TCWY and Minister for Immigration and Border Protection (Migration)

TCWY and Minister for Immigration and Border Protection (Migration) [2017] AATA 845 (10 May 2017)
Division:GENERAL DIVISION
File Number(s): 2017/0989
Re:TCWY
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Bill Stefaniak AM RFD, Senior Member
Date:10 May 2017
Date of written reasons: 9 June 2017
Place:Sydney

The decision under review is affirmed.
...............[sgd].........................................................
Bill Stefaniak AM RFD, Senior Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – expectations of the Australian community – other considerations – international non-refoulement obligations – strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed
LEGISLATION
Migration Act 1958 ss 499, 501
CASES
Minister for Immigration & Multicultural Affairs v Ali [2000] FCA 1385
SECONDARY MATERIALS
Direction No. 65 under s 499 of the Migration Act 1958 – 6.2, 6.3, 13, 14
WRITTEN REASONS FOR ORAL DECISION
Bill Stefaniak AM RFD, Senior Member
9 June 2017
BACKGROUND

The applicant first arrived in Australia in December 1999 as an unlawful boat person when he was 16 year old. He arrived with his father on Christmas Island. He was later transferred to the Curtin Immigration Detention Centre. On 18 May 2000 he was included as a dependent applicant for an application for a protection class XA visa by a person in detention. On 22 September 2000 he was granted a class XA subclass 785 temporary protection visa, valid for stay until 22 September 2003. On 4 April 2002 he lodged an application for a protection class XA visa. On 2 September 2003 his class XA subclass 785 temporary protection visa was extended for stay until 4 August 2006. On 27 October 2005 his application for a protection class XA visa was refused, and he was granted a return pending (temporary) class VA subclass 685 visa, valid for 18 months, in order to allow him time to make arrangements to depart Australia.
On 7 November 2005 the applicant lodged an application with the Refugee Review Tribunal for a review of the decision to refuse a protection class XA visa. On 16 February 2006 the Refugee Review Tribunal remitted the application for reconsideration, with the direction that the applicant was a person to whom Australia had protection obligations under the Refugees Convention. Accordingly, on 4 August 2006, the applicant was granted a further class XA subclass 785 temporary protection visa, valid for stay until July 2008. He was granted a class XA subclass 866 protection visa on 9 July 2008.
On 19 January 2015 the applicant’s class XA subclass 866 protection visa was mandatory cancelled due to criminal convictions, and he failed the character test as a result. Accordingly he was formally notified of the mandatory visa cancellation, was given 28 days in which to respond, and on 12 February 2015 he responded to the notice with a request for revocation. He was released on 31 January 2015 from Metropolitan Remand and Reception Centre Silverwater, and transferred to Villawood Detention Centre.
It should be noted that back in 2005, the applicant was refused a protection visa due to traffic offences committed by him which carried a maximum penalty of a term of imprisonment of 12 months or more, and as a result he fell foul of the provisions applicable at that time.
The applicant was assisted by the International Migration Support Service who acted for him in seeking to overturn that decision and in getting a permanent protection visa. They requested a waiver in the public interest, under subregulation 866.222A, indicating at the time that he was an Iraqi refugee; he had fled to Iran with his family; was a boat person in 1999; and three months after his release from detention his father left him in Australia and returned to Iran. He developed problems, fell foul of the provisions of the subregulation because of the traffic offences, and accordingly found himself in this particular predicament.
Certain matters were put on the applicant’s behalf in his application for a waiver, including the following submission which can be found starting at page 118 of the G-Documents. I quote from the top of page 119:
Now that he is a young adult and on the road to a full recovery, we now lodge on his behalf a fresh application package…
…it is clear he has matured as a young adult and learned respect for the laws and regulations of this State and the Federal laws and regulations and since 2006, as his latest AFP police record shows, he has not violated the law in any way.
His good reputation within the Australian Iraqi community therefore encourages us to seek your delegate’s special appraisal of his fresh application with a view to exercising on behalf of the Minister the waiver permitted in subregulation 866.2B(2) in the public interest. – firstly, because the offences he committed are relatively minor and secondly a requirement for him to return to Iraq which would cause his extended Australian family unit of his supervising cousins “irreparable harm and continuing hardship” in accordance with clause 4.2 of MSI 386.
The application went on to submit that as an adult he could not return to Iraq because he did not have any documents proving his Iraqi citizenship; he might not be permitted to enter; and persecutory problems he would face there on the grounds of his religion as a young Shi’ite. It noted he had spent his adult years in a foreign country, namely Australia, and it talked about the issues in Iraq at the time, and the dangers there. It also mentioned the fact that he was a single unmarried young man who needed relief from the deep trauma and manifest psychological conditions which continued to afflict him in his current state of uncertainty.
Accordingly, as I have already indicated, the Refugee Review Tribunal made its decision in his favour as a result. Unfortunately for him he subsequently committed further and more serious offences, which led to this review.
Because of the situation the applicant finds himself in with his further offences, he automatically does not pass the character test. His criminal record is found at pages 70-72 of the G-Documents.
CRIMINAL CONVICTIONS AND SENTENCING REMARKS
The applicant’s first convictions were within three years of entering Australia and were in Fairfield Local Court on 26 September 2002:
(a)Drive whilst suspended – offence proved, no conviction and no penalty;
(b)Drive whilst suspended – convicted, released on a bond for two years to be of good behaviour and licence disqualified for two years;
(c)Drive whilst suspended – fined $700, licence disqualified for 12 months.
His next offences were in July 2005:
(a)Driver/rider state false name or address – fined $500;
(b)Not give way (move from marked lane to another) – fined $150.
His next offence was on 23 November 2006: drive whilst disqualified. He was convicted, given a bond to be of good behaviour for two years and disqualified from driving for two years.
The applicant did not commit any further offences until 3 March 2011, when he was convicted of driving whilst disqualified. He was fined $250 and his licence was disqualified for two years.
On 7 December 2011 he was convicted and fined $700 for exceeding the speed limit, and his licence was disqualified for three months.
