gluteal puncture wound to his buttocks which were irrigated and sutured at the hospital. Again, I have no evidence as to whether the victim suffered any ongoing physical or mental consequences because of being assaulted in this way.
Considering subclause 8.1.1(1)(d) of the Direction and the impact of the applicant’s offending on the victims, both victims did suffer immediate harm because of the offences and had to be taken to hospital. The Tribunal also does not have details of ongoing physical or psychological harm suffered by the victims. The Tribunal notes that the victim of the second offence was released from hospital the following day and the sentencing judge noted that in relation to the first victim, while the injuries were significant, they were not life threatening.
Subclause 8.1.1(1)(e) of the Direction states that the Tribunal must also have regard to the frequency of the applciant’s offending and whether there is a trend of increasing seriousness. Subclause 8.1.1(1)(f) of the Direction, also provides that the cumulative effect of the applicant’s offending is relevant.
The sentencing judge made the following remarks:
… it is significant that he has no prior convictions. In view of the contents of the psychologist report and background material, it is surprising, but some relief that he has gone through his youth since coming to Australia without committing any criminal offences at all. It is indicative of the good family he comes from. He is entitled to be regarded as a person of good character up until the commission of these offences. That can be taken into account in affording him a degree of leniency, but also to consider whether he has any prospects of rehabilitation and not reoffending in the future…
The applicant committed two stabbing offences in the span of 7 months and the separate offences were committed within a very short time of each other. The offences were similar in nature as they both involved stabbing with a knife. On the evidence before the Tribunal, the applicant had not committed any offences in the lead up to the first offence or after the second offence. Although the sentencing judge dealt with the applicant's offences by way of an aggregate sentence, the sentencing judge gave indicative sentences in relation to each of the offences. In relation to the first offence, he indicated a term of imprisonment of two years' imprisonment with an indicative non-parole sentence of 12 months. In relation to the second offence, he indicated a term of imprisonment of 15 months with an indicative non-parole period of seven months and two weeks. Although the two offences were committed within a short time of each other, they do not reflect a trend of increasing seriousness.
The Tribunal finds that the nature of the applicant’s conduct, and crimes was violent, and the conduct and crimes were serious.
In considering the need to protect the Australian community from harm, the Tribunal has had regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable – subclause 8.1.2(1).
Subclause 8.1.2(2)(a) of the Direction requires the Tribunal to have regard to the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct. In the Tribunal’s view, if the applicant were to re-offend in a similar manner, there would be potential for harm to the Australian community. Both victims of the offences he committed suffered injuries which resulted in them to be taken to hospital.
In addition, subclause 8.1.2(2)(b) requires the Tribunal to consider the likelihood of the applicant engaging in further criminal or other serious conduct.
The Tribunal must take into account information and evidence on the risk of the applicant re-offending – subclause 8.1.2(2)(b)(i).
The Tribunal has been provided with the sentencing assessment report completed by a community directions officer on 2 August 2023.[4] The report indicates that the applicant was assessed at a medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R).
[4] Exhibit R1, p 183 – 185.
The Tribunal has also been provided with a psychologist’s report,[5] which was prepared in advance of the applicant’s sentencing and is dated 11 August 2023. The report has been undertaken by a registered psychologist who agreed to be bound by the relevant expert code of conduct. The assessment for the report was undertaken on 7 August 2023. On the LSI-R, the psychologist found that the applicant falls in the low risk for reoffending.
[5] Exhibit R1, p 163 – 182.
Having read both reports, the Tribunal prefers the views expressed in the report of the psychologist. The psychologist has set out her expertise in the report and provided a detailed background and assessment of the applicant. The psychologist’s report provides more detail regarding him and the relevant testing.
The judge in his sentencing remarks also considered the prospects of the applicant reoffending and stated:
I am satisfied that his time in custody has had a significant impact upon encouraging him away from crime and reduced the need for specific deterrence. I am satisfied that with the guidance of his brother and those who will be available to him in the Corrective Services institutions and Community Corrections on parole will be able to assist him in ensuring his rehabilitation is successful. He is still young and capable of being taken in that direction.
The applicant was involved in one incident when he was in jail. An incident report records that the applicant was involved in a fight with another inmate on 30 January 2023 and that they were separated and cleared of any serious injury. The applicant was asked about the incident at the hearing. The applicant stated that the other inmate came to him and tried to hit him and so he hit him.
In cross examination, the applicant was taken to a case note about an incident noted in records while he was in immigration detention on 26 July 2024. It was observed through camera footage that the applicant was involved in a physical altercation with another detainee. The note indicates that he was reminded that his behaviour was inconsistent with his rights and responsibilities within the immigration detention centre, and he was advised that he may not achieve the ten additional behavioural incentive points for the week. In cross examination, the applicant denies that the incident had happened or that anyone ever spoke to him about the incident or the points.
