TCBK and Minister for Home Affairs (Migration)

[2019] AATA 3427

TCBK and Minister for Home Affairs (Migration) [2019] AATA 3427 (13 September 2019)

Division:GENERAL DIVISION

File Number:           2019/3952

Re:TCBK

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member K Raif

Date:13 September 2019

Place:Sydney

The decision of the delegate of the Minister dated 21 June 2019 not to revoke the cancellation of the applicant’s visa is affirmed.

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

Senior Member K Raif

CATCHWORDS

MIGRATION – mandatory cancellation of visa – failure to pass character test – criminal record – whether the discretion to revoke the cancellation should be exercised – Direction No. 79 – primary considerations – protection of the Australian community – best interests of minor children – expectations of the Australian community – other considerations –where applicant is owed protection obligations – decision affirmed

LEGISLATION

Migration Act 1958 (Cth) – ss 499, 500, 501, 501CA

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

DKXY v Minister for  Home Affairs [2019] FCA 495

Do and Minister for Immigration and Border Protection [2016] AATA 390

Minister for Immigration and Multicultural Affairs v SRT (1991) 91 FCR 234

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Waits and MIMIA [2003] AATA 1336

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

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA

REASONS FOR DECISION

Senior Member K Raif

13 September 2019

Background

1. This is an application for review of a decision of the delegate of the Minister not to revoke the cancellation of the applicant’s Class XA Subclass 866 Protection visa.

2. The applicant is a national of Iran, born in April 1980. He entered Australia as an unauthorised maritime arrival. He made an application for a protection visa which was granted to him in November 2011.

3. In March 2013 the applicant was convicted of two counts of aggravated indecent assault and one count of common assault and received a sentence of two years imprisonment, which was suspended. In August 2017 the applicant was convicted of failing to comply with reporting obligations. In June 2018 the applicant was convicted of providing false / misleading information, failing to comply with reporting obligations, stalking / intimidation intend fear physical harm (domestic) and common assault. He received sentences of two to nine months imprisonment.

4. In February 2015 the applicant received a Notice of Intention to Consider the Cancelation (NOICC) of his visa. The applicant responded to the Notice and his visa was not cancelled at that time. Following further convictions, on 10 August 2018 the Class XA Protection visa was cancelled under s. 501(3A) of the Migration Act 1958 (‘the Act’) because it was determined that the applicant did not pass the character test. The applicant was invited, and made representations about the revocation of the cancellation of his visa. On 24 June 2019 a decision was made under s. 501CA(4) not to revoke the cancellation. The applicant seeks review of that decision.

5. The issues before the Tribunal are:

   (a)Does the applicant pass the character test, as defined by s.501 and if not;

   (b)Is there another reason why the original decision should be revoked.

6. For the following reasons, the Tribunal has concluded that the decision not to revoke the cancellation of the applicant’s visa should be affirmed.

   RELEVANT LAW

7. Section 501(3A) of the Migration Act relevantly states:

   (3A)  The Minister must cancel a visa that has been granted to a person if:

   (a)the Minister is satisfied that the person does not pass the character test because of the operation of:

   (i)     paragraph (6)(a) (substantial criminal record), on the basis of   paragraph (7)(a), (b) or (c); or

   (ii)    paragraph (6)(e) (sexually based offences involving a child); and 

   (b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

8. Section 501CA(3) provides that as soon as practicable after making a decision under

   
   

   s. 501(3A) the Minister must, among other things, notify the person of the decision, provide particulars of relevant information and invite the person to make representations to the Minister, ‘within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’.

9. Section 501CA(4) allows for a revocation of a decision under s. 501(3A) and relevantly states as follows:

   (4)  The Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitation; and

   (b)the Minister is satisfied:

   (i)     that the person passes the character test (as defined by section 501); or

   (ii)    that there is another reason why the original decision should be revoked.

10. Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the visa cancellation.

11. On 20 December 2018 the Minister issued Direction 79 – Visa refusal and cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (“Direction 79”) under s. 499 of the Act. Direction 79 is binding on the Tribunal performing functions or exercising powers under s. 501 and s.501CA of the Act. Direction 79 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or cancel a visa or revoke mandatory cancellation decisions. These principles include (see cl 6.3 of Direction 79):

    ...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... and will not cause or threaten harm to individuals or the Australian community.[1]

    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community… should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.[2]

    [1] Clause 6.3(1) of Direction 79.