The applicant was convicted at Campbelltown Local Court on 29 March 2012 of two counts of remain on inclosed land not prescribed premises without lawful excuse; one count of licence expired less than two years before; and one count of entering inclosed land not prescribed premises without lawful excuse. He was fined $100 for each of those offences.
In the Campbelltown Local Court on 12 April 2012 the applicant was convicted of threaten sabotage and released on a bond of good behaviour for 18 months. He was also convicted of common assault and placed on a bond of 12 months good behaviour. The same penalty was imposed for one count each of: destroy or damage property; shoplifting; stalk/intimidate intend fear of physical or mental harm; use carriage service to menace/harass/offend; and threaten to destroy or damage another person’s property. In relation to those offences, although the Tribunal did not have the benefit of any actual police statements which may have been tendered in court, it would appear from his evidence and consistent with the actual offences that this related to an incident at Centrelink where the applicant wanted to be paid on that day and there appeared to be some problem with his Centrelink payment. When advised that it would take several days for him to get his money he lost his temper and threatened to blow the place up.
The common assault was in relation to knocking papers out of an employee’s hand. The damage property related to throwing a chair onto the floor and breaking it. He used a carriage service (phone) to threaten to blow the place up. I believe that also related to threaten to destroy or damage another person’s property. The shoplifting related to a mobile phone in his possession which he stated was a phone that had been given to him, but it also appeared that it may well have come from a nearby shop. He indicated he did not steal the phone but nevertheless pleaded guilty to the charge.
At Bankstown Local Court on 19 September 2012, the applicant was fined $350 for having goods in personal custody suspected of having been stolen.
On 16 May 2013 at Fairfield Local Court, he was convicted of possess/attempt to possess prescribed restricted substance; goods in personal custody suspected of being stolen; and enter inclosed land not prescribed premises without lawful excuse. On the first two charges he was imprisoned for 39 days commencing on 10 March 2013. He was in custody on remand for the attempted armed robbery with a weapon at that time, committed on 24 November 2012. On the entering inclosed land charge he was fined $250.
Again, the Tribunal did not have the benefit of any police statements in relation to these matters and the applicant indicated that they related to him not going to the right address but turning his vehicle and stopping in someone else’s driveway. That person then came out and seemed to take offence and called police, hence the $250 fine. He also had some pills in his possession which were, it seems, a restricted substance, and also which the police apparently alleged they suspected of having been stolen because they were not prescribed for him, although the applicant said they were his. At any rate, he did not appear to have defended these matters, but entered guilty pleas and was imprisoned.
The most significant substantive offence occurred on 24 November 2012, which was robbery with an offensive weapon. It was dealt with by the Downing Centre District Court on 20 December 2013. The applicant was in custody at the time, and his sentence was imprisonment for two years and eight months, commencing on 24 November 2012, with a non-parole period of 13 months. This offence related to threatening his cousin, whom he told the Tribunal owed him $30,000, with an imitation pistol.
Upon being released from prison on 23 December 2013, on 1 February 2014 the applicant was further charged with: stalk/intimidate intend fear physical etc harm; custody of a knife in a public place; and hirer not pay authorised fare on termination of hiring. He was convicted and sentenced to six months’ imprisonment by the Parramatta Local Court on 18 July 2014 for the intimidation offence; fined $500 for possession of the knife; and fined $400 for not paying the fare on termination of hiring a taxi.
The armed robbery and the taxi driver knife offences were the offences that triggered the mandatory cancelation of the applicant’s visa due to him being deemed to have failed the character test.
The sentencing judge’s remarks in relation to the District Court matter are relevant. They are to be found at page 95 of the G-Documents. His Honour Hoye J stated, after noting that at the time of sentence he had been in custody for 359 days in relation to the armed robbery offence:
By way of aggravation the offender was on a number of s 9 good behaviour bonds for 12 months, and was only 4 months into them when he committed this offence. The facts of the matter are concerning in a number of respects. He attended upon people who are cousins and/or probably his only relatives in the country and they have in the past been benefactors and supporters of his. It is conceded that there were some mental health issues that percolated to the surface at or around this time and they are directly and causally related to the commission of this offence. Consequently, at 2.00am on 12 August 2012 he knocked on the front door of the home of the victims known as MA and NA and demanded money. Both husband and wife were present, he demanded money, he said if he was not given the money he would kill the husband. He said he had a weapon. There was considerable physical imbalance between them, the Offender being smaller than the victim. However, at that stage the Offender showed what both the husband and wife thought was a pistol. It was dark at that time of night indeed in the early hours and their security light was not working. There are photographs, part of the Crown bundle, which shows the imitation or replica pistol. The victims closed the door, Police were called. They arrived, secured the area. The Offender was hiding. There was a slight struggle and as he was arrested he threatened others. As I indicated in discussion it is most fortunate that the matter ended in the way it did, with nothing more serious.
There are a number of matters for which he was on s 9 bonds at the time. They all relate to other tensions that he has in his life and whilst I cannot directly infer, one suspects there could be some link between that and his mental health condition also. The Court then gave him a chance to remain at liberty on a good behaviour bond and sadly he has breached that one-third of the way in. Otherwise he has not got a bad record.
He has had a very unhappy history, although one would like to think it has improved since he came here in early 2000 as a refugee.
His Honour then went on to say:
He has a bit of a history attending various psychiatric and/or mental health institutions including Banks House which I think was in Bankstown. He had some follow-up treatment in Brisbane. He has been admitted to Liverpool Hospital, their mental health unit, sometimes, as a resident. He has been on a methadone program at the local Auburn clinic. There have been self harm and/or suicide attempts and he has had other admissions to Liverpool Hospital.
Dr Furst has diagnosed him as having Bipolar Affective Disorder which has manifested itself often by way of manic presentation and psychotic episodes. He also has a history of intermittent compliance with his medication and has limited insight into his condition and the effects of his rather chaotic substance abuse. The Crown, with his usual candour, accepts that there was most likely an affectation from a mental health point of view from his underlying Bipolar Affective Disorder which is causally connected to the commission of the present offence. This has been accepted by the Crown as a mitigating factor and indeed something that would and should be taken into account as therefore lessening the need for general deterrence. This is corroborated and emphasised in the report by Dr Furst.
