Shahab and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 2200

Shahab and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2200 (7 July 2023)
Division:GENERAL DIVISION
File Number(s): 2023/2859
Re:Mohammad Ahmad Shahab
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:7 July 2023
Date of written reasons: 24 July 2023
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 28 April 2023 that the mandatory cancellation of the Applicant’s visa not be revoked is set aside; and in substitution, the cancellation of the Applicant's Class BB - Subclass 155 Five year Resident Return visa under subsection 501(3A) of the Migration Act 1958 (Cth) is under subsection 501CA(4) of the Act.
........[SGD]................................................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – Migration Act section 501CA(4) – primary considerations – other considerations – whether there is another reason to revoke mandatory cancellation of Applicant’s visa – Ministerial Direction No. 99 – substantial criminal record – nature and seriousness of the offending – strength, nature and duration of ties to Australia – international non-refoulement obligations – where no protection finding – extent of impediments removed – decision set aside and substituted
LEGISLATION
Crimes Act 1900 (NSW)
Criminal Code Act (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Aggregate Sentences) Act 2023 (Cth)
CASES
BLTY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 1064
FJXD and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 1721
LMSL and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 173
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
QGMJ and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2314
RNVF v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 81
SGQV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3071
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
24 July 2023
INTRODUCTION

The Applicant seeks review of a decision dated 28 April 2023 (the reviewable decision), made by a delegate of the Respondent, not to revoke the cancellation of his Five-year Resident Return (Class BB) (Subclass 155) visa (the visa).[1] The application was heard by the Tribunal on 29 and 30 June and 5 July 2023. The Applicant was represented by Mr A. Alkafaji, the Respondent by Mr M. Sheedy of Sparke Helmore Lawyers. The Tribunal received evidence from the Applicant, his father, his mother, and Mr Watson-Munro, a forensic psychologist. On 7 July 2023, the Tribunal set aside the reviewable decision, and the Applicant’s visa is therefore reinstated. I now provide the Tribunal’s reasons.
[1] G3, 14.
BACKGROUND
The Applicant was born in 1992 in Al-Tamin, a province in north-eastern Iraq. The regional capital is Kirkuk, an oil rich and ethnically divided city, consisting of Arabs, Kurds, Assyrians, and Turkmens. He is an Iraqi citizen, from a well-educated professional Sunni family.[2]
[2] G1, 2. G21, 134.
In March 2003, a US led coalition, including Australia, invaded Iraq. In 2006, the Applicant, then 14 years old, was kidnapped for ransom by armed militants.[3] The gang threatened to kidnap another family member if the ransom was not paid. A substantial ransom was paid, and the Applicant was released. Fearing for their safety, the family relocated to Syria where the Applicant went to high school and his sister studied dentistry. With the assistance of the United Nations, they came to Australia as refugees.
[3] G34, 237.
The Applicant arrived in Australia on 9 July 2009, travelling as a minor on his father's one way travel document, issued by the Australian government.[4] He was granted a refugee visa.[5]
[4] G33, 232.
[5] G51, 260.
In 2011, he developed symptoms of mental illness and in 2014 he was diagnosed with drug-induced psychosis, for which he was hospitalised and treated with Olanzapine and later Risperidone.[6] In 2015, while in remission, he travelled to the Middle East for a month with his father, returning on 25 May 2015, when he was issued the visa.
[6] TB1, 38.
On 25 October 2021, he was convicted of several offences. He was sentenced by the Paramatta Local Court to an aggregate sentence of 18 months’ imprisonment with a non-parole period of 9 months.[7] An aggregate sentence is a single sentence imposed in relation to two or more criminal convictions.
[7] G5, 34-36.
On 17 November 2021, his visa was cancelled on the ground that he had a ‘substantial criminal record’ and did not pass the character test, as defined in paragraph 501(6)(a) of the Migration Act 1958 (Cth) (the Migration Act).[8] On 17 April 2022, he was transferred to the Villawood Immigration Detention Centre (VIDC) following his release to parole.[9]
[8] G2, 7.
[9] G8, 46. The release to parole date was originally set for 27 March 2022, but he was not released until 17 April 2022 due to the revocation of a previous intensive corrections order.
On 27 December 2022, he was released from VIDC following the decision of the Full Court of the Federal Court in Pearson v Minister for Home Affairs [2022] FCAFC 203 (Pearson).[10] The Full Court held that an ‘aggregate sentence’ did not fall within the definition of a ‘substantial criminal record’ under paragraph 501(7)(c) of the Migration Act.
[10] TB6, 307.
Following the statutory abrogation of the Pearson decision, he was re-detained on 21 March 2023.[11] He made representations to the Respondent seeking revocation of the visa cancellation decision, and as noted above, the Respondent’s delegate decided not to revoke the mandatory cancellation decision under subsection 501CA(4).[12]
[11] TB3, 83. The Migration Amendment (Aggregate Sentences) Act 2023 (Cth) came into effect on 17 February 2023.
[12] G3, 14.
On 1 May 2023, the Applicant applied to the Tribunal for review of this decision.[13] A decision under subsection 501CA(4) of the Migration Act not to revoke the mandatory cancellation of a visa is reviewable by the Administrative Appeals Tribunal (the Tribunal).[14]
[13] G1.
[14] Migration Act, paragraph 500(1)(ba).
THE HEARING
The Tribunal heard from three witnesses on behalf of the Applicant: his father,[15] his mother,[16] and Mr Watson-Munro, a clinical and forensic psychologist, who also provided a report.[17]
[15] Transcript, 29 June 2023, 88 et seq.
[16] Transcript, 29 June 2023, 95 et seq.
[17] Transcript, 30 June 2023, 111 et seq, see ASFIC, attachment.
The Applicant gave evidence and was cross-examined by Mr Sheedy.
MATERIALS BEFORE THE TRIBUNAL
Written submissions received:
(a)Applicant’s Statement of Facts, Issues and Contentions (ASFIC) filed on 30 May 2023, attaching:
(i)Report of Mr Tim Watson-Munro dated 30 May 2023; and
(ii)Direct Debit Request (undated)
(b)Respondent’s Statement of Facts, Issues and Contentions (RSFIC) filed on 14 June 2023
Respondent’s materials:
(a)Respondent’s Tender Bundle (RTB) filed on 14 June 2023
Other:
(a)Section 501G documents filed on 11 May 2023
FINDING ON THE CHARACTER TEST
A person sentenced to a term of imprisonment of 12 months or more has a ‘substantial criminal record’ pursuant to paragraph 501(7)(c) of the Act and therefore does not pass the character test under paragraph 501(6)(a).
On 25 October 2021, the Applicant was sentenced in the Parramatta Local Court to an aggregate term of 18 months imprisonment with a non-parole period of 9 months for five offences. He was also convicted of three traffic offences for which he received a section 10A conviction with no other penalty recorded. The offence details are provided below.
Any doubt as to whether the word ‘sentence’ includes an aggregate sentence was removed by the Migration Amendment (Aggregate Sentences) Act 2023 (Cth), which came into effect on 17 February 2023 with retrospective effect.
I therefore find that the Applicant does not pass the character test.
THE SOLE ISSUE
Subsection 501CA(4) of the Act provides:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
On 22 November 2021, the Applicant made representations to the Minister to revoke the mandatory cancellation decision.[18] I have found that he fails the character test, as outlined above.
[18] G12, 62.
I therefore turn to consider whether there is ‘another reason’ why the original decision to cancel his visa should be revoked under subparagraph 501CA(4)(b)(ii) of the Act.
EXERCISING THE DISCRETION UNDER SUBSECTION 501CA(4)
Section 499 of the Act provides that the Minister may give written directions to a person or body exercising powers and functions under the Act, where the directions relate to the performance of those functions or exercise of those powers. Direction no. 99 (the Direction), enacted under section 499 and commencing on 3 March 2023, provides a range of considerations to which the Tribunal should have regard in exercising its discretion under subsection 501CA(4).
Part 1 of the Direction provides a set of principles that the Tribunal should have regard to when applying these considerations. Paragraph 5.2 of the Direction provides:
(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 noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)   Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)   The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)   Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)   With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)   Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Informed by these principles, the Tribunal must approach its statutory task by applying Part 2 of the Direction. Part 2 includes five primary considerations in paragraph 8 and four other considerations in paragraph 9. Each of these considerations are considered in detail below, to the extent they are relevant. Paragraph 7 of the Direction provides some guidance as to how the Tribunal is to weigh each consideration. For example, primary considerations should generally be given greater weight than the other considerations; and one or more primary considerations may outweigh other primary considerations.
PRIMARY CONSIDERATIONS
8.1 Protection of the Australian Community (PC1)
The Direction requires decision-makers to have regard to certain factors, including 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. The Direction states that decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
8.1.1 The nature and seriousness of the conduct
Paragraph 8.1.1(1)(a) provides that certain conduct should be considered very seriously by the Australian Government and the Australian community, including violent and/or sexual crimes, crimes of a violent nature against women or children, regardless of the sentence imposed, and acts of family violence, regardless of whether there is a conviction for an offence, or a sentence imposed. The Applicant’s offending does not fall into these categories.
The sentence imposed, the frequency of the non-citizen’s offending, whether there is any trend of increasing seriousness, and the cumulative effect of repeated offending, are all relevant under paragraph 8.1.1(1)(c).
The Nationally Coordinated Criminal History Check (NCCHC) report dated 26 March 2022[19] reveals three clusters of offending.
[19] G5, 34.
