SXNC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4510 (25 November 2021)
Division:GENERAL DIVISION
File Number: 2021/6173
Re:SXNC
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member Rebecca Bellamy
Date:25 November 2021
Date of Written Reasons: 6 December 2021
Place:Brisbane
The decision under review is affirmed.
..............................[SGD]..........................................
Member Rebecca BellamyCATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class XB Subclass 202 Global Special Humanitarian visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – consideration of Australia’s international non-refoulement obligations where receiving country is Iraq – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar [2019] FCA 279
SECONDARY MATERIAL
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December1984, 1465 UNTS 85 (entered into force 26 June 1987).
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) amended by the Protocol Relating to the Status of Refugees, opened for signature 31 July 1967, 606 UNTS 267 (entered into force 4 October 1967).
Direction No 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, GA Res 44/128 (15 December 1989, entered into force 11 July 1991).
REASONS FOR DECISION
Member Rebecca Bellamy
6 December 2021
THE ISSUE BEFORE THE TRIBUNAL
The Applicant is a 36 year old citizen of Iraq. In September 2008, when he was 23 years old, he moved to Australia with his family. The most recent visa granted to him was a Class XB Subclass 202 Global Special Humanitarian visa (“visa”).[1]
[1] Exhibit G1, Section 501 G documents, G17 page 103.
On 10 December 2020, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[2] On 13 January 2021, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[3] On 2 September 2021, the Respondent decided not to revoke the cancellation.[4]
[2] Exhibit G1, Section 501 G documents, G13 pages 84 to 91.
[3] Exhibit G1, Section 501 G documents, G19, G21 and G22.
[4] Exhibit G1, Section 501 G documents, G3 page 11
The Applicant lodged an application for review in this Tribunal on 2 September 2021.[5] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[5] Exhibit G1, Section 501 G documents, G1, pages 1 to 8.
The hearing of this application took place on 1 and 2 November 2021. The Applicant gave evidence via videoconference. The Applicant’s father and one his brothers also gave evidence by videoconference. The Applicant’s mother and another brother gave evidence by telephone. The Applicant’s parents both gave their evidence with the assistance of an Arabic interpreter.
The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
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.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. If either of paragraphs (i) or (ii) are satisfied, I should revoke the original decision.[6]
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 30 October 2020 the Applicant was convicted of multiple offences and was sentenced to an aggregate term of 16 months imprisonment. Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.[7]
[7] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of Part 2 of the Direction.
Those principles may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)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 measurable 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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(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 measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account. They are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. They are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
I note that paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
BACKGROUND AND OFFENDING
The Applicant was born in Baghdad in 1985, and he completed school to year 12. He commenced university studies but left to take up employment with the Ministry of Interior before completing the course. His father later went to work near the border with Jordan in a Government role. The Applicant joined him there.
In 2006, the Applicant and his family fled to Jordan and in 2008 they were granted Humanitarian visas. In September 2008 they moved to Australia.
In October 2009 the Applicant was sentenced in the local court for ‘Drive on road etc while licence suspended’. He was fined $300 and disqualified from driving for 12 months.[8] The Applicant’s criminal history, as set out in a document from the Australian Criminal Intelligence Commission, contains offences and corresponding penalties or orders. It does not expressly state where the Applicant was convicted of an offence, but it does make it clear where he was found guilty without being convicted.[9] I take it that where an entry is silent on whether or not there was a conviction, there was a conviction.
[8] Exhibit G1, Section 501 G documents, G6, page 38.
[9] See e.g. at Exhibit G1, Section 501 G documents, G6, page 36 on 20 February 2019.
On 18 November 2009, on his return to Australia from overseas, the Applicant completed an incoming passenger card. The card contained the question “Do you have any criminal conviction/s?”. The Applicant circled the answer “No”[10]. In his revocation request he said he did not believe the question referred to driving charges because in Iraq they are classified as traffic, not criminal, he had only lived in Australia for a year and two months at that time, and his English was limited.[11] He was sentenced in court for that driving offence, although I will give him the benefit of the doubt and accept that he was mistaken as he claims when he completed the form.
[10] Exhibit G1, Section 501 G documents, G18 page 104.
[11] Exhibit G1, Section 501 G documents, G26 page 151.
I have before me a print-out of computerised contemporaneous records made by the New South Wales Police Service of interactions they have had with the Applicant. According to those records, on the morning of 21 or 22 April 2010, the Applicant committed an act of domestic violence against his then partner with whom he had been in a relationship for around five months. They had been religiously married and were living together. When they were in bed, the Applicant suddenly reached over and placed his hand across her face, deliberately placing pressure on her mouth and nose to stop her from breathing. He left his hand there for about 30 seconds. She found it hard to breathe and began shaking from fear. The Applicant finally let go. About a week before that, the Applicant had told her “I'll give you sleeping pills and turn on the gas and you will be gone and nobody will find out” and she believed the threat.
About 8.30pm on 24 April 2010 the victim called the Applicant at work and told him not to return home until they got a divorce as she was scared of him. He called her to say he would return to collect some personal belongings. As she was afraid of him returning home, she contacted the police.
The Applicant declined to be interviewed by the police. He was charged,[12] although there is no corresponding conviction in his criminal record. In the hearing, the Applicant denied the allegations,[13] adding that there was no gas in their home.[14]
[12] Exhibit R2, Respondent’s Tender Bundle, TB5, page 264 to 265.
[13] Transcript, page 57, line 37 to page 58, line 5.
[14] Transcript, page 58, lines 10 to 14.
According to the police records, on 28 August 2011,[15] the police stopped a vehicle in which the Applicant was travelling. The police noticed that the Applicant had a tattoo of an assault rifle on his lower leg. When asked why he had the tattoo, he said he loved how effective the rifle was. In the hearing, he said he liked the firearm out of his love for the army. When it was put to him that having a tattoo of a rifle might seem unusual for a person who is peaceful (as the Applicant claimed to be), he agreed and said “I regret it at the moment”. He admitted that he got the tattoo in Australia.[16]
[15] Exhibit R2, Respondent’s Tender Bundle, TB5, page 258.
[16] Transcript, page 93, line 32 page 94, line 35
On 13 June 2010 the Applicant was involved in a fight outside a kebab shop. He was with two associates and opposing them were two brothers. On three occasions when the fighting had stopped, the Applicant resumed the violence. First, after the Applicant and one brother pushed and shoved each other, then separated, the Applicant sprinted back and began trading punches with the second brother. They then stopped, and the Applicant turned to the first brother and hit him in the face. One of his associates then punched the first brother, knocking him unconscious and breaking his nose. The fighting stopped while the second brother tended to the first. The Applicant then returned and assaulted them both in circumstances where they had little chance to defend themselves.[17] On 28 January 2011 the Applicant was convicted of affray and sentenced to a two-year good behaviour bond.
[17] Exhibit R2, Respondent’s Tender Bundle, TB3, pages 119 to 121.
In the Applicant’s revocation request, it was submitted that he was defending himself when drunk people approached him at night.[18] The police records note that there were many bystanders. I infer that the account recorded by the police was at least partly informed by independent witnesses. Self-defence is not consistent with that account or with the finding of guilt. I accept the police account and reject the Applicant’s claim to have been acting in self-defence.
[18] Exhibit G1, Section 501 G documents, G19, page 109.
Between 2011 and 2013, the Applicant was convicted of various dishonesty, and drug possession offences, for which he received a variety of fines and conditional release orders. He was also convicted of negligent driving and “responsible person/custodian not disclose driver’s identity”.[19] In addition, on 27 February 2012, the Applicant was caught with a knife in his vehicle, having attracted the attention of the police by weaving fast in and out of traffic without indicating. He offered no reason for having the knife. The police told him he would be fined for having the knife, failing to indicate, and not carrying his driver licence. He told the police he did not care.[20]
[19] Exhibit G1, Section 501 G documents, G6, pages 37 to 38.
[20] Exhibit R2, Respondent’s Tender Bundle, TB5, page 252.
According to a New South Wales police Facts Sheet, on 5 August 2013, the police found the Applicant in possession of a stolen credit card. It was in his wallet behind two other cards. The name on the card was represented with two initials and a surname. The card was signed on the back. The Applicant told the police that he got the card from a customer whom he said he knew, and that person would be able to clarify his possession of the card. The police asked the Applicant to give the details of the officer in charge to the owner of the card. The Applicant then said:
“The thing is, he didn't hand it to me and I put it in my pocket. He probably gave it to someone in the truck and it fell and I picked it up but I am sorting out trying to give it back to him”.
(Underlining added)
The owner of the card was a female, not a “he”, who told the police that she did not know the Applicant and did not give him her card. Nor had she signed the card. On 16 December 2013, the Applicant was convicted of “goods in personal custody suspected of being stolen” in relation to his possession of the card. The police Facts Sheet was provided to the Tribunal in a bundle of documents produced by the Liverpool Local Court under summons. It was therefore in the court file which indicates that it was before the court when the Applicant was convicted.[21]
[21] Exhibit R2, Respondent’s Tender Bundle, TB9.
In a statutory declaration the Applicant made in 2016, he referred to this conviction (although he referred to the offence, rather than the conviction, having occurred in December 2013). He said:
“In December 2013…I was carrying out work duties which involved removing a client’s furniture and belongings to her new house. When it came to payment, the client paid and forgot the credit card in the removal truck that I was driving. This resulted in the police suspecting the credit card was stolen although it was not. The client also confirmed that she had forgotten the credit card. The card was never used by me or anyone else from the company it was simply an issue where the client forgot her credit card whilst making the payment for the job.