Dr Pishyar, a clinical psychologist, also had been treating the applicant who he said had a clinical diagnosis of major clinical depression. Some considerable cognitive behaviour therapy was needed to assist him in dealing with those symptoms and life coping skills. Dr Pishyar’s report said he could respond favourably “as long as he remains focused on his treatment…and stays on his medication”.
The applicant’s lawyers then submitted that staying on his medication “is now imminently understood by the Offender…he is under medication, off the drugs, on his methadone…has a realistic understanding of his situation and he is committed to maintaining his present abstinence and treatment”.
Unfortunately, upon being released from custody on parole on 23 December 2013, not long after the actual District Court hearing, he then committed the further offences in relation to the taxi driver previously mentioned above (see pages 178 and 181 of the G-Documents).
In relation to those offences, the learned Magistrate indicated that there were two charges and that the applicant:
…stopped a taxi driver, made a business proposition to him - that’s using my terms, my words. It is accepted by the taxi driver he was driving around; reached a point; that the taxi driver sought some payment; a discussion took place.
The defendant has got out of the cab and the driver has got out of the cab as well. At that point in time a knife was produced by the defendant from his right pocket, and it was said that the words used were to the effect of, “Approach me or talk to the police, I’ll hit you with the knife.”
It would appear that the defendant has then returned to the taxi and asked to be taken elsewhere. The driver has refused; still wanting his money. The driver, it appears - it's not totally clear, but it is not particularly relevant to my final determination - is aware that the defendant has gone towards a hairdresser or to a hairdresser and the driver has gone to the police and reported the matter. The police, halfway through the statement, have gone to the taxi, found a bag and found a pair of shoes and a knife in there.
The defendant, as is his entitlement, has declined to give evidence. So the only evidence I have before me is that of the taxi driver and the observation of the police officer.
Accordingly, the Magistrate convicted him in relation to the offences relating to the knife, and sentenced him to a term of imprisonment of six months.
It is also worthy of note that since he has been in immigration detention (as opposed to prison and on remand) there have been no incidents of concern in terms of any further offences, although there are some issues in relation to his taking of medication.
BEHAVIOUR IN PRISON AND ON REMAND
Whilst the applicant was actually on remand and in prison, New South Wales Corrective Services did make a number of case notes. Firstly, there were issues in relation to the possibility of self-harm; difficulties in getting on with some of the other inmates; entries for continual aggressive behaviour towards officers; and particular disdain for female staff, including an incident on 19 February 2014 of inappropriate sexual behaviour towards a female officer.
The applicant had been internally charged for indecency and served a penalty and he had been, in February 2014, very difficult to manage in the area. He had been penalised 21 days off buy-ups for disobeying a direction on 6 February 2014; 14 days off buy-ups for indecency on 19 February 2014; and three days cellular confinement for intimidation on 24 February 2014.
The applicant indicated in relation to these matters that there were some significant issues with his accommodation and him being deprived of a number of things including, it seems, having to sleep on concrete. This led to him flushing his toilet and flooding his cell. In terms of the sexual harassment issue with the female officer and making a comment to her, he stated he was just complimenting her. There was also an issue which gave me some particular concern where he was charged with intimidation of a female officer, and he made a comment that “if a male charged me it’s ok, but females are lower than dogs and we kick them in our country”. He has sought to clarify that in his own evidence, and he indicated that he certainly regards females as equal, and that he was simply making a comment as to what occurred in his former country where he grew up, Iran, and it was not as it seemed.

Nevertheless, there were some significant issues in relation to his incarceration which have caused a number of problems whilst he was in detention, although apart from issues in terms of taking medication, I would tend to accept that his time in Villawood has certainly been a lot more positive than his time in prison and detention whilst under the care of the Department of Corrective Services.
As a result of all of the above matters, the respondent submitted that the decision to revoke the applicant’s visa was correct. The respondent, in his statement of facts and contentions, has addressed the relevant considerations in the legislation, which I shall deal with as well, and has urged the Tribunal to affirm the decision under review.
THE APPLICANT’S EVIDENCE AND CONTENTIONS
The applicant gave evidence. He not only gave oral evidence but produced some fairly detailed written documentation prepared on his behalf by Dr Swincer who has been assisting him, very capably, for the last two years.
In his written statement the applicant asked the Tribunal to not have his visa revoked. He accepts he was convicted for a serious crime, addressing Ministerial Direction No. 65 (“the Direction) under s 499 of the Migration Act 1958 (“the Act”), but argued extenuating circumstances, namely that he loaned an amount of $30,000 to what he said was a friend (which turned out to be his cousin). The money was from funds sent from Iran to him by his father.
The applicant had become increasingly destitute because of his difficulty finding work due to his lack of education and qualifications, and he had no family or other support networks. He had tried for seven years to get what he said was his friend to repay the loan, but he refused. He said he unwisely went to his place and threatened him using a toy gun belonging to the victim’s little son, and the police were called, hence the armed robbery charge and charges of trespassing.
It is interesting that he said the above version of facts in his statement because in evidence before the Tribunal he indicated that at the time of the offence he was actually still living with his cousin, so I am not quite sure what the real situation was there. However, clearly the victim appeared to be his cousin; the incident did relate to the amount of $30,000; and the applicant was seeking to get $30,000 from the victim because he said he had loaned him that amount of money and it had not been paid back.
In relation to the offences involving the taxi driver, the applicant said the driver ripped him off and when he challenged him about it became argumentative. He said he did not threaten the driver in the way alleged and that he had the knife in his possession to enable him to cut fruit whilst driving around. He also said he did not know the driver and this appears common ground.
The applicant told the Tribunal, both in his statement and orally, that he was determined not to re-offend. He felt his time in detention was a blessing in disguise, and that it allowed him to recover psychologically, reflect on his life, and commit to turning his life around. He was confident he would not be in danger of reoffending.