    [2] Clause 6.3(3) of Direction 79.

12. The General Guidance at cl 6.2(1) of Direction 79 states that:

    The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.

13. The primary considerations which are set out in cl 13(2) of Part C of Direction 79 are:

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

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

    (c)Expectations of the Australian community.

14. The other considerations which are set out of cl 14(1) in Direction 79 are:

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims; and

    (e)Extent of impediment if removed.

15. Decision-makers should ‘generally’ give greater weight to primary considerations than other considerations. Further, one primary consideration may outweigh other primary considerations: cl 8(4) and (5) of Direction 79. However, as observed by Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:

    …….Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.

16. As such, the other considerations referred to in Direction 79 ‘may be afforded equal or greater weight than primary considerations in an appropriate case’.[3]

    [3] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [26].

    PROCEDURAL ISSUES

17. At the commencement of the hearing on 4 September 2019 the applicant’s representative Mr Ehsani indicated that due to his late appointment to act for the applicant, he has not had time to prepare. Mr Ehsani claims that the applicant has not been given adequate time to present his case. The Tribunal is mindful that its consideration of the case is subject to strict time limits that apply to the time within which the decision must be made but also in relation to the submission of evidence, as set out in s. 500(6H) and (6J) of the Act. The Tribunal discussed with the applicant and his representative the possibility of adjourning the hearing to a later date to enable the representative to present further evidence to the Tribunal. However, having been given the opportunity to inspect the documents before the Tribunal, the applicant’s representative agreed that no further time was required to provide submissions and evidence and that it was not necessary to adjourn the hearing to a later date because there was no further evidence that could be made available by the applicant. The applicant and his representative both agreed that the adjournment was not necessary and to proceed with the hearing on 4 September 2019.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

18. The character test is defined in s. 501(6) of the Act. Relevantly, s. 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record, as defined in subsection (7). Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more or, under subsection (7)(d), the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.

19. The applicant’s Criminal History check report dated 1 February 2019 refers to the following convictions:

20.     07/06/18	21.     Fail to comply with reporting obligations	22.     s. 9 Bond – 18 months
23.     07/06/18	24.     Stalk / intimidate intend fear physical etc harm (domestic) (2 counts)	25.     Imprisonment 9 months
26.     07/06/18	27.     Common assault	28.     Imprisonment 9 months
29.     07/06/18	30.     Provide false / misleading information (4 counts)	31.     Imprisonment 2 months
32.     07/06/18	33.     Fail to comply with reporting obligations	34.     Imprisonment 2 months
35.     09/08/17	36.     Fail to comply with reporting obligations	37.     s. 9 bond – 12 months
38.     01/03/13	39.     Common assault	40.     Imprisonment 2 years, suspended
41.     01/03/13	42.     Aggravated indecent assault (2 counts)	43.     Imprisonment 2 years, suspended
44.     17/08/12	45.     Common assault	46.     Taken into account on Form 1
47.     17/08/12	48.     Aggravated indecent assault (2 counts)	49.     Taken into account on Form 1

1. In his written submission of 4 May 2015 following the first Notice of Intention to Consider Cancellation, the applicant conceded that he did not pass the character test.

2. The Tribunal finds that the applicant has been sentenced to a term of imprisonment of 12 months or more. He has a substantial criminal record as defined in s. 501(7)(c) and (d) of the Act. As the applicant has a substantial criminal record, he does not pass the character test.

   IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?

3. The applicant made a request for revocation of the cancellation decision on 13 August 2018. The Tribunal has considered the applicant’s comments, in addition to the evidence subsequently provided to the delegate and the Tribunal by the applicant and the respondent. The Tribunal’s considerations are set out below with regard to the Direction 79.

   Primary considerations

   Protection of the Australian community

4. As noted above, the applicant has been convicted of several offences in Australia. The nature and the circumstances of the applicant’s offences are set out in the sentencing remarks and the Tribunal has also had regard to the Facts Sheets issued by the NSW police.