First period (2010 – 2020)
Over this ten-year period, the Applicant was convicted of nine traffic offences and one drug possession offence, including driving with a prescribed content of alcohol on three occasions. Each of these offences were dealt with by way of bonds, disqualifications, or fines.
This offending led to the rejection of his application for Australian citizenship, on the basis that he did not pass the character test. This is a source of anguish to his father and mother, who had become Australian citizens in 2014 along with their daughters. His father considered that but for his traffic offences, his son would have become a citizen along with the rest of the family.
Second period (2 November 2020)
On 2 November 2020, the Applicant had a conversation with a Services NSW call centre operator representing his insurer, ICare, during which he lost his temper and threatened to blow up the building using oxygen cylinders. He later attended the insurance office to pursue his claim but was told that the claims officers were working from home. This occurred when NSW was coming out of lockdown restrictions but still suffering the effects of the COVID pandemic. He was arrested at his home shortly after midnight and interviewed.[20]
[20] Document headed Dictation of Interview: TB2, 65. This seems to a summary made afterwards of salient points, as indicated by the time recorded in the left-hand margin after each topic heading, rather than a recording of the actual interview.
On 3 November 2020, he was charged with two offences: threatening sabotage under section 203C of the Crimes Act 1900 (NSW), and using a carriage service to threaten serious harm, contrary to section 474.15(2) of the Criminal Code Act 1995 (Cth) (Criminal Code).[21]
[21] TB2, 58.
The offence under section 203C is broad in scope and sits within a range of anti-terrorism measures introduced in the early 2000s.[22] There is no requirement to prove an intention to carry out the threat, merely an intention to cause another party to fear that the threat will be carried out. Moreover, there is no need to prove that the other person did in fact fear that the threat would be carried out. The threat may be made by conduct and may be explicit or implicit, conditional, or unconditional. The offence is punishable by up to 14 years imprisonment.
[22] The NSW offence was introduced in 2000: see Crimes Legislation Amendment Act 2000, - Schedule 1 [8]. In most jurisdictions, an analogous offence was introduced as part of the anti-terrorism package of the early 2000s: see McClellan, PD, "Terrorism and the law" [2006] NSWJSchol 1. See, for example, State of New South Wales v Dunn [2019] NSWSC 426; State of New South Wales v Dunn (a pseudonym) [2018] NSWSC 1008.
On 3 November 2020, he appeared before the magistrate and was remanded in custody. Bail was opposed by the police on the ground that:
Police hold serious concerns for the safety of the public and employees of ICare NSW should the accused be granted liberty on bail. Police do not believe that any bail conditions will dissuade the accused from continuing with his threats and actions against ICare NSW and should the accused continue, the accused’s actions will likely result in a significant loss of life and damage to property in line with a terrorist incident. [23]
[23] Facts Sheet prepared by the NSW Police for the bail hearing on 3 November state: TB2, 61.
In a letter to John & Co Lawyers dated 22 November 2020, Dr Sabri Hasam stated:
Mr Shahab has been my patient for years, the first consultation was on 12/10/2012 and 2^nd consultation on 17/10/2017, and was regularly attending the medical centre and seen by other GPs and myself for the duration of 8 years.
In my opinion he suffers from depression associated with psychotic feature and been admitted to Liverpool Hospital for a mental health assessment.1 have been informed that a mental health care plan been provided by Sam Albassit ,the psychologist and on the bases and on Mr Albassit's recommendation ,and he needs referral to psychiatrist .Mr Albassit has also recommended Mr Shahab contact with and recieve ongoing treatment from mental health clinic Nurse at Fairfiled Hospital as well as to be referred to Corella Lodge in Fairfiled Hospital for rehabilitation.
I undertake to make all necessary referral to enable Mr Shahab to receive all necessary treatment possible once released from Silverwater Correctional Facility, and I will undertake to consult him on a weekly basis to ensure he is complying with his management plan.[24]
[24] TB2, 67.
On 22 November 2020, Dr Hasim referred the Applicant to a psychiatrist, Dr Leo Tsang.[25]
[25] TB2, 68.
On 23 November 2020, the charge under section 474 of the Criminal Code was withdrawn.
The Applicant provided the following statement in connection with the visa revocation proceedings:
a) On the 22nd of august 2018, I got injured at work while I and my employees were installing ducted air conditioning system in an area near Lane Cove NSW, while adjusting the ducted system to the roof, I lost balance, as a result a heavy air conditioner (105 KG) fell me which resulted in injuries to my left feet, I was admitted to Fairfield Hospital. I was discharged after I was advised to use crutches. During this time I was unable to work, alternatively I started sending employees to do the work that he supposed to do.
b) I contacted the Workers compensation because, as a business I was fully insured with ICARE Pty Ltd, I notified the insurance company of what happened, the insurance company paid less than $10,500. I was requested to provide many documents in support of this claim, also the insurance company sent some of its staff to my house so they could do a report about what happened.
c) I he (sic) was waiting for the insurance company to pay him money, however, my efforts were futile, I used to send documents to the insurance company every two or three months. I did not receive any money although I believe that the insurance company should do that according to the insurance agreement between us, also because I pay them huge amounts every month in return to the insurance policy.
d) On the 2nd of November 2020, I went the insurance company head office in Sydney as I exhausted all of my savings. The cost of my business was high however I did not receive any money from ICARE PTY LTD. So, I went there to ask them about why I was not paid until now and to explain that I was facing immense financial hardship because of that. The receptionist there told me that there is no one in the building so I cannot meet any of the ICARE staff.
e) Immediately after that, I contacted the same phone number that he used to call ICARE on in the past to ask them to facilitate and finalise my application. At that time, I was requested to provide some documents that I already sent to them in the past. I lost my temper and started swearing and threatening, I then went home as I was in pain. I slept for few hours, after that I went with my parents went to his sister’s house to attend a birthday party for my nephew. Around 11:30 pm I came home, there I found a card that was left by the police saying that I should contact the police. I planned to ring the police in the morning as it was night time so I went to sleep, half an hour later, the police nocked on my door saying that I should come with them and that it will take around 6 hours to interview me. I went to the police station, I then was transferred to Silverwater jail for almost two months.
f) After that I appeared before Fairfield Local Court, an order to be release was made, the same order included the imposition of 15 months (parole period) and to wear ankle bracelet for 6 months.
g) After that I went home and resumed life as normal.[26]
[26] G14, 83-84.

The police notes prepared for the bail hearing on 3 November 2021 were created in the early hours of that morning, and prior to interviewing the Applicant.[27] As previously noted, he was arrested shortly after midnight at his home and taken to the police station where he was interviewed.[28] The notes relevantly state:
The accused is currently in arrears with his policy payments and cannot run his business. About 12.15pm Monday 2 November 2020, the accused, being an contacted the [Redacted] call centre and was directed to [Redacted] who answered the accused's call and proceeded to have a conversation with the accused.
During this call, the accused provided his policy number and name to [redacted] in order to facilitate his enquiries. After speaking to [redacted] for some time, the accused became extremely hostile and aggressive with [redacted] while expressing his upset in not receiving payment for the company.
[Redacted] made several attempts without avail to calm the accused and resolve the issue. The accused continued to argue with [redacted] during which he stated that he would fill his vehicle with oxygen tanks and drive into the city to blow up the Icare office and the buildings around it and everyone will be dead, before terminating the phone call [Redacted]
As a result of the accused's threats, ICare undertook an evacuation, as a safety precaution, of its Sydney and Parramatta offices resulting in the displacement of numerous employees and the disruption of the company's services. The matter was reported to NSW Police who undertook significant measures to locate the accused as he was not home at the time of the report and could not be located. During this time, the accused attended the Icare Building in Darling Harbour where he went to the front counter at which time he was informed that no persons were in the building. The accused left the location. About 12:30am on Tuesday 3 November 2020, police attended the accused's residential address at which time he answered the door. The accused was placed under arrest before he provided police with a mobile phone. The accused was conveyed to Fairfield Police station where he was introduced to the custody manager. The accused was read his part 9 rights before being offered the opportunity to participate in an interview to which he made full admissions to making the threats. Police allege that the threats made by the accused resulted in significant concerns to Icare and NSW Police resulting in evacuations of public buildings and extensive investigations being conducted. Police hold concerns that the accused holds an actual intention to carry out his threat against ICare and poses a danger to the public. The accused is charged with the matter before the Court.[29]
[27] TB3, 93-94.
[28] TB2, 65.
[29] TB3, 93-94.
At midday on 3 November 2020, detectives went to his home and spoke to his father. They searched the home but found nothing untoward. Two oxygen cylinders were found in the Applicant’s van, which were photographed.[30]
[30] TB3, 94.
In a report dated 5 January 2021 provided under section 12A of the Crimes (Sentencing Procedure) Regulation 2017 by a Community Corrections Officer for the purpose of assisting the court in deciding the appropriate community-based sentence and conditions for the offender, an officer stated:[31]
[31] TB2, 69, at 71-73.
Violence and aggression
• On 10 November 2020, custodial psychology services described Mr Shahab’s mood as volatile. It was also noted that he often overreacts to perceived aggression from others. Despite this, he has incurred no institutional misconducts.
• Mr Shahab described himself as typically being a non-violent person. His mother corroborated that the index offence demonstrated atypical behaviour of him.
• Throughout the interviews required for this report, Mr Shahab expressed little understanding of the impacts of verbal abuse on others, stating that at the time he had not believed anyone would take his threat seriously. Mr Shahab reflected that had he known the seriousness of the personal ramifications incurred, he would not have made the threat.