There is very little detail in relation to both incidents beyond the brief notes and the evidence of the applicant himself. In relation to the first incident in jail, he conceded the incident had occurred and it does not appear to be of a serious nature. In relation to the purported incident in immigration detention, the Tribunal finds on the applicant's evidence that it did not occur. Even if the incident did occur it appears that it was not of a serious nature as no further action appears to have been taken regarding the incident. Given he was in jail and then in immigration detention for a period of about 2 and a half years, the Tribunal finds that overall, there has been no serious conduct while he has been in prison or immigration detention that would indicate risk of he re-offending.
The evidence and information before the Tribunal demonstrates that the applicant is remorseful for his offending behaviour. In oral evidence to the Tribunal, the applicant stated that in relation to the first offence he felt ‘bad’ for his victim and the victim’s family. He stated he had learnt from his ‘mistakes’. The applicant stated that he was sorry for stabbing the second victim and he was also sorry to his family and the community. He stated that he regretted what he had put both his family and the victim’s families through.
The sentencing judge noted in his remarks:
I am satisfied he is genuinely remorseful and has taken responsibility for his behaviour. I also take into account that in relation to both matters, the young victims who were subjected to this violence were not required to relive it by giving evidence at a contested trial. I will take that into account as a further indication of his growing maturity and his remorse.
In a letter dated 17 October 2024,[6] written by the applicant to the court prior to his sentencing, he also indicated he was remorseful. He stated that he regretted his actions and the impact his offences had on his family, particularly his brother and grandmother. The applicant stated he wanted to apologise to the victims and their families.
[6] Exhibit R1, p 188.
The applicant pleaded guilty to the offences prior to sentencing. The sentencing judge applied a reduction to his sentence because he had pleaded guilty at a ‘Super Call Over”, which meant that the victims were not required to give evidence at a contested trial. The sentencing judge took into account the applicant’s pleas of guilty and considered them ‘a further indication of his growing maturity and his remorse.’ [7]
[7] Exhibit R1, p 70-71.
In the sentencing assessment report,[8] completed by the community corrections officer, it states that in relation to his insight into the impact of his offending:
[the applicant] acknowledged the impact his violent offences had upon the victims and their families and expressed remorse for the emotional strain he placed upon them.’ [the applicant] also acknowledged the ‘the impact his offending behaviour had on his family and the financial strain placed upon his brother by way of legal fees.
[8] Exhibit R2, p 14 -18.
The report also states:
[the applicant] accepted responsibility for his violent offending. While [the applicant]did not justify his offences, he identified his substance use, poor mental health and war
related trauma as factors that contributed to his aggressive and violent behaviours.
In cross-examination, the applicant was asked about a summary of the facts that had been set out in the delegates statement of reasons for the decision under review.[9] The summary of the facts was purported to be a description of the circumstances of the offending as set out in the court transcript of 25 October 2023 with a reference to ‘Attachment B’. ‘Attachment B’ is identified as the sentencing remarks of the Judge of the District Court of New South Wales at Parramatta dated 25 October 2023. A comparison of the extract of the delegates decision and the sentencing judge’s remarks reveals that that the extract in the delegates reasons for the decision is not a quote from the transcript, but a rephrasing of the sentencing judge’s remarks. The applicant confirmed he agreed with the facts, as they were read to him in relation to the first offence. He sought to clarify a matter in relation the following fact, as it was read to him from the delegates remarks in relation to the second offence:
The victim (a juvenile, aged 16 years) and his friend were standing outside the KFC
store, where they had taken shelter from the rain. [The applicant] and the co-offender
walked towards where the victim and his friend were standing. [The applicant] then ran
towards the victim’s friend and the victim and his friend ran off.
I have already outlined the sentencing judge’s remarks in relation to the circumstances of the offence at para [30] above. Relevantly the sentencing judge stated:
The KFC … was a short distance away, where [one of the friend’s] had worked and hoped he could get free chicken given out from the store when it was about to close. Because of that, the three decided to walk there and get some food. It started to rain. The victim and [one of his friends] decided to get undercover at the KFC. [the victim’s other friend’s] left, as he did not wish to be seen loitering outside his workplace.
At paragraph 21 of the statement of agreed facts[10], which had formed the basis for the sentencing for the criminal offences, it states:
KFC … was a short distance away. [the second person with the victim] worked there, and hoped he could get free chicken, given the store was about to close. The trio decided to walk there and get some more food. As th[ey] walked there, it started to rain. The victim and [the third person with the victim] decided to get undercover at the KFC. [the second person with the victim] left as he did not wish to be seen loitering outside his workplace.
[10] Exhibit R2, pp198 -201
It should be noted that neither the sentencing judge’s remarks or the agreed facts used the words that the victim and his friend ‘were standing outside the KFC store, where they had taken shelter from the rain’.
When the facts (as set out in the delegates statement of reasons for the decision) were read to the applicant and he was asked in cross examination whether he agreed with them, he answered that in relation to the part where it stated that the victim and his friend were there for ‘shelter only’, he was not making excuse for his offence, but that wasn't why there were there. The applicant believed they were there to hurt his cousin.