5. In relation to the 2012 offences, the police Facts Sheet shows that in March 2012 the applicant entered a lift at a train station where the 10 year old complainant was also present. The applicant shook the complainant’s hand, kissed her on both cheeks and said ‘I love you’. It is stated that the applicant placed his hand on the breast of the complainant, later hugged her, snuggled his head into her neck and kissed her on the neck. It is stated that during this, the applicant moved his pelvis forward toward the ten year old complainant as he held her.

6. In oral evidence, the applicant conceded that some of the facts set out in the police fact sheet in relation to the 2012 offence were substantially correct although he also stated that he has no recollection of these events and that he was unsure about the age of the victim. The applicant conceded that the information in the police reports has happened and the Tribunal is mindful that the applicant pleaded guilty to the 2012 offence, as stated in the court report. The applicant conceded that what he did was wrong.

7. In her sentencing remarks of 1 March 2013, Magistrate Sinclair noted that the defendant’s behaviour was ‘quite serious’. Magistrate Sinclair stated that:

   …the community generally will not countenance offences against children. Your conduct towards her was quite serious given her age, that she was a stranger, that the offences took place on railway property and at least part of the offending behaviour was in the confines of a lift with very little avenue of escape.

8. In relation to the 2017 offence, the police Facts Sheet indicates that the applicant was convicted of a registrable offence and was required to report to the NSW police annually, which was explained to the applicant. It is stated that in March 2014 the applicant failed to report but reported instead in May 2014 when his obligations were again explained to him. In February 2017 the applicant advised the police of his change of address, but then failed to report in March 2017. In oral evidence to the Tribunal the applicant claimed that he did attend the police station but the relevant officer was not present and he had no record of attendance, but the applicant concedes that he was aware that he did not comply with his reporting obligations.

9. In relation to the 2018 incidents, the police Facts Sheet identifies the victim as the applicant’s partner of about 12 months. It is stated that the applicant was abusive towards his partner and on several occasions he threatened to kill her and her children. On one such occasion when his partner tried to leave their home, the applicant is said to have pushed her using two hands. It is also stated that the applicant failed to inform the police in March 2018 that he had contact with children as he was required to do, while his partner gave a statement to the police detailing the applicant’s contact and activities with children.

10. In oral evidence to the Tribunal the applicant denied that information and stated that his partner gave incorrect information to the police. The applicant denied having threatened his partner, stating that his English would not have been sufficient. The Tribunal does not find that evidence persuasive, given that the applicant’s English appears to have been sufficient to form a spousal relationship with his partner and to be communicating with her, in English, on a daily basis.

11. The applicant claims in relation to the 2018 offences that his lawyer suggested for him to plead guilty to reduce the sentence. The applicant in his evidence to the Tribunal denied that the information in the Police Facts Sheet in relation to the 2018 incidents is correct. The applicant denied that there were any altercations or violence in his relationship with his partner in Australia and he also stated that he did inform his partner about being on the Child Sex Offender Register. The applicant states that he pleaded guilty to these offences in order to be released sooner. The Tribunal does not accept that explanation. The Tribunal acknowledges the submission of the respondent that by that time, the applicant would have been well aware of the significance of his criminal actions and their relevance to the possibility of his visa being cancelled. The Tribunal does not accept that in such circumstances, the applicant would plead guilty out of convenience. As noted elsewhere, the Tribunal is of the view that a guilty plea and a conviction can be taken as evidence that the offences were committed and of the applicant’s guilt. The Tribunal does not consider that it is able to impugn the conviction on which the decision was based – Minister for Immigration and Multicultural Affairs v SRT (1991) 91 FCR 234.

12. The applicant’s representative submits that the criminal proceedings did not accurately reflect the factual circumstances and that the convictions were based on incorrect evidence. The Tribunal notes, however, that the applicant has been convicted of the offences. The sentencing remarks show that the applicant was represented in the proceedings. He had the opportunity to appeal. In such circumstances, the Tribunal is of the view that the conviction must be taken as evidence that the applicant did commit the offences.