• However, in contrast to this, Mr Shahab disclosed that he made the threat with the hope that someone would take him seriously and follow up his insurance claim.
• On 23 November 2020, custodial psychology services noted that Mr Shahab commonly underestimates the consequences of his own verbal abuse on others.
Mental health
• Mr Shahab has had multiple prior admissions to Liverpool Hospital and the Early Psychosis Intervention Program since 2014 due to presenting with thought disorder, disjointed speech, grandiose referential thinking and auditory hallucinations. He is prescribed antipsychotic medication to manage his symptomology however his compliance to treatment is sporadic.
• Mr Shahab ceased taking his prescribed medication in January 2015 and relapsed into substance misuse including cannabis, cocaine and methamphetamines. In 2016, Mr Shahab was charged with trespassing and resisting an officer in the execution of duty. He was discharged into conditional care by way of a Section 32.
• In 2018, Mr Shahab was diagnosed with Substance-induced Psychotic Disorder with features of Generalised Anxiety. The psychologist’s report dated 16 November 2020 furthermore noted that he returned a 'severe’ reading for Depression, Anxiety and Stress in addition to exhibiting social withdrawal, paranoia, hostility and poor personal hygiene, insomnia and irrationality.
• Mr Shahab has been compliant to mental health treatment in custody with Justice Health and is prescribed antipsychotic medication.
Specific risks to individuals
• Mr Shahab has maintained his interest in returning to work as an airconditioning technician. Given his ongoing injuries and financial instability, it is of concern that his risk factors remain prevalent.
Responsivity
Insight into impact of offending
• On 10 November 2020, custodial psychology services noted that Mr Shahab demonstrates little empathy for how his actions impact others. Additionally, throughout the interviews required for this report, Mr Shahab was unable to identify any victims of his offending; expressing his belief that the perceived victims overreacted to his threats.
• In contrast however, Mr Shahab demonstrated insight into the impact his offending behaviour has had on his parents by way of physical distance and shame as a result of his incarceration.
• Mr Shahab has maintained the perspective that he is the victim as a result of the index offence. Nonetheless, he reflected on his remand period positively, describing it as an opportunity to abstain from illicit substances.
Willingness and ability to undertake intervention
• On 10 November 2020, custodial psychology services noted that Mr Shahab lacks clear insight into his offending behaviours despite advising that he feels regretful for the consequences of his actions.
• Nonetheless, Mr Shahab expressed his willingness to undertake interventions aimed at addressing his substance misuse and poor mental health.
Willingness and ability to undertake community service work
• Mr Shahab disclosed a pre-existing foot and knee injury which has resulted in his inability to work since 2019.
• Although he expressed willingness to undertake community service work, he would require a full medical assessment in the community before a placement can be arranged.
Response to supervision
• Mr Shahab has no history of supervision with Community Corrections.
Nonetheless, he was cooperative throughout the interviews required for this report.
Assessment and recommendations
Risk assessment
Mr Shahab has been assessed at a Medium risk of reoffending according to the Level of Service Inventory - Revised (LSI-R). (Emphasis added)
On 18 January 2021, the Applicant was convicted of threatening sabotage under section 203C. He was sentenced to an intensive corrections order (ICO) of 15 months duration, commencing on 18 January 2021 and concluding on 17 April 2022.[32]
[32] TB2, 76.
A court that has sentenced an offender to imprisonment in respect of one or more offences may make an ICO directing that the sentence be served in the community: Crimes (Sentencing Procedure) Act 1999, section 7(1). A prime consideration in determining that an ICO is appropriate is community safety. The NSW Sentencing Bench Book describes the purpose of ICOs as follows:
Part 5 Crimes (Sentencing Procedure) Act sets out the sentencing procedures governing ICOs. The Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, which commenced on 24 September 2018, restructured and amended the provisions relating to ICOs.
The changes made allow offenders to access intensive supervision as an alternative to a short prison sentence and “help courts ensure that offenders address their offending behaviour and are held accountable”: Attorney General (NSW), the Hon M Speakman SC, Second Reading Speech for the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill and cognate legislation, NSW, Legislative Assembly, Debates, 11 October 2017, p 2.
A feature of Pt 5 is that community safety is the paramount consideration when determining whether to make an ICO because, the Attorney General said, at p 2, “community safety is not just about incarceration” and “community supervision and programs are far more effective” at reducing re-offending.[33] (Emphasis added)
[33] Sentencing Bench Book, Intensive correction orders (ICOs) (alternative to full-time imprisonment), [3-600]. Intensive correction orders (ICOs) (alternative to full-time imprisonment) (nsw.gov.au)
Unfortunately, the magistrate’s sentencing remarks are not included in materials before the Tribunal. The Tribunal adjourned the hearing to enable a search for the transcript. On the resumed hearing, the Respondent’s solicitor informed the Tribunal that it had not been located. It was suggested that there would not necessarily be a transcript of a sentencing hearing on a guilty plea.[34]
[34] Transcript, 5 July 2023, 124.
The absence of a transcript of the court’s sentencing remarks is unfortunate. In view of the sentence imposed, it seems that the magistrate did not regard the Applicant as a serious risk to public safety.
Unfortunately, the Applicant’s irrational and erratic behaviour did not abate, as detailed below.
Third period (26 April 2021 – 28 June 2021)
On 26 April 2021, he took a Toyota van belong to a car dealer for a test drive and removed the tailgate worth about $1,500.[35] On 3 May 2021, he left a petrol station without paying $53.24 for 42.29L of petrol.[36] On 12 May 2021, he stole a Tommy Hilfiger handbag worth $129.00 from Myers.[37] On 27 June 2021, he drove an unregistered motor vehicle while he was disqualified.[38] On 27 June 2021, he failed to stop when instructed to do so by police.[39] On 28 June 2021, he again failed to stop when instructed to by police.[40]
[35] G6, 39; TB3, 90.
[36] G6, 40; TB3, 89
[37] G6, 40; TB3, 88.
[38] G6, 40.
[39] G6, 41; TB3, 84.
[40] G6, 42.
This pattern of offending commenced on 26 April 2021, only three months after his ICO was imposed.[41]
[41] TB2, 76.
On 25 October 2021, he was convicted and sentenced to an aggregate term of 18 months imprisonment with a non-parole period of 9 months for five offences. He was also convicted of three other relatively minor traffic offences for which he received a section 10A conviction with no other penalty recorded.
He was charged as follows.[42] I have also noted the indicative sentence:[43]
(a)Larceny (tailgate) – 5 months
(b)Dishonestly obtain property by deception (not paying for petrol) – 3 Months
(c)Shoplifting (handbag) – 3 months
(d)Drive motor vehicle during disqualification period – 7 months
(e)Police pursuit – not stop – (2 counts) 9 months; 12 months
[42] G5, 35-36.
[43] G6, 45; G7, 48.
In terms of the relative seriousness of the offences, the judge proceeded as follows:
(a)Larceny of the tailgate – middle of the range[44]
(b)Not paying for petrol – lower end of the range[45]
(c)Stealing handbag – lower end of the range[46]
(d)Failing to stop, first offence – lower middle end of the range[47]
(e)Failing to stop, second offence – above the middle of range of seriousness.[48]
[44] G6, 40; TB3, 90.
[45] G6, 40; TB3, 89
[46] G6, 40; TB3, 88.
[47] G6, 41; TB3, 84.
[48] G6, 42.
Apart from the theft of the handbag, each of the offences falling under the aggregate sentence were related in some way to motor vehicles.
8.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the non-citizen reoffending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm – Para 8.1.2(2)(a)
The Applicant’s misconduct relates primarily to his use of motor vehicles. His continued non-compliance with traffic rules presents a significant danger to other road users.
Likelihood of engaging in criminal or other serious conduct – Para 8.1.2(2)(b)
In assessing the likelihood of the Applicant engaging in criminal or other serious conduct, I note the following:
A Community Corrections Immigration Report dated 25 May 2022 states:
ASSESSMENT
Community Corrections has identified an appropriate risk mitigation plan should Mr Shahab remain in Australia. This plan incorporates a referral to a community-based alcohol and/or other drug service such as the Drug and Alcohol Multicultural Education Centre (DAMEC), a referral to a General Practitioner for a Mental Health Care Plan (MHCP) and a referral to the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS). Enquiries will also be made with DAMEC in relation to referring Mr Shahab to a suitable culturally specific men’s group for additional community support.
Mr Shahab will have accommodation and ongoing support from his parents if his visa is reinstated. Additionally, Community Corrections have completed a Level of Service Inventory (Revised) assessment on Mr Shahab and have determined that he falls within the medium risk of re offence. If Mr Shahab chooses to adequately engage with the above services and programs, his prospects for reintegration and support remain positive.[49]
[49] G10, 58.
A team leader added the following postscript:
During the preparation of this report, Mr Shahab has indicated that he is willing to engage with Community Corrections and participate in intervention to address his criminogenic need and risk factors. It appears that he also has an offer of accommodation and the benefit of family support to assist him.
It is noted that, Mr Shahab’s success is dependent on him possessing continued motivation and demonstrated engagement with the identified services and Community Corrections to enact and sustain pro social change.[50]
[50] G10, 58.
I note that the imposition of an ICO suggests that he was not regarded as a risk to the community at that time.
The sentencing magistrate considered the Applicant’s subjective circumstances as follows:
In terms of your subjective circumstances I have had regard to your criminal history. It is a fairly modest criminal history up until 2021, earlier this year when you were sentences (sic) for a threaten sabotage offence by the Fairfield Local Court to intensive correction order for a period of 15 months. Of course that sentence of imprisonment that was being served in the community does not expire until 17 April of next year. Predating your commission of that offence most of the offences on your record for which you had been convicted were driving offences but included a driving whilst licence refused offence in 2011, low range drink driving matter in 2015. You had some matters dealt with under s 32 of the Mental Health (Forensic Provisions) Act as it then was.