He felt there would even be considerable sympathy for him in the Australian community because of his traumatic early years and his psychological problems which resulted in many periods of hospitalisation over a period of seven years. In fact he indicated he had been hospitalised for periods of anything from a month up to about six weeks, on at least about 10 occasions.
The applicant was part of an Iraqi refugee family in Iran and came to Australia at 16 as a boat person. After three months he was abandoned by his father who returned to Iran. He had to fend for himself. He had little education. He said: “I am determined to study hard to try to bridge the gap and obtain some useful qualifications”.
The applicant indicated he was a stateless person, and already had been determined to qualify for Australia’s protection. He stated it would be therefore clear he would face indefinite immigration detention if his protection visa cannot be reinstated, and he wanted the opportunity to redeem himself, rather than having to pay excessively for his crime by prolongation of the period of detention.
He appreciated that the character test was a formidable problem for him – I think that is conceded by everyone – but he felt that the extenuating circumstances should count in his favour: his early trauma; being abandoned by his father at 17; prolonged psychological ill health resulting from previous and ongoing trauma; the stresses associated with survival in a new society; and his lack of a supportive network of family and friends.
The applicant felt his good behaviour record in detention should stand him in good stead. He indicated that he had been in prison or immigration detention since August 2013, and there was no recent opportunity to reoffend or establish any trend to see how he is operating in the community. He took full responsibility for his actions, and said he was committed to act as a law abiding citizen in the future.
I rely on my prison and detention record as evidence of “character reform”. I believe I am not fundamentally a person of bad character, although I reacted badly to trauma and stress on one particular occasion.
I would like to insist that for the first 13 years of my life in Australia I maintained a record of good conduct, apart from some minor traffic offences. It was only in 2012 that the pressures of survival caught up with me. I now deeply regret the course of action I took to try to recover my loan, I believe I have now demonstrated thorough rehabilitation.
I believe there is no risk of me engaging in any further criminal conduct in Australia. I am determined to turn my life around.
… I am very hopeful that the evidence and my basically good character, and consideration of the extenuating circumstances related to my criminal action, will allow some kind of amelioration of the character test rules in my case. I fear that if I am denied a visa on the basis of a character test, I will face indefinite detention. I have already been assessed as qualifying for Australia’s protection and therefore I cannot be sent to any other country. I have already been punished for my crimes, and I hope I will be given an opportunity to demonstrate my rehabilitation and to become a law abiding citizen of Australia.
The applicant also gave evidence before the Tribunal where he reiterated his problems with drugs and mental health. He indicated that his drug problem was something that had started when he was still at school.
He indicated that he had a work history. The applicant had worked at McDonald’s whilst he was still at High School. He went to Year 12 level after initially doing the English course all new migrants have to do. He worked at a restaurant in Narrabeen for about five to six months and then bought a small truck to do removals. He did removal work for about two years but then started having back problems.
He was unemployed for about a year, then he opened up a supermarket in North Parramatta with a friend who he shared a house with. The business did not go very well, although it continued for about two years. He said his friend would steal from the shop, and he found that out after about two years.
The applicant was unemployed after that. He developed psychological issues and in 2005/6 ended up in Bankstown Hospital. This was the first time he had mental health issues. He was depressed, he cried a lot, and he was unemployed for a while.
He moved to Brisbane. He had jobs on and off there, painting and house tiling. He was there for about two or three years until he got his permanent visa.
The applicant went on a trip overseas for six months from November 2008 to April 2009, and after that he returned to Sydney. He bought Persian rugs back with him and he tried to sell them. That did not do very well and he went broke. From 2010/11 he was unemployed until the time he was locked up.
Since his school days in Sydney and continuing, it seems, throughout the course of his life, the applicant had issues with drugs. He did not have any issues with alcohol because he did not touch it.
He stated that he was still living with his cousin (the one that he lent $30,000 to) when he got arrested. Whilst this is different from his written statement, I do not put too much emphasis on it as the main issue was what the applicant did. He was paying his cousin $150 rent per week. They would go shopping and his cousin and his wife would feed him, but sometimes he would buy the groceries.
The applicant stated he would be in regular contact with his mother mostly, and through her he would find out what his father was doing. It was indicated in some of the documentation that he had had absolutely no contact with his father until, it seems, when he went overseas in 2009. He maintained his contact was mainly with his mother who would tell him about things in Iran.
The applicant would talk to his father. He indicated that his parents and his two older brothers, older sister, and one younger sister (who actually was born in Iran, the others being born in Iraq) were okay. They all had had a fairly normal life after his father got back. His brothers were working in the markets and his sisters were now married. One brother was out of the house and another brother was at home. He did not know where they are living; he said they could not buy a house.
The applicant went to see them when he went overseas in 2008/9. He went to Lebanon and he also went to Saudi Arabia: to Medina and then to Mecca to do the Hajj. He met up with his father, it seems, in Syria and travelled around with him for a while.
He went back to Kabala in Iraq, which is his birthplace. He had an aunt there and some relatives, and it appears he got into some trouble there, was beaten up by police, and the local Magistrate told him, after clearing him of any problems, just to get out of the country.
The applicant indicated he was in Iran more than he was in the other countries, but not for the majority of his stay. There was some issue in relation to that in terms of what the Department had actually written. I do not place much substance on that one way or the other. I certainly accept that he may have spent more time in Iran in terms of the other places, but that is not particularly important in the sum total of things in this particular case. Suffice to say his protection visa enabled him to go to those various places, and he did not have any problems apart from the incident in Iraq.
The applicant gave evidence of his version of events in relation to his convictions. For example, in relation to the charge of state false name and address on 7 July 2005, he said a car hit him in the rear. The car he was driving was in his friend’s name so he gave the police his friend’s name “as I thought I had to give the owner of the car’s details. The police said it was a false name. I then told them mine.”
In relation to the offence in March 2011 of drive whilst disqualified, the applicant’s friend was the driver, and his friend paid the fine, but he was lumbered with the two year licence disqualification. I have already indicated before what he stated in relation to some of the other offences, which is from evidence he gave before the Tribunal or told to the police and/or courts.