13. The applicant had been convicted of multiple offences between 2012 and 2018. The Tribunal finds these offences to be very serious. The indecent assault and common assault offences in 2012 relate to the applicant’s conduct towards a minor child, a vulnerable member of the community. The Tribunal does not accept the applicant’s evidence that he was unable to determine that the child was a minor, given the victim’s young age. The 2018 offences involve violence and threats of violence towards his partner. Direction 79 provides that violent and / or sexual crimes are viewed very seriously. It also sets out the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.

14. In his Statement of Facts, Issues and Contentions the applicant states that he had faced circumstances beyond his control, such as facing trauma from harsh discrimination and treatment by the authorities, due to his ethnicity and religion. He states that because of such circumstances, he had difficulty integrating into the community and had ‘lapses in judgment’.

15. In his evidence to the Tribunal the applicant claims that he has not assimilated well into the Australian community and he claims he did not know the Australian laws and the ‘style of management’. The applicant refers to his situation in Iran and the conditions in Iran. The Tribunal does not accept that argument because the Tribunal does not accept that such behaviour would have been acceptable in the applicant’s home country. The applicant concedes that such behaviour would not have been acceptable in Iran. The Tribunal does not accept that the applicant committed the offences because he was unfamiliar with the Australian laws.

1. Neither is there adequate evidence before the Tribunal to show that the applicant’s conduct was caused by his mental condition. The applicant repeatedly told the Tribunal that because of his personal circumstances and what he experienced in Iran, his experiences affected his mental state. The applicant states that because of his mental condition, he could not make the right decisions and could not control himself. While the Tribunal accepts the medical evidence in relation to the applicant and in particular acknowledges the assessment of Mr Hosseinipour, there is no established link between the applicant’s behaviour and his mental state at the time the offences were committed. The Tribunal is not satisfied the offences were committed due to the applicant’s mental state or any medical condition.

2. The Tribunal notes that the applicant’s offending took place over a lengthy period and, significantly, that he appears to have persistently breached the laws not only in relation to the substantial offences but also his reporting obligations. The applicant was convicted for failing to report in 2017 and in 2018 he failed to inform the police of his interactions with children, as he was required to do under his reporting obligations, resulting in the conviction for providing false or misleading information. The applicant’s conduct shows, in the Tribunal’s view, the applicant’s overall disregard for the law and his willingness to breach the Australian laws.

3. The applicant’s evidence to the Tribunal contradicts the information in the police reports. In particular, the applicant claims that he did inform his partner about his offences and that he has been listed on the Child Sex Offences Register before the relationship started. The applicant states that he took his partner to the police, that a police officer talked to his partner and explained the situation and also inspected their home. The Tribunal’s concern, however, is not with the applicant’s relationship with his partner or the truthfulness of their interactions but with his obligations under the Australian law and, in particular, with his failure to inform the police about the situation.

4. The Tribunal has had regard to the sentencing remarks of Magistrate Convington in relation to the 2018 offences. His Honour stated

   … in my view, there is absolutely no alternative than a fulltime custodial sentence, and that is for the purpose of indicating to you that these offences are very serious. It is also there as a reminder to you in the future to discourage you from such conduct. If you are to behave like this, particularly or generally, but also towards women, that the court will send you to gaol…

   In relation to all the false and misleading information, there is a number of offences and they are far more serious than you just not reporting at all. These involve you having access to children which is the very purpose of you being on this order.

5. The Tribunal finds that the nature and seriousness of the Applicant’s offending, having regard to the factors set out in paragraph 13.1.1, was serious and weighs very heavily against revocation.

6. The Tribunal has considered the risk to the Australian community, should the applicant commit further offences or engage in other serious conduct. The applicant’s conduct involves offences against a minor child. His failure to identify his interactions with children when reporting to the police, resulting in the convictions for providing false or misleading information, suggests that the applicant has little appreciation of the seriousness of his conduct or of his obligations under the law. Other offences relate to violence or threat of violence against his partner.

7. The Tribunal has considered the pre-sentence report dated 1 March 2013. It indicates that at the time of the offending, the applicant reported that he was depressed about his mother’s health but he also stated that he thought the Australian women would be accepting of his behaviour and that was not doing anything wrong. Although the applicant has now indicated that he is remorseful about his behaviour, the Tribunal is not satisfied the applicant genuinely appreciates the nature of his wrong-doings, given his claims that the offending occurred because he was poorly ‘managed’ by the Australian society.