(Underlining added)
The Applicant got the gender of the card owner right at that time, which was after the police had identified her and included that information in the Facts Sheet presented to the court when he was convicted. His claim that she had confirmed that she had forgotten the credit card is obviously inconsistent with the Facts Sheet and the conviction.
In the hearing, the Applicant continued to deny that the card was stolen and repeated that it has been left by a client. However, he admitted that he had not contacted the card’s owner to arrange to return,[22] which is contrary to what he told the police.
[22] Transcript, page 87.
In May 2014 a person, “Mr N”, was killed by a “Mr A” who was, at the time, a friend of the Applicant.[23] According to the Applicant’s revocation request, he visited Mr A:
“and when I walked in and I seen a dead body. So I contacted the authority and I informed them about the dead body and identified it. They showed me some pictures. And because I seen some pictures in the apartment. I made a statement with them, identified the people, and the people-three of them, four of them-got arrested and charged. One with murder, to with murder accessory after fact, and one of them conceal serious indictable offence.”[24]
[23] Transcript, page 45, lines 33 to 40.
[24] Transcript, page 11, lines 22 to 38.
The Applicant he did not tell the police straight away: he waited until October 2014 to do that. In the meantime, according to him, a couple of days after he saw Mr N’s body, he came home to find Mr A there. Mr A pointed a pistol at him and said “If you open your mouth I will empty this pistol in your head”.[25]
[25] Transcript, page 15, lines 10 to 28.
In the hearing, the Applicant said Mr A left a shot gun and ammunition in the shed and the pistol in the garage. The next day Mr A came back to try to fix the pistol and the Applicant tried to persuade him to remove it. The Applicant said he had nothing to do with the firearms “I never use them. I never had nothing to do with them”. I reject that. When it was put to the applicant that his DNA was later found on the trigger of the pistol, he admitted having touched it. He said he touched it to look at it because it did not work, but he denied having tried to fix it. He was not able to explain why, if he wanted nothing to do with the firearms, he was trying to see why the pistol was not working.
It was put to the Applicant that, according to his evidence, Mr A threatened him then left him with a working weapon and ammunition which he could have used to defend himself, and that it did not make sense that he was afraid in those circumstances. He responded that he did not want to use a gun to protect himself and Mr A knew he would not. When asked if he had thought about locking the house up and warning his brother, “Mr T”, and father (who lived there) about Mr A, he said he did not know what to do at the time, especially after the murder.[26] I found his answers tepid and unconvincing.
[26] Transcript, page 46, line 37 to page 49, line 33.
On 23 May 2014, around two weeks after (according to the Applicant) Mr A first turned up with the weapons and ammunition, the police executed a search warrant on the Applicant’s home.[27] The Applicant said Mr T told him that Mr A was standing out the front of the house when the police raided it.[28] However, Mr T gave evidence that he was not there during the search and he found out about it when his mother telephoned him afterwards.
[27] Transcript, page 46, lines 13 to 19.
[28] Transcript, page 15, lines 40 to 43.
According to findings of fact that were subsequently made by a sentencing court, the Applicant’s parents were present when the search warrant was executed. The police found:
·a sawn-off double barrel shotgun in the Applicant’s bedroom under the bed along with five rounds of shotgun ammunition and one round of .22 calibre ammunition;
·four rounds of .22 calibre ammunition and a machete in the wardrobe in the bedroom; and
·a .22 calibre Lugar pistol hidden underneath the lounge.
The shotgun was in working order and the ammunition was suitable for use in the shotgun. The self-loading pistol had a faulty recoil and spring assembly, and when the police replaced it, it was found to be in working order. The pistol ammunition was suitable for use in the pistol. The shotgun and pistol were both unregistered.[29] The Applicant denied having put the weapons and ammunition there or knowing that they were there, saying Mr A must have done it.[30] He denied any knowledge of a machete.[31]
[29] Exhibit G1, Section 501 G documents, G10, page 49.
[30] Transcript, page 46, line 37 to page 47, line 9.
[31] Transcript, page 50, lines 15 to 28.
Mr T gave evidence that he found out about the police raid when his mother called him that night. Then the Applicant called him, probably the same night, and told him that their house got raided, that firearms were found and that he had been threatened by Mr A.[32] Mr T recalled the Applicant going to the police afterwards but could not remember when exactly.[33]
[32] Transcript, page 131, line 42 page 132, line 15.
[33] Transcript, page 132, lines 20 to 24.
According to an application for a warrant for the Applicant’s arrest, dated 19 June 2014, the police spoke by phone with the Applicant on 23 May 2014, but he would not disclose his location and refused to return to the house. On 26 and 27 May and 16 June 2014 the police returned to the house trying to locate the Applicant without success. They left messages with his mother, father and brother asking him to make contact with them and hand himself in, but he did not. The police believed that he was actively avoiding them.[34] The Applicant had agreed to hand himself in but had failed to do so.[35] A warrant was issued.
[34] Exhibit R2, Respondent’s Tender Bundle, TB1, pages 22 to 23.
[35] Exhibit R2, Respondent’s Tender Bundle, TB1, pages 26 to 28.
The Applicant contacted the police on 29 September 2014. When the police asked why he had not handed himself in, he replied that he had not been at the house since it was raided, and the house had previously been “shot up”, and he had been warned by the perpetrator not to go to the police. He told the police he had been in possession of the shotgun and pistol for protection.
On 13 October 2014 the Applicant attended the local Court for other offences and, by arrangement with him, the police arrested him there. When interviewed, he declined to comment in relation to the firearms on the basis that it would put his family at risk. He said the firearms belonged to someone else, but he could not say who. He later said he did not know who owned the firearms. He denied having previously told the police that the house had been shot up, or that he had the firearms for protection.[36]
[36] Exhibit G1, Section 501 G documents, G10, pages 50 and 51.
In the hearing, the Applicant claimed that for the first three months after the raid he was not aware that the police were looking for him, and that he was only aware in the last two months.[37] He said that after the raid he did not have any contact with his father, but his mother told him the police came to the house, went inside, asked about him and then left.[38] He said he first found out that the firearms had been found in around September 2014 when the police told him. He had not known why the police were looking for him until then.[39] This evidence is at odds with the evidence from Mr T and the police records. I reject it and I am satisfied that the Applicant knew almost immediately after the police raid that the guns and ammunition had been found in his house and that the police wanted to locate him because of that.
[37] Transcript, page 16, lines 14 to 16.
[38] Transcript, page 16, line 45 to page 17, line 4.
[39] Transcript, page 17, line 45 to page 18, line 20.
The Applicant said that when he was eventually arrested, he tried to tell the police about the murder. He said “there’s stuff happened. Big crime’s happened. You guys need to know about it” but he was brushed off. He then asked his lawyer to arrange for him to speak to the “crime commission” or high-ranking police.[40] In 2016, in the context of a revocation request after his visa had been cancelled for the first time, he claimed that he had told the police about Mr A once he was arrested because he felt safe enough at that point in time to tell them, without explaining why.[41]
[40] Transcript, page 16, lines 30 to 35.
[41] Exhibit R2, Respondent’s Tender Bundle, TB8, page 383.
The Applicant was remanded in custody. Prison records indicate that, while in custody, on 21 November 2014, he was found in possession of a bong, and on 5 December 2014 and 8 February 2015 he failed drug tests.[42] He also organised for his partner to bring in contraband. On 17 October 2015, she was found with 10 balloons in her bra all containing tobacco and cigarette papers.[43] He admitted to these breaches in the hearing.[44]
[42] Exhibit R2, Respondent’s Tender Bundle, TB6, page 302.
[43] Exhibit R2, Respondent’s Tender Bundle, TB6, page 273; Transcript, page 81, lines 4 to 24.
[44] Transcript, page 80, line 32 to page 81, line 2.
On 7 August 2015, the Applicant was convicted in the District Court of:
·Possess unauthorised prohibited firearm-T2; and
·Possess unauthorised pistol-T2.
He was sentenced to an aggregate term of two years, eight months and 10 days’ imprisonment with a non-parole period of two years and seven days. The aggregate sentence effectively commenced from the date of the Applicant’s arrest, being 13 October 2013. Six further firearm offences arising from the raid were taken into account. The learned sentencing Judge indicated that had the Applicant not pleaded guilty and assisted the police, he would have received a sentence that “would have seen [the Applicant] in custody for 54 months from 13 October 2014”.[45] That is a period of four years and four months.
[45] Exhibit G1, Section 501 G documents G10, page 67 read with Exhibit G1, Section 501 G documents. G23, pages 143 to 145.
The learned Judge accepted the Applicant’s evidence that he was asked to keep the firearms by a person known to him to have been involved in a murder.[46] Her Honour considered that this circumstance added to the seriousness of the offending because the weapons were associated with a known criminal. However, she said on the other hand the Applicant had given evidence that he initially felt threatened when was told to store the firearms. Her Honour added that the Applicant possessed the firearms when there was a significant risk that they would be reclaimed by the known criminal who, according to him, told him to house them. The potential for danger associated with those firearms, being a self-loading pistol and a sawn-off shotgun, making their way into criminal activity was also significant.[47]
[46] Exhibit G1, Section 501 G documents G10, page 51.
