WLZW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 93

WLZW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 93 (31 January 2020)

Division:GENERAL DIVISION

File Number:          2019/7455

Re:WLZW

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:31 January 2020

Place:Sydney

The decision under review is affirmed.

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

Chris Puplick AM, Senior Member

CATCHWORDS

MIGRATION – mandatory cancellation of Refugee (Class XB) (subclass 200) visa – failure to pass character test – substantial criminal record – whether there is another reason for the mandatory cancellation to be revoked – Ministerial Direction No. 79 – weighing of primary and other considerations – decision affirmed

LEGISLATION

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

CASES

Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755

Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123

Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68

CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858

Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47

CTB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2218

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

FCFY v Minister for Home Affairs [2019] FCA 1222

FYBR v Minister for Home Affairs [2019] FCA 500

FYBR v Minister for Home Affairs [2019] FCAFC 185

G v Minister for Immigration and Border Protection (2018) FCA 1229

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225

Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464

Mendoza and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 686

Minister for Home Affairs v HSKJ [2018] FCAFC 217

Minister for Home Affairs v Omar [2019] FCAFC 188

Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13

Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639

Oluwafemi v Minister for Home Affairs [2018] FCA 1389

PQSM v Minister for Home Affairs [2019] FCA 1540

Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634

Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306

Shi v Migration Agents Registration Authority [2008] HCA 31

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

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

Williams v Minister for Immigration and Border Protection [2014] FCA 674

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 under s 501CA

REASONS FOR DECISION

Chris Puplick AM, Senior Member

31 January 2020

1. The Applicant (WLZW) was born in and is a citizen of Iraq and he is currently 39 years of age. He arrived in Australia in August 2010 as the holder of a Refugee (Class XB) (subclass 200) visa.

2. The Applicant has experience as a skilled worker in the jewellery and goldsmith trades and has also worked as a concrete renderer. He speaks five languages: Arabic, Turkish, Farsi (Persian), Kurdish and English.

3. Between May 2011 and November 2018 the Applicant committed a number of offences and, on conviction, was sentenced to the payment of several fines and a number of terms of imprisonment.

4. As a result of these convictions, the Minister (the Respondent), (through his Delegate) cancelled the Applicant’s visa on 5 June 2018 under the provisions of section 501(3A) of the Migration Act 1958 (the Act).

5. The Applicant sought revocation of the cancellation decision and made representations to this effect on 20 June 2018 however the Minister’s delegate affirmed the revocation decision on 8 November 2019. On 15 November 2019 the Applicant applied to the Tribunal for a review of that decision.

6. The Tribunal hearing took place on 16 and 17 January 2020.

   CITIZENSHIP APPLICATION

7. In September 2017 the Applicant applied for Australian Citizenship.[1] This was formally refused on 20 August 2018[2] because section 24(6) of the Australian Citizenship Act 2007 prohibits the consideration of a citizenship application when the applicant is (inter alia) in custodial care, has criminal charges pending against them or within 2 years of their release from custody.

   [1] Section 501 G Documents at G14/69. Hereafter “G Documents”.

   [2] Decision record – Notification of refusal of an application for Australian citizenship by conferral dated 20 August 2018

   LEGISLATIVE FRAMEWORK

8. For persons who are not Australian citizens, it is a requirement that for them to be or remain lawfully in Australia they must be the holder of a valid and current visa. Once granted, a visa must be cancelled by the Minister under the Act where the Minister (or his delegate) is satisfied that:

   (a)the person does not pass the character test because of the operation of s 501(6)(a), on the basis of s 501(7)(a), (b) or (c)[3]; and

   (b)the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution (e.g. prison), for an offence against a law of the Commonwealth, a State or a Territory: s 501(3A)(b).

   [3] Sections 501(7)(a) and (b) are not relevant in this matter.

9. The character test is defined in s 501(6) of the Act. It provides that a person will not pass the character test if they have a ‘substantial criminal record’: s 501(6)(a). The phrase ‘substantial criminal record’ is defined in s 501(7), and includes circumstances where a person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).

10. The imposition of such a sentence(s) triggers a mandatory response on the part of the Minister. He is compelled by the legislation to cancel the relevant visa (s 501(3A)).

11. Once a cancellation decision has been made the affected party may seek to have that reviewed through a two-stage process. In the first instance they may seek a review within the Department itself. The procedure is as follows:

    ·The Minister must give the person concerned notice of the decision by written notice which sets out the original decision (s 501CA(3)(a)(i)), and particulars of the relevant information (s 501CA(3)(a)(ii)), and invite the person to make representations to the Minister in relation to the revocation of the original decision (s 501CA(3)(b)).

    ·The Minister may revoke the original mandatory cancellation under 501CA(4) where the person makes representations in accordance with the invitation; and the Minister is satisfied:

    (i)that “the person passes the s 501 character test”: s 501CA(4)(b)(i); “or

    (ii)there is another reason why the original decision should be revoked.”: s 501CA(4)(b)(ii).

12. A decision under s 501CA(4) of the Act requires a detailed assessment and evaluation of the factors for and against revoking the cancellation and must look carefully at any claims made by the Applicant in relation to such factors.

13. A determination under s 501CA(4) must be carried out in accordance with any written directions under the Act: s 499(2A). In considering a request for revocation of a mandatory s 501(3A) cancellation, the decision-maker must comply with Direction 79 — Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation under s 501CA (Direction 79) made under s 499 of the Act.

14. If the Minister (or his delegate) refuses to cancel the revocation then the Applicant may apply to this Tribunal for a review of that decision. In conducting that review the Tribunal must make its decision as if it were a de novo decision, taking into account all the material before it at the time of decision making, including material which may not have been before the original decision-maker.[4]

    [4] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.

15. However, in making its decision the Tribunal is bound to comply with the provisions of Direction 79.

16. Section 500(6L)(c) of the Act provides that in cases such as this, the Tribunal must make a decision within 84 days of the Applicant having been notified of the reviewable decision. In the absence of such a decision by the Tribunal the reviewable decision is taken to have been affirmed. In this matter the 84 day period expires on 31 January 2020.

    The character test

17. It is agreed by all parties that the Applicant fails the character test. This is a matter of law. The Applicant has been convicted of offences resulting in the imposition of sentence of imprisonment of 12 months or more: in 2018 he was sentenced to an aggregate term of imprisonment of 14 months. Hence he fails the character test.

18. This means that in order for the cancellation to be revoked there must be “another reason” why it should be revoked.

19. Since the larger question of the Applicant’s character and his position in the community is before the Tribunal it is necessary to set out in full the Applicant’s police/criminal record. [5]

    APPLICANT’S CRIMINAL RECORD

    [5]  G Documents at G6/29.