The applicant told the Tribunal that his father, rather than just abandoning him, had actually told him what he was doing; that it was not working out in Australia; the type of visa they had was certainly not something that they could use to get the rest of the family out to Australia; and accordingly as his dad was missing Iran, despite the issues there, he longed to be with the rest of the family, and indicated to his son that he was going home. His son, the applicant, was not exactly sure how he did it. I do not think it particularly matters at the end of the day, whether it was on false documents or not. The fact I am looking at is that his father returned to Iran and lives there to this day with his wife and children and indeed now grandchildren.
The applicant volunteered during his evidence before the Tribunal that on returning to Iran his father actually bought a unit in Tehran. Further it was at least partly bought from $30,000 the applicant, as a dutiful son (from obviously when he was working), had sent back to his father. After a few years, it appears, the unit was sold, and from the proceeds of sale the father sent him back $30,000 which formed the basis of the $30,000 that was ultimately loaned by the applicant to his cousin who then did not repay it.
It appears from the applicant’s initial evidence given to the Tribunal, that his father had made a good profit on the sale, as two to three years after purchasing it he had sold it for about $60,000, and was thus able to pay back his son the $30,000.
The applicant later tried to downplay the profit side of it and suggest that his father did not make much of a profit in reality but at any rate, the relevant issue from this evidence is the father actually being able to buy – as a non-Iranian – the unit in Iran, and then sell it and pay his son back. This ended up being money lent to a cousin which was not repaid, which the applicant says was the nexus for the most serious offence of which he was convicted. None of this apparently was told to the police.
In his evidence, the applicant stressed that he did not know Australian law and had not been particularly well served by his legal advisors. It appears that he was in custody awaiting trial for nearly a year and changed his plea, on the advice of his solicitor, to guilty because “it was not all that serious”. If that is true, it certainly does not seem to be terribly good advice. This led him to be convicted for the armed robbery offence.
Similarly it appears that whilst the applicant did defend the matter involving the taxi driver, he did not give evidence, which was his right, but it may not have been the most sensible thing to do when one looks at what the Magistrate said. Certainly he feels that he had been let down by his legal advisors.
Fundamentally the applicant had issues in relation to most of these offences. In terms of the role of a Tribunal, looking at his criminal convictions, the law is very clear. The case of Minister for Immigration & Multicultural Affairs v Ali [2000] FCA 1385 at paragraph 43 is authority for the proposition that the conviction recorded against an applicant, and the sentence imposed, should be taken by the Tribunal as:
…strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted.
It is up to the applicant to meet that heavy onus, for example, by presenting compelling evidence contradicting the findings made by the learned Judge.
In the applicant’s case, any claims of innocence or extenuating circumstances has to be backed up with compelling evidence to contradict any findings made by a court. The onus is on the person in the applicant’s situation to put such compelling evidence before this Tribunal and he has not done so. He has merely given his own explanation of the offences without putting before the Tribunal any other evidence that might corroborate his version of events.
EVIDENCE OF DR GRAEME SWINCER AND MRS SUSAN SWINCER
At the hearing Dr Swincer assisted and represented the applicant. He also provided a written character reference and gave oral evidence.
Dr Swincer’s written reference was dated 22 March 2017 and he told the Tribunal he was introduced to the applicant early in 2015 during his weekly visits to Villawood and continued to see him at nearly every visit.
He wrote:
We have formed a strong friendship with him and along the way we have learned details of his life and experiences. Our understanding if his situation has been facilitated by our history of international employment, service and study. We have developed deep sympathy for him and feel very sorry about the predicament in which he finds himself.
He has consistently shown himself to be a man of basically good character who recognises that he has acted unwisely in the past and is determined to turn his life around. In the hope that he will eventually have his visa reinstated, we want to express our commitment to support him thoroughly as he faces the challenges of re-establishing this life.
My have a long and strong track record of supporting people in need in cross-cultural contexts, and we have been hosting asylum seekers in our home since early 2012. Graeme is a retired agricultural scientist, international development programs coordinator, and cross-cultural consultant and trainer. Susan is a retired school teacher, specialising in languages, and has held very senior positions in large secondary schools. For a total of 13 years we lived in two Asian countries where we taught at secondary and tertiary level and developed expertise in cross-cultural communication. Along the way we have participated in management training which has included a focus on personal assessment skills. We have been students of the cultural and political context of a number of countries, including Iran, and Graeme continues to publish research papers on Iran. Graeme has been awarded an Order of Australia Medal for his combination of work and service.
The letter was signed Graeme and Susan Swincer.
It is obvious to the Tribunal that Dr Swincer and his wife Susan are two very good friends of the applicant, and very good friends, it seems, to a number of people in not dissimilar predicaments to the applicant, including two refugees whom they have taken into their home, one from Bangladesh and one from Java. Dr Swincer has worked for World Vision for 20 years.
Dr Swincer has observed the applicant over the last two years in detention. He said he would see the applicant for between five and 30 minutes on each occasion he visited the centre. He noted that the applicant has a good relationship with others, and a professional relationship with staff, and seems to have a good relationship with other detainees.
The two refugees in his house do not have any Australian criminal convictions or any apparent medical or drug problems. Dr Swincer said that whilst he personally did not have any experience or expertise at managing drug dependence – which the applicant still has because he is on methadone – there are other networks he would tap into to assist.
The Tribunal fully accepts Dr Swincer’s undertaking that he would do all he can to assist the applicant were he to be released and that Dr Swincer and his wife have a great track record in that regard, so certainly there is that support available to the applicant were he to be released.
FURTHER EVIDENCE
There was one piece of further evidence before the Tribunal in the G-Documents from Anna Buch dated 8 July 2015 attesting to the applicant engaging well with other people at Villawood and this adds to the observations of the Swincers and is to his credit. It gives further weight to his assertion that whatever his problems were in terms of attitude prior to going to Villawood, he has certainly developed a much more positive attitude now and is a much better person for it.
As referred to earlier, the applicant has had some issues whilst he has been at Villawood, and these relate to his medication for drugs. There is still a problem it seems. He states that it is because he only has visits in the morning, and the pills he is given will put him to sleep within half an hour, so he does not take the pills when he is meant to take them. He takes them at night because that is when he wants to go to sleep. He says unfortunately the visits cannot be changed – these people cannot, for whatever reason, come at night.