[47] Exhibit G1, Section 501 G documents G10, page 52.
Her Honour noted that when the Applicant committed these offences he was on bail for other offences.[48] She also observed that there was no evidence of any mental health issues of any note.[49]
[48] Exhibit G1, Section 501 G documents G10, page 54.
[49] Exhibit G1, Section 501 G documents G10, page 62.
The Applicant claimed that he received threats from Mr A’s family when he was first arrested. He gave an example of Mr T being approached at Bondi Beach and told to tell the Applicant to tell the police that he was lying or they would kill Mr T. Mr T corroborated that evidence, and he said there were other occasions when threats were made. He said none of the threats were ever carried out,[50] and he said he has not heard much since Mr A stopped fighting the charges.[51] In the statutory declaration referred to below, the Applicant claimed that he was attacked by four men in Long Bay gaol because he had assisted the police. However, he did not claim that Mr A or his family had arranged that.
[50] Transcript, page 133, lines 1 to 10.
[51] Transcript, page 133, lines 17 and 18.
Following the Applicants convictions for the firearms offences, his visa was mandatorily cancelled in September 2016. He sought revocation of that decision.[52] In a statutory declaration dated 25 October 2016, he said the following things:
[52] Exhibit R2, Respondent’s Tender Bundle, TB8.
· “for me to return to the country I escaped from due to life-threatening attacks will mean my death when I return”;
· his (then) partner was devastated when his visa was cancelled, he is her only means of support and he could not stress enough the emotional and physical distress she would experience if he is returned to Iraq”;[53]
· his removal would have a devastating effect on his parents and brothers, his father has a heart problem and he worries about his father’s health if he gets deported and has his life threatened again;
· his younger brother would be affected significantly as he was still a child and would not be able to cope with the separation and danger the Applicant would face;
· his younger brother relied on the Applicant a lot before he was sent to prison, and the Applicant would hate to lose the opportunity to be there for him growing up;[54]
· he served his sentence and learned the consequences of his actions. He understood the seriousness of it and did not want to be in that position again;
· he had taken proactive steps to ensure it did not happen again, and was seeing a psychologist to help get him through this difficult stage in his life which had an overwhelming impact on him;
· he wanted to help the community by doing well and assisting the police on a case that would help protect the community from a dangerous killer;
· the time he spent in prison led him to rehabilitate;
· he looked forward to focusing on his well-being and positive future ahead; and
· he asked the decision-maker to consider his circumstances and the life-threatening consequences if he returned to Iraq.[55]
[53] Exhibit R2, Respondent’s Tender Bundle, TB8, page 381.
[54] Exhibit R2, Respondent’s Tender Bundle, TB8, page 381.
[55] Exhibit R2, Respondent’s Tender Bundle, TB8, page 383.
A submission made on the Applicant’s behalf said that he had frequently consulted counsellors, psychologists and psychologist nurses in the prison to help him in his rehabilitation and improvement of his depressive symptoms, he was extremely remorseful and he had vowed to change for his partner and family and lead a better life. It addressed his fears of harm should he be removed Iraq which are broadly the same fears that he puts forward in relation to the present visa cancellation.[56]
[56] Exhibit R2, Respondent’s Tender Bundle, TB9, page 398.
According to the Applicant, when he was transferred to the Villawood detention centre, there were some friends of Mr A there who informed Mr A’s family that he was there. Mr A’s father “called” the Applicant’s father and said:
“Look, your son is going to be deported to Iraq. And my brother works at the militia called Asa’ib Ahl al-Haq.”
“My brother will work with them.”
“I will hunt your son down and I will get him either locked up or tortured in one of the prisons there. Actually, without even getting him to the prison. I will just get him taken.”[57]
[57] Transcript, page 12, line 22 to page 13, line 8.
I have doubts about the veracity of this evidence seeing as the Applicant’s deportation would preclude him from giving evidence against Mr A so there would be no utility in harming him. Further, there was no mention of this in the statutory declaration he submitted in 2016. The Applicant later said there was no direct communication between Mr A’s father and his own, with threats being passed through mutual friends.[58] A material inconsistency like that suggests that the Applicant was making up his evidence as he went along.
[58] Transcript, page 13, lines 25 to 34.
The Applicant provided a letter that appears to be from the New South Wales police, addressed to the National Character Consideration Centre at the Department of Immigration and Border Protection, dated 15 December 2016, signed by a Detective Sergeant and a Detective Chief Inspector, of the State Crime Command-Homicide Squad. The letter purports to be written in support of the Applicant’s request for the cancellation of his visa to be revoked.
The letter indicates, relevantly, that:
· in May 2014 a person was reported missing by a family member, and an investigation was commenced into his disappearance;
· in October 2014 the Applicant approached authorities with information in relation to the disappearance of that person, and he provided a statement in November 2014;
· he got a heavily discounted sentence because of the assistance he provided, and there were conditions attached to that sentence relating to his continued assistance to the police;
· it was anticipated that were upon release from custody he would provide further assistance;
· his evidence was absolutely vital to the prosecution; and
· since the writer had been dealing with the Applicant, he had found him to be a person wanting to leave the criminal behaviour of before his imprisonment behind him.[59]
[59] Exhibit G1, Section 501 G documents, G23, pages 143 to 145.
The Applicant’s revocation request was successful. In January 2017, a delegate of the Minister decided to revoke the visa cancellation.[60] The letter notifying him of that included the notation:
“This decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you”.[61]
[60] Exhibit G1, Section 501 G documents, G16, page 96.
[61] Ibid.
However, the Applicant continued to offend and to come to the attention of the police.
According to police records, the Applicant was working for a removalist company in 2017. On 9 April 2017, because of the owner’s ongoing issues with Mr T, he fired the Applicant. This was done at an in-person meeting during which the Applicant said: “I am a gansta, you do not know who I am, you don't know what I can do”.
The following day, the office manager was contacted by the Applicant who threated to kill her if she returned to work. She called another employee saying she was not going to return to work because of threats to her and her family. When the police contacted the Applicant about the matter, he alleged that in fact he had been threatened but he did not take up the police’s invitation to file an official report about that.[62] In the hearing the Applicant denied having made threats. He said the police even checked his phone records to see if he dialled the victim’s number and they did not find that he had.[63]
[62] Exhibit R2, Respondent’s Tender Bundle, TB5, pages 219 to 220.
[63] Transcript, page 66, line 4 to 35.
It is relevant that when the Applicant was stopped by the police on 28 August 2011, and the police noticed his tattoo, they also found approximately 10 sim cards in various places inside the vehicle. The Applicant said they were his and he used them to call relatives overseas.[64] In the hearing, he said he contacted one or two cousins, his ex-partner in Jordan and perhaps some friends in Jordan and Iraq. When asked why he needed so many sim cards, he said they were a cheap sim card to call overseas. He said he was not sure exactly why he needed 10 of them.[65] I found his evidence that he needed them all for calling overseas unconvincing. Additionally, in 2019, the Applicant was alleged to have asked a person he had only just met to get a mobile phone in his name with some minor changes then on-sell it. The Applicant denied having done that,[66] although it is included by way of context in the agreed facts put forward when he pleaded guilty to offences against that person. Give this evidence, it is quite possible that in 2017 the Applicant was a person who had access to multiple sim cards and mobile phones, which diminishes the value of his claim that the police did not find a record on his phone of him calling the victim’s number, if that claim is true.
[64] Exhibit R2, Respondent’s Tender Bundle, TB5, page 258.
[65] Transcript, page 96, lines 5 to 26.
[66] Transcript, page 95, lines 6 to page 97, line 24.
On 17 August 2017, the Applicant and his father attacked a man at his home. The victim had met the Applicant’s father around six months before the assault. In mid-July 2017, the Applicant’s father, who was overseas at the time, had contacted the victim and asked him to go to their house to help Mr T who was experiencing problems with some employees regarding a burnt truck. The victim refused to get involved.
On 17 August 2017, the Applicant’s father called the victim and informed him that he was on his way over. The victim assumed he was visiting for coffee and prepared some coffee. The Applicant’s father knocked on the front gate, the victim opened the gate, and the Applicant’s father entered. At this stage the victim was unaware that the Applicant was also there. Unexpectedly the Applicant lunged at him and began punching him in the face with both hands, using closed fists. As he was doing this, the Applicant’s father grabbed the victim in a hugging position, preventing him from using his arms to defend himself. As they both left, they turned and simultaneously said “We are going to kill you”. The victim sustained minor lacerations to the right side of his neck, and pain in his ribs and some of his teeth came loose.[67]
[67] Exhibit G1, Section 501 G documents, G11, page 77; Exhibit R2, Respondent’s Tender Bundle, TB2, pages 45 and 46; TB5, pages 218.
On 2 May 2018 the Applicant was convicted of “assault occasioning actual bodily harm-T2 offence” and sentenced to a conditional release order of two years.
In his revocation request, the Applicant claimed that he was waiting in the car, and when he heard yelling that sounded like a fight, he went and saw his father on the floor and the victim was punching him. He got in between them, his father got up and punched the victim two times, the Applicant then grabbed his father’s hand to stop him hitting the victim, and he walked his father to the car.[68]
[68] Exhibit G1, Section 501 G documents, G25, page 150.
In the hearing, the Applicant said he had gone there with his father to collect some tools and his father told him to stay in the car. He gave an account similar to that in his revocation request, adding that as they drove away, the victim said that he was going to tell the police that the Applicant assaulted him, saying that the Applicant just got out of custody so he would most likely be charged and sent back to jail.[69]
[69] Transcript, page 20, line 4 to page 21, line 1.