Court Date	Offence	Sentence
May 2011	Fail to comply with bail agreement	Convicted Discharged without penalty
July 2011	Fail to comply with bail agreement (x2)	Convicted Discharged without penalty
	Unauthorised person driver motor vehicle on road	Convicted Fined $250
	Unauthorised person drive motor vehicle on road	Convicted Fined $300
October 2011	Fail to comply with domestic/foreign violence restraining order	Convicted 1 month imprisonment
	Aggravated assault (no weapon) against child or spouse	Suspended sentence bond $100, 18 months
February 2016	Possess prohibited drug	Fine: $800, drug be destroyed
January 2018	Stalk/intimidate intend fear physical harm (domestic)	Imprisonment 12 months suspended on enter bond of 12 months supervised probation service
	Common assault (DV) (x2)	Imprisonment 12 months suspended on enter bond of 12 months supervised probation service
	Drive motor vehicle menaces another with intent	Fine: $1,000 Imprisonment 12 months suspended on enter bond of 12 months supervised probation service Disqualification – driver: 3 years
January 2018	Destroy or damage property (DV)	Imprisonment 12 months suspended on enter bond of 12 months supervised probation service
May 2018	Drive motor vehicle menaces another with intent	Imprisonment 10 months Disqualification – driver: 3 years
	Assault occasioning actual bodily harm	Imprisonment 10 months
July 2018	Goods in personal custody suspected being stolen (not m/v)	Imprisonment 3 months
August 2018	Contravene prohibition/restriction in AVO (domestic)	Imprisonment (aggregate) 14 months
	Common assault (DW) (x2)	(Call up) Imprisonment (aggregate) 14 months
	Destroy or damage property (DV)	(Call up) Imprisonment (aggregate) 14 months
	Stalk/intimidate intend fear physical etc. harm (domestic)	(Call up) imprisonment (aggregate) 14 months
	Drive motor vehicle menaces other with intent – 1st off	(Call up) Imprisonment (aggregate) 14 months

APPLICANT’S PERSONAL HISTORY

1. Before giving consideration to matters raised by the Applicant in support of the revocation of the visa cancellation, the Tribunal will outline the Applicant’s personal history as submitted in various documents and as discussed at the Tribunal hearing.

2. Most of this detail is set out in a written statement made by the Applicant on 18 December 2019.[6] This statement was shown to the Applicant at the hearing and he swore, under oath, that all the material details therein were true, although he stated, in answer to the Respondent, that the document had been written by another (unnamed) person based on information supplied by the Applicant. Relevantly, he states:

   [6] Statement of Applicant filed 19 December 2019.

   (i)he is a practicing Sunni Muslim;

   (ii)his parents are deceased and he has one brother living in Australia and a    brother and sister living in Iraq;

   (iii)although he attended school until age 22 or 23 he did not graduate from high  school;

   (iv)his father owned a number of shops and he worked in one of them, being a gold and jewelry business;

   (v)in 2001 (he cannot remember an exact date) he married Ms G (whose name is spelt a variety of ways in the documents) who was a Shi’a Muslim causing a serious rupture with both families and resulting in his father throwing him out of the family house and his wife’s family both attacking him and his wife  physically and wrecking their house;

   (vi)this hostility caused the Applicant and his wife to relocate from their home city to Baghdad where his wife gave birth to their first child;

   (vii)in 2003 as the security situation in Iraq deteriorated and as sectarian violence flared he and his wife fled to Turkey where they were registered as refugees by the United Nations High Commission for Refugees (UNHCR);

   (viii)between 2003 and 2010 the couple had three more children and all six of them arrived, as refugees in Australia in 2010 settling in Adelaide;

   (ix)he admits that he committed a number of offences between 2011 and 2012 proffering as a reason that “I did not know the law at the time”;[7]

   [7] Ibid paragraph [44].

   (x)in October 2011 he was convicted of assaulting his wife, a matter which he says he regrets and puts down to “a lapse of judgement.”[8] On sentence he served one month in jail after which time his wife rejected his attempts at reconciliation and in 2012 the couple split with his wife retaining custody of the four children;

   (xi)that at the time he provided some financial support to his wife and children via payments made though the agency of his brother-in-law;

   (xii)in 2014, together with his father and brother he relocated to Sydney;

   (xiii)in 2016 he started using drugs. He states that this was because a girl he knew “insisted and I did not say no. That was a mistake.”[9]

   (xiv)he continued his drug using and became dependent on drugs as a result of the trauma he suffered with the death of his father, to whom he was very close, in 2016 and as a result of suffering additional trauma recalling acts of violence involving members of his family in Iraq (as a child) and witnessing explosions and deaths in that country;

   (xv)at some stage in 2016 he met Ms EE with whom he commenced a de facto relationship. He also became close to her daughters from a previous marriage and, prior to his detention, had formed plans to marry her;

   (xvi)he claims to have suffered from and continues to suffer poor mental health and although having consulted a therapist he was not prescribed any medication. In detention he had surgery to correct a hernia and at some stage had “an issue with my hand”[10] which has restricted use of his left thumb;

   (xvii)in jail he was assaulted “a few times”[11] but also managed to complete a number of rehabilitation programmes;

   (xviii)his brother is prepared to give him employment when he leaves detention and he would like to reconnect with his children and get married to Ms EE;

   (xix)he fears return to Iraq on the basis that he is a Sunni Muslim and Iraq and majority Shi’a country. Moreover he made a return visit there in 2016 to visit his brother and sister but while there he claims he was shot (in the leg), and assault which he blames on his ex-wife’s family members.

   [8] Ibid paragraph [45].

   [9] Ibid paragraph [56].

   [10] Ibid paragraph [87].

   [11] Ibid paragraph [91].

   EVIDENCE

3. The Tribunal now turns to consider the evidence forthcoming at the hearings on 16 and 17 January 2020 supplementing, as it does, written submissions from the Applicant.

   Applicant’s evidence

4. The Applicant gave evidence, assisted, where necessary, by an Arabic language interpreter, by way of a lengthy opening statement, a shorter closing statement and through extensive questioning by both the Tribunal and the counsel for the Respondent.

   General comments

5. The Applicant freely admitted that he had made “mistakes” and that he had committed a number of offences. He agreed that he had been convicted of offences on several occasions and had been subject both to numerous fines, the imposition of Apprehended Violence Orders (AVOs) and more than one term of imprisonment. He stated that in relation to several of his offences they occurred because he was unaware of the laws of Australia or did not know that what he was doing was unlawful because such practices (for example driving without a drivers’ licence) were not unlawful in Iraq.