So whilst the applicant is not strictly compliant with his medication, he has a reason for it which does at least sound somewhat logical. The was no evidence before the Tribunal as to what effect that actually had on him medically, and whether there was a good reason why he should be taking it in the morning, which is when the people who dispense the medication say he should. That in itself may be a problem if that is the case.

At any rate, the Tribunal certainly accepts that he is still on medication for his drug and mental health problems. There is some issue as to whether he is properly compliant with it or not and clearly there are issues in relation to any ongoing mental health problems he has. I do not think there is sufficient evidence for me to go any further than that.
There was also evidence before the Tribunal that the applicant has not attended any particular courses to improve himself or help overcome his issues whilst in detention. There are obviously issues in relation to whether courses were in fact available, which is often a problem in detention and whilst on remand and in prison, but it does appear that whilst he has indicated a willingness to participate in courses if released, there have been opportunities in the past offered – and that was apparent from the evidence before the Tribunal – which for whatever reason he declined to take up.
There was evidence to indicate that the applicant was under considerable stress and pressure whilst incarcerated. It is however a pity that he has not taken up whatever opportunities there were to do courses to advance himself whilst in prison, and whatever limited courses there may be in detention.
LEGISLATIVE FRAMEWORK
The relevant law in relation to this matter is Ministerial Direction No. 65 under s 499 of the Migration Act 1958 and the various parts of the Act that flow from that Direction. The Direction refers to visa refusals and cancellations under s 501. It has been conveniently laid out by the respondent in the G-Documents, starting at page 22.
The Direction is something the Tribunal must have regard to. The objective of the Act is to regulate in the national interest the coming into and presence in Australia of non-citizens. There is general guidance in relation to this. At 6.2 (page 24 of the G-Documents), the Direction states:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of crucial importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied a non-citizen does not pass the character test…
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancelation under section 501CA…
The relevant factors must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
The principles at 6.3 state:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
…
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
The factors that must be considered in this matter are to be found in Part C (G-Documents at page 36). There are three primary considerations and they are: protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community.
13.1 Protection of the Australian community
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancelation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
13.1.1 The nature and seriousness of the conduct
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c) The sentence imposed by courts for a crime or crimes;
d) The frequency of the non-citizen’s offending and 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);
h) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, is serious, as is an offence against section 197A of the Act;
13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or to the Australian community should the non-citizen engage in further criminal or serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct…
The consideration at 13.2 “Best interests of minor children in Australia affected by the decision” is something I do not need to go into because the applicant is single and does not have any children.
13.3 Expectations of the Australian community
(1) The Australian community expects 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 cancelation 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.
14. Other considerations – revocation requests
(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
The other considerations relevant to the applicant’s case are the international non-refoulement obligations; and the strength, nature, and duration of ties. There are no impacts on Australian business interests. The impacts on victims are hard to judge. No victim was actually physically injured, and that is a real plus. It appears in this instance that the cousin, the subject of the robbery with the imitation gun, was not injured and, from the evidence of the applicant, appears to have gone back to Iran. In terms of the taxi driver there is no evidence of any actual ongoing impact, and accordingly I am satisfied that impact on victims is not really a terribly relevant consideration here. Obviously the extent of impediments if removed is a relevant consideration here.
FINDINGS OF FACT
Much has been made in this matter, and there is voluminous evidence before the Tribunal in terms of submissions and other documentation, as to the exact status of the applicant. I am certainly satisfied that he was born in Iraq. I am satisfied that he and his family fled when he was a toddler to Iran. He knows no country other than Iran and Australia.
I am satisfied that the applicant came to Australia in 1999 as a boat person with his father. I am satisfied, and have no reason to disbelieve, that his father threw the proper documentation overboard and that he had nothing to do with that, being a 16 year old. I am further satisfied that after a short time in Australia his father decided to return to Iran. The applicant’s explanation of that, as told to the Tribunal, would seem quite logical and the most likely version, rather than simply his father abandoning him. I say that because clearly there has been further regular contact with the family in Iran, specifically through the mother.
I am further satisfied and would accept the applicant’s evidence that he sent money back to Iran. I am satisfied, again from the applicant’s evidence, that his father bought a unit from it, and then managed to sell the unit two or three years later and repay his son, who lent it to his cousin who did not pay it back, and that money was the subject of the charge of armed robbery. There is nothing to indicate that that was not the case. I am also satisfied that unfortunately the applicant did not appear to tell the police all the relevant facts that might have assisted his case.
I am further satisfied that the version as indicated by His Honour Hoye J is the one the Tribunal has due regard to, as is the evidence tendered in relation to the learned Magistrate’s decision regarding the taxi driver. I do not find convincing the explanations given by the applicant in relation to both of those matters.
Whilst I accept he does not have a knowledge of Australian law, it does seem rather surprising that for all of these offences he has committed, it is always someone else’s fault – that he appears to be more of a victim, sinned against rather than a sinner – and that at no stage did it appear to him that he really should stand up for his rights and tell it as it was, which clearly would have assisted him. One wonders whether in fact the Tribunal can have a lot of confidence in the accuracy of his statements in relation to those offences. He appears to display a lack of insight into his offending behaviour.
At the end of the day it gets back to the fact that there has to be strong compelling evidence for this Tribunal to accept a version other than what was before the courts, and accordingly, as that is not the case, I am not so satisfied. There was certainly no corroboration offered of anything he said and I am in a situation where I simply have to accept the record as it is, and it is not a good record.
In terms of whether the applicant is a citizen of Iran or not, I can accept that his mother is Iranian, – no one discounts that – his younger sister is Iranian, and the rest of the family are Iraqis. It would seem that his father is certainly a citizen of Iraq; there is documentation there to say that one never loses that. It certainly also appears whatever his status in Iran, whether he has an effective green card or whether the green cards have changed, that he manages to get by. There is evidence from the applicant that the family is well; there is evidence that they are surviving; there is evidence that his father has been back there for about 16 years and has managed to buy and sell a property, regardless of whether he is entitled to or not – that does not appear to be in dispute. It also appears that they are settled and that all of the family remain in Iran.