The Applicant’s father gave an account that was largely consistent with the Applicant’s except he said that after two days the victim called and said, “I’m going to accuse your son because he was in prison”[70] which differs from the Applicant’s evidence that the victim made that threat as they drove away.
[70] Transcript, page 114, lines 14 to 30.
This last part differs from the Applicant’s claim that the victim made that threat as they drove away. Further, neither the Applicant nor his father volunteered why, if the Applicant was to stay in the car, he had accompanied his father to the address in the first place.
The Applicant’s father claimed that he went to court with the Applicant and told the Judge that he had hit the victim. The Applicant was dealt with twice for this offending: first when he was sentenced to a conditional release order, and second when he was re-sentenced after breaching the conditional release order. I do not have the record of the first sentencing hearing, but I have before me the transcript of the second. There is no record in that of the Applicant’s father having told the previous Magistrate or the presiding Magistrate that it was him who hit the victim or otherwise corroborating the Applicant’s account. The Applicant’s father was unable to explain the absence of such a record.[71] In that re-sentencing hearing, the Applicant told the learned Magistrate that he was defending his father whom the victim was attacking, and all he did was move the victim. He did not indicate that his father was in court to confirm that or that his father had told the previous Magistrate that it was him who hit the victim.[72]
[71] Transcript, page 114, line 45 to page 115, line 11.
[72] Exhibit G1, Section 501 G documents, G11, page 77.
The Applicant claimed that the re-sentencing court accepted that he was defending his father.[73] This is clearly not correct. The learned Magistrate’s description of the incident was that the Applicant hit the victim with both fists, most of the punches being to the victim’s face, and that the Applicant’s father grabbed the victim from the side as the Applicant punched him.[74] Her Honour said:
“It would appear that the backstory is this. The victim who was in his house, opened the front door to [the Applicant’s] father and [the Applicant]. [the Applicant] punched this man in the face, causing lacerations to his right jawline and loose front teeth. According to the statements which are in the brief which was in the court file, the victim could have no explanation for this offence of violence against his person. Except for the fact that he had refused to provide some sort of assistance to [the Applicant][75], the offender.”[76]
[73] Transcript, page 55, lines 4 to 6.
[74] Exhibit G1, Section 501 G documents, G11, page 74.
[75] The police records indicate that it was actually Mr T whom the Applicant’s father had asked the victim to help.
[76] Exhibit G1, Section 501 G documents, G11, page 77.
The evidence of the Applicant and that of his father is inconsistent in material respects with contemporaneous police notes and the court transcript and I reject it. I am satisfied that the Applicant, in an unprovoked attack, punched the victim multiple times while his father held the victim, causing injuries to his face including loose teeth.
The police records contain reports of threatening behaviour by the Applicant towards Mr T in early April 2018.[77] According to those reports, the Applicant and Mr T had experienced ongoing issues and Mr T had blocked the Applicant’s phone number. On 2 April 2018, the Applicant attended Mr T’s home, called him a “dog” and clenched his right fist as though to punch him. Their parents separated them. Later that day Mr T was picked up by a friend who was on his way to Melbourne. The Applicant called from a private number and said:
“Send me a location, I will find you on the freeway with ……. and I will bash you both”.
(Omission in original)
[77] TB5 pages 214 to 216.
Mr T received more calls from a private number but declined most of them. When he did answer one, the Applicant said:
“I am following you on the highway. I will make sure I catch up with you and bash you”.
He continued to receive more calls from a private number which he declined. On 3 April 2018, Mr T received approximately ten calls from a private number. He answered two and heard the Applicant say “hello”. Mr T quickly hung up.
On 4 April 2018, Mr T left Melbourne to return to Sydney. The Applicant called Mr T and tried to arrange to meet when he returned. Mr T did not agree. Mr T later received a voice message that said:
“You weak dog. You can't even come home. I'm gonna' smash ya from everyone you know. You fuckin' cockroach. You're a cockroach. You're a rat....You fuckin' shame piece of shit. Come home, come home let me see you. You fuckin' pussy. You woman, you rat. Everyone puts it on you...”.
Seconds later, he received another voice message that said:
“Are you homeless now? You still homeless? You weak dog, are you home or no? You weak cunt”.
Later the Applicant called Mr T and said, “If you don't meet up with me, I will come and see you and bring some bikies with me”.
Mr T stayed at a friend’s place because he thought the Applicant would be waiting for him at his home address. The following day Mr T phoned the Applicant in an attempt to sort out their issues. He thought that had been achieved and unblocked the Applicant’s phone number. Later, the Applicant texted “am not gonna see you home we gotta sort it out privately” and “you should take week off work”. The Mr T re-blocked the Applicant’s number.
The Applicant then called Mr T from a private number and said:
“I will come to Maccas. I will find you and bash you. I will wait for you to leave before work and I will break your leg. Make sure you take a week or more off work”.
The Applicant continued:
“I called ......... and told him that his wife is a slut and is sleeping with .........'s brother. ......... said to me that he didn't want to tell me that while I was in gaol, my girlfriend was with someone else at the Star Casino. So you bring me ......... now or I have a gun already on me with eight bullets. One on you, one on your mum, one on your girlfriend and the rest on her family”.
(Omissions in original)
Mr T told the Applicant he was going to contact the police. About 9.15pm he attended a police station and made a report. He initially refused to make a formal statement. About 10.15pm, Mr T walked to his car which was located in a car park opposite the police station. Mr T saw the Applicant slowly approach him in his car. The Applicant said:
"You're a dog, you make a statement to the police. You think the police will stop me? I will wait for you down the corner…I'll wait for you down on the corner. I won't leave before I get you tonight.”
Mr T returned to the police station and made a five page statement but left before signing it. The police contacted the Applicant to get him to attend the station to be charged and have an apprehended violence order served on him but he did not attend, saying he had been told Mr T had not signed his statement. Mr T told the police that he was worried that the Applicant would be waiting outside for him. The police got a provisional Apprehended Violence Order (“AVO’) for Mr T.[78] The Applicant was not charged with any offence arising from Mr T’s report.
[78] Exhibit R2, Respondent’s Tender Bundle, TB5, pages 214 to 216.
In the hearing, the Applicant denied having made threats to Mr T. He said Mr T made up the accusations and he was intoxicated at the time. He denied that he and his family had pressured Mr T to drop the allegations.[79]
[79] Transcript, pages 35 to 36.
Mr T said he had two drinks out with friends, then had an argument with the Applicant which escalated. He said he told the police he did not want to make a statement, but they told him he had to “stay and finish this”.[80]
[80] Transcript, page 123, lines 10 to 35.
When Mr T was asked if the Applicant made the statements that are in the police report, he said he could not remember, he was probably exaggerating, and that the Applicant probably had not said most of what he is alleged to have said. He said a few days later everything was good between them.[81] When asked what motivated him to go to the police in the first place, he said he did not know and probably just wanted to annoy the Applicant.[82]
[81] Transcript, page 124, lines 20 to 44.
[82] Transcript, page 1 to 5, lines 7 to 9.
When it was put to him that the police report stated he walked from the police station back to his car, and that it was hard to believe that if he was affected by alcohol the police would have allowed that to happen, he said he did not drive there and that his mother picked him up that night. When asked if he told the police that he was worried that when he left the police station the Applicant would be waiting outside for him, he said he could not remember having said that and that “they let me leave there”.[83] Mr T was not under arrest; the police could not have forced him to stay.
[83] Transcript, page 129, lines 23 to 45.
Mr T was cross examined at length about the allegations recorded by the police and the account he gave to the Tribunal. His evidence was vague and confused. I found it unconvincing.
According to police records, around a week later, on 9 April 2018, the Applicant assaulted a person who was doing a delivery with the Applicant’s brother (who was presumably Mr T as his other brothers lived interstate). The victim was in the passenger side when the Applicant opened the door and hit him on the arm with a hammer. The victim tried to shut the door however the Applicant grabbed it. The victim instructed the driver to drive and as he did, the Applicant ran off. The victim called the police, but he did not want to make a statement because he had a sentencing coming up and did not want to jeopardise that. He asked for a record to be kept, saying he would apply for a protection order.[84] The Applicant said this was all made up and he did not know who the alleged victim was.[85]
[84] Exhibit R2, Respondent’s Tender Bundle, TB5, page 213.
[85] Transcript, page 67, lines 1 to 14.
According to the police records, the following month the Applicant allegedly engaged in threatening behaviour toward a person he had known for about a year and who had lent money to him on several occasions for gambling.[86] In May 2018, the complainant had agreed to purchase a truck from the Applicant. On 29 May 2018, the complainant received a text message that read “There’s 500 left you have got until Thursday or you will be with no work”. The Applicant then called and said that he was going to smash the vehicle then smash the complainant. On 23 July 2018 the Applicant sent a text message asking the complainant to pay the original amount. He said he was going to his residence to smash him and would bring some of “his boys” and smash the vehicle. He continued calling the complainant, making several threats to his life and the truck.
[86] Exhibit R2, Respondent’s Tender Bundle, TB5, 208 to 209.