6. He expressed remorse and regret in relation to his offending behaviour and stated that his period(s) of incarceration had given him time to reflect on his behaviour and impart to him a determination to be more respectful of Australia’s laws and practices. He had completed a number of training and education programmes while in custody, including the EQUIPS Domestic Abuse Program.[12]

   [12] G Documents at G18/84-88.

7. In relation to his children, he told the Tribunal that while he had had no physical contact with them for many years, he was in regular contact via Facebook, although he did not maintain any sort of contact or relationship with his ex-wife. Although in an interview with the Police in March 2018 he informed them that he was “divorced”,[13] he told the Tribunal he had no proof of such a divorce, rather, his ex-wife had told him they were divorced and that she had the papers to prove it. He has never seen such papers.

   [13] Respondent’s Tender Bundle at 133.

8. He said that he has a close relationship with the children of EE and that he would like to re-establish a closer relationship with his own natural children.

9. In his Statement the Applicant had raised issues related to his mental health and recorded that in Adelaide he had seen a psychologist (Dr Mahdi Albayarti) and in Sydney had been seeing a Dr Clara “for therapy”[14]. There is no evidence before the Tribunal as to the professional qualifications or specialisations of either practitioner. Under cross-examination by the Respondent the Applicant stated that he had seen Dr Albayarti “many times” and that his therapy had been related to “how to control my nerves” and “how not to harm myself”, the latter being a reference to lifestyle issues rather than suicidal ideation matters. It appears that the therapy with Dr Clara was part of a Medicare supported mental health plan devised in association with his general practitioner and that ten sessions were booked (the standard for such arrangements) but there was no detail as to how many sessions were attended. Again the focus of this therapy was “how to control myself and not resort to violence.”

   [14] Applicant’s Statement at [84] and [85].

10. Neither practitioner appears to have recommended or prescribed any psychotropic medication and the Applicant made it clear in his evidence that he was not seeking any such intervention but wanted to rely on “natural” therapies and had an aversion to taking pharmaceutical products other than tramadol which he uses to ease his back pain.

11. While in immigration detention the Applicant does not appear to have sought any specialist counselling nor has he made connections with the survivor of traumas organisation STARTS.

12. The Applicant was cross-examined at length by the Respondent in relation to his various convictions and interactions with the legal and custodial authorities and it is important to consider each of the principal matters raised therein in terms of the testimony and evidence given by the Applicant. Other convictions will be considered separately.

    Adelaide 2011

13. On 6 October 2010 (that is less than two months after his arrival in Australia) the Applicant entered into a bail agreement certified in the Magistrate’s Court of South Australia.[15] The Tribunal documents do not reveal the nature of the offence for which bail was granted. However, on 11 May 2011 the Applicant was convicted for a breach of those bail conditions. On this occasion he was discharged without further penalty in recognition of time spent in custody.[16] Two further such convictions followed in July 2011.

    [15] Tender Bundle at 37.

    [16] Ibid at 39.

1. On 13 October 2011 the Applicant was convicted of two offences: aggravated assault and breach of a Domestic Violence Order which had been granted on 15 July 2011.[17] The offence took place on 1 August 2011 and is described in the Applicant’s statement as follows:

   “In October 2011, I was also convicted of hitting my wife. At the time I had asked my wife to make food for the kids, but she had not. When I went home, the kids were asking me where the food is, but my wife had not made the food. I was tired and stressed from work. I was angered and I hit her. I had a lapse of judgement.”[18]

   [17] Ibid at 42-44.

   [18] Applicant’s Statement at [45].

2. Under cross-examination by the Respondent, the Applicant elaborated by saying that when he arrived home his wife was talking on the phone and when he asked her about the preparation of food, she ignored him and continued talking. This provoked him to hit her.

3. The statement from the Magistrate’s Court shows that the Applicant was sentenced to a term of imprisonment of one month and that a good behaviour bond of 18 months was imposed on the basis that the sentence was suspended.[19] In the Delegate’s reasons for the refusal of the revocation request there is also reference to the sentence being suspended.[20] However the direct evidence of the Applicant was that he served one month in detention.[21] He went on to state that “After I left the jail, she (his wife) did not want to get back together with me.”[22]

   [19] Tender Bundle at 42.

   [20] G Documents at G5/19.

   [21] Applicant’s Statement at [46]..

   [22] Ibid at [47].

4. The Tribunal notes that this offence took place in front of the minor children and further, that the DVO encompassed not only the Applicant’s wife but also his child (EF) who would have been around 4 years of age at the time and who, it is alleged, he had assaulted by way of parental chastisement which the Applicant’s described in oral testimony as “a slap on the back.”

   Liverpool, NSW, December 2017

5. On 5 December 2017 the Applicant was driving along George Street, Liverpool, when another vehicle appears to have cut in front of him. The Applicant then yelled a number of obscenities at the other driver and, when that vehicle turned into Scott Street, pulled in front of him causing both vehicles to come to a stop. The Applicant then got out of his car and approached the other vehicle whereupon the driver secured his widow against which the Applicant started beating. The Applicant then opened the driver’s door and while the driver was still restrained by his seat belt, the Applicant hit him in the head several times. When the driver freed himself from the seat belt the Applicant pulled him out of his vehicle and dragged him along the ground causing him bruising and abrasions. The intervention of bystanders put an end to this confrontation and the Applicant walked away.[23]

   [23] Tender Bundle at 84-87, being Police Fact Sheets.

6. In his oral testimony the Applicant made a number of claims about this incident. In the first place he said that he was offended by the other driver making obscene remarks to him which he adduced by observing the driver saying something which was visible in the rear-view mirror in the other vehicle and because the other driver stuck his head out of the window to direct abuse at him.  Moreover, he says that once he had pulled the other driver out of his vehicle that person had produced a hammer and proceeded to assault the Applicant.

7. The Tribunal finds neither of these claims to be credible. To claim to be able to observe conversations in a rear-view mirror of a vehicle in front and for the driver of that vehicle to stick his head out of the window and shout abuse to a vehicle travelling behind (according to the Police Report) at some speed, stretches credulity. For a driver who has been assaulted, tangled in a seat belt and then dragged from his car to suddenly produce a hammer, again reaches the limits of implausibility. The Tribunal also notes that this is the first mention of a hammer being produced. The Applicant declined to give a statement to the Police on this matter,[24] and there is no mention of it in any other documentation.

   [24] Ibid at 86.

8. This was, to all intents and purposes, an act of sudden violence, an act of road rage.

9. However, all of this took place in front of a thirteen year old child who was the daughter of the victim-driver, a passenger in the vehicle, and who must, on any understanding, have been terrified by what she witnessed with the unprovoked and violent assault upon her father by a total stranger.

10. When the matter came before the Court on 28 May 2018 the Applicant stated that at the time of the assault he was using “ice”. The sentencing Magistrate took this into account (along with the Applicant’s guilty plea), and while characterizing the events as “objectively serious matters”,[25] imposed a sentence of ten months (five month parole period).