You had a possess prohibited drug offence for which you were not convicted in 2017 and a mid-range drink driving offence dealt with by Fairfield Local Court on 4 November of last year. So it is certainly not a record that I could take into account as an aggravating feature of your offending, it does not show an ongoing attitude of disobedience to the law but it certainly is suggestive of the fact that you are not deserving of any particular leniency in relation to the sentences that are imposed by the Court today. In terms of your traffic history, it is a poor traffic history. You have been licensed according to that traffic history since, well unrestricted licence 2013 but you had a number of matters on your record before then.
You have continued to offend with driving offences, four speeding offences that have been committed in the last six or months or so. So that certainly does show an ongoing attitude of disobedience to the law and I take that into account as an aggravating feature in relation to the driving offences that are before the Court. In terms of your further subjective circumstances, I have made reference to the fact that a number of your close relatives have provided character references for you. Indeed yout sister Aman(?) Shahab speaks of the fact that you have had mental health issues, a drug addiction, your family want to try to assist you, they want to try to get you into a residential rehabilitation facility.
They have not been successful in that regard. She speaks of you coming from a very good family. A father who is a petroleum engineer, mother an agricultural engineer, your sister is a dentist, an educated family and of course they are disappointed that you have behaved in the manner that you have over the last ten or so years. Your father who is now a pensioner suggests that he is living in your home, of course there are now issues in relation to you retaining that home because the mortgage on the property is in arrears so that may well impact on your mother and father's accommodation going forward. Your sister Ran(?) Shahab speaks to the fact that you have worked hard to secure a home that you are about to lose.
She speaks of your drug use has led you along the wrong path and all your family want is the best for you. There is the report under the hand of the psychologist Mr Albasset(?), it has been tendered to the court. That was for the purposes of your sentencing proceedings earlier this year. It says that you are 28 years old maybe 29 now but were 28. You were incarcerated at the time when you were sentences (sic) for that matter at Fairfield. It goes onto say that you first began using illicit drugs toward the middle of 2013, synthetic marijuana initially, then cannabis and then of course you moved into the use of cocaine and methamphetamines.
You have been diagnosed with early psychosis in the past, in 2014 you had been admitted to mental health facilities on a number of occasions in the past including the recent past and you have been diagnosed with substance induced psychotic disorder and features of a generalised anxiety and at that time there was a treatment plan that was available to the Court and indeed it was no doubt based on that report, the Court on that occasion deemed it appropriate not to impose a sentence of full-time imprisonment. But of course bearing in mind that you are serving a sentence of imprisonment in the community at the moment.
You were serving that sentence when you committed all of these offences, that is an aggravating feature of this offending that I must take into account under s 21A of the Crime Sentencing Procedure Act. I need to achieve a number of purposes when I sentence you Mr Shahab or indeed any offender who comes before the Court. Those purposes of sentencing are set out in s 3A of the Crimes Sentencing Procedure Act. I need to ensure that you are adequately punished for these offences. I intend to do so today. I need to prevent crime by deterring you and others from committing similar offences. That is I need to send a message both to you but also to all other members of the community that the Courts and society will not tolerate this type of behaviour.
Perhaps general deterrence, that is sending a message to the community through you that this type of offending will not be tolerated by the Courts plays a slightly lesser role in this sentencing exercise because of the diagnosis that you have. But you brought that upon yourself. The psychosis that you suffered in the past has been induced by your voluntary ingestion of illegal drugs and as I said at the outset of these remarks there is very good reasons why drugs, including the drug cannabis and synthetic cannabis are illegal substances because they can lead to serious mental health conditions that you have been diagnosed with.
I need to make you accountable for your actions. I need to denounce your conduct in the strongest possible terms and I need to recognise the harm done to the community as a result of this type of offending, particularly the police pursuit type offending. Unfortunately there have been many media reports in the past of persons who have been seriously injured and/or killed as a result of people taking it upon themselves to try to flee the police and then the police and those persons being involved in a pursuit. Already this year about 300 people have died on New South Wales roads. That is a shocking statistic and it is a statistic that is brought about into some measure by people such as you who are prepared to drive in this manner on these two occasions but also to drive while disqualified.
You are not a fit and proper person to drive and you should have respected the fact that you were disqualified from driving and you should not have been driving on either of the occasions that you did that led to you being charged with not only that offence but the police pursuit offences. In relation to each of the offences before the Court having considered all possible alternatives, that is the remaining charges I am satisfied the only appropriate sentences are ones of imprisonment.

The Respondent contends that due to the Applicant’s very serious offending, and his unacceptable risk of reoffending, the protection of the Australian community weighs heavily against revocation.[51]
[51] RSFIC [49].
The Applicant’s behaviour in relation to his offending is impulsive and irrational. As an example, his explanation that he removed the Toyota tailgate for repairs after supposedly damaging it, lacks credibility, although he may genuinely believe it, given his propensity for disordered reasoning. He lacks insight into his mental illness, and this is no doubt a contributing feature to any risk assessment.
I accept that this consideration weighs heavily against revocation of the mandatory cancellation decision.
8.2 Family violence committed by the non-citizen (PC2)
This consideration does not arise and therefore should be given neutral weight.[52]
[52] RSFIC [50].
8.3 The strength, nature, and duration of ties to Australia (PC3)
Paragraph 8.3 of the Direction relevantly provides:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
…
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) the length of time the non-citizen has resided in the Australian community, noting that:
i. considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii. more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii. less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
The Applicant’s family consists of his mother and father, his two sisters and their respective husbands, and their children, consisting of three nieces and two nephews. Before coming to Australia, his father worked in the oil industry as a chemical engineer.[53] His mother was an agricultural engineer.[54] They have two daughters, DRS[55] and SMS,[56] the Applicant’s sisters.
[53] G31, 230.
[54] G34, 237.
[55] G38, 243.
[56] G43, 248; G45, 251.
His mother, father and sisters are all Australian citizens, as are their children.
DRS is a registered dentist. She has two sons, OBI and OMA, and a daughter SEI.
SMS is a registered pharmacist. She is married,[57] and has two daughters born in Australia, TAJ and LEJ.
[57] G46, 252.
The Applicant’s mother gave the following evidence to the Tribunal:
MR ALKAFAJI: What do you think the cause of his problems and failure?
INTERPRETER: Bad friends.
MR ALKAFAJI: Were the bad friends with him all the time?
INTERPRETER: Yes. Yes, they work with him. He used to come from work and he used to go out with them, and it was on the weekend, and when he used to come back from work.
MR ALKAFAJI: What did they use to do to make them bad, in your opinion?
INTERPRETER: Initially, we did not notice. And then he came and admitted to his brother-in-law – that’s the husband of his sister – he told him, ‘Just help me. I’ve been taking drugs.’ And, yes, true to that, he took him to the doctor and referred him to Liverpool Hospital, and they were giving him treatment, and they fought for him a mental health doctor, and they used to come to the home and they used to do the tests. So he was normal. He was working, and then it was his income was good. And then in 2019 he bought the house, and we had trust in him that he’s not doing anything anymore. And he was really quiet. He was peaceful. He used to love me. Especially me, his mother; he used to love me, gets me presents. Mother’s Day he used to help us. He was like responsible, takes responsibility. He used to pay the mortgage for the house. The bills, electricity, gas, he always was in charge or responsible for. And suddenly, we felt what happened, it happened suddenly. One day he was at work and his leg broke. And we did not know. I don’t know whether his friends were told him that the insurance will pay. Like, we did not know all these things. We didn’t know.[58]
[58] Transcript, 29 June 2023, 98-99.
Whether the Applicant’s mental health problems are self-induced or not, they are very real. It may be that, like all too many Australians, his mental health problems are related to his participation in an unhealthy and illicit drug culture. The medical evidence before the Tribunal does not allow a definitive answer to that question.
It appears that prior to his injury and the torpor caused by COVID, the Applicant had not only contributed to society through his air-conditioning business but also supported his parents. Despite his earlier offending and drug use, he appeared to be on the right track, until misfortune and his use of cocaine led to a serious deterioration of his mental health.
I note that under the Direction:
ii. more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii. less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
I noted above that the Applicant arrived in Australia on 9 July 2009, at the age of 17, travelling as a minor on his father's travel documents, and that he developed symptoms of schizophrenia shortly thereafter. His offending over the period 2010 to 2020 related primarily to traffic matters and minor drug possession. However, I accept that he has made a significant contribution to the Australian community, going to TAFE to study a Certificate III in air-conditioning installation, working as an apprentice, and finally starting his own business and employing others. I consider that he has contributed positively to the Australian community during that time.
The Respondent asserts that a non-revocation decision would largely result in an emotional impact on his family and other ties in Australia, but that the weight attributed to this primary consideration in favour of revocation should be reduced by reason of his offending and the fact that he spent most of his formative years outside Australia.[59]
[59] See RSFIC [53]-[55].
I do not agree with this contention. The Applicant’s parents are not only emotionally close with their son but also to some degree financially dependent. His business acumen and activities have allowed for a reasonable standard of living. They live in his house, and he was responsible for the mortgage prior to detention.
I find that this consideration weighs very strongly in favour of revoking the mandatory cancellation decision.