The delegate’s decision does not state that the victim and his friend were there for ‘shelter only.’ However, The applicant’s clarification on the point does not amount to him excusing his behaviour or resiling from the agreed facts as they were in the criminal trial. The applicant was not justifying his offences, rather he was replying to what he thought had heard read out to him from the delegates rephrasing of the sentencing judge’s remarks.
The applicant’sbrother (who I shall refer to as Johni so as not to cause confusion), his grandmother Hilana Zomaia and his brother's partner, Sandra Merca, all gave evidence at the hearing. The Tribunal is satisfied from their evidence that they will continue to provide support to the applicant in the community. The applicant has the option of accommodation with his grandmother. His brother detailed prospects of employment with him on a contract for steel fixing interstate. Over two days other family members also attended the hearing, including the applciant's father. Johni was an impressive witness. He had provided a written statement in support of his brother dated 27 July 2024. Johni is a positive factor in the applicant’s life and has supported him financially and emotionally through the criminal and migration proceedings. Johni has visited and spoken to his brother regularly in jail and in immigration detention. The respondent acknowledged that Johni was a 'good role model' but submitted that had not prevented the applicant from committing offences previously. Johni stated that he had seen a change in his brother and felt he had started to listen to him and was working on what was better for him, especially in relation to who he was friends with. The applicant speaks with Johni about his goals including work and getting married and starting a family.
In oral evidence, the applicant stated that in immigration detention he had made sure he kept to himself. The applicant also explained that he had ‘cut off’ people from his life and that if he got out, he was going to ‘do his own thing’. When the applicant was asked why he had cut people from his life, he answered:
It's because when, when they needed my help, you know, I was there for them, but when, when I was in a bad situation, you know, like they, they were never there for me.
The Tribunal finds that based on the psychologist report, the applicant evidence demonstrating his remorse and the evidence of his family indicating that they will provide him accommodation, job prospects and support for his continued rehabilitation, that there is a low risk of the applicant re-offending. He committed the two offences in a short period of time when he was a young person and at the height of his substance abuse and mental health issues. The applicant is still young, and the Tribunal accepts that his relatively short time in jail and detention has had a frightening effect on him. He had not committed any offences prior to his first offence and there were no significant incidents in jail or immigration where violence often exists.
Subclause 8.1.2(2)(b)(ii) of the Direction requires that in considering the likelihood of the applicant engaging in further criminal or other serious conduct the Tribunal should also take into account evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence.
The sentencing judge noted in his remarks that by the time of sentencing, the applicant had already been in custody for 450 days. The applicant's aggregate non-parole period of 15 months made him eligible to be released six days from the date of sentencing. Immediately after the expiration of the non-parole period on 1 November 2023, the applciant was taken to an immigration detention centre.
The report of the psychologist dated 11 August 2023,[11] provides an outline of the applicant’s background and psychological profile. The Tribunal has set out the details and findings in the report in some detail.
[11] Exhibit R1, p 163 -182.
The psychologist notes that the applicant was born in Al-Hasaka, Syria and is of Assyrian heritage. His mother, passed away in 2012 following a heart attack. The applicant has one brother, Johni, aged 21 years. Prior to the death of his mother, he stated that he was “always happy.” From 2012 he was cared for by his paternal grandparents because of his father’s work commitments. He had a close, loving, and supportive relationship with his grandparents. He reported that he received harsh physical discipline from his father during his childhood and early adolescent years. The report records that the applicant stated that he fled Syria to Lebanon in 2015 with his father, brother, and paternal grandparents following religious persecution, war, and political conflict. They arrived in Australia in 2017. The applicant’s father remarried in 2020 and left the family home. The report records that the applicant stated:
“I was upset. I would tell him; you don’t love my mum anymore. Don’t do it.”
The applicant and his brother remained in the care of their paternal grandparents, and he had limited contact with his father. His paternal grandfather was diagnosed with cancer in July 2023. The applicant has been in a relationship since 2022, which he described as on-and-off.
The psychological report also notes that the applicant completed primary school in Syria. He did not enjoy school. His later primary school education was disrupted because of war and political conflict in Syria, and he received no formal education whilst residing in Lebanon. Following his arrival in Australia, the applicnat attended an Intensive English Centre for a period of 1 ½ years and commenced mainstream classes at local public school in term 4 of year 8. The applicant had difficulty comprehending key concepts covered in class, he was easily distracted and had poor academic performance. The applicant reported truancy and engaging in physical fights with his peers, for which he received multiple school suspensions. The applicant withdrew from school in Year 11 at the request of the school principal.
The applicant reported to the psychologist that he had difficulty understanding written information, and often required assistance completing forms and other paperwork from his friend. On this note, the Tribunal observed that while the applicant speaks and understands English, the applicant often struggled to comprehend oral questions put to him. It did not appear to be a language barrier, as the applicant spoke English, but rather a matter of expression. It was only after questions were rephrased in a basic expression that the applicant could comprehend the meaning of the question.