On 3 September 2018, the Applicant called the complainant six times making similar threats. On 4 September 2018, there were 13 similar calls. The complainant claimed to fear for his life, believing the Applicant had the capacity to commit to his words. On 5 September 2018, the complainant told the police that the calls from the Applicant had not stopped and asked if they breached an AVO. However, there was only a non-urgent application on the system at that time. On 27 September 2018 the police arrested the Applicant. He denied the allegations and was released without charge pending further investigation. The police noted that the statement provided by the complainant was short on detail in relation to times, dates and exact conversations. The police determined that there was insufficient evidence to achieve a conviction.
In the hearing, the Applicant not only denied having made threats,[87] he said the complainant had tried to get an AVO to make him stop demanding the rest of the money he was owed, being $7,000. He claimed that he showed the police proof on his phone (that he was innocent).[88] The police records make no mention of this in the reasons given for not continuing the investigation and I reject it. However, one might think that if the complainant was able to produce the text messages, the lack of detail in his statement would not matter. Giving the Applicant the benefit of the doubt, I am not satisfied that he engaged in the conduct alleged by the complainant.
[87] Transcript, page 70, line 20.
[88] Transcript, page 70, lines 25 to 28.
On 9 July 2018, the police found trace amounts of methamphetamine inside a container in the Applicant’s underwear. In the hearing the Applicant denied that there were traces of methamphetamine and insisted that the container was empty.[89] However he eventually admitted that what had been in the container had been consumed a couple of days before, and when asked directly, he admitted that it was him and another person who had consumed it.[90] I am satisfied that the Applicant possessed and consumed methamphetamine in the days preceding 9 July 2018.
[89] Transcript, page 68, lines 40 to 43.
[90] Transcript, page 69, lines 1 to 34.
In September 2018, the police observed a vehicle turn quickly as if trying to avoid them. They intercepted the vehicle and it transpired that the Applicant was driving while his license was suspended. There was a knife with a 21cm blade in the open door pocked inside the driver’s door. The Applicant told the police he was just going to get a cigarette and he had used the knife the previous day for a barbecue. He could not explain why there were no other barbecue utensils in the vehicle, nor why the knife was in the driver’s door.[91]
[91] Exhibit R2, Respondent’s Tender Bundle, TB2, pages 19 and 20.
A Sentencing Assessment Report (“SAR”) stated that the Applicant had the knife for protection.[92] When this was put to him in the hearing, he said he might have accidentally said that but he did not recall saying it. He denied having it to use as a weapon. He was unable to explain why it was in the driver’s side door and why there were not any other barbecue utensils in the car.[93] He said the knife had been used at a barbecue a couple of weeks before,[94] which differs from what he told the police. I do not accept the Applicant’s explanation. I think it more likely than not that the reasons the knife was there was so it would be available for use as a weapon.
[92] Exhibit R2, Respondent’s Tender Bundle, TB6, page 271.
[93] Transcript, page 56, line 26 to page 57, line 20.
[94] Transcript, page 56, lines 1 to 3.
On 20 February 2019, the Applicant was sentenced toa conditional release order of one year for having custody of a knife in a public place. He was also dealt with for two instances of unlicensed driving.[95]
[95] Exhibit G1, Section 501 G documents, G6, page 36.
In April 2019, the Applicant committed further offences. I have before me a New South Wales police Facts Sheet that was provided to the court when the Applicant pleaded guilty and was sentenced. Some passages have been crossed out. According to that amended document, in the early hours of 9 April 2019 the Applicant met the victim in the gaming room at a club and they went to the Star City Casino. The Applicant introduced himself as “Wassim”. After several hours the victim drove to the Applicant to the Applicant’s home. Later that day, the Applicant’s made several phone calls to the victim asking him to come to his home and go to the play the pokies. After initially refusing, the victim agreed and drove to the accused’s home. The accused told the victim he only wanted to hang out with him. He then invited the victim to take part in a plan to get a new phone contract in his name, slightly altering the details, then on-sell it. The victim refused to take part in this. They then went to a nearby hotel to play poker machines, and after each losing the $10 they had, the victim drove the Applicant home.
The following day Applicant sent the victim five or six text messages. One said:
“You dog, I’m going to fucking kill you if I find you. Kill your family. I’m going to piss on your cross. Rape your mum. Put your sister in the strip club and make her dance there. I’m going to make you disabled for the rest of your life. I’m going to shoot you. I’m going to fucking stab you.”
The victim contacted the Applicant and he apologised and asked the victim to drive him to get mobile phones. He continued to call the victim until the victim sent him a text message telling him to stop or he would report the matter to the police. The victim then blocked the Applicant’s mobile phone number.
Around two weeks later, the victim received phone calls from an unknown number in which a female identifying herself as “Jade” spoke with him. She asked to buy cocaine from him and tried to get him to meet her. The victim agreed to meet her because he wanted to identify her. When she did not appear, he drove away. As he was conducting a U-turn, a car stopped behind his, blocking him. The Applicant got out from the rear seat, walked towards the victim’s vehicle, which had the driver’s side window halfway down, and said “come here, you’re fucking dead”. The victim turned to his right and the Applicant pepper sprayed him in the face causing immediate pain. The victim, in fear for his safety, reversed his vehicle, partly colliding with the vehicle behind and drove towards a police station. While driving to the station a vehicle cut him off, so he drove to a different police station.
The police established that the mobile phone number used by “Jade” was registered to a person who, when interviewed, said he had met a person named “Wassim” over a year previously while playing poker machines. He denied being the owner of that mobile number, saying that he believed his identification had been fraudulently used to create that account.
On 1 May 2019, the victim received a call from an unknown phone number and recognised the Applicant’s voice. The Applicant said “I’ll find you and we’ll have a crack”. [96]
[96] Exhibit R2, Respondent’s Tender Bundle, TB2, pages 67 to 72.
When the Applicant was interviewed in relation to this matter, he denied having made harassing or intimidating phone calls, approaching the victim or assaulting him with pepper spray.[97] A SAR that was prepared at a later date noted that the Applicant appeared “to have little insight into his offending behaviour”, that he denied perpetrating any violence toward the victim and that he maintained his innocence.[98]
[97] Exhibit R2, Respondent’s Tender Bundle, TB2, pages 68 to 72.
[98] Exhibit R2, Respondent’s Tender Bundle, TB2, page 35.
In the hearing, the denied a lot of the contents of the Facts Sheet. He explained that he originally pleaded not guilty to these offences but on the day of the trial his lawyer was unavailable due to having COVID symptoms so he accepted an offer by the prosecution to plead guilty in exchange for the main charge – being possess or use prohibited weapon – being dropped.[99] This seems consistent with the transcript of the sentencing proceedings and I accept it.
[99] Transcript, page 52.
In the sentencing hearing, the Applicant accepted that he was wrong to have threatened the victim but said the victim was also threatening him. He said he did not put his hands on the victim and therefore had not physically assaulted him.[100]
[100] Exhibit G1, Section 501 G documents, G11, page 74.
In passing sentence, the learned Magistrate recounted the facts leading up to the Applicant pepper-spraying the victim and concluded that it was a planned event.[101] Her Honour noted that the Applicant was subject to two conditional release orders when he committed these offences.[102]
[101] Exhibit G1, Section 501 G documents, G11, pages 76 and 77.
[102] Exhibit G1, Section 501 G documents, G11, page 71.
In his revocation request, the Applicant claimed that the victim reversed into his friends’ car and that he had pepper sprayed the victim as an act of self-defence to compel him to stop.[103] I reject this as it is inconsistent with the plea of guilty and the essential factual findings of the sentencing court.
[103] Exhibit G1, Section 501 G documents, G24, page 148.
I asked the Applicant he came to have the pepper spray and why he had it on that occasion. He said he bought it from a friend because he was still required for the murder trial and he feared that he would be attacked so he needed it for protection at the time. These offences were committed in April 2019. When a media report that indicated that Mr A had pleaded guilty and been sentenced in February 2019 was put to the Applicant,[104] he said he recalled Mr A pleading guilty in March and being sentenced in May. He said the police sent him messages at that time telling him he had to wait three more months with no appeal, then he said it was 28 days with no appeal, then he said that came through in August.[105] He said he had received a lot of threats between February and August 2019. When it was put to the Applicant that the previous day, he had given evidence that after the proceedings were over he did not receive any more threats, he said everything was finished by August and that is when the threats stopped. He added that he had received a phone call from the police in August saying that the appeal period was up.[106] Later, he admitted that the police had called him prior to the trial date and told him that “he pleaded guilty on Friday and it’s all good”.[107] Accordingly, he was told “it’s all good” in February 2019 at the latest.
[104] Exhibit R4, Port Stephens Examiner Article ‘Sydney meth house machete killer jailed’ dated 1 March 2019.
[105] Transcript, page 100, line 44 to page 101, line 4.
[106] Transcript, page 101, line 33 to 102, line 37.
[107] Transcript, 103, lines 10 to 18.
I do not accept that in April 2019, the Applicant did not know that Mr A had pleaded guilty or that he was receiving threats at that time. Accordingly, I do not accept that he was in possession of the pepper spray at the time of the assault because he feared for his safety. Further, I am satisfied that, as the sentencing court found, the assault on the victim was planned. It appears that the entire contents of the amended Facts Sheet were accepted by the sentencing court, and I accept it too.