8.4 Best interests of minor children in Australia affected by the decision (PC4)
The Applicant identifies his nephews, OBI and OMA and nieces, SEI, TAJ, and LEJ, as minor children in Australia affected by the non-revocation decision.[60]
[60] G4, 25.
The Respondent contends that the weight attributed to the best interests of the Applicant’s nieces and nephews should be moderated, as there is no evidence to suggest the Applicant will have a parental role or that the children financially or practically rely on the Applicant.[61]
[61] RSFIC [59]-[60].
I agree with this contention and therefore consider this consideration weighs only slightly in favour of revocation.
8.5 Expectations of the Australian community (PC5)
It is generally accepted that the Tribunal should assess the weight to be accorded to the expectations of the Australian community, in line with the Government’s stated formulation. The exercise is essentially that of determining how heavily this consideration weighs against an Applicant.
In the present case, there are three material considerations. First, the sentence in respect of which his visa was cancelled was the first occasion on which he was sentenced to a custodial sentence. Secondly, by reason of his mental health issues, he was not viewed by the sentencing judge as a fitting subject for deterrence. And third, although the specific cause of the deterioration of his mental health condition is uncertain, there is no doubt that he has a clinical history that speaks to a very severe mental illness.
His sister SMS noticed that he was acting strangely in 2011 when she returned to Australia after completing tertiary studies in Jordan. He was withdrawn and socially isolated. The Applicant’s GP referred him for psychiatric assessment.[62] He was diagnosed with drug-induced psychosis, for which he was hospitalised and treated with Olanzapine and Risperidone.[63] He was hospitalised in 2014,[64] and again in 2017.[65]
[62] Statement by the Applicant’s sister: G43, 248.
[63] TB1, 38.
[64] TB1, 38.
[65] TB5, 268.
The Tribunal recognises that while there is frequently an association between illicit drug use and the onset of serious mental illness, the extent to which a clear causal connection can be established in any individual case is a suitable subject for expert evidence. Mr Watson-Munro could only speculate on whether his psychiatric illness was drug related or idiopathic. When he arrived in Australia in 2009, he had experienced the trauma of war, terrorism, kidnapping, displacement as a refugee and then arrival in a foreign country, all by the age of 17. Such beginnings frequently lead to a troubled life.
Although the Tribunal accepts, as it is required to, that this consideration operates as a norm and must count against the individual claimant, I do not think that it applies with force in the present case.
I accept that this primary consideration weighs moderately against revocation.[66]
[66] See RSFIC [65].
OTHER CONSIDERATIONS
I turn to consider the Other Considerations identified in the Direction.
9.1 Legal consequences of decision under section 501 or 501CA (OC1)
Paragraph 9.1(1) provides that decision-makers should be mindful that unlawful non-citizens are liable to removal from Australia as soon as reasonably practicable in accordance with section 198, and in the meantime, detention under section 189, noting also that subsection 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
The term ‘non-refoulement obligations’ is defined in section 5 of the Migration Act as follows:
"non-refoulement obligations" includes, but is not limited to:
(a) non-refoulement obligations that may arise because Australia is a party to:
(i) the Refugees Convention; or
(ii) the Covenant; or
(iii) the Convention Against Torture; and
(b) any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).
Paragraph 9.1(2) explains that 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. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights and its Second Optional Protocol. The Act, particularly through the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
Paragraph 9.1(3) provides that international non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
Paragraph 9.1.1, which applies to non-citizens who are subject to a protection finding, does not apply in this case. The Applicant is not currently the subject of a protection finding.
Paragraph 9.1.2 applies to non-citizens who are not covered by a protection finding.
Paragraph 9.1.2(1) provides that where a non-refoulement claim is made, it must be considered.
The Applicant has made what appears, on its face, to be a non-refoulement claim.
In his representation dated 14 December 2021, responding to an invitation to comment on his visa cancellation, he states:
(w) I confirm that my life is at risk if I to be removed to Iraq, I will be targeted and harmed because of Being a member of my family ; my family are well known in Kirkuk area as people who own assets in that city, the perception about our wealth led to my kidnapping and to the misery of my family who paid Ransome in order for me to be released, I will be kidnapped again if I to be removed there as I and my family are known in that area of Iraq.
My father used to be a very well know contractor in Kirkuk, we as a family have a contracting business, aluminium installation business and money exchange business, that is why my father was very well known, Kirkuk is small area and everyone knows everyone, it is easy for militia groups to single me out if I to be removed to Iraq for this reason.
Also, Because of my religion as Sunni person, Kirkuk is a disputed area between Arabs, Kurds, Turkmans, Shia and Sunni militias, ISIS is very active in my area as well, I will be definitely targeted for ransom as the different militia groups are engaged in criminal activities, recently one of my uncles was kidnapped and question by the PMF about our family whereabouts ,my uncle escaped to Turkey accordingly, I have some of my relatives who were evicted by the Shia PMF Militias, also the Kurdish forces (the peshmerga and the essayish) have targeted Arabs in the area because they believe that Kirkuk should be part of the Kurdish autonomous region.
People who left Kirkuk are perceived by the Shia militias as people of adverse interest to them because they always believe that people who left Kirkuk are fighting with the insurgents against the Iraqi government because of the sectarian violence in that area., the security situation is very unsafe in Kirkuk and people got killed based on wrong perceptions about them.
I was told by some of my relatives that the Shia militias the PMF burned down their houses because they are Sunnis and they looted the houses that belong to Sunnis, reprisal between the different factions in Kirkuk led to the eviction of hundreds of thousands of displaced people, I fear harm as I have no tribal or familial connection to Kirkuk, as I stated , all of my family members are here in Australia, I hear about my relatives who fled the country and about the people who got killed in Kirkuk all the time, Kirkuk is lawless at the moment and the government is unable to provide protection to even its forces.[67]
[67] G14, 89-90.
The Applicant confirmed in oral evidence before the Tribunal that he had been kidnapped.[68]
[68] Transcript, 29 June 2023, 9-10.
His father also gave evidence in chief to the Tribunal about the kidnapping:
Yes, he was kidnapped by terrorist groups. The purpose for that was the amounts. They want amounts of money. And they know I did have that sum of money, because I used to work with the American forces at that time. Two days, a third day, I arranged for the amount, the money, and I gave it to them. And the way that the exchanges happened, the amount of money was to be left at a certain place as they directed. And they said, ‘Then you can go and receive – get your son half-an-hour later from a different spot.’ And then a month – little while later, a month later, I received a threat for my daughter, where she used to go to a high school, and this is one point. And the other point, I had received another threat, and they said, ‘We just want an amount of money from you. We don’t want to do anything to you.’ And if you don’t – excuse that. They’ve left one bullet in an envelope and left it in front of the house. And then I decided life is difficult, so I tried, then I decided to leave the money and for the sake of my children, to protect my children. I went to Syria. I was there around three years, just less than three years. All these things been said to the UN. And then we got an appointment from the Australian Embassy in Syria. They checked what’s been said and it was all correct. And then what’s also more important as well, with the interview from the Australian convoy there, they saw that my daughter was studying pharmacy. Thank you. My other daughter is a dentistry, and I was the president of the engineer geology, engineer with refinery in the north, and also my wife was an engineer. So they saw the whole family are, and they saw that is an educated family. It is rather than or it is better than the uneducated family.[69]
[69] Transcript, 29 June 2023, 89.
His mother gave evidence to the same effect.[70] She also affirmed in oral evidence that she had three brothers, two of whom were senior ranking military officers at the time of the US invasion. They had left the country and were living in Turkey. One of them had been kidnapped in Iraq and tortured before being ransomed.[71]
[70] Transcript, 29 June 2023, 95.
[71] Transcript, 29 June 2023, 98.
I also note that the delegate stated:
101.     I have considered Mr Shahab claims that his life is at risk if he is removed to Iraq, as he will be targeted and harmed because of his family who are well known in the Kirkuk area as people who own assets. The perception about their wealth led to his past kidnapping and to the misery of his family who paid a ransom for his release. Mr Shahab states he will be killed or he would again be kidnapped if he is removed back to Iraq Attachment I1.
102.     Mr Shahab further submits that he is a Sunni person and that Kirkuk is a disputed area between Arabs, Kurds, Turkmans, Shia and Sunni militias and that ISIS is very active in his area and he will definitely be targeted for ransom as the different militia groups are engaged in criminal activities. Recently an uncle of Mr Shahab was kidnapped and question by the PMF about his family’s whereabouts and the uncle escaped to Turkey. Mr SHAHAB submits that he has some relatives who were evicted by the Shia PMF Militias. The Kurdish forces (the Peshmerga and essayish) have targeted Arabs in the area because they believe that Kirkuk should be part of the Kurdish autonomous region Attachment I1.
103.     I accept that the nature of the claims outlined above indicates a potential for Australia’s international non-refoulement obligations to be engaged in relation to Mr Shahab.
104.     A conclusive finding as to whether non-refoulement obligations are in fact owed in respect of Mr Shahab is not possible without a full and comprehensive assessment through a process similar to what is required to assess a Protection visa application. Nevertheless, for the purposes of the present decision, I accept there is at least a possibility that Mr Shahab could face a real risk of suffering the abovementioned kinds of harm in Iraq, which might include being targeted for kidnapping.[72]
[72] G4, 27.
Paragraph 9.1.2(2) states, in summary, that where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501CA stage to consider non-refoulement issues ‘in the same level of detail’, as those issues are considered in a protection visa application. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims will be assessed.