8. The applicant’s offences involve violence to others and threat of violence or harm. The nature of harm to the individuals or the community, should the applicant re-offend, would be significant.

9. In his revocation request, the applicant apologised for his conduct and stated that it was out of character for him. However, the fact that there are multiple offences that occurred over a period of time does not support the applicant’s contention that his conduct was out of character. The repeated nature of the offending – including his failure to report despite being explained that obligation on a number of occasions - suggests that the applicant acted with the knowledge that he was in breach of the law.

10. The Tribunal has also had regard to the applicant’s submission in response to the first NOICC, dated 4 May 2015. The applicant’s representative submitted that the applicant was new to the country at the time of the offending and claims to have been extremely distressed and had an issue with his mental health. It was noted that the applicant had no record of other offending. The applicant’s representative submitted that given the chance to remain in Australia, it is unlikely to that the applicant would repeat such mistakes. Reference was made to the applicant’s study, church attendance, psychological treatment and other social activities. That submission was accompanied by a psychological report from Mr Hosseinpour who refers to the applicant exhibiting symptoms of PTSD and symptoms consistent with depression. The report does not offer an assessment of the risk of reoffending. There is also a statement from Yasmin Malak who states that the applicant was unfamiliar with the laws of Australia and states that the offences were out of character. As noted above, the Tribunal does not accept that the applicant’s conduct can be explained by his claimed lack of knowledge of the law, given the applicant’s concession at hearing that the same conduct would not have been acceptable in his own home country. Also as noted above, the Tribunal is of the view that the repeated nature of the offending does not support the contention that the offending was out of character for the applicant.

11. The Tribunal places significant weight on the fact that the in 2015 the applicant had been warned about the possibility of his visa being cancelled. The applicant was issued with the NOICC. He was put on notice that his conduct may result in him not holding an Australian visa. Despite that, the applicant committed a number of serious offences in 2018. It cannot be said, in the Tribunal’s view, that by that time the applicant did not recognise the significance of his offending or that he was not familiar with the Australian laws. The fact that the applicant committed serious offences in such circumstances indicates to the Tribunal that the risk of reoffending remains.

12. There is no evidence before the Tribunal that the applicant completed any rehabilitation programs since the commission of the offences. He refers to his poor mental health and while there is evidence that he saw health professionals while in detention and prior to his detention, there is no evidence that the applicant has completed a treatment program or that his condition has been successfully treated. If the applicant’s evidence is that his past misconduct was caused by his poor mental health, the Tribunal is not satisfied that these issues have been resolved to avoid the repeat of such conduct in the future. The Tribunal reaches this conclusion despite the applicant’s present claims that he has learned from his detention and had never been detained before. While the Tribunal accepts that the applicant may have been profoundly affected by his detention, the Tribunal is of the view that the possibility of his visa being cancelled – which the applicant must have recognised in 2015 when first receiving the NOICC – would have been of sufficient significance to enable the applicant to recognise the importance of his compliance with the law and the serious repercussions of his conduct. Despite that, the applicant committed further offences after the decision was made not to cancel his visa. In such circumstances, the Tribunal does not accept that the applicant’s detention would have the effect that the applicant will not engage in further conduct contrary to the Australian law.

13. The applicant’s representative also refers to the more recent reports relating to the applicant’s conduct in the detention centre which show, the representative claims, that the applicant has changed and has been cooperative. The Tribunal is mindful that since the most recent offences the applicant has been held in detention and has not lived in the community. The applicant’s claimed resolutions to change, engage in and contribute to the community, have not been tested.

14. The Tribunal finds that the risk of reoffending continues to exist and such risk is not insignificant. The Tribunal finds that the risk to the Australian community, should the applicant commit further offences or engage in other serious conduct, is substantial, given the nature of the offences which involve sexual offending, physical violence, and threats of violence towards others, as well as dishonesty when dealing with law-enforcement agencies. These considerations weigh heavily against the revocation.

    Best interests of minor children in Australia affected by the decision

15. The applicant refers in his revocation request to his Australian partner and states that she would be devastated and lost if he was to leave Australia. The applicant did not provide details of any minor children, although the Tribunal is mindful that the police reports refer to the applicant’s partner having children or grandchildren who visited the household and lived in the same household from time to time. However, there is evidence before the Tribunal that there is an AVO in relation to the applicant protecting the applicant’s former partner. There is no evidence that the applicant’s relationship with his partner is ongoing.