The police records indicate that in August 2019 the Applicant threatened his landlord’s family. The Applicant had rented a place in response to an advertisement on Gumtree. However, he was considered an unsatisfactory tenant and given notice of termination in mid-June 2019 by letter and by telephone. He was given notice in person on 7 July 2019. He was told to move out in a couple of weeks although no exact date was set. On 12 August 2019 the victim went to the address to try to get the Applicant to leave. A heated argument ensued at the front door and the Applicant refused to leave. The victim said he would be back in two hours and the Applicant replied “I am not going to leave. I will blow up the whole place and kill everybody”. It appears that the victim did not take the threat seriously, and agreement was reached that the Applicant would leave later that day. The victim’s son who was standing are few metres away heard the threat. The Applicant continued to harass and intimidate the victim and his son. On 15 August 2019, the police applied for an AVO and the Applicant was ultimately charged and given strict bail conditions that prevented him from going near any prosecution witnesses.[108]
[108] Exhibit R2, Respondent’s Tender Bundle, TB5 page 185.
On 7 September 2019, police saw the Applicant riding a push bike directly outside the victim’s home in breach of his bail conditions which prohibited him from being within 200m of that address. The home appeared to be unoccupied and had a “For Lease” sign out the front. Police asked the Applicant why he was in that suburb when he resided in a different suburb. He said he was there to see a friend at the barber shop. The Applicant claimed he was not aware of that particular bail condition. The police were unable to establish where the victims had moved to.[109]
[109] Exhibit R2, Respondent’s Tender Bundle, TB5, page 185.
In the hearing, the Applicant denied the allegations of intimidating behaviour. He claimed that the complainants told the police there was a misunderstanding and the police decided not to proceed.[110] There is no such notation in the police records. T+he complainants were obviously the key prosecution witnesses, and the police could not locate them. The Applicant denied that he had intimidated them into dropping the complaint.[111]
[110] Transcript, page 77, lines 1 to 31.
[111] Transcript, page 98, lines 29 to 41.
The police records contain a report of domestic violence against the Applicant’s former long-term partner from whom he had been separated for six months. It indicates that on 24 February 2020, having been released from gaol two days earlier, the Applicant attended a friend’s residence to collect his clothes. The victim arrived to find the Applicant already there. While their friends were out of the room, the victim went to leave and the Applicant punched her in the face area causing her to fall to the ground. He then left and she contacted Triple-0.[112] The police took photographs of the victim’s injuries, being a bloodied nose, small lacerations on her nose, and a cut to the inside of her upper lip. When they questioned the Applicant, he denied having punched the victim.[113]
[112] Exhibit R2, Respondent’s Tender Bundle, TB5, page 181.
[113] Exhibit R2, Respondent’s Tender Bundle, TB5, pages 182 to 183.
In the hearing, the Applicant claimed that a woman he was with got into a fight with his ex-partner and that is how she got injured. He said that woman wrote a letter to the Judge on the hearing day and the charges were dismissed.[114] I find it implausible that a court would dismiss a domestic violence charge on the strength of a letter and not require the purported witness to attend and give sworn evidence. When I put this to the Applicant, he said no-one was attending court because of COVID restrictions. I do not accept that explanation given the seriousness with which courts treat domestic violence and the alternative measures courts and tribunals have implemented during the pandemic for witnesses to give their evidence and be cross examined. It is apparent, however, that no conviction resulted from this complaint.
[114] Transcript, page 79, lines 25 to 46.
On 30 October 2020, the Applicant was dealt with for common-assault-T2 and Stalk/intimidate fear physical etc harm (personal)-T2 (for harassing and pepper-spraying the person he met gambling). Because that offending breached both of his conditional release orders, the corresponding offences were “called up” and he was re-sentenced for those. For all of the offences, he was given an aggregate sentence of 16 months imprisonment with a non-parole period of 12 months (that was reduced to nine months on appeal).
Records from Corrective Services[115] indicate that on 29 January 2021 the Applicant reported a State Debt Recovery Office debt of $75,000. In the hearing, he said he thought that was a mistake and it was closer to $15,000. He attributed the amount to multiple parking fines, speeding fines and traffic light fines as well as the fines shown in his criminal record, and he claimed that it got so high because when he was in custody the amount he owed was doubled a few times because he was not making payments. He claimed that otherwise he was paying it off and he did courses that reduced the amount he owed. Even if one accepts that the amount owed was doubled more than once due to non-payment, which seems highly unlikely, the Applicant’s evidence indicates that he accumulated thousands of dollars in fines referrable to multiple traffic offences in addition to his criminal offending.[116]
[115] Exhibit R2, Respondent’s Tender Bundle, TB6, page 293.
[116] Transcript, pages 91 and 92.
I have canvassed the following allegations that did not lead to a conviction for any offence:
· the Applicant held his hand over his former wife’s mouth in 2010 and threatened to kill her;
· he threatened to kill an employee of his former employer in 2017;
· he verbally abused and threatened to kill Mr T over several days in 2018;
· he assaulted Mr T’s colleague with a hammer in 2018;
· he threatened to harm and kill a man who bought a truck from him in 2018;
· he threatened to blow up his former landlord and his son in 2019; and
· he punched a different ex-partner in 2020.
These allegations are contained in the police records. Those records contain contemporaneous notes made by many different police officers over several years. Some include information provided by complainants and others also contain observations made by police officers. The allegations summarised above all involve violence or threats of violence or both. It can safely be inferred that at least some of the complainants did not know the other complainants, so it is not plausible that they colluded to make similar false allegations against the Applicant.
Further, most of the allegations included specific dates and contextual information. Some complainants made allegations that could easily be checked by the police, for example they alleged some threats were made by text or left on voice mail. The threats reported to the police were detailed, with the exact alleged words given. In particular, Mr T reported detailed behaviour occurring over several days and the police records contained observations by the police that Mr T was afraid of the Applicant. The exculpatory evidence that Mr T gave in the hearing was unconvincing and inconsistent with police records. I do not consider him to be a reliable witness.
In contrast to the coherent, detailed allegations and contextual information contained in the police records, the evidence the Applicant gave in response to questions about the allegations was often shifting, internally inconsistent or otherwise implausible. The exculpatory accounts he gave to the police and the Tribunal concerning the stolen credit card, which were laden with untruths, indicated to me that he lies without compunction. I do not regard the Applicant to be a reliable witness.
There is no independent evidence before me that any of those complaints went to trial and resulted in a non-guilty finding. Rather, it appears that the complaints were not pursued. That does not necessarily lead to the inference that the complaints were baseless. In circumstances where the Applicant was accused by many people of engaging in intimidating and violent behaviour, and he had a tendency to arm himself, there is a real possibility that victims of his offending were afraid to pursue their complaints against him.
With the exception of the complaint arising from the sale of the truck, I am satisfied that the allegations summarised at paragraph 117 are true.
I have not canvassed all of the allegations contained in the police records that did not result in a finding of guilt. Those that I have not mentioned, I have disregarded either because they were not put to the Applicant in the hearing or because I do not consider them to be as pertinent as those to which I have had regard.
The revocation request that the Applicant submitted in January 2021 contained a Personal Circumstances Form. He declared in that form that he was not subject to a domestic violence/apprehended violence order.[117] In fact, the Applicant is currently subject to two apprehended violence orders, one due to expire on 16 July 2022 and the other on 17 September 2023.[118]
[117] Exhibit G1, Section 501 G documents, G22, page 139.
[118] Exhibit R2, Respondent’s Tender Bundle, TB5, pages 175 and 176.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction, relevantly, specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)…
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The Applicant’s offending and other serious conduct includes violence, firearms offences, intimidation, possession of weapons (knives and pepper-spray) and dishonesty offences. In addition, he has committed many traffic infringements.
His violent offending includes an affray where he kept re-igniting the violence, holding his hand over his then partner’s mouth and nose, punching an ex-partner in the face, hitting a man with a hammer, pepper-spraying a man in the face and repeatedly punching a man while his father immobilised him. This is very serious offending. The Applicant was ultimately sentenced to 16 months imprisonment, with a non-parole period of nine months, for the attack on his father’s friend and for pepper-spraying the man he met while gambling. Imprisonment is a penalty of last resort in the hierarchy of sentencing options available to a court. Sixteen months is a substantial head sentence and nine months is a substantial non-parole period, reflecting the gravity of that offending.
The firearms offences attracted an effective sentence of some two years and eight months, with a non-parole period of more than two years. The learned sentencing Judge accepted the Applicant’s account that the firearms and ammunition did not belong to him, and that he was initially threatened into keeping them at his home. In the absence of very strong reasons to reject the finding of the court, I accept those findings. Even so, Her Honour pointed out the significant risk that they would be reclaimed by a known criminal, and the potential for danger associated with those firearms making their way into criminal activity. That potential was very real as the shotgun was in working order, the pistol was capable of being fixed, there was suitable ammunition for both found in the premises, and neither the firearms nor the ammunition were secured.
The Applicant has threatened to harm and kill people, including his own brother, on many occasions. The Applicant possessed knives in public, and pepper-spray, without innocent reasons. He used the pepper-spray on someone. Making threats, and going armed in public, is serious offending especially when looked at together.
The Applicant’s offending is frequent and involves a trend of increasing seriousness. He continued to offend after he was formally warned about the consequences for his visa status of further offending. The most obvious cumulative effect is that over several years, the Applicant has terrorised several members of the Australian community. He has also flouted road rules on numerous occasions including driving negligently.
The Applicant included false information in the Personal Circumstances Form that he submitted to the Department in January 2021.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the following relevant factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending.