The applicant was last employed as a removalist, a position he held for one year up until his incarceration.
The psychologist administered psychometric tests. She reported that the applicant meets the criteria for the diagnosis for post-traumatic stress disorder. The psychologist stated that the cause of the trauma appears to be associated with the applicant’s adverse life events, including that when the applicant was 8 years, he witnessed his mother collapse in the kitchen. The applicant reported difficulty coping with the loss of his mother and began acting out aggressively. The applicant recounted to the psychologist his exposure to war and political conflict in Syria. He witnessed the murder of innocent civilians, and was exposed to abductions, dead bodies, regular gunfire, and bombings during his childhood years. When he was 9 years, his 19-year-old cousin was murdered by gunfire. He stated,
“When we heard it, we ran, then we saw his dead body.”
At 10 years, the applicant and his family were awoken in the middle of the night to the sound of gunfire and explosions after Islamic State Militants attacked his village. He was exposed to video footage of his relative being beheaded by Islamic State Militants.
The psychologist also asserts in the report that the applicant meets the criteria for the diagnosis of:
F33.2 Major Depressive Disorder with Anxious Distress, Recurrent, Severe
The psychologist reported that the applicant also met the criteria for the diagnosis of:
F12.21 Cannabis Use Disorder, Severe, in Sustained Remission, In Controlled
Environment
F11.21 Opioid Use Disorder, Severe, in Sustained Remission, In Controlled
Environment
The psychologist stated that, ‘in sustained remission’ indicates a period lasting more than 12 months without meeting the relevant criteria other than craving. Craving is an exception because it can persist long into remission. ‘In Controlled Environment’ is used if the individual is an environment where access to substances is restricted.
The applicant told the psychologist that he has never received any form of treatment to overcome the effects of his past trauma. However, the psychologist noted that effective treatment is available to the applicant, which will reduce the risk of recidivism. The applicant acknowledged that he was willing to engage in psychological intervention.
The applicant stated to the psychologist,
“I made a promise to my family I would never do it again. My cousin went to juvi, he’s a good guy. I learned my lesson. I’ve been off drugs for 1 year. I want to get out and start working. I was young then. I’ve matured. The boys in here tell me you have to stop.” He further stated, “I feel remorseful for them (the victims) too, their family getting called, being told they were in hospital.”
An unsigned treatment plan is attached to the report. It sets out the place that the applicant will continue his treatment and that if required to attend a drug rehabilitation program, he will contact his treating psychologist and advise them of that and on discharge from the rehabilitation centre he will resume treatment. The treatment will involve:
• Cognitive Behaviour Therapy (CBT) treatment
• Cognitive analysis, challenging and restrnctmi.ng
• Activity rescheduling and behavioural modification
• Skills training i.e., problem solving, stress management, anger management, communication skills
• Relaxation training
• Other treatment as deemed appropriate by his treating provider i.e., psychiatric assessment.
The treatment plan requires the applicant to attend for psychological treatment on a fortnightly basis at the time and date nominated by the psychologist. When deemed appropriate by the psychologist, but not prior to the initial four treatment sessions, the frequency may be varied. The applicant would also attend for case reviews with his treating doctor at least every two months, but more frequently if deemed necessary. The applicant would accept the overall supervision of his general practitioner or designated psychiatrist and would consult with their recommendations. The applicant would abide by a medication regime as directed by his treating GP or psychiatrist. In the event of any significant deterioration of a mental health nature, the treating provider will arrange a case review and will initiate appropriate action.
In cross examination, the applicant was asked about the treatment plan and whether he had followed the treatment plan. He indicated that he understood that the plan was for when he left immigration detention and he agreed that he would continue psychological treatment and have supervision from a GP and would abide by the medication regime when he left.
In cross examination, the applicant was asked if he had been able to obtain any treatment for his mental health condition while in the immigration detention centre and he confirmed he had not. He indicated that even if he asked for help in detention, he was not going to get anything out of it because they were not going to do what he was asking. So instead, he just stayed in his room. The applicant was also asked why he thought he would not get anything out of it, and he replied:
Because I've asked, you know, like so many times, but they just.. they just don't bother.
In cross examination, the applicant was also asked about the depression medication he had been prescribed and he confirmed that he had not been taking it because he had spoken to a nurse and explained that it was not helping him. In that regard, there are two letters which were sent to the applicant while he was in immigration detention because he had missed his medication.[12] The Tribunal accepts that it has been difficult for the applicant to engage in a complete treatment plan because he was sent straight from jail to immigration detention. The Tribunal also accepts the applicant’s evidence that access to such treatment in the immigration detention is difficult. The applicant has not been taking his medication because he found it unhelpful, and he did have some discussion with a nurse about it which did not assist. The Tribunal accepts the applicant’s evidence that he will complete the treatment plan in the community, where he has access to his GP and psychologist, and they can determine the best medication and any changes to the plan moving forward.