    Wollongong, NSW, December 2017

    [25] G Documents at G7/42.

11. On 24 December 2017 the Applicant and Ms EE were driving back from Wollongong when it is alleged Ms EE told the Applicant that she wanted to end their relationship and not see him any longer. This caused the Applicant, who was driving, to stop the car, make threats to kill her and then seize her by the throat and start to choke her. This lasted “for a short amount of time” according to the Police Report.[26] The Applicant then resumed driving and they arrived at Cabramatta where Ms EE had left her car. Once Ms EE drove off the Applicant followed her and then rammed her car from the rear on three occasions, the latter forcing her onto the kerb where her car hit a pole. The Applicant then approached the stationery car and Ms EE accelerated away to try and escape before stooping after nearly hitting an oncoming vehicle. The Applicant then opened her car door, pulled her out of her vehicle and hit her several times. A bystander sought to intervene and was punched by the Applicant who then returned to his vehicle and drove way.

    [26] Tender Bundle at 12.

12. Ms EE took herself to the Emergency Department of Liverpool Hospital where her injuries were treated and details of them photographed.

13. This matter came before the Court on 10 January 2018 where the sentencing Magistrate noted that:

    “… these matters are very, very serious, and it appears that not only were you violent towards this lady on this particular date, but you had also been taking some illicit drugs, ice. …. The way you used your motor vehicle was absolutely scandalous.”[27]

    [27] G Documents at G8/46-47.

14. The Court imposed three sentences of 12 months on each of the counts of stalk/intimidate intend fear physical/mental harm – drive motor vehicle with menaces – common assault. However the sentences were suspended and replaced with a good behaviour bond for 12 months together with a community corrections order, a fine ($1,000) and licence disqualification (3 years).

15. The evidence in this matter is set out in the Police Report of 24 December 2017[28]and the Police Fact Sheets laid before the Court.[29]

    [28] Tender Bundle at 12-13.

    [29] Ibid at 62-65.

16. Although the Applicant pleaded guilty before the Court, in oral evidence to the Tribunal he disputed a number of the alleged facts, including that he had ever choked Ms EE or threatened to kill her. In her testimony to the Tribunal Ms EE denied that she had ever said that she wanted to end the relationship and that, in effect, due to the passage of time, she could not remember details of the incident.

17. The Tribunal does not believe either the Applicant nor Ms EE in terms of their current statements about this incident and prefers to rely on the Police records, and the verdict of the Court based upon the Applicant’s guilty plea.

    Canley Vale, NSW, March 2018

18. After the Wollongong the Police applied for and were granted an Apprehended Domestic Violence Order (AVO) against the Applicant (on 25 December 2017) which prevented him from approaching Ms EE.[30] A further Order appears to have been made on 9 January 2018.[31] Nevertheless, on 25 March 2018 the Applicant went to the home which he and Ms EE had shared in order to “collect stuff” of his which he had left there. This was a breach of the AVO. The Police Facts Sheet records that Ms EE attempted to prevent the Applicant entering her unit and yelled at him to leave. He did not do so, but entered the unit and then, when a verbal altercation broke out, the Applicant seized her by the throat and then hit her on the head on several occasions and threatened to kill her.

    [30] Ibid at 65.

    [31] Ibid at 134.

19. Ms EE’s three children were present in the unit during all of these events.

20. The Applicant then remained in the unit overnight while Ms EE remained there because she was afraid to leave. However the following morning (26 March 2018) Ms EE went to a friend’s house in Liverpool and at 11.00 am attended the Police Station in Liverpool where she signed a three page statement and, with her permission, the Police took photographs of various bruises on her right forearm and on her legs.

21. At some stage during this period Ms EE had left the unit and then returned accompanied by her friend (MA). She told him that she was afraid to go into the unit in case the Applicant was still there so MA went up to the unit and confronted the Applicant. He was then chased down the stairs by the Applicant (Ms EE and the children remaining in MA’s car) where he retrieved a “samurai sword” from his car while the Applicant picked up a piece of wood and the two of them assaulted each other. The Applicant sustained sword cuts to his back, hand, head and arms – such wounds being later treated at Liverpool Hospital where they were also photographed.[32] This incident appears to have taken place around 7.15pm or 7.30 pm on Monday, 26 March 2018.

    [32] Police Exhibit photographs dated 26 March 2018.

22. However, in the record of interview conducted by the Police with the Applicant on 27 March 2018 he claims that he spent three days with Ms EE at her unit from Friday 23 March until leaving on Monday 26 March[33] and that on the Friday night, “I slept with her in her bedroom.”[34]

    [33] Tender Bundle at 137.

    [34] Ibid at 143.

23. In that same interview the Applicant strenuously denies that he in any way assaulted Ms EE: “But I don’t touch her, because if I touch her, I know what’s going to happen.”[35] Rather he says that Ms EE bruises easily and that even when they are holding hands “it leaves marks on her skin”; “(She) is like cake. Her body is soft and my hands are rough” and “At most of the time I left, my kiss left a mark on her cheek.”[36]

    [35] Ibid at 138.

    [36] Ibid at 138 and 140.

24. Whatever the precise details of this incident, what is immediately relevant is that the actions of the Applicant were a clear breach of the AVO and that once again Ms EE has had cause to complain of being physically assaulted by the Applicant and has made a statement to the Police to that effect. In her evidence to the Tribunal she spoke of being hit on the head “with a cup” at the time of the March 2018 assault.

    Evidence of Ms EE

25. Ms EE provided a Statutory Declaration dated 18 December 2019[37] and sworn evidence by telephone on 16 January 2020. Much of her evidence was confusing and often contradictory. Some of the key points however were:

    ·In relation to the incident(s) which took place during the drive from Wollongong, she confirmed the Applicant’s version of events while they were both in the same car namely, that in contradiction of the statement in the Police Record she had not stated that she wanted to terminate their relationship and that the Applicant had never spoken words to the effect that he might want to kill her. On the other hand she confirmed that when they separated and she collected her own car something occurred which caused the Applicant to ram her car several times causing her vehicle to mount a kerb and crash into a pole. She confirmed that, at that stage she tried “to get away” from the Applicant and that he had pulled her out of her car. She also said that it was her car, not his, that collided with the car of the witness who reported the whole incident. She cannot remember the details of how the Applicant may or may not have physically manhandled her on that occasion. She stated that while she agreed with the Applicant that the couple had smoked ice together in the past, that was not the case on this occasion, thereby contradicting the evidence to the contrary given by the Applicant.