It is also clear on the evidence that the applicant’s father certainly has left Iran on a number of occasions and specifically when he joined his son to travel around with him. So it appears from the evidence that the borders are porous and that there are ways and means, despite the obvious problems suffered by citizens of other countries who live in Iran, and that it is possible to get by there and live a reasonable life, albeit not to the same standard as in Australia.
Despite the applicant’s protestations in writing and in evidence that he is a lapsed Muslim and indeed may well be regarded in Iran as a Christian, all the evidence points the other way. He accepted a prayer mat when in detention; his formal religion has always been Muslim; he has done the Hajj; he swore an oath on the Quran in the Tribunal; he went to prayers whilst in custody; and he travelled through a number of Muslim countries in the Middle East in 2008/9 including going to Mecca and Medina in Saudi Arabia. All the evidence points to him being a practicing Muslim.
In terms of where this leaves the applicant’s citizenship status is open to interpretation. Initially he was accepted by the Refugee Review Tribunal as being a citizen of Iraq, and if he was born there, it appears that is indeed so. Whether he is also an Iranian citizen is very much up in the air. He maintains he is not; his father is not and cannot be; only his mother is a citizen of Iran, but that does not mean that Iranian citizenship of the rest of the family is relatively easy to get. It is a theocracy and a male dominated society.
There are some issues in relation to whether in fact the applicant would be able to go back to Iran and whether indeed he is quite correct in saying he would end up stateless. I also accept that the Department indicates that he is, in their view, an Iranian citizen. The Department indicates that they will do their best to have him go back to Iran, but accepts the possibility that this may not happen because the Iranian government simply may not play ball.
I also accept, on the evidence available to me, that it is probably easier to live in Iran than it may be in Iraq, although if one looks at the news these days it appears that maybe the situation in Iraq is stabilising, especially with the demise of Islamic State. Certainly Iraq has been a country in turmoil for at least a decade. So either option there is not particularly pleasant, but I make those observations – the facts that are there before the Tribunal.
CONSIDERATION AND DECISION
I will now consider Part C of the Direction with regard to the applicant. The issue of protection of the Australian community and the nature and seriousness of the conduct is very much against him. These are serious offences, especially the last two. The applicant’s record in Australia, which started with relatively minor offences some three years after he got here, did get worse, culminating in the attempted armed robbery, which involved a not insignificant sentence of imprisonment. Unfortunately after being released he compounded that by committing the offences in relation to the taxi driver.
The nature and seriousness of his conduct is certainly not in the applicant’s favour. Had he just had traffic matters, or had he perhaps had one or two traffic matters and then the issue with the cousin and nothing more, that may be another matter. However he has committed a series of offences which show a disregard for Australian law; even the driving offences, which involve a number of drive whilst disqualified matters, are relatively serious offences as they show a disregard for our laws and have to be taken seriously.
The offences in relation to weapons, whilst no harm occurred, are offences of a violent nature which must be taken very seriously.
So this is very much a black mark against the applicant. As well as this, I understand that the taxi driver was elderly too, so it is possible 13.1.1(1)(b) of the Direction may apply as well although the taxi driver did not seem to be traumatised to any great degree.
The court has imposed significant penalties for those offences. There is a frequency of offending and there is a trend of increasing seriousness. It should also be noted that the applicant did not disclose his convictions on his arrival card when he returned to Australia after his holiday in 2009, which whilst a relatively minor matter in the scheme of things does show a disregard for the law, and his explanation for non-disclosure was not convincing.
“Whether the non-citizen has re-offended since being formally warned or…otherwise” is of relevance in this matter. The applicant promised to be of good behaviour in 2006 and said he had learned his lesson then. This criterion clearly goes against him because that was not the case. He reoffended in much more serious ways after 2006, despite his promise.

I am certainly satisfied that these offences seem to relate to and can be explained partially by the applicant’s addiction and by his mental health issues. That is often the case with people committing offences. I am also concerned, however, that whilst he has been taking some medication, he has not taken the necessary steps, despite protestations to do so especially after being released after the armed robbery, to get his act together and get some serious help to overcome his problems.
Unfortunately for the applicant, within about a month or so of being released from prison he was back in custody as a result of the incident with the taxi driver. He clearly has some issues in relation to his mental health and his addiction problems. They unfortunately manifest themselves, and have done so in the past in these incidents, including in problems he had at Centrelink when he could not get paid that day, and where he then threw a temper tantrum which resulted in a number of further offences being committed and a number of convictions recorded as a result.
There are some significant issues here and unfortunately the risk to the Australian community should he commit further offences is in my view a real one because there is very little evidence to indicate that he has done much to actually rehabilitate himself or engaged in any courses that would give the Tribunal confidence that he would not reoffend, or that there is very limited likelihood of him reoffending.
Unfortunately there is certainly a likelihood of the applicant engaging in further criminal conduct were he to be released because of the ongoing problems he is having in relation to mental health, and the fact he is still being treated for substance abuse. His attitude is also a problem in that he does not appear to have appreciated the fact that the ultimate responsibility for his offending is his and his alone. I could have little confidence that he would not reoffend in some way.
The expectations of the Australian community in cases where serious criminal offences have been committed, especially offences of violence involving weapons, are that the offenders should be sent back to where they came from. I note the applicant believes the Australian community would feel that he certainly has done it tough – he came to Australia as a boat person and for whatever reason his father, one could say, abandoned him. This certainly made it tough for him to survive in Australia as a young fellow and he has not really managed. Whatever sympathy he might get for his circumstances, I very much doubt if the Australian community would expect him to stay. The Australian community is prepared to give people a fair go and will give a newcomer a second chance in many instances. But they will not tolerate someone who continues to reoffend over a lengthy period of time, certainly not when the reoffending involves serious crime.
The Australian community does take a fairly strong view when people commit a large number of offences. They do take a strong view when violent offences are committed. I think the expectations of the Australian community in this instance would be that this man should not hold a visa.