[12] Exhibit R2, pp 24-25.
The applicant reported to the psychologist that he first experimented with cannabis at the age of 16 years, and within 1 year his usage escalated to a quarter of an ounce per day. That pattern of use continued up until his second arrest. At the age of 16 years, the applicant also began using a combination of codeine cough syrup and sprite (known as purple drank) recreationally. By the age of 17 years, he was consuming 3 bottles of the mixture per day, which continued up until his second arrest. The applicant’s usage of cannabis and ‘purple drank’ escalated further following his release from juvenile detention. He stated to the psychologist that:
drugs make me stop stressing out, stop thinking about what happened in the background and the flashbacks.
The applicant’s corrective services records note that he undertook a course called “Rolling EQUIPS Addiction” while in jail.[13]
[13] Exhibit R2, p 275.
In oral evidence, the applicant was frank and open about his drug use including in front of his relatives that were in the hearing room.
The applicant stated that he had not used drugs since he went to jail, being a period of two and a half years. He stated he had been tested for drugs in jail and the results were negative. Initially, when asked if drugs were accessible to him in prison, the applicant stated that they were not. When the question was rephrased to him by counsel in re-examination, he agreed that if he had decided to seek out drugs in prison or immigration detention then they would likely have been accessible to him, but that he had not. When the applciant was asked whether he would use drugs if he re-entered the community and he answered:
… I've been sober for 2 1/2 years. Like why would I start doing it and ruin my life again?
There is evidence that the applicant has achieved some rehabilitation by the time of this decision. I cannot give it additional weight on the basis that the applicant’s time spent in the community, because he was immediately sent to immigration detention after his time in jail. While in custody, the applicant has engaged and participated in interventions to address his substance use and communicated his intentions to continue this in the community. While on remand, he had attended two sessions of rolling EQUIPS Addiction program.
Conclusion in relation to protection of the Australian community
The two offences committed by the applicant were serious and violent in nature. There is no doubt that should the applicant again engage in conduct similar to those offences, the resulting harm to an individual and more broadly to the Australian community is likely to be serious.
In relation to the risk of the applicant reoffending, the Tribunal accepts that he feels remorse for the crime he committed and that he is intent on not reoffending. The Tribunal accepts that the applicant no longer takes drugs and has cut out the associates who have had a bad influence on him. The applicant has excellent family support, especially from his brother, grandmother, and brother’s partner. His family are committed to ensuring that he does not reoffend. Based on the evidence given by the applicant, the Tribunal accepts that he is committed to engaging in rehabilitation if he were to leave detention. The Tribunal accepts that he has matured since the offences were committed and that the offences were committed at an isolated time in his youth. The Tribunal accepts that the experience of jail and immigration detention has given the applicant an opportunity to recognise his psychological issues including the impact of his past trauma and his substance issues. The Tribunal accepts that jail and immigration detention has had some rehabilitative effect on him, and he is determined not to put his family through the same experience again. The Tribunal accepts the opinion expressed in the psychologist report before it, that the risk of the applicant reoffending is low.
The Tribunal also finds from the psychologist report that the applicant’s treatment is not complete and that he needs to continue the treatment plan set out for him by the psychologist. The applicant has largely been in prison and then in immigration detention since he committed the first offence in February 2022, and he requires ongoing psychological and drug rehabilitation treatment. The applicant has spent very little time in the community since he was convicted of the two offences. He has had little opportunity to demonstrate how he acts in the community. The Tribunal accepts that the applicant requires ongoing psychological treatment. However, there is a plan for the applicant’s further psychological treatment and the Tribunal is satisfied he is committed to undertaking it. The Tribunal finds that with his family’s support, the applicant remains on a path towards full rehabilitation.
The Tribunal finds that the applicant represents a low risk, in the sense of likelihood, of reoffending. In those circumstances the Tribunal considers that the risk to the community overall is very substantially reduced despite his offending being serious. The Tribunal has found the applicant was remorseful for his actions, has gained insight into his offending, psychological profile and substance abuse and has taken steps toward rehabilitation.
Overall, the Tribunal finds that this primary consideration weighs slightly in favour of revocation of the cancellation of the applicant’s visa.
Primary Consideration 2: Whether the conduct engaged in constituted family violence – 8.2
The Direction requires the Tribunal to consider whether the applicant has been convicted of any offence or had charges proven that involve family violence. There is no evidence or material indicating he has committed a family violence offence. This primary consideration is not engaged and is given neutral weight.