16. In circumstances where the applicant has been convicted of a sexual offence in relation to a minor child, and an assault in relation to his partner, and where an AVO has been issued in relation to the applicant, the Tribunal has formed the view that it is in the best interests of any minor children for them to be removed from the applicant. The Tribunal finds that the best interests of any children who may be affected by the cancellation do not favour revocation.

    Expectations of the Australian community

17. Paragraph 13.3 of Direction 79 states that:

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

18. Consideration of the expectations of the Australian community can be made by reference to the community that is ‘fair minded and mature’ (Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23]) and an ‘informed, reasonable member of the Australian community rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power’ (Waits and MIMIA [2003] AATA 1336 at [36]).

19. The Tribunal has considered the decision of Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76]:

    In particular, the last two sentences of para 13.3 of the Direction… [are] not a consideration dealing with any objective or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the Executive Government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

20. This judgment was addressed in DKXY v Minister for  Home Affairs [2019] FCA 495 at [31]:

    Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government’s view regarding community values, standards and expectations… but nothing in the Direction indicates that the community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered.

21. And further at  [33]:

    What amounts to “due regard” will necessarily require attention to be given to all relevant circumstances in the particular case which bear upon a general assessment of Australian community expectations.

22. In Afu v Minister for Home Affairs [2018] FCA 1311 Bromwich J said at [85]:

    The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community.

23. The Tribunal has formed the view that Direction 79 allows for consideration of the broad range of the non-citizen’s circumstances when assessing the expectations of the community. The Tribunal has considered the totality of the applicant’s circumstances.

24. The Tribunal considers the offences which the applicant committed to be quite serious. The earlier offence involves harm to a minor child while the most recent offence relates to violence or threat of violence to his partner. The Tribunal considers that the expectation of the Australian community would be that persons committing offences of such nature and such seriousness should not enjoy the protections and benefits of being a member of the community. This is particularly so as the applicant continued to offend following the initial conviction and after he was put on notice that his visa may be cancelled. This is also because it is not apparent that the applicant has shown a genuine understanding of, and remorse for, his actions, blaming his conduct on his difficulty integrating into the community, mental health and ‘lapse of judgment’.

25. The applicant states that he has been found to be a refugee in Australia and he is a part of the community. He submits that there is an expectation that as a recognised refugee, he would have access to the necessary assistance required and that he can be cared for and “have it more easy to integrate into the community”, thus avoiding the committal of crimes. The applicant refers to the extreme difficulty he has faced integrating into the community and the necessity for the Australian government to intervene and assist vulnerable people in the community. The applicant states that prolonging his time in detention comes at a cost to the Australian government but if given the chance to integrate properly and with the necessary assistance that he has not had in the past, the applicant can redeem himself and give back to the community.

26. The applicant appears to suggest that his committal of crimes was due to the fact that he has received inadequate support from the Australian government. That is, the applicant appears to blame the Australian government or the community for his criminal conduct. If that is the applicant’s evidence, the Tribunal finds it highly problematic as the applicant appears to have no insight into his conduct. The Tribunal acknowledges that the applicant has expressed remorse for his actions in his evidence to the Tribunal and stated that what he did was wrong, but the Tribunal is not satisfied the applicant is genuinely remorseful for his actions.

27. The applicant states that his removal from Australia would place him in a dangerous situation and would be in breach of human rights expectations. The Tribunal accepts that the expectation of the community may be that a person is not removed into a place where he may face danger and that a migration decision should comply with human rights expectations. However, the cancellation of the visa, if it were to occur, need not equate with the applicant’s removal from Australia.

28. The Tribunal also accepts the applicant’s evidence that he supports his family in Iran and that his family may be dependent on him, given their circumstances.