Much of the country information put forward by the Applicant is dated and for that reason, while it provides historical context to his claims, it is not terribly informative in terms of current risks that he may face if removed to Iraq. There is evidence to the effect that police officers are targeted in Iraq. The Applicant briefly worked at the Ministry of Interior, which is responsible for domestic law enforcement and maintenance of order,[193] some 15 years ago. It is not apparent from the evidence exactly what the Applicant’s job was there. In any event, the country information does not mention former police officers being targeted.
[193] Exhibit R2, Respondent’s Tender Bundle, TB11, paragraph 5.3.
The Applicant referred the Tribunal to findings made by the Upper Tribunal in BA concerning risk arising from being a perceived collaborator with the West. BA was decided in 2017 and the category of person it related to was “former employees of non-security related Western/international companies”. Accordingly, it is not as current as the DFAT report and it is not on point as the Applicant was never employed by a western company in Iraq. In any event, the summarised findings of the Upper Tribunal on the issue are:
· there was a risk of harm to the relevant category of persons in areas under ISIL control or with high levels of insurgent activity;
· the risk was likely to emanate from Sunni insurgent groups who continued to target Western or international companies as well as those who “are perceived to collaborate” with the Government of Iraq; and
· the risk in Baghdad was low and not sufficient to show a real risk solely as a perceived collaborator.
These findings do not support the Applicant’s claims that his historical employment in the Iraqi government or his contact with Americans in that role gives rise to a current real risk of harm.
Further, the Applicant conceded that at the time he and his father reported to Americans, so did every employee in the Iraqi government. He said when he worked at the border, it was only him, his father and his father’s assistant who had contact with the Americans[194] but he also said there were no threats there. His father’s evidence that they were under threat there due to contact with Americans is undermined by his failure the disclose that when it would have been appropriate to do so in 2007. I do not accept that the Applicant or his father were threatened while stationed at the border because of contact with coalition forces.
[194] Transcript, page 32, lines 23 to 29.
The Applicant and his father were only stationed at the border for around six months some 15 years ago. The Applicant did not put forward any plausible reason why, if he were to return to Iraq, a country of some 40 million people, or Baghdad with its population of six or seven million people, he would be of any interest to terrorists or militia groups because of his or his father’s historical contact with coalition forces through their employment with the Iraqi government. Nor is there any country information that support the Applicant’s claim that he would be at risk of harm due to his or his father’s historical employment in the Iraqi government of itself.
The Applicant’s claim that he was seen as a spy and denounced by his tribe seems to be a facet of his claim that he would be targeted because he cooperated with Americans, which I have dealt with. I would add that his tribe is based in Hadith, whereas the Applicant grew up in Baghdad and he could return to Baghdad. There is no country information or other reliable evidence before me to the effect that persons who used to liaise with Americans were disowned by their tribes or that they now face a risk of harm from members of their tribes
I am not satisfied that there is a real possibility that the Applicant would suffer serious or significant harm in Iraq for any reason connected with his or his father’s government employment and/or contact with coalition forces in Baghdad or near the border with Jordan.
The Applicant claimed that every Iraqi officer who used to be in the air force in the war with Iran is on a list to be assassinated.[195] He said it is well known that Shia militias that are loyal to Iran have targeted Iraqi ex-military pilots and their families by assassinating them. The Applicant’s father said that most of the pilots who served in the war had been executed and 90% of them are overseas, out of Iraq or somewhere in the north of Iraq where they are safe.[196] The Applicant’s written submissions referred to an ABC News report dated in December 2010 claiming that “Wikileaks” documents showed an Iranian campaign of revenge on Iraqi air force pilots who bombed Iran during the Iran-Iraq war. The report allegedly said:
“Many former Iraqi fighter pilots who flew sorties against Iran during the Iran-
Iraq war were now on Iran's hit list (NOTE: According to [Name removed], Iran
had already assassinated 180 Iraqi pilots. END NOTE)," the Dec. 14, 2009confidential U.S. cable stated…”[197][195] Transcript, page 7, lines 10 to 28.
[196] Transcript, page 116, lines 27 to 40.
[197] Exhibit A1. Statement of Facts, Issues and Contentions, page 11.
The Applicant’s father was not a fighter pilot and he did not bomb Iran. He flew a transport helicopter and worked in administration. He does not come within the group of pilots referred to in this report. Further, the report refers to the pilots being targeted, not their families. The Applicant did not put forward any country information to the effect that every Iraqi officer who was in the Air Force in the war with Iran was at risk or that family members of pilots were at risk. The Applicant did not put forward any more recent reports of Iraqi pilots who fought in the war being targeted. Even if a campaign of revenge is still being pursued, I am not satisfied that there is a real possibility that the Applicant would be a target.
I have considered the Applicant’s claims individually and cumulatively, and I am not satisfied that he engages Australia’s non-refoulement obligations. Nor am I satisfied that the fears he claims to hold are genuinely held. He may apply for a protection visa, however it seems unlikely that he would succeed given his criminal history and risk of re-offending. The legal consequence of a non-revocation decision is therefore likely to be deportation.
I am satisfied that security in Iraq is very unstable and that the general population faces a risk of serious injury or death due to terrorist and militia activity. This risk would be faced by the Applicant if he were removed there.
The DFAT report mentions that returning Iraqis who are not in possession of an Iraqi passport must apply for a laissez passer. The Applicant does not have a passport.[198] The Iraqi diplomatic mission will verify that the person is returning voluntarily before issuing a laissez passer. Accordingly, in the event of a non-revocation decision, the Applicant will have a choice between voluntarily returning to Iraq or remaining in immigration detention while the Australian government seeks to make arrangements with the Iraqi government for his removal to Iraq if he does not go voluntarily. I do not allocate any weight in favour of revocation because of the possibility of prolonged detention given that any prolonged detention would be of the Applicant’s own making, i.e. his refusal to return to Iraq in circumstances where he is not a refugee or entitled to complimentary protection.
[198] Exhibit G1, Section 501 G documents, G22, page 131.
This Other Consideration (a) weighs moderately in favour of revocation of the mandatory cancellation.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a 36 year old man who is currently able bodied. He sometimes suffers symptoms of depression and/or anxiety and he currently relies on medication to help him sleep. I accept that the Applicant may find it very difficult or impossible to access the medication he currently takes in Iraq. I accept that he does not want to go to Iraq and that being removed there would cause emotional hardship which could well exacerbate anxiety and/or depressive symptoms. The DFAT report indicates that health services in Iraq have deteriorated and the sector faces continuous shortages in drugs and other supplies. The population’s access to basic health services has become increasingly impaired as many health professionals have left the country for security reasons. Iraq’s health system has struggled to meet basic health needs under the additional burden of the COVID-19 pandemic. Despite the enormous need, there are very few mental health services or financial support schemes available to the general public. A January 2017 study found there were only around 80 clinical psychologists working in the entire country. Much of the burden for treating mental health issues falls on international non-government organisations (NGOs) such as Medicins sans Frontieres.[199]
[199] Exhibit G1. Section 501 G documents, TB11 paragraph 2.37.
The Applicant lived in Iraq into adulthood. I am satisfied that he would not face any substantial language or cultural barriers. However, according to the DFAT report, local sources have reported that returning to Iraq can be difficult, particularly if the individual does not return to their original community. Integration within new communities is complicated by the influence of patronage and nepotism on many aspects of life. I accept that even if the Applicant returns to the area in Baghdad where he used to live, the community will have changed in the 15 years since he has been away. The Applicant’s lack of familial or social support will disadvantage him.
I am prepared to accept that the Applicant will not receive any income support from the Iraqi government or any financial support in relation to health or mental health needs. In that regard he will be in the same situation as other Iraqis.
Unemployment is high in Iraq, although more so among women than men. The Applicant was educated to a relatively high level in Iraq and he speaks good English. He held employment in Iraq and he has experience working in security and a family removalist business in Australia. It does not appear that symptoms of depression and/or anxiety have prevented the Applicant from supporting himself previously. I am satisfied that, relative to the general population in Iraq, the Applicant has reasonable prospects of obtaining employment or making a living running his own business. He will be able to maintain communication with his family from Iraq and they might be able to provide some financial support.
While the Applicant will have to find a way to earn a living and secure accommodation without the help of family or social networks, and he will find it harder to access medication and counselling than in Australia, I do not think these problems are insurmountable or would prevent him from establishing himself and maintaining basic living standards in the context of what is available to other citizens of Iraq.
This Other Consideration (b) weighs to a limited extent in favour of revocation of the mandatory cancellation.
(c) Impact on victims
Paragraph 9.3(1) requires me to assess the impact of the decision on members of the Australian community, including victims of the Applicant’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the Applicant has been afforded procedural fairness.
Mr T did not admit to having been a victim of the Applicant’s offending. The evidence concerning the impact on him if the Applicant is deported relates to his familial relationship with the Applicant and is addressed in the next Other Consideration. There is no evidence before the Tribunal relating to the impact of the decision on any other victims. This Other Consideration (c) is therefore neutral.
(d)Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant came to Australia at the age of 23 and lived in Australia for 13 years although some of those years were spent in gaol and immigration detention.
He has been employed in security and in a family removalist company.[200] In terms of other contributions to the community, he said he has donated old clothes to charity and that he made a few donations to eye research because his brother suffered an eye injury that left him with impaired vision.[201] He additionally put forward his assistance to the police as a contribution to the community. He does not appear to have had made contributions through involvement in community groups or to have significant positive social links to the Australia community.