I note that in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1), the plurality stated at [39]:
Where the cancelled visa is not a protection visa and a decision‑maker defers assessment of whether non‑refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision‑maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being "another reason" why the Cancellation Decision should be revoked. (Citations omitted)
The Applicant has made claims that: (a) he will be targeted because his family is well known in the Kirkuk area as being wealthy, which led to his kidnapping previously; (b) because he is Sunni, he will be targeted by different militia groups in the Kirkuk area; and (c) he has no family or tribal connection to Kirkuk and it is a lawless area.[73] It is evident that these claims, if accepted, could engage Australia’s non refoulement obligations.
[73] G14, 89-90.
The Direction gives the Tribunal a choice as to whether to defer consideration of non-refoulement issues, or proceed to consider them, albeit in less detail than in a full protection visa application. The Direction is silent as to how that decision is to be made. The Respondent contends that the Tribunal should defer consideration of non-refoulement issues as the protection visa process is ‘specifically designed’ for that purpose. [74]
[74] RSFIC, [71].
I do not propose to ‘make a finding’ that the Applicant is owed ‘non-refoulement obligations’, as that term is defined in the Migration Act. It may be that upon a full examination considering all available evidence, such a finding would be appropriate. In these proceedings, it is not necessary to move beyond acceptance of his claim to have been a kidnap victim due to his family’s status and affiliations.
With deference to the observation of the plurality in Plaintiff M1, I am satisfied that there is a credible foundation for a protection claim, based upon the claimed facts, including, importantly, his kidnapping in 2006. Moreover, an adverse decision in these proceedings will almost certainly lead to a further lengthy period of immigration detention. The processing time for a protection visa is considerable. I am satisfied that ongoing detention pending further review for a protection visa is likely to have an adverse impact upon his mental health.
The Respondent acknowledges that the period that the Applicant might remain in immigration detention will be a function of multiple variables, which ‘do not permit of anything more than bald conjecture.’[75]
[75] RSFIC [73].
In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [123], Mortimer J (as her Honour then was) and Kenny J stated:
The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a visa decision maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law. As we explain below, for our own part we see no difficulty in attaching the adjective “indefinite” to such further period of detention, in circumstances where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom.
These comments apply to the Applicant.
I consider that these circumstances point strongly in favour of revoking the mandatory cancellation decision.
I find that the legal consequence of an adverse decision is that the Applicant is likely to experience what might be aptly called ‘indefinite detention’, and this consideration weighs heavily in favour of revocation.
9.2 Extent of impediments if removed (OC2)
Paragraph 9.2 of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The Applicant spent his early childhood in Kirkuk, where his family were prominent members of the Sunni community.
The Applicant has left Australia twice, but he stated that he had never returned to Iraq, although he indicated, perhaps erroneously, that on one of his trips overseas the country where he spent the most time was Iraq.[76] I am satisfied that he has not returned to Iraq since the family fled to Syria following his kidnapping in 2006.
[76] G52, 261.
I also consider that the Applicant will encounter very serious impediments in establishing himself and maintaining basic living standards. He stated in evidence his belief that two of his mother’s brothers remained in Iraq,[77] but his mother was adamant that her brothers were all in Turkey.[78] His father stated that his brothers and sister were in Australia.[79]
[77] Transcript, 29 June 2023, 42.
[78] Transcript, 29 June 2023, 95.
[79] Transcript, 29 June 2023, 89.
And then there is the question of his mental health and his resort to drugs in times of stress.
According to a report prepared by psychologist Sam Albassit on 16 November 2020 for the sentencing magistrate in 2020:
He was referred for a mental health assessment at Liverpool Hospital by his GP Dr Arafa Yehia in August 2014 following concerns about his mental health. He was presenting with thought disorder, disjointed speech, grandiose referential thinking and auditory hallucinations
Mr Shahab was admitted to Liverpool Hospital for mental health concerns. He was experiencing auditory hallucinations, voices telling him not to take the medication, buzzing sounds and voices constantly talking to him. He was prescribed Olanzapine l0mg in August 2014. Mr Shahab was admitted into the Early Psychosis Intervention Program in September 2014. His Olanzapine was gradually increased to 25mg
Mr Shahab stated that he was feeling better, with psychotic symptomatology resolved and ceased using the medication in January 2015. In March 2016, his family reported that they had witnessed changes in him, and that there were early signs of psychosis returning. Mr Shahab relapsed and returned to the use of illicit drugs.[80]
[80] TB1, 38.
In 2017, he was hospitalised and received treatment at Liverpool hospital and was discharged in March 2017.[81]
[81] RTB, 268.
His mental illness is currently in remission. A letter from an Occupational Therapist in the Early Psychosis Intervention Program dated 20 November 2020 stated as follows:
RE: Mohmmad Shahab , DOB 1/1/1992
Mohammad Shahab is due to be discharged from Early Psychosis Intervention Program in March 2017. Mohammad's last appointment with EPIP psychiatrist is on 10.3.17. Mohammad has a psychotic illness and is currently compliant with Risperidone 3mg nocte. His family confirm he takes this medication regularly. His mental health is currently stable. He currently works fulltime in his own business.
SUMMARY OF CARE & PROGRESS
Mohammad has a history of non-adherence to medication and poly substance use. He reports In the past he has taken cocaine, methamphetamine mines, THC and synthetic THC. There's also been occasions where his positive symptoms have returned however he has not had a hospital admission.
Mohammad has received care—coordination and psychiatry services form Early Psychosis Intervention Program since September 2014. The Olelupine (sic) dose was gradually increased to 25mg. In January 2015 Mohammad reported his psychotic symptoms had largely resolved, and he returned to working for his uncle installing air conditioning and discontinued Olanzapine. Persistent psycho-education was provided about the role of his medication and risk of relapse. Mohammad declined to recommence olanzapine. Mohammad also utilised synthetic cannabis on a weekly basis. He declined the need for drug services.
By June 2015, although Mohammad was working full time, there was concern by his family that Mohammad was showing early warning signs.
Mohammad was recommenced on Olanzapine under the supervision of his family, and Mohammad psychotic symptoms gradually improved and eventually resolved by September 2015.
Mohammad was never keen to continue Olanzapine due to sedation, hence EPIP elected to cross titrate Mohammad to Risperidone, however, Mohammad discontinued It.
Around September 2015, Mohammad changed jobs and established his own business installing air-conditioning as a private contractor. By late March 2015, Mohammad family reported Mohammad was exhibiting early warning signs of relapse, and family believe he was using illicit drugs. Around mid 2016 he was charged by police and placed on section 32 as he failed to leave a work site, he stated someone stole his torch. The section 32 was from July 2016 and expired on 19/01/2017.
When unwell Mohammad can exhibit the following symptoms: grandiose, have ideas of reference, though disorder, religious delusions. Examples include, believing he is the cause of children crying and people's health problems. He has also thought the clouds form the word 'Allah'. He has also on occasion had auditory hallucinations telling him not to take medication. He can become preoccupied with reading the Koran. Mohammad reported auditory hallucination of a voice constantly talking, and a buzzing sound in his ear.
RECOMMENDATION
Mohammad Is at risk of non adherence to medication and relapse. The GP is requested to refer Mohammad to private psychiatry services. Further recommendation regarding medication will be provided by EPIP by March 2017…[82]
[82] RTB 268-269.
A recent report suggests a high likelihood that the Applicant suffers from schizophrenia. On 5 April 2022, a Transitional Mental Health Nurse Practitioner of the Custodial Mental Health Outreach Telehealth Clinic of the NSW Justice Health & Forensic Mental Health Network wrote:[83]
Mr. Shahab was last seen by Dr Henderson on 07/02/2022 and the clinical impression was: high likelihood of having schizophrenia with auditory hallucination, persecutory delusions and referential ideas continuing for over 2 years without reported illicit drug use. Poor compliance with medications and relapse into illicit drugs use contributed to psychotic symptoms which appears to have contributed to offending behavior. Following incarceration, Mr. Shahab has been recommenced on treatment and his symptoms have resolved; at times he still reports some vague persisting persecutory feelings. He continues to have limited insight into his mental illness and, at times, has been non-compliant with his medications. During his stay in St Heliers correctional centre, CSNSW found 45 tablets of Risperidone in Mr Shahab's cell. Since this incident, his medication was strictly supervised but he reported side effects - muscle ache, painful teeth and shaking legs.
[83] TB5, 278.
The Relevance of Mental Illness
The fact that a non-citizen is suffering from a mental illness, whether in remission or not, is not per se a ground for revoking a visa cancellation decision. Such a person may be removed as a matter of necessity to protect the community. However, the pragmatic harshness of that reality is tempered by various considerations.
The Tribunal may be satisfied that the risk of reoffending is low, especially where a non-citizen’s mental health and/or substance abuse issues have been treated and stabilised; or there is evidence of a strong motivation to engage in rehabilitative programs upon release.
The Tribunal may also be satisfied that if removed to the country of reference, the Applicant would likely not receive adequate treatment. This may be relevant to OC2, particularly where, as here, non-refoulement obligations are raised but there is no protection finding.
And the Tribunal will no doubt be alive to the fact that prolonged or indefinite detention may, and almost certainly will, aggravate a person’s underlying mental health issues.