    ·In relation to the incident where the Applicant was assaulted by a person wielding a samurai sword, she confirmed that the assailant was a “male friend of hers” and that she had known the assailant and had borrowed his car at the time of the incident.

    ·On a personal level she confirmed that she and the Applicant had lived together for a number of months before he was incarcerated, at which time they “separated”; that he had, in the past provided some degree of financial support and that she had, in more recent months, visited him in the Villawood Detention Centre.

    ·She stated that her children were very fond of the Applicant and that they regarded him as something of a “father figure” in the absence of their own biological father.

    ·She characterised their current relationship as one of “good friendship” and resiled from her Statutory Declaration statement that they were planning to get married on the Applicant’s release from detention. Rather, their future relationship would be on the basis of “seeing what happens in the circumstances.”

    [37] Statutory Declaration of EE.

26. The critical part of Ms EE’s evidence concerned the Applicant’s violent behaviour towards her. In her Statutory Declaration she writes:

    “I believe (the Applicant) acted out violently as he did because of a woman in his life. I believe she would negatively influence him against me. I believe that it is because of the actions of this woman that (the Applicant) acted so violently towards me. (The Applicant) was open about the woman and told me about her. I knew by the way he spoke and acted she has negative control over him.”[38]

    “After he came out of jail he came to my house in March 2019 to collect his belongings. Unfortunately, he abused me again and I reported it to the police the next day.”[39]

    [38] Ibid at paragraph [21].

    [39] Ibid at paragraph [16].

27. In elaborating on this latter matter in her oral evidence Ms EE said that on this occasion the Applicant had hit her on the head with a cup.

28. Despite these instances of physical abuse and assault, Ms EE still described the Applicant as “an angel compared to my previous partners”[40] and she lays great stress on the extent to which he has apologised to her on numerous occasions for his actions and expressed genuine remorse about them.[41]

    [40] Ibid at paragraph [23].

    [41] Ibid at paragraph [22].

29. The Tribunal is compelled to note that the Applicant’s assault on Ms EE after his release from detention in March 2019 belies any claims that he otherwise makes about his incarceration experience giving him time to reflect upon and seek to correct his violent behaviour.

    Evidence of KK

30. KK is the younger brother of the Applicant and arrived in Australia at the same time as the Applicant and their father. He is divorced and his ex-wife and daughter live in Adelaide, however they travel regularly to Sydney so the daughter can spend time with her father. On occasions when the father has other commitments the daughter spends time with the Applicant and they are close. The Applicant supplied several photographs of him with this child at various outings. Immediately prior to the Applicant’s incarceration KK and the Applicant lived together as they had also done intermittently between 2013 and 2015. KK visited his brother during the latter’s incarceration in the Hunter Correctional Centre (Cessnock, NSW).

31. KK stated that in 2019 he acquired Australian citizenship and that he subsequently travelled back to Iraq. While there he made efforts to locate the remaining members of his family (his brother and sister) but was unable to do so.

32. Although KK knew of his brother’s use of ice he stated that he otherwise knew nothing of the Applicant’s experiences during his 2016 visit to Iraq – it was not a matter which they talked about. Under cross-examination by the Respondent, he admitted that his brother had never mentioned to him that he had been stabbed or shot, nor had he confided in him any other details either about his experiences in Iraq or in relation to any of the matters for which he was convicted in the Australian courts.

33. KK indicated, both in written and oral testimony that, were his brother to be released and remain in Australia he would be in a position to offer him work in the concrete rendering business either in Sydney or in Newcastle.[42]

    [42] G Documents at G16/82.

    Other Offences

34. DRUGS: The Applicant has convictions for several minor drug offences, each resulting in fines. He admits to using ice and states that this started in 2016 under pressure from a girl he knew. He states that his use of drugs was to help him overcome feelings of depression and loneliness, especially after the death of his father.[43] He insists that he stopped using drugs after December 2017 and that he certainly gave up any thoughts of drugs (and smoking) while incarcerated. His evidence to the Tribunal was to the effect that he smoked ice (sometimes with Ms EE) a couple of times every fortnight and that one of the reasons for not using more was that ice was “expensive”.

    [43] Applicant’s Statement at [56]-[60]. Applicant’s Statement of Facts, Issues and Contentions at [6].

35. The Applicant’s statement that he commenced using drugs in 2016 and that this was in part in response to the loss of his father is contradicted by two pieces of evidence. In the first instance his brother KK clearly established that the father’s death was on 8 February 2017, but leaving that aside as perhaps a misstatement of a relatively adjacent date, the NSW department of Corrective Services Case Note Report of 31 July 2018 records the Applicant as informing the interviewing officer that he had been using drugs since 2011.[44]

    [44] Tender Bundle at 175.

36. THEFT: On 14 February 2018 the Applicant was attending Liverpool Police Station on an unrelated matter when he was asked to produce some proof of identity. He tendered a driver’s licence which had clearly been issued to another person. When asked about the origin of the licence he told the Police that it belonged to a friend of his who had left it at his house and that he mistakenly taken it and presented it to the Police instead of his own licence.[45] This was not true. In evidence to the Tribunal the Applicant stated that while he was walking to the Police Station he had come across a black bag on the street. He opened it and found several items including a driver’s licence. He took the licence and then left the bag where it was.

    [45] Tender Bundle at 82.

37. Apart from the implausibility of this story, knowing that he was en route to the Police Station, if such a bag had been found with items in it (including identifying items), the honest thing to do would have been to take it and hand it in to the Police for return to the genuine owner.

38. The Applicant was charged with goods in custody suspected of being stolen and on 24 August 2018 was convicted and sentenced to three months imprisonment.[46] At the time the Applicant was already in custody and had been so since 28 March 2018.[47]

    [46] Ibid at 31.

    [47] G Documents at G23/109.

39. CALL UP: On 24 August 2018, as a result of the breaches of the AVO the Applicant was called-up before the Court and his suspended sentences were converted into full sentences aggregating 14 months.[48] An appeal against the severity of the sentences was dismissed by the Court on 7 November 2018.[49]

    [48] Tender Bundle at 31.

    [49] Ibid at 156.

    Other Incidents

40. Apart from matters coming before the Courts, the Applicant has come to the attention of the Police on a number of other occasions for activities involving acts of violence on his part either on his own or involving more than one party.

1. On 3 March 2015 there was some sort of altercation in the Applicant’s workplace in which both the Applicant and another worker apparently confronted each other, the Applicant producing and threating to use a knife at some point. The Police took no action in the matter.[50]

   [50] Ibid at 20.

2. On 21 August 2017 KK’s ex-partner reported to the Liverpool Police Station that the Applicant had assaulted her by grabbing and pulling her hair at a restaurant or café. The Police took no action in relation to the matter, evidencing some concern about the validity of the complaint.[51]

   [51] Ibid at 15.