[200] Exhibit G1, Section 501 G documents, G22, page 139.
[201] Transcript, page 9, line 19 to page 10, line 4.
The Applicant’s parents and three brothers live in Australia. They are Australian citizens. The Applicant’s mother and youngest brother live in Melbourne. Mr T is married and lives in New South Wales. His father also lives in New South Wales and the Applicant was living with him before he was imprisoned. The Applicant’s other brother, his wife and their two children live in Adelaide. The Applicant’s father suffers from some medical conditions and his mother has a mental illness and some medical conditions. He is in daily contact with his family.
His parents, youngest brother and Mr T provided statutory declarations,[202] and gave evidence in support of him which, I think, speaks to the bonds between them presently. He has not always been on good terms with his family. According to police records, on 15 August 2019 they contacted his father who told them that he had not had any contact with the Applicant for about a year. The Applicant confirmed that that they had previously been estranged.[203] A Corrective Services record states that the Applicant reported in June 2017 that he needed to move out of his father’s property because of conflicts with his father and brother. The Applicant confirmed that.[204] I expect that, if the Applicant is deported, his parents, Mr T and youngest brother will experience grief and worry. The brother who lives in Adelaide did not provide any evidence in these proceedings, but I am prepared to assume that he will be disappointed if the Applicant is deported.
[202] Exhibit G1, Section 501 G documents, G29 to G32.
[203] Exhibit R2, Respondent’s Tender Bundle, TB5, page 192; Transcript, page 33, line 44 to page 34, line 3.
[204] Exhibit R2, Respondent’s Tender Bundle, TB5 page 279; Transcript, page 34, lines 7 to 10.
The Applicant claims his family will be devastated and traumatised if he is made to return to Iraq as he will be harmed there.[205] He said they would suffer psychologically.[206] Mr Watson-Munro stated that the Applicant’s family is fearful that they will not see him again and, “given the prior history of his involvement with the US Forces, in conjunction with his Father”, they hold a genuine fear for his physical and psychological safety.[207] He opined that they would inevitably experience substantial psychological harm if he were deported.[208] I think “Involvement with the US Forces” is an overstatement and I do not share Mr Watson-Munro’s opinion that the fears that the Applicant’s family’s expressed are genuinely held. Accordingly, I do not accept that they would inevitably suffer substantial psychological harm if he were deported. However, I accept that Iraq is more dangerous than Australia and that this would weigh on his family if he were removed there. I also accept that they will be saddened and miss him.
[205] Exhibit G1, Section 501 G documents, G22, page 137.
[206] Exhibit G1, Section 501 G documents, G22, page 140.
[207] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, Annexure B, page 8.
[208] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, Annexure B, page 13
The Applicant’s mother has been suffering from severe major depression and anxiety for many years. She said it had been worse, with occasional suicidal thoughts, since she found out the Applicant might be deported. She also has some health complaints. A discharge report from a mental health service dated 23 June 2021 recorded that she had reported chronic long-term suicidal thoughts, noting her saying “I’ll kill myself if they send [the Applicant] back to Iraq” and “That’s very harsh penalty because he didn’t hurt anyone”. The report noted a long-term risk of suicide in the event that the Applicant is deported to Iraq.[209] In the hearing, the Applicant’s mother said she had never thought of killing herself before but because of what is happening to the Applicant, she thinks about killing herself.[210] She agreed that she was aware that the Applicant’s visa was cancelled in 2016. She said she was devastated and was on medication at that time. She is on medication now which she finds helpful.[211] In addition, she has been receiving ongoing monitoring, care and therapy.
[209] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, Annexure C.
[210] Transcript, page 135, lines 7 to 14.
[211] Transcript, pages 137 to 139.
I accept that, given the Applicant’s mother’s existing mental health problems, she would be less able to cope with the emotional impact of the Applicant being deported. There is no evidence that she attempted to take her own life the first time the Applicant’s visa was cancelled or this time. She has told her health care provider about her suicidal thoughts and is being monitored and receiving care. Additionally, her youngest son, who is now an adult, lives with her. She does not live in Sydney so it is unlikely that the Applicant could be of much practical help to her if he were to re-join the wider community.
The Applicant claimed that if he goes back to Iraq, the militias will target him to force his father to go back there so they can kill him as well.[212] The country information does not support this claim and I reject it.
[212] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, Annexure A.
The Applicant’s father is involved in the family removalist business, which is managed by Mr T.[213] A medical report, dated 4 August 2021 noted a chronic, productive cough. It noted that the lungs showed background changes of emphysema but otherwise appeared clear. It did not offer a diagnosis or state what ongoing care, if any, the Applicant’s father requires.[214] The Applicant claimed that he was the sole carer for his sick father and he said he cares for his mother, siblings and nephews and nieces. The Applicant cannot have cared for the family members who live interstate, and his father has been without his Applicant’s assistance since he was incarcerated over a year ago. However, I accept that he could be of assistance to his father is he is given his visa back, and therefore a non-revocation decision would adversely impact his father as he would continue to be without the Applicant’s assistance.
[213] Transcript, page 110, lines 1 to 14.
[214] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, Annexure D.
I have addressed the impact of a non-revocation decision on Mr T’s children in Primary Consideration 3.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests.
Conclusion: Other Consideration (d)
Overall, the weight I allocate in favour of revocation on the basis of the Applicant’s links to the Australian community is between moderate and heavy.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(e)international non-refoulement obligations: weighs moderately in favour of revocation;
(f)extent of impediments if removed: weighs to a limited extent in favour of revocation;
(g)impact on victims: not relevant; and
(h)links to the Australian community: weighs moderately to heavily in favour of revocation.
CONCLUSION
In determining whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, to the extent that Primary Consideration 3 and Other Considerations (a), (b) and (d) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations 1, 2 and 4. Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.
I certify that the preceding 272 (two hundred and seventy-two) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy
............................[SGD]............................................
Associate
Dated: 6 December 2021
Date of hearing: 1 and 2 November 2021 Solicitor for the Applicant:
Mr A Alkafaji
Alkafaji Lawyers Pty Ltd
Solicitor for the Respondent Mr K Eskerie
Sparke Helmore
ANNEXURE A – EXHIBIT LIST
EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED G1 Section 501 G-Documents (G1 to G38 paged 1 to 189) R - 16 September 2021 A1 Applicant's Statement of Facts, Issues and Contentions (paged 1 to 21) and annexures:
· Annexure A – Statement of the Applicant (undated) (6 pages)
· Annexure B – Report of Dr Tim Watson-Munro, Consultant Psychologist, dated 6 October 2021 (20 pages)
· Annexure C – Medical evidence relating to Applicant’s mother (4 pages)
· Annexure D – Medical Report relating to the Applicant’s Father (1 page)
· Annexure E – Applicant’s Rehabilitation evidence (3 pages)
A 6 October 2021 6 October 2021 Applicant’s Reply Submissions (paged 1 to 7) and annexures:
· Annexure A – Copy of the Applicant’s Iraqi Passport (12 pages)
· Annexure B – Photographs of the Applicant (4 pages)
· Annexure C – Medical evidence relating to Applicant’s mother (4 pages)
· Annexure D – Medical Report relating to the Applicant’s Father (1 page)
· Annexure E – Applicant’s Rehabilitation evidence (3 pages)
A - 27 October 2021 R1 Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 23) R 20 October 2021 20 October 2021 R2 Respondent’s Tender Bundle (TB1 to TB11, paged 1 to 486) R - 20 October 2021 R3 Extract of summonsed material produced by Liverpool Local Court (8 pages) R - 1 November 2021 R4 Port Stephens Examiner ‘Sydney meth house machete killer jailed’ (1 March 2019) R 1 March 2021 2 November 2021
- AGLC
- SXNC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4510
- Case
- [2021] AATA 4510
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the weight to be given to various considerations under Ministerial Direction No. 90, specifically Primary Consideration 1 (Protection of the Australian Community), and whether these considerations, when weighed against other factors, justified revoking the mandatory cancellation. The court also had to consider the Applicant's conduct, including past offending, the provision of false or misleading information to the Department, and the risk posed to the Australian community.
The court reasoned that while certain considerations, such as Primary Consideration 3 and other considerations (a), (b), and (d), weighed in favour of revoking the mandatory cancellation, they could not outweigh Primary Considerations 1, 2, and 4. The court found that the nature and seriousness of the Applicant's conduct, including acts of family violence and providing false information on an incoming passenger card, were significant factors. The court concluded that it could not exercise the discretion to revoke the cancellation of the Applicant's visa.
The decision under review was affirmed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The revocation request that the Applicant submitted in January 2021 contained a Personal Circumstances Form. He declared in that form that he was not subject to a domestic violence/apprehended violence order.[117] In fact, the Applicant is currently subject to two apprehended violence orders, one due to expire on 16 July 2022 and the other on 17 September 2023.[118] [117] Exhibit G1, Section 501 G documents, G22, page 139. [118] Exhibit R2, Respondent’s Tender Bundle, TB5, pages 175 and 176.PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:a)The nature and seriousness of the non-citizen’s conduct to date; andb)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.The Nature and Seriousness of the Applicant’s Conduct to Date When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction, relevantly, specifies that decision-makers must have regard to the following:(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:(i)violent and/or sexual crimes;(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;(b)…(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;(e)the cumulative effect of repeated offending;(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).