In January 2023, the Department of Foreign Affairs and Trade (DFAT) released a Country Information Report (CIR) in January 2023. The CIR describes the level of treatment available in Iraq for those who suffer from mental health and/or drug abuse issues:
Mental health
2.12 Mental illnesses such as depression, anxiety and post-traumatic stress disorder are common in Iraq and frequently linked to experiences of conflict and displacement. Mental health services are inadequate. There are two dedicated psychiatric hospitals in the country, Al-Rashad Psychiatric Hospital and Ibn Rushd Hospital, both located in Baghdad. There are psychiatric wards in some general hospitals, as well as some out-patient clinics, often run by international non-government organisations (NGOs) such as Medicins sans Frontieres. The absence of community-based mental health care means that often the only care available is family-based or in psychiatric institutions, which have been linked to inhumane treatment and degrading conditions. There is significant societal stigma against people with mental illness. People with mental illness are often perceived as dangerous and unable to work, and some Iraqis blame mental illness on personal weakness or divine retribution. These attitudes result in under-reporting of mental illness and under-utilisation of the services that are available.
Drug abuse and treatment
2.13 Drug abuse is an increasing problem, particularly in Basra and Baghdad. The most common substances are methamphetamine and fenethylline (a type of amphetamine popular with Islamist fighters, often known by one of its brand names, ‘Captagon’),opium, hashish and alcohol. The rise in drug abuse is often attributed to high levels of youth unemployment, as well as the involvement of Iranian-backed militias in the drug trade. Since 2017, drug treatment and rehabilitation centres have opened in Basra, Baghdad and Erbil, but a shortage of available places means many drug users are jailed. (Emphasis added)
The following cases offer some assistance. In RNVF v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 81, Senior Member Dr Evans-Bonner set aside the non-revocation decision on the basis that the consideration of indefinite detention outweighed the primary considerations that weighed against revocation. The applicant was a 42-year-old Somali citizen who fled Somalia in 1990 with his family to a refugee camp in Kenya before arriving in Australia in 1995 at age 14. His offending began two years after his arrival and by the time of the Tribunal hearing, his criminal record included 26 court appearances for 77 convictions, with 18 of those resulting in terms of imprisonment. The most serious offending involved armed robbery and a rape conviction. At the time of the Tribunal’s decision, the applicant had not applied for a protection visa and thus had no protection finding.
In respect of the applicant’s mental health issues, it was noted that he had a traumatic childhood and suffered from PTSD. The applicant had a history of drug and alcohol abuse, as well as attempted suicides. During his time in immigration detention, he had been physically assaulted on multiple occasions and witnessed two friends dying by suicide. According to a report by a psychologist, immigration detention significantly impacted his mental health; in particular, he experienced suicidal ideation in response to his ongoing detention.
The Tribunal considered indefinite detention separately to the considerations listed in Direction 90. Importantly, the evidence established that the applicant’s significant mental health issues were aggravated by immigration detention. Further, the applicant was found to be ‘strongly motivated’ to participate in rehabilitative programs for his mental health and drug abuse issues if released into the community. Correspondingly, the Tribunal held that these issues required treatment in the community. In summary, Senior Member Dr Evans-Bonner stated at [282]:
Although, the primary consideration of the protection of the Australian community weighed moderately to strongly, and the expectations of the Australian community weighed strongly against the revocation of the Cancellation Decision, I find that they are outweighed by the prospect of indefinite or prolonged detention which weighs very strongly in favour of the revocation of the Cancellation Decision, and so much so that it significantly outweighs those primary considerations. I have given significant weight to the prospect of indefinite or prolonged detention because the most likely outcome of any decision to affirm the Reviewable Decision is that the Applicant is likely to be facing indefinite detention for a period of years, rather than months. The Applicant is facing indefinite or prolonged detention in circumstances where he has a history of trauma and significant mental health issues and has been seriously assaulted twice in immigration detention. The Applicant has now been detained for approximately eight years, having been released from prison in mid-2015. (Emphasis added)
In BLTY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 1064, the applicant was a 34-year-old citizen of Iran who arrived in 2013 and was granted a protection visa in 2019. He was convicted in the Local Court of NSW for three counts of Sexually touch another person without consent – T2 for which he received a sentence of 12 months imprisonment. The applicant had a history of drug and alcohol abuse before being introduced to synthetic cannabis in 2014. Shortly after this, he was admitted to hospital to be treated for drug induced psychosis. He was treated with an oral antipsychotic medication and discharged, after which he was followed up by Community Mental Health Services. He remained addicted to synthetic cannabis and was admitted again to hospital for treatment several times between 2014 and 2020. The applicant was treated for his psychosis in prison and immigration detention, by way of injections and later oral medication. However, he continued using cannabis and ice during immigration detention. A consultant psychiatrist gave a primary diagnosis of chronic schizophrenia with an additional diagnosis of substance use disorder. His schizophrenia was well treated and stable and he had been drug free in detention since commencing the methadone program, with a corresponding motivation to remain sober. The psychiatrist further opined that his offending was linked to his mental health and substance use.
Senior Member Dr Kirk considered ongoing immigration detention, finding that the applicant would most likely be subject to a significant delay for the Minister’s non-compellable powers to be engaged to lawfully remove him from Australia. In deciding that this consideration weighed heavily in favour of revocation, Senior Member Dr Kirk had particular regard to the psychiatrist’s opinion on the impact of ongoing detention on the applicant’s mental health, at [164]-[165]:
In his report, Dr Chew outlined the negative impacts for the Applicant of ongoing detention:
‘Ongoing detention would be negative for [BLTY] and impede his chances of remaining in appropriate treatment. Detention would likely exacerbate his underlying mental conditions. Treatment is less available in detention than in the community. It is also well documented that detention can worsen psychotic and trauma illnesses and even induce psychosis.’
Having regard to the evidence, particularly the opinion of Dr Chew, about the impact on the Applicant of prolonged immigration detention, the Tribunal finds that this weighs very heavily in favour of revocation of the Mandatory Visa Cancellation Decision.

The Minister’s decision was therefore set aside and substituted with a decision that the mandatory cancellation of the applicant’s visa be revoked.
In SGQV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3071, the applicant was a 37-year-old man who fled from Somalia with his remaining family at a young age, living in a refugee camp until arriving in Australia at age 15 with his family. Five years after arriving, he was admitted to a psychiatric hospital and diagnosed with paranoid schizophrenia and treated with Olanzapine. Between 2006 to 2016, the applicant was sentenced to three years imprisonment for stabbing someone and a four-year community corrections order for armed robbery. During this period, he was repeatedly admitted to a psychiatric hospital.
The applicant did not have the benefit of a protection finding and raised Australia’s non-refoulement obligations. DP Britten-Jones, in light of the HCA’s decision in Plaintiff M1 considered the applicant’s risk of harm as follows, stated at [78]-[82]:
I turn now to consider the applicant's representations concerning risk of harm in Somalia. The applicant's schizophrenia and intellectual impairment are most important when considering the risk of harm if returned to Somalia. The country information establishes that not only is there a lack of support for those with mental illnesses in Somalia but there is positive discrimination and negative treatment. It is hard to imagine a worse outcome for the applicant than being returned to Somalia. In this regard, I adopt what the Full Court said:
“[40] … It is difficult to think of a more serious claim than that a person is at risk of harm because it was likely that the person would be chained, imprisoned and at risk of physical injury because of Somalia's treatment of the mentally ill, which claim was supported by the WHO 2010 report.”
There is also information in the DFAT Report to support the applicant's claims to fear harm on the basis of his status as a returnee from a Western country and is a person without clan connections. At [3.14], the DFAT Report assesses people who have spent time in the West to face a “moderate risk of violence from al-Shabaab” and that where those individuals “do not have adequate personal security measures in place”, they face a “high risk of violence from al-Shabaab”.
The applicant would also be adversely impacted by the general poverty and humanitarian crisis in Somalia. He has no family or other social supports to rely upon if returned to Somalia.
I accept the evidence of the applicant that he would face serious harm if returned to Somalia.
As I have previously indicated, I make no finding as to non-refoulement obligations because it is open to the applicant to apply for a protection visa. However, I am prepared to find in the applicant's favour that the harm he claims if returned is likely. This is a factor that weighs heavily in favour of revocation of the cancellation decision. (Emphasis added)
DP Britten-Jones set aside the non-revocation decision due to the weight afforded to the considerations of indefinite detention and the extent of impediments if removed. The weight of these considerations was directly attributed to the applicant’s significant mental health issues. DP Britten-Jones wrote at [106]:
The most important countervailing considerations are the risk of harm if returned to Somalia, the prospect of indefinite detention and the extent of impediments if removed. The applicant's schizophrenia and intellectual disability are key factors in the decision I have reached for two predominant reasons. First, much of his past offending can be attributed to his mental illness which if properly treated in the community will significantly decrease the risk of him reoffending. Second, he will face the most horrific consequences in Somalia or continuing detention because of his mental condition. Returning the applicant to Somalia would be akin to a death sentence. Subjecting the applicant to further detention will have severe health consequences.
The applicant came to Australia as a child with his family over 20 years ago. Since then he has developed a most serious psychological illness for which he is not currently receiving appropriate treatment. I am confident that he will have access to the institutional supports that he needs, and it is comforting that Ms Singh and his family will be available to support him. He should be returned to the community so that he can be with his family and receive the treatment he needs. If this happens then the risk of reoffending will be reduced to an acceptable level.
In QGMJ and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2314 (QGMJ), the applicant left Kenya at age 12 and arrived in Australia in 2004 as an unaccompanied stowaway at age 16. He was diagnosed with schizophrenia in 2007. The applicant had applied for a protection visa but that was refused. He had alcohol and drug abuse issues. The applicant had not completed any alcohol and drug rehabilitative programs and an IHMS psychiatrist noted that he had poor insight into his schizophrenia and was non-compliant with his medication.