3. Both of these matters were put to the Applicant by the Tribunal and in relation to each the Applicant denied that he had acted in an aggressive or threatening fashion.

4. The Respondent also put to the Tribunal that there had been a number of incidents while the Applicant was in custody involving him infights or confrontations with other inmates.[52] The Tribunal advised the Respondent that it regarded matters such as this as being of minor consequence and indeed no more than part of the daily routine of prison life. There were no instances of the Applicant being sanctioned for any breaches of prison discipline or any serious offences.

   [52] Ibid at 223-230.

5. Similarly, where the Police took no further actions in relation to any incidents, it would not be appropriate to count any of them as weighing significantly against the revocation cancellation claims of the Applicant, although they do suggest that the Applicant finds anger management a significant challenge.

   Credibility Issues

6. Much of the oral evidence given to the Tribunal by the Applicant was contradictory to that appearing in various Police Reports or Fact Sheets. On at least two occasions (the Wollongong and Liverpool incidents[53]) the Applicant was invited to give a formal statement to the Police to set out his version of events, but declined to do so. Instead he pleaded guilty on the basis of the material the Police laid before the Courts.

   [53]Ibid at 65 and 86 respectively.

7. Similarly, testimony from Ms EE was contradictory to both Police reports and Fact Sheets and indeed contradictory to material in those documents which she had supplied to the Police initially.

8. The Tribunal cannot but conclude that both the Applicant and Ms EE were witnesses of less than full credibility and that where evidence from the Police is contradicted by that of either of them, the former is to be preferred. There is no reason to doubt the credibility of the evidence supplied by KK.

   Other Representations

9. Once an individual has been notified that the Minister is considering cancellation of their visa, and is invited to make representations to be taken into account by the decision-maker, then those “representations play a central role in the relevant statutory regime.”[54] In this instance, apart from the representations made by the Applicant himself there are representations made by Parish Patience lawyers, who for a brief period acted pro bono for the Applicant.

   [54] Minister for Home Affairs v Omar [2019] FCAFC 188 at [34(g)].

10. They provided a Statement of Facts, Issues and Contentions (dated 18 December 2019).[55] The only matter raised in that statement not otherwise raised for consideration by the Tribunal from other sources was the suggestion that the Applicant’s case should not be determined “without allowing the applicant to be assessed by a psychiatrist as his behaviour could potentially be managed by medication.”[56]

    [55] Applicant’s Statement of Facts, Issues and Contentions.

    [56] Ibid at paragraph [5].

11. There is no material before the Tribunal which suggests that this would be of any utility nor is there any basis advanced as to why such a course of action should be taken. Indeed, in his own evidence, in response to a question by the Tribunal, the Applicant said that neither of the two psychiatrists he had consulted previously had ever prescribed medication and, in any event, he would not take such medication as he believes in natural therapies as entitle preferable to prescription drugs.

12. For the sake of completeness it should be noted that the Applicant also provided a letter of support from his friend Mr Alhashemy which attested to their being good friends, respectful of each other, but otherwise failing to address any of the matters of concern to the Respondent or the Tribunal.[57]

    CONSIDERATION OF THE APPLICATION FOR REVOCATION

    [57] G Documents at G17/83.

    Direction 79: Revised considerations

13. Ministerial Direction 79 became operational on 28 February 2019 and follows a series of such Directions dating back to 1999[58]. It is of particular relevance to note the changes which Direction 79 introduced in a way which differed from Ministerial Direction 65 which had been operational since 2014. This is because those changes require the Tribunal to give particular attention and regard to certain matters which have been highlighted as being of heightened importance as a matter of public policy.

    [58] Direction 17 (1999); Direction 21 (2001); Direction 41 (2009); Direction 55 (2012); Direction 65 (2014).

14. The first of these occurs in Paragraph 6.3 which states the “Principles” underlying the Direction. Subclause (3) now reads:[59]

    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 such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    [59] Words in bold indicate text added to and strike through indicates words deleted from Direction 65.

15. The second relevant change in is Part A, section 9 of the Direction, which is headed “Primary consideration – visa holders”.

    9.1.1 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 of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

    (c)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;

    (d)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;

    (e)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;

    (f)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

    (g)The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;

    (h)The cumulative effect of repeated offending;

    (i)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

    (j)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);

    (k)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

16. The relevance in this instance is to the effect that the Direction places particular emphasis upon the need to protect women and children and requires the Tribunal to have particular regard to cases where women have been the victims of crimes of violence, regardless of any decisions of, or penalties imposed, by the courts.

    MINISTERIAL DIRECTION 79: STATUS

17. The Tribunal is required to take the Direction into account and give it full and proper regard when making its own independent decision on a request for revocation of a visa cancellation. Failure to take proper account of the Direction will lead the Tribunal into jurisdictional error:

    [34] Authorities in this Court have expressly accepted that a failure to comply with ministerial directions made under s 499 can constitute a jurisdictional error.

    [35] Several Full Court decisions have treated this particular Direction as not only binding on the Tribunal, but also as the source of potential jurisdictional errors for non-compliance.[60]

    [60] Williams v Minister for Immigration and Border Protection [2014] FCA 674 per Mortimer J. Citations omitted.

18. However this is not entirely a black and white or automatic process.

19. As far back as 1979 the Full Federal Court held that:

    “If the original decision maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the tribunal to take into account in reviewing the decision. On the other hand, the tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision was, on the material before the tribunal, the correct and preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[61]

    [61] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at [420].

20. In a further review of the same case, the then President of this Tribunal made it clear in relation to Ministerial discretion (as expressed in policy directions) that, with reference to a decision-maker, “His discretion cannot be so truncated by a policy as to preclude consideration of the merits of a specified class of cases.”[62]

    [62] Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at [640].

21. In 1981 the Full Federal Court warned that:

    “On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[63]

    [63] Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 per Lockhart J at [651-652]. See also Frank J at [642] and Deane J at [646].

22. In 1985 the Tribunal noted:

    “Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account”.[64]

    [64] Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306 at [21].

23. In 1994 the Full Federal Court opined:

    “it is right to say that the tribunal which operates as part of a continuum of administrative decision-making, is not bound by government policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review.”[65]

    [65] Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13 at [28].

24. Most recently, Mortimer J, after a comprehensive review of the authorities on this matter concluded (some years after her decision in Williams):

    “…policy is not to become a rule of law. The statute is the expression of the rule of law. Executive policy cannot, in form or more importantly in substance, be perceived by decision-makers as, or operate as, a rule.”[66]

    [66] G v Minister for Immigration and Border Protection (2018) FCA 1229 at [210].