Primary Consideration 3: The strength, nature and duration of ties to Australia– 8.3
In accordance with subclause 8.3(1), the Tribunal has considered the impact of the decision on the the applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
The applicant’s paternal grandmother, brother Mr J and Mr J’s partner, Ms S all gave evidence and are resident in Australia. A number of people attended the hearing over the two days in support of the applicant. They were not specifically identified to the Tribunal except when the applicant referred to his aunty and his father. In his ‘personal circumstances form’,[14] response to matters under section 501 of the Migration Act, the applicant listed relatives as his grandmother, four aunts and an uncle. All of them, except for one uncle who resides in Canada, reside in Australia. At the hearing, the applicant also gave evidence regarding his cousins. The applicant gave evidence that he had a number of cousins in Australia, including 6 who were under 18 years. The others were his age or older. He gave evidence that he is close to many of his cousins and would visit his aunt, who was at the hearing, and his uncle’s house regularly. He gave evidence he would see his cousins two to three times a week. He has spoken to his cousins over the phone while in detention.
[14] Exhibit R1, p 111.
The applicant has not returned to Syria since his arrival in Australia in 2017.
The applicant’s grandmother, Ms H, provided a written statement to the Tribunal.[15] His grandmother stated that she is an Australian citizen. His grandmother has been his primary caretaker since the death of the applicant’s mother when he was 8 years living in Syria. In her statement, Ms Z stated:
[The applicant] and I share a very close relationship. [The applicant] has constantly been a source of support for me. Without his presence, I feel lifeless.
[15] Exhibit A2, para 15.
The applicant has lived with his grandmother and grandfather (who is now deceased) since arriving in Australia. The Tribunal accepts that the applicant shares a very strong bond with his grandmother.
The applicant’s grandmother gave evidence that he has assisted her, and she relies on him. However, the applicant’s grandmother does have others who are able to assist her and provide care, including the applicant’s brother Mr J and his aunts.
In her statement,[16] Ms S (Mr J’s partner), stated that she had been in a relationship with Mr J since 2021. She stated that initially, the applicant was quite shy and wouldn't speak with her much, however over time their relationship developed, and she has gotten to know him well.
[16] Exhibit A3.
As the Tribunal stated previously, Mr J was an impressive witness. Mr J has an indefinite right to remain in Australia as part of his global humanitarian visa but has not yet applied for his Australian citizenship. The applicant and his brother share a very close bond. Mr J stated that he had put off getting married because he has been dealing with the applicant’s criminal and immigration issues, including working hard and paying to get his brother out of trouble. Mr J has obtained work for a contract steel fixing on a project in Queensland. If released, the applicant will work with him.
Subclause 8.3(2) of the Direction requires the Tribunal to give less weight if the applicant began offending soon after arriving in Australia. The applicant arrived in Australia when he was aged 13 and has resided in Australia for about 8 years. He has spent his formative teenage years in Australia. His offences occurred about 5 years after he arrived in Australia. In context of his young age, the Tribunal finds that there was a passing of sometime after arriving in Australia before the applicant committed the offences. The applicant did not begin offending soon after arriving in Australia.
The applicant was employed as a removalist for about a year prior to his first offence. The Tribunal notes he left school in year 11 and there would not have been a significant period between when he left school and started employment.
There is no dispute that the applicant has ties to Australia, having spent some 8 years here, those being his formative teenage years. All his immediate family, most notably his brother, grandmother and father reside in Australia. He has a large extended family in Australia and was in employment prior to committing the first offence.
Mr J, his partner, and the applicant’s grandmother all indicated they would be devastated if the applicant were to return to return to Syria. Despite knowing of his offences and drug use the family have remained supportive of the applicant.
The Tribunal find’s that this consideration weighs strongly in favour of revocation of the cancellation to the visa as the applicant has strong and continuing ties his family and the Australian community.
Primary Consideration 4: the best interests of minor children in Australia – 8.4
The applicant does not have any children of his own. His evidence is that he has six cousins who are minors, and he regularly visits them. The relationship between the applicant and his cousins is not a parental relationship. The applicant’s offences have perpetrated violence and the respondent submits that the applicant would not be a good role model for his young cousins. However, the children did not give evidence and there is negligible evidence of how the applicant’s cousins view him and whether they regard him as a role model. The Tribunal accepts that the applicant visits his cousins and spends time with them regularly, and that the applicant’s removal would have some impact on them. However, there has already been a period of absence in their relationship because of the applicant’s incarceration and detention. The applicant’s cousins also have other adult cousins, including Mr J. In those circumstances, the Tribunal does not consider that separation from the applicant would have a negative effect on the applicant’s cousin.
Overall, the Tribunal finds that it would be in the best interests of the applicant’s cousins if he were not to be removed from Australia. However, that factor weighs only slightly against revocation of the cancellation of the visa.
Primary Consideration 5: Expectations of the Australian Community – 8.5
Subclause 8.5(1) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.
None of the kind of conduct referred to subclause 8.5(2) applies in the circumstances of this case.
In accordance with s 8.5 (3) the expectations of the Australian community apply regardless of whether the applicant poses a measurable risk of causing physical harm to the Australian community and in addition, in accordance with 8.5(4) of the Direction, the Tribunal must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed in the Direction, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5 of the Direction expresses a “deemed community expectation” that all persons who have committed serious criminal offences giving rise to character concerns should not be permitted to enter or remain in Australia: FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.