DP Britten-Jones and Member Ben-Tovim considered the applicant’s assertion that over time he had gained insight into his schizophrenia and the letters of support from his friends and members of his local church. It was found that the applicant would likely receive significant support if released into the community. However, there was still the risk that he would relapse as he has not yet competed the rehabilitation process, merely expressed a motivation to do it. This was relevant to the risk of reoffending, at [52]:
His period of sobriety whilst in prison and detention is a positive factor, but there remains a risk that he will relapse particularly if he does not engage with the appropriate drug and alcohol rehabilitation services. There is also a significant risk that he will not engage with the necessary medical services such that his mental health may deteriorate resulting in an increased chance of further offending. It follows that the Australian community faces a significant risk of harm if the cancellation decision is revoked. Our conclusion as to the protection of the Australian community is that it is a factor that weighs very significantly against revoking the cancellation decision.
Countervailing this, however, was the fact that the treatment the Applicant would receive if returned to Kenya would be entirely inadequate. This was significant as the Applicant is a diagnosed schizophrenic whose mental state rapidly deteriorates without counselling and medication (see [68]). This was found to place him at great risk of harm, and formed the basis for the Tribunal to attach significant weight to the other considerations of non-refoulement obligations and extent of impediments if removed. In summarising the weighing exercise, the Tribunal had regard to the impact of his schizophrenia on his offending and a finding that his risk of reoffending would lower if he engages in treatment, at [105]-[107]:
… However, the medical experts say that his schizophrenia was a causative factor in his criminal offending and therefore the likelihood of re-offending will be diminished if he receives proper treatment and support. We consider it is likely that he will engage with the available support services and receive appropriate treatment which will have a positive impact and reduce the chances of re-offending to an acceptable level.
The best interests of minor children, non-refoulement and risk of harm if returned, the extent of impediments if removed and the links to the Australian community are factors which weigh in favour of revoking the cancellation decision. If the cancellation decision is not revoked, the likely outcome will be removal to Kenya where he will most likely suffer the most horrific consequences due to his schizophrenia. Not only will he not receive adequate treatment, but he will face discrimination, a real risk of being held in chains, and even death. This is a most significant factor in our decision because a person who developed a mental illness in Australia and who has lived his whole adult life in Australia, including an eleven year period of mostly positive contribution, should not have to face such a risk of harm. His most serious offending in the community took place in 2015 which was eleven years after his arrival as a child stowaway fleeing a country because he was no longer accepted by his family. Another factor is that he has two daughters born in Australia aged 11 and 12. His past conduct towards these children was appalling and he has been absent for much of their lives, so we give this factor less weight but it is nevertheless in the best interests of these children if he remains in Australia where he will have the opportunity to help with their development towards adulthood.
We consider that in these circumstances the existence of non-refoulement obligations, involving such a severe risk of harm, outweighs the seriousness of the criminal offending.
The non-revocation decision was therefore set aside.
By contrast, in FJXD and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 1721, DP Britten-Jones affirmed the non-revocation decision in circumstances where the applicant faced indefinite detention which would likely cause his mental health disorders to further deteriorate. The applicant raised non-refoulement obligations but did not have the benefit of a protection finding. Even though significant weight was afforded to this consideration, the protection of the community and expectations of the community were found to be countervailing considerations. His offending (people smuggling) was regarded as so serious that even a low risk of reoffending was unacceptable. The fact that his mental health issues (diagnoses of depressive disorder, panic disorder, adjustment disorder, anxiety and possible PTSD) were unresolved at the time of the decision, coupled with his past offending being linked to alcohol abuse and his mental health issues, resulted in a finding that there was an appreciable risk of reoffending: see [32]-[34]; [70]-[74].
LMSL and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 173 is a further example of the Tribunal affirming the non-revocation decision in circumstances where non-refoulement obligations were raised and the applicant suffered from mental health issues. Though the considerations of indefinite detention and extent of impediments if removed to Iraq weighed in favour of revocation, the evidence established a recommended rehabilitation program for his substance abuse and PTSD. Attendant to this was the Tribunal’s finding that he lacked insight and genuine remorse for his offending. The applicant had an extensive criminal record, including convictions for break and enter, larceny, assault occasioning actual bodily harm and drug possession, among others. His risk of reoffending was assessed at a high level and the protection of the Australian community therefore weighed significantly against revocation. The Tribunal thus weighed the considerations in favour of non-revocation.
These cases show that mental illness may be relevant to several considerations under the Direction. The Tribunal’s task is finely balanced where an applicant’s mental illness may contribute to an unsatisfactory risk of reoffending but ongoing detention or removal from Australia will significantly worsen their condition. The abovementioned cases illustrate that the Tribunal is to approach the balancing of these considerations on a case-by-case basis.
In terms of OC2, I am satisfied that this consideration weighs heavily in favour of revocation.
9.3 Impact on victims (OC3)
This consideration does not arise and therefore should be given neutral weight.[84]
[84] RSFIC [79].
9.4 Impact on Australian business interests (OC4)
This consideration does not arise as there is no evidence to suggest that non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.[85]
[85] RSFIC [80].
THE WEIGHING EXERCISE
In giving reasons for their decision, the delegate stated:
CONCLUSION
122. I have considered whether there is another reason why the decision to cancel Mr SHAHAB’s visa should be revoked, as I am not satisfied that he passes the character test.
My findings are as follows.
123. I have found that the best interests of Mr SHAHAB’s minor nieces and nephews, as a primary consideration, weigh in favour of revocation of the cancellation of Mr SHAHAB’s visa.
124. I have also found that Mr SHAHAB’s ties to Australia, as a primary consideration, weigh quite strongly in favour of revocation, noting in particular employment, employing workers and his parent’s health.
125. In addition, I have found that other factors also weigh in favour of a decision to revoke, being the impediments if Mr SHAHAB is removed to his home country and International non-refoulement obligations as he submits he is likely be kidnapped or even subjected to death on his return to Iraq.
126. However, I have also given weight to the serious nature of the crimes committed, noting his rehabilitation is likely to be dependent that Mr SHAHAB remains drug free and commits to ongoing mental health treatment.
127. Furthermore, I have considered that the Australian community, as a norm, expects the Government not to allow non-citizens who have engaged in police pursuit – not stop – drive dangerously and drive recklessly/furious or speed/manner dangerous to enter or remain in Australia. I give this primary consideration significant weight as well against revocation of the visa cancellation.
128. I am cognisant that where harm could be inflicted on the Australian community, any risk of reoffending may be considered unacceptable, even applying a higher tolerance of Mr SHAHAB’s criminal conduct than I otherwise would because of his ties to Australia.
129. On balance, I find that the factors that weigh against revocation of the cancellation decision outweigh the factors in favour of revocation. Therefore, I am not satisfied that there is another reason why the decision to cancel Mr SHAHAB’s Class BB Subclass 155 Five Year Resident Return visa should be revoked. It follows that the condition under s501CA(4)(b)(ii) of the Act is not met.[86]
[86] G4, 30.
I agree with much of this analysis. Specifically, I agree that PC1 (Protection of the Australian Community) and PC5 (Expectations of the Australian Community) weigh against non-revocation.
However, I do not agree that his offending behaviour in this case, and the expectations of the Australian community, outweigh the cumulative effect of those considerations which stand in his favour. His offending, for the most part, was spontaneous and unpremeditated. It was neither calculating nor callous. There is a real possibility that he may be kidnapped or killed if returned to Iraq. The impediments to a return to Iraq are very real. According to the DFAT Country Information Report referenced above, Iraq is not a country blessed with adequate mental health facilities. He has very strong ties to this country where his extended family is well established and a very pro-social force in his life. He will face almost inevitably a deterioration of mental health if he remains in immigration detention.
Consistent with the Tribunal’s approach in the cases referred to above, the state of the Applicant’s serious mental health condition provides a compelling reason for revoking the non-cancellation decision. While there is some doubt as to the degree of insight the Applicant has into his mental illness, or indeed his commitment to ongoing psychiatric monitoring and assessment, I am satisfied that his present condition will deteriorate should he be subject to further indeterminate or indefinite detention.
Moreover, the Tribunal cannot but be moved by the impact of war and ethnic violence upon this family, the dislocation they have experienced, and the contribution that they make to Australia. I am satisfied that this is a very pro-social and caring family. His parents and sisters have a deep emotional bond with their troubled son and brother. The strength of this family bond does not remove all risk that the Applicant will continue to experience difficulties with living and may even fall by the wayside again. It is, however, a calculated risk that his time spent in prison and immigration detention will have a salutary and deterrent effect, and that with growing maturity his level of insight into his mental health condition may improve.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 28 April 2023 that the mandatory cancellation of the Applicant’s visa not be revoked is set aside; and in substitution, the cancellation of the Applicant's Class BB - Subclass 155 Five year Resident Return visa under subsection 501(3A) of the Migration Act 1958 (Cth) is under subsection 501CA(4) of the Act.

I certify that the preceding 149 (one hundred and forty-nine) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

.....[SGD]...................................................................
Associate
Dated: 24 July 2023

Date(s) of hearing: 29, 30 June and 5 July 2023

Solicitors for the Applicant: Mr A. Alkafaji, Alkafaji Lawyers

Solicitors for the Respondent: Mr M. Sheedy, Sparke Helmore Lawyers

Date(s) of hearing:	29, 30 June and 5 July 2023
Solicitors for the Applicant:	Mr A. Alkafaji, Alkafaji Lawyers
Solicitors for the Respondent:	Mr M. Sheedy, Sparke Helmore Lawyers