25. A decision by Senior Member P W Taylor SC in Aciek,[67] states the  relationship between Ministerial Direction 65 (the immediate predecessor of Direction 79) and the statutory responsibilities of the Tribunal as follows:

    7. Direction no. 65 does not derogate from the Tribunal’s duty to reach the preferable decision in the particular case before it. The guidance it provides is intended to assist in reaching such a decision:- Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [50] per Robertson J. As the Minister submitted in that case

    [35]... the Direction does not determine the law or alter the content of the law. Rather, it provides guidance and direction to decision-makers. Decision-makers are required to comply with the Direction but the Direction does not itself create, vary or remove rights, privileges or obligations. In particular, the Direction does not impose any limit on the matters that may be taken into account; properly construed, it does not stipulate the weight to be given to those matters in each and every case; and does not make relevant (in a mandatory sense) any consideration that is not already relevant by reason of the text and context of s 501 of the Migration Act.

    [67] Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755.

26. By contrast a decision of the Full Federal Court in Bochenski outlines a far more restrictive approach to the Tribunal’s discretion:

    
    [65]

    It should be noted that directions under s 499(1) are confined to written directions, whereas directions under s 496(1A) are not so confined. Further, written directions under s 499(1) are required to be tabled in Parliament: s 499(3). It follows that directions under s 499(1) are both public and formal, as well as clearly binding on delegates and Tribunal members as an overt fetter on discretion.[68]

    [68] Bochenski v Minister for Immigration and Border Protection[2017] FCAFC 68.

    MINISTERIAL DIRECTION 79: PROVISIONS

27. Direction 79 provides that the decision is to be approached within the framework of the Principles in paragraph 6.3 of the Direction.

28. Guided by these Principles, the decision-maker must take into account the “primary   considerations” in Part C of Direction 79, in deciding whether to revoke a mandatory cancellation.

29. The primary considerations are listed as:

    (a) protection of the Australian community from criminal and other serious conduct;

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

    (c) expectations of the Australian community. 

30. The decision-maker must also take into account “other considerations” some of which may be relevant and others potentially not. These 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; and

    (e) extent of impediments if removed.

31. The Tribunal is required to consider each issue in turn. However, it is important to emphasise two other aspects of the deliberative process:

    ·while the Tribunal must be guided by the Ministerial Direction and give effect to its provisions and requirements, when considering the totality of the evidence, “the choice of and weight given to, the material before the Tribunal is a matter for it” [69] and “The Tribunal is entitled to accept or reject or give such weight to the evidence provided as it thinks appropriate in all the circumstances.”[70]

    ·although some considerations are listed as “primary” and others as “other” in the Direction, this is not to be taken to imply that “primary” considerations necessarily carry more weight or authority than “other” considerations,[71] and indeed the individual or combined weight of “other” considerations may overbear those designated as “primary”.[72]

    [69] Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123 at [45] per Spender, Moore and Foster JJ – emphasis in original.

    [70] Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27} per French J.

    [71] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]-[26] per Colvin J.; PQSM v Minister for Home Affairs [2019] FCA 1540 at [51] per Colvin J.; Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [24], [37] per Greenwood, McKerracher and Burley JJ.

    [72] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88]; FCFY v Minister for Home Affairs [2019] FCA 1222 at [50] per Thawley J.

    PROTECTION OF THE AUSTRALIAN COMMUNITY

32. Section 13.1(1) of Direction 79 enjoins decision-makers to note that remaining in Australia is a privilege and that non-citizens are expected to be law abiding, have respect for important institutions and not cause or threatened harm to individuals in the community.

33. Section 13.1(2) involves a consideration of (a) the nature and seriousness of the applicant’s conduct to date and (b) the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.

34. There can be no doubt that the Applicant’s offences have been serious nor that he has an extensive record of violent offences. Violence has been directed at least against his wife, against his partner (Ms EE), against another driver and against an innocent bystander. He has been convicted of assault on four occasions.

35. Section 13.1.1(I) lists nine specific factors to which decision-makers should have regard. Most relevantly:

    ·violent crimes are to be “viewed very seriously” (subsection (a))

    ·crimes of a violent nature against women are to be “viewed very seriously” (subsection (b))

    ·the frequency of offending and any trend of increasing seriousness is to be taken into account (subsection (e))

    ·the “cumulative effect of repeated offending” is to be considered (subsection (f)).

36. In this instance the Applicant has committed violent offences, the majority of which have been against women. There are eight such convictions. He has “progressed” from minor drug or traffic offences to serious offences of violence. His cumulative record of offences has resulted in suspended sentences eventually being called-up into full-time custody. His repeated breaches of clearly defined AVOs bespeak of a serious disregard for the law and for the orders of the Courts.

37. Section 13.1.2 addresses the risk to the Australian community of an Applicant reoffending in terms of the nature of harm to individuals should such conduct occur. The evidence before the Tribunal suggests strongly that the Applicant has serious issues with anger management and a serious inability to control outbursts of violent behaviour. He has admitted that outbursts of anger/aggression have been triggered by such trivial incidents as his wife failing to pay attention, stop talking on the phone and prepare food when told to;[73] his wife “talking to another guy on telephone”;[74] or another driver allegedly bad-mouthing him. He states that his “relationship breakdown was due to her speaking to other men on telephone.”[75]

    [73] Applicant’s Statement at [45].

    [74] Tender Bundle at 215.

    [75] Ibid at 210.

38. There have been two external objective assessments of the Applicant which are relevant to the Tribunal’s considerations.

39. The Applicant draws support from his completion of the EQUIPS Domestic Abuse Program.[76] However the Case Note Report by the Departmental officer notes:

    (The Applicant) worked struggled (sic) at time throughout the program, he received exposure to the varying topics including unhealthy beliefs and thoughts around domestic abuse. (He) appeared to struggle at times with challenges about his previous offending behaviours and his relationships, he appeared to show an understanding of the concepts of domestic violence discussed in groups, yet somewhat unable to personalise the changes needed to decrease his risk of reoffending in a relationship….. There remains uncertainty about his ability to fully understand the key concepts underpinning the domestic abuse program…..[77]

    [76] G Documents at G20/88.

    [77] Tender Bundle at 185. Report dated 6 December 2018.

1. Similarly in the Pre-sentence Report submitted by the Fairfield Community Corrections Office, dated 10 January 2018 the Applicant was assessed as being “unsuitable” for a Community Service Order “due to his unresolved substance abuse issues and current accommodation instability.”[78] On the latter point the Tribunal notes that the Applicant appears to have provided addresses to the Liverpool Community Corrections Service which were either false or misleading.[79]

   [78] Ibid at 199.

   [79] Ibid at 200.

2. The Probation and Parole Service of the NSW Department of Corrective Services undertook a formal assessment of the Applicant’s likelihood of reoffending and rated it at “medium”.[80]

   [80] Ibid at 216.