It is not for the Tribunal to determine for itself what the community’s expectations are in a particular case: Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68 at [31]-[35] per Moshinsky, Stewart, and Jackman JJ.
In RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876, Horan J stated at [56]:
The assessment of community expectations is therefore not a matter of evidence, and does not turn on the personal circumstances of the individual non-citizen: compare, in relation to an earlier iteration of the Ministerial direction: FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [66] -[67] , [74] -[75] (Charlesworth J), [91]-[93], [103]-[104] (Stewart J); see also CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 at [29] -[30] (Moshinsky, O'Bryan and Cheeseman JJ). The "degrees of tolerance" referred to elsewhere in the Direction "are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion" (or, in the present context, the determination whether there is another reason to revoke the original cancellation decision), and "in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen's character concerns or offences": FYBR at [77] (Charlesworth J). In other words, the decision-maker can take into account the personal circumstances of the individual non-citizen in so far as they are relevant to another primary consideration or one of the other considerations and adjust the relative weight to be given to each of the primary and other considerations accordingly.
The applicant has failed to obey Australian laws and his criminal conduct was serious. He would therefore be expected to be removed from the community. However, the Tribunal does not consider that there is an unacceptable risk of further re-offending and the Tribunal has determined that the risk of his reoffending is low. The applicant has lived in Australia from a very young age and has formed his identity in the Australian community. The Tribunal takes into account that the Australian community may afford a higher level of tolerance of the applciant’s criminal past because he has lived in Australia from a very young age (subclause 5.2(6) of the Direction). On that basis, the Tribunal has decided that this consideration should be given medium weight in favour of not revoking of the cancellation of the visa.
Other considerations
A non-exclusive list of other considerations the Tribunal is to consider is set out in section 9 of the Direction. They are:
(1) The legal consequences of the decision;
(2) The extent of impediments if removed; and,
(3) The impact on Australian business interest.
The legal consequences of the decision
Paragraph 9.1 of the Direction is concerned with the prospect of the applicant being liable for removal from Australia and in the meantime detention.
The applicant belongs to the Orthodox Christian faith and has Assyrian heritage. The applicant, his brother and his grandmother have claimed that he will be at risk of significant harm if he is returned to Syria. The Tribunal has been provided with articles regarding an incident of the burning of a Christmas tree in Syria following the fall of the Assad Regime.[17] Mr J also referred to the incident in his oral evidence. The applicant came to Australia on a Global Special Humanitarian (Class XB) (subclass 202) visa. However, the applicant has not applied for a protection visa since the cancellation of his visa and is not covered by a protection finding as defined in section 197C of the Migration Act.
[17] Exhibit A4, p 24-38.
It is open to the applicant to apply for a protection visa, and he indicated that he would consider it subject to the advice of his lawyers.
In circumstances where there some prospect that the applicant may apply for a protection visa in the future which may make his removal unlikely in the reasonably foreseeable future, the Tribunal gives this other consideration only slight weight for revocation of the cancellation of the visa.
Extent of impediments if removed
The Tribunal is mindful that the applicant may apply for a protection visa if the Tribunal refused to revoke the cancellation of his visa. However, a protection finding has not been made in his favour.
In the recent Federal Court decision in YNPX v Minister for Immigration and Multicultural Affairs [2025] FCA 49, involving similar circumstances in which it was open to an applicant to apply for a protection visa, O’Bryan J stated at [85]:
The risk of harm to the applicant from violence and crime upon removal to South Sudan is not reduced by reason that the applicant may make a protection visa application. Such an application may be refused or accepted. The refusal of a protection visa does not necessarily negative the risk of harm in this case, which is predicated on the extent of crime and general lawlessness in South Sudan. While the grant of a protection visa will prevent the applicant being removed to South Sudan, the grant does not logically bear upon the risk of harm if removed (which is the relevant issue before the Tribunal).
Subclause 9.2(1) of the Direction requires the Tribunal to consider the extent of any impediments that the applicant will face if removed from Australia to his home country. Subclause 9.2(1) of the Direction provides that any assessment of impediments faced by the applicant must take into account:
a. his age and health;
b. whether there are substantial language and cultural barriers; and
c. any social, medical and/or economic support available to them in that country.
The word “health” in 9.2(1) of the Direction is understood to mean any aspect of a person’s physical wellbeing and includes “the overall state of a person’s fitness and condition, including underlying health issues and ongoing effects of any past injury”.
The applicant is 20 years old. Given that he spent some of his childhood in Syria, the Tribunal accepts that if he was removed to Syria, he would not face language difficulties.
However, in his written statement Mr J stated:
45. [the applicant] has not returned to Syria since first arriving in Australia.
46. Syria has become a third-world country that is war-tom. [the applicant]'s life will be at serious risk if he returns to Syria.