29. The Tribunal accepts that a considerable degree of hardship may be caused to the applicant and his family in Iran if the visa remains cancelled. This is because the applicant may remain in detention for a considerable period of time, unless he is granted another visa or removed from Australia in a way that does not breach Australia’s international obligations. The applicant will be unable to work and support his family overseas. He may have more limited access to health care if he remains in detention. The Australian community may view such matters as favouring the revocation. However, the Tribunal is of the view that the Australian community would also give due regard to the nature of the offending and the applicant’s overall regard for the Australian laws. As noted above, the offences committed by the applicant would be viewed as being abhorrent, involving violence or threats of violence towards others and an assault on a child. The Tribunal has formed the view that in the circumstances of this case, the community would give greater weight to the nature of the offences than to the applicant’s personal circumstances and the hardship that would be caused by the cancellation. The Tribunal finds that this consideration does not favour the revocation. 

    Other considerations

    International non-refoulement obligations

30. The applicant has been found to be a refugee and granted the protection visa. The Tribunal also notes that an International Treaties Obligations Assessment was completed in relation to the applicant in September 2016 which confirms that Australia owes protection obligations to the applicant. There is no evidence before Tribunal that the applicant’s circumstances or the circumstances in his home country had changed since that time. The Tribunal finds that the removal of the applicant to Iran may be in breach of non-refoulement obligations.

31. The applicant submits in his written evidence to the Tribunal that he has been found to be a refugee and due to Australia’s non-refoulement obligations, his permanent visa cannot be revoked as the Migration Act does not allow for Australia to return a person to a place where they would be harmed. The applicant claims that the cancellation of his visa and the threat of return would place him in a dangerous situation and would be in breach of human rights expectations. The Tribunal finds that submission to be misguided. The cancellation of the visa should not be equated to removal of the applicant. Further, the legislation makes it clear that a visa can be cancelled even where Australia’s non-refoulement obligations arise. Such obligations form part of the consideration whether to cancel the visa but are not determinative.

32. Given Australia’s protection obligations towards the applicant, the Tribunal acknowledges that the applicant may not be returned to Iran and the Respondent acknowledges that the applicant’s involuntary return to Iran may not be possible because of the policies of the Iranian government. As such the applicant cannot be returned to Iran unless he chooses to do so voluntarily and there is no indication before the Tribunal that the applicant has any intention of returning to Iran voluntarily. This is because he claims he fears harm, which has been assessed by the Department to be well-founded.

1. It therefore appears that if the applicant cannot be removed to Iran, he may remain in detention. Unless the applicant chooses to return voluntarily or unless he is granted another visa or can be removed to a safe third country, the applicant will remain in detention. The Tribunal accepts that the Minister may exercise power under s. 195A to enable the applicant to be granted a bridging visa. However, this was not done in the past and there is nothing before the Tribunal to indicate that the Minister would intervene and grant a visa to the applicant under s. 195A of the Act. There is thus a real possibility that the applicant will be detained indefinitely or for a very lengthy period. Such detention may cause significant hardship to the applicant.

2. The Tribunal finds that Australia’s non-refoulement obligations and the alternative possibility of lengthy or indefinite detention are compelling considerations for exercising discretion in favour of the applicant.

   Strength, nature and duration of ties

3. The applicant has been living in Australia since July 2011 for a period of approximately eight years. He provided to the delegate evidence of his employment, claiming that he had been working as a painter, and evidence of his settlement in the community, including participation in sporting and religious activities. There are also statements from third parties in support of his application. The Tribunal accepts that since his arrival in Australia, the applicant has formed some ties in Australia, including employment and social ties, and the Tribunal is prepared to accept that such ties are meaningful and of long duration.

4. The Tribunal notes that the applicant had been living in Australia for a relatively short period of time of less than three years before the first convictions. The Tribunal has formed the view that the strength, nature and duration of ties may favour the revocation.

   Impact on Australian business interests

5. There is no evidence before the Tribunal concerning any impact on Australian business interests.

   Impact on victims

6. There is no information before the Tribunal about the impact of a decision not to revoke the cancellation on members of the Australian community, including the victims of the applicant’s criminal behaviour and family members of the victims.

   Extent of impediment if removed

7. The applicant has been living in Australia as a permanent resident since 2011. He has acquired employment, formed friendships and has been attending religious services. The Tribunal accepts that the applicant has formed some links in Australia and such links may be affected if the applicant was to leave Australia.