Dealing with the other considerations I now come to the international non-refoulement obligations. It is certainly not necessarily the case that if the applicant went back to Iran he would be tortured or shot or anything like that. Clearly it may not be a terribly easy life – it would be not as nice as going to New Zealand, but certainly a lot better than going to North Korea or Somalia or somewhere like that.
The applicant does of course have family in Iran, but still I would expect that if he were to be sent back to Iran – if the Iranians were to take him – that would not be an ideal outcome for him, although I accept the respondent’s views in relation to the international non-refoulement obligations.
At the end of the day I suspect the applicant may well be able to go back to Iran, should the Department of Immigration and Border Protection make the arrangements. It is quite clear that he would be able to go back to Iraq, but that seems to be the least preferred option than going back to his family in Iran. I simply refer back to the comments I made about Iraq – it may be a little bit better now than it was back in 2009, but is still probably not a very desirable place.
It would appear that some weight needs to be given to the applicant’s submission that he may well be stateless. I say that because despite the respondent’s cautious optimism that the Iranians may well take him, that may not be the case. That is something outside the Tribunal’s control, and that is something for the Department to work out.
It appears to me from discussions with the respondent during the course of the hearing that if that were to be the case and the applicant were to be stateless and could not be sent back to Iran, then the Department would have to look at other options, and those other options might well include not keeping him in detention indefinitely. Another option may well be Iraq but I note his status now appears to be, as far as the Department is concerned, that of an Iranian.
It is quite unlikely, from what the Department’s representative said, that the applicant would remain in detention indefinitely. It would not be a life sentence; some arrangements would be made. What they are is a bit unclear, but it would appear not inconceivable that if he were not to go back to Iran, he would be allowed out into the community at some stage.
At the end of the day, whilst these are serious offences, they are not at the highest end of the scale for similar types of crimes, and that would weigh heavily, no doubt, on the Department, were he not to be able to be repatriated. If that were the case obviously the applicant’s great friends and supporters Dr Swincer and his wife and what other support mechanisms they could generate would then kick in, and so if that occurs I think there may well be light at the end of the tunnel for him.
I would still be concerned about his mental health and drug issues and if this ends up to be the only viable option, I would suggest to the authorities that he receive treatment and appropriate courses and training before being released into the Australian community – if that is ever to occur – to minimise the risk of any possible reoffending. Obviously, if the Iranians take him that will not become an issue.
A further consideration is the strength, nature, and duration of ties in Australia. The applicant has been in Australia since he was 16 or 17. He was not a child when he got here, he was a youth.
Unfortunately whilst he has been employed at various times, for a couple of years prior to being incarcerated he was unemployed. He has not really put down roots in Australia. He appears to no longer have any family here; no circle of friends or acquaintances or support networks (except the Swincers) that he can tap into; and that is particularly sad and unfortunate. So, the ties are not all that strong.
In reality the applicant’s family seems to be doing as well as can be expected in all the circumstances in Iran, and going back to Iran may in fact be a better option for him personally if that is how it comes to pass.
There is no impact on Australian businesses and as already discussed there is effectively no impact on victims.
I finally need to look at the extent of impediments if removed. The applicant has mental health issues and substance abuse issues. There are clearly some medical arrangements in Iran which would assist him. I do not for a minute suspect they would be nearly as good as in Australia but I merely note that they are not non-existent. Most importantly, he has no family here now and he has a family network in Iran.
The applicant has indicated in his documentation and in evidence to a lesser degree that he fears the fact that he has been in Australia will make his family and others back in Iran think he is no longer a Muslim. He said his mother told him: “Everyone here thinks you have probably become a Christian because you have lived in Australia”. He also said he is certainly a non-practising Muslim. However, as I have found after examining all of the evidence before me, whilst the applicant has stated he is a non-practising Muslim, and indeed has issues with the faith, he has a prayer mat; he has attended prayer sessions whilst incarcerated; and he has done the Hajj. I am sure a number of people may well do it for tourist reasons, but clearly that is something a good Muslim aims to do at least once in their life. So I think for all intents and purposes the Tribunal would, on the balance of probabilities, have to regard him as a person who appears to have been practising the Muslim faith, and accordingly this issue may well be not nearly the problem he makes out it is. I have already made my findings of fact on this issue and it does seem to me he is clutching at straws and as a result of the evidence before me, I have a feeling he is not being genuine about it being a problem. Accordingly, I give it little if any weight in considering the criteria.
There are no issues in terms of language and family if he were to go to Iran. There are obviously issues in relation to him being an Iraqi, but it appears that the evidence indicates that his family does manage to get by quite well. These are not primary considerations either.
At the end of the day these are other considerations which, though important, are not deemed by the legislation to be as important as the primary considerations of protection of the Australian community from criminal or other serious conduct, the expectations of the Australian community, and the best interests of minor children.
Accordingly, when I look at this matter in its totality, I find that the respondent has made out his case in support of the reviewable decision and that the applicant has not satisfied this Tribunal that it should be changed or varied.
I thank the parties for their submissions and particularly Dr Swincer for his great assistance to the Tribunal, his love of humanity and the role he renders to people such as the applicant. He is a great friend to many people, but particularly to the applicant, and I think that may well turn out to be very important if indeed it is not possible for the applicant to, for whatever reason, go back to Iran.
After considering all the information and evidence before me, I conclude for the reasons given above, that the primary and indeed the other considerations support the respondent’s decision and accordingly the decision under review is affirmed.

I certify that the preceding 133 (one hundred and thirty-three) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member.

...............[sgd]..........................................................
Associate
Dated: 9 June 2017

Date(s) of hearing: 19-20 April 2017 & 10 May 2017

Advocate for the Applicant: Dr G Swincer

Solicitors for the Respondent: Mr W Sharpe, Minter Ellison

[2017] AATA 845

10 May 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Jurisdiction

Date(s) of hearing:	19-20 April 2017 & 10 May 2017
Advocate for the Applicant:	Dr G Swincer
Solicitors for the Respondent:	Mr W Sharpe, Minter Ellison