47. We only have one Aunt who resides in Syria. Our Aunty struggles to make ends meet. We send her money to assist her financially. She has begun making enquiries into her eligibility to come to Australia.
48. She fears for her life as the country has not progressed for the better. The state of the country keeps deteriorating.
49. I have a real concern that my brother will lose his life if he returns to Syria. I don't know how my grandmother will cope.
The Tribunal accept that, except for an aunt, the applicant would have very little family support if he returned to Syria.
The evidence provided by the applicant supports that the conditions in Syria are extremely poor.[18] He claims, and the Tribunal accepts from the evidence before it, that the political uncertainty in Syria and the economic situation, would make it difficult for him to receive psychological treatment in Syria. The applicant would also find it difficult in Syria given the economic situation in Syria and the ongoing political situation. Both Mr J and the applicant ’s grandmother feared that he would die if he returned to Syria.
[18] Exhibit A4.
The Tribunal finds that this other consideration should be given significant weight in favour of revoking cancellation of the visa.
Impact on Australian business interests
The Tribunal must consider any impact on Australian business interests if the applicant is not allowed to remain in Australia. There was no evidence of impact on Australian business interests within the meaning of the Direction. The Tribunal finds that this Other Consideration is therefore not engaged.
CONCLUSION
Consistent with the Direction, the Tribunal has given weight of various degrees to the primary and other considerations. Subclause 7(1) of the Direction states that appropriate weight is to be given to information and evidence from independent and authoritative sources. Subclause 7(2) of the Direction states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. It also states that primary considerations should generally be given greater weight than 'other' considerations. Subclause 7(3) of the Direction provides that one or more primary considerations may outweigh other primary considerations.
In the recent decision of the Full Court of the Federal Court concerning the operation of Direction No. 90 in CRNL v Minister for Immigration Citizenship and Multicultural Affairs [2023] FCAFC 138 at [35], the Court found that the Tribunal must weigh and balance the various primary and other relevant considerations outlined in the Direction (in this case Direction no 110) against each other but to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.
The Tribunal has found the applicant does not pass the character test and has carefully considered all the evidence before it and weighed up the relevant considerations as guided by the Direction in considering whether there is another reason why the cancellation of her visa should be revoked.
In relation to the Primary Considerations the Tribunal found:
i. The protection of the Australian community slightly weighs in favour of revocation of cancellation of the visa. The applicant's offending should be considered as very serious and should he reoffend, it would again cause substantial harm. However, the Tribunal has found that the applicant has shown great remorse for his actions, has gained insight into his offending, his psychological profile and his substance abuse and has taken steps toward rehabilitation.
ii. The consideration concerning family violence weighs neutrally.
iii. In relation to the strength, nature and duration of the applicant’s ties to the Australian community, weighs strongly in favour of revocation of cancellation of the visa. The applicant has ties to Australia, having spent some 8 years in Australia, those being his formative teenage years. All his immediate family most notably his brother, grandmother and father reside in Australia. He has a large extended family network and was in employment prior to committing the first offence. Mr J, his partner, and the applicant's grandmother would be devastated if he were to return to return to Syria.
iv. The consideration regarding the best interests of minor children in Australia affected by the decision weighs only slightly against revocation of the cancellation of the visa.
v. The Tribunal has given a medium weight in favour of not revoking the cancellation of the visa regarding expectations of the Australian community.
Of the other considerations, the Tribunal has found that the legal consequences of the decision weighs only slightly in favour of revocation, but that the extent of impediments if the applicant is removed to Syria weigh heavily in favour of revocation of the cancellation of the visa. The remaining consideration concerning business interests weighs neutrally.
The applicant has breached the expectation that he be a law-abiding citizen who respects Australian institutions. As a general principle, the Direction establishes that on this basis the applicant’s visa should be cancelled. However, overall, while considering that the protection of the Australian Community is ‘generally’ to be given greater weight than other primary considerations, in this case, the other relevant primary consideration outweigh the protection and expectations of the Australian community. The Tribunal has found that the applicant has shown great remorse for his actions, has gained insight into his offending, and has taken steps toward rehabilitation. There is a low risk he will reoffend. He has strong ties to Australia and has spent most of his formative teenage years in Australia. Further, the extent of the impediments if he is removed also weighs in favour of revocation of the cancellation of the visa.
Accordingly, the Tribunal finds that there is another reason that the mandatory cancellation of the applicant’s visa should be revoked.
For the reasons given above the Tribunal sets aside the decision of a delegate of the Minister dated 21 November 2024 not to revoke the mandatory cancellation of the Applicant’s visa, and in substitution decides that the cancellation of the applicant’s visa is revoked.
Dates of hearing: 7 and 10 January 2025. Counsel for the Applicant: Mr P Berg Solicitors for the Applicant: Crimcorp Defence Lawyers Advocate for the Respondent: Mr L Dennis
Solicitors for the Respondent: Mills Oakley
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