8. The applicant refers in his revocation request to having a close relationship with his partner and he claims his partner would be devastated if he is to leave Australia. The Tribunal is mindful that the applicant’s revocation request is dated August 2018 and by June 2018 the applicant had been issued with the final AVO with respect to his partner. The Tribunal has formed the view that by the time the revocation request was made, the applicant’s relationship with his wife was no longer a ‘loving’ one.

9. The applicant’s evidence to the Tribunal is that he could not write English and did not know what was in the form, which was completed by somebody else without detailed explanation, but the Tribunal is mindful that the applicant signed the Personal Circumstances Form and, in the Tribunal’s view, was therefore responsible for its content. The Tribunal has formed the view that the applicant has been untruthful in his evidence to the delegate. The Tribunal does not accept that the applicant’s former partner or her family would be adversely affected if the visa remains cancelled or if the applicant is removed from Australia.

10. The applicant states that he would be harmed or killed if returned to Iran. As noted above, the Tribunal accepts that Australia owes protection obligations in relation to the applicant and that if he cannot return to Iran and is not granted another visa, the applicant may be subject to lengthy, or indefinite, detention. This would constitute a significant impediment to the applicant.

11. The Tribunal has had regard to the report from Mr Hosseinipour which refers to the applicant presenting with symptoms of PTSD and noting that he has exhibited symptoms of severe depression and anxiety. It is indicated that the applicant consulted Mr Hosseinipour on 14 occasions. There are also before the Tribunal medical records from the detention health service. The Tribunal accepts that at least at the time the report was issued, the applicant was suffering from the conditions identified in Mr Hosseinipour’s report, although the Tribunal is mindful that considerable time has passed since that report was submitted. There is no evidence before the Tribunal as to what health services may be available to the applicant, should he be required to leave Australia or if he remains in detention.

12. The applicant told the Tribunal that his mother is in poor health, his sister is disabled and they are dependent on him financially. The Tribunal is prepared to accept that evidence, although there is little documentary evidence to support these claims, and the Tribunal accepts that if the applicant does not hold a visa that permits him to work, that may affect his ability to support his family in Iran. The Tribunal accepts that this may cause hardship to the applicant and his family in Iran.

13. The Tribunal also accepts that, given the length of time the applicant has spent in Australia and the degree of his settlement in this country, that there will be some impediment if the applicant is removed from Australia and it favours the revocation of the cancellation. The Tribunal has formed the view that there may be significant impediment to the applicant if he is removed from Australia and that may favour the revocation of the cancellation.

    CONCLUSION

14. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant does not pass the character test and has considered whether there was another reason why the cancellation should be revoked.

15. The Tribunal has found that the applicant has committed serious offences against vulnerable members of the community and such offences occurred over a lengthy period of time. The Tribunal has rejected the applicant’s argument that he was unfamiliar with the Australian laws and that the offending was caused by his poor mental state. The Tribunal has found that such claim is unsupported by probative evidence. Having regard to the nature of the offending and the risk of re-offending, the Tribunal has formed the view that the protection of the community strongly favours the cancellation of the visa. The expectations of the Australian community would also be against the revocation, despite the applicant’s personal circumstances and significant hardship that may be caused to the applicant and his family overseas by the cancellation, because of the nature of the offending. Non-refoulement obligations exist in this case and the applicant’s circumstances may mean that the applicant cannot be removed to Iran. The cancellation of his visa may result in a lengthy detention and there may be significant impediment to removal and these considerations strongly favour the revocation.

16. The Tribunal accepts that there are factors that favour the revocation. However, the Tribunal has formed the view that the expectation of the community and the protection of the community outweigh those factors. Considering the circumstances as a whole, the Tribunal has formed the view that there are no other reasons why the original decision should be revoked.

    DECISION

17. For the reasons set out above, the Tribunal affirms the decision of the delegate of the Minister not to revoke the cancellation of the applicant’s visa.

I certify that the preceding 83 (eighty - three) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Raif

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

Associate

Dated: 13 September 2019

Date of hearing:	4 September 2019
Advocate for the Applicant:	Mr B Ehsani
Solicitors for the Applicant:	Barriston Lawyers
Advocate for the Respondent:	Mr A Keevers
Solicitors for the Respondent:	Sparke Helmore Lawyers