3. The Applicant has consistently ignored the requirements of AVOs; he does not appear to have completed any anger management course (although it is recorded that he expressed an interest in undertaking the EQUIPS Aggression course[81]); nor does he appear to have undertaken any formal programme to address his substance abuse. He has accumulated fines of some $3000.[82]

   [81] Ibid at 185.

   [82] Ibid at 175.

4. The Tribunal cannot be satisfied that the Applicant will not reoffend, indeed it is impelled to the view that, especially in the absence of formal programmes or interventions to deal with issues of violence and substance abuse, the risk of reoffending is at the very least in the medium to higher range.

5. Any objective consideration of the Applicant’s record cannot fail to conclude that this primary consideration (in both limbs) weighs heavily against his revocation of cancellation request.

   THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

6. There are three sets of minor children whose interests must be considered: the Applicant’s natural children; the children of Ms EE and the daughter of his brother KK.

7. The Applicant has four natural children, one of whom is now an adult. The others were born in 2006, 2007 and 2011. The last of these children was born around the time of the couple’s separation and thus would have no memory of his father.

8. The evidence before the Tribunal is that all of the children reside in Adelaide with their mother who is clearly the primary carer. There appears to be no court orders or other arrangement formalising any form of parental rights for the Applicant. He has occasionally provided some form of financial payments to the family but is does not appear that there are any arrangements for him to make regular financial contributions to their wellbeing and support and, in any case[83], he stated in evidence that his ex-wife refuses to accept such support from him. He does not appear to have had any formal physical contact with his children since 2011.[84] In his Personal Circumstances Form, (undated by received 12 June 2018) the Applicant records that he is “unsure” of any contact details for his wife.[85]

   [83] The Police Facts Sheet of 25 December 2017 records child support payment of $100 per fortnight, Ibid at 59; whereas that of 27 March 2018 records nil payments, Ibid at 67.

   [84] Tender Bundle at 175.

   [85] G Documents at G14/70.

9. Such contact as he has with his natural children appears to have been and continues to be by telephone or occasionally via Facebook. Contacts of this nature can occur whether they are from somewhere in Australia or form somewhere in Iraq without compromising their inherent nature.

10. In a bundle of some 42 photographs submitted by the Applicant there are a number of photographs of his natural children. None of them are taken with him, some with their mother and others in otherwise undescribed settings or as Facebook profiles.[86]

    [86] Photos filed by Applicant on 18 December 2019.

11. He has certainly made no meaningful contribution to their upbringing or welfare since 2011. As noted above, one of the children was listed as a protected person in the domestic violence restraining order of July 2011.

12. The Tribunal does not doubt the Applicant when he says that he wants to have a closer relationship with his children, nor does it discount the potential desire of those children to establish a meaningful relationship with their father at some stage in the future.

13. Equally the Tribunal cannot but note that in his Statement to the Tribunal of 18 December 2019, throughout its 102 paragraphs none of the children is mentioned by name. The only references to the children at all are:

    (42) Eventually I began to work in welding full-time to support my family. The children would go to school.

    (45) …. At the time, I had asked my wife to make food for the kids, but she had not. When I went home the kids were asking me where the food is ….

    (49) In 2012 we separated. At the time we had 4 kids together. I maintained a civil relationship with my ex-wife and she wold send me updates on the kids.”

    (52) When the kids needed money, my ex-wife would message me and I would send them money.

    (94) After I leave (jail), I plan to go and see my children first thing.

14. This is somewhat at odds with a far more effusive description of the relationship with, and the naming of Ms EE’s children.

15. Obviously, with the children living in Adelaide with his ex-wife there has been no occasion on which any of them have visited the Applicant either in jail or in immigration detention.

16. When asked to give the dates of his children’s birth, the Applicant could recall the year of their birth but not their precise date of birth. This was in line with his inability to remember either the date of his marriage or the death of his father.

17. The Tribunal cannot find that there has been anything other than a cursory and occasional relationship between the Applicant and his natural children, although he desires for this to improve and his children are entitled to an opportunity to make contact with their father should they desire to do so.

18. Section 13.2(4)(a) enjoins the decision-maker give “less weight” to this consideration where “there have been long periods of absence, or limited meaningful contact” between the parties.

19. The section also directs attention to “the extent to which the non-citizen is likely to play a positive role in the future” (subparagraph (b)); “whether there are other persons who already fulfil a parental role in relation to the child” (subparagraph (e)) or “evidence that the child suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct” (subparagraph (h)).

20. There is no indication that the Applicant will be able or allowed to play a future role in the children’s future; they have a mother who already fulfils the parental role and at least one of the children was included in aa previous AVO and the others were present when the Applicant assaulted their mother for not preparing their food. All of these factors reduce the weight to be accorded in favour of the Applicant’s position.

21. In relation to the children of Ms EE, the Applicant states clearly that, “her daughters really love me because I would go over their house after work and spend time with them. The girl’s names are Z, Z and Y.” Further, “On some weekends she would bring the girls, and stay over at my house. We have a strong emotional attachment. The children are all strongly attached to me because I used to take care of them a lot.” [87]

    [87] Applicant’s Statement at [81] and [82].

22. There are several pictures of the Applicant with Ms EE’s children in the bundle of photographs mentioned. In her evidence to the Tribunal Ms EE described the Applicant as being like a “father figure” to the girls because “their real father does not spend much time with them.”

23. On the other hand the Tribunal recalls that Ms EE’s children were present when the Applicant assaulted their mother, that they were removed in a state of fear from the Canley Vale residence when Ms EE left to report to the Police and that they were present in MA’s car at the time that he and the Applicant were fighting each other with a long piece of wood and a samurai sword.

24. The Applicant is the uncle of KK’s daughter. She is aged 6 years and 4 months and lives with her mother in Adelaide. She visits Sydney on a regular basis and when she is here the Applicant spends time with her, often when his brother is unable to do so. She is included with the Applicant in several of the photographs submitted. There is no doubt that the Applicant and his niece are close and he cares for her.

25. The Ministerial Direction (at 13.2(4)(a)) requires the decision-maker to give “less weight” to considerations where the relationship between an Applicant and a child is “non-parental”.

26. The Minister in his submission to the Tribunal accepts that, on balance, the best interests of the children is served by the revocation of the cancellation decision but urges the Tribunal to give “limited weight to this primary consideration.”[88]  The Tribunal agrees that that is the correct position to adopt.

    [88] Respondent’s Statement of Facts, Issues and Contentions at [38].

    THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

27. It will be of assistance to set out in full the provisions of section 13.3(1) of the Direction which is as follows:

    (1) 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.

28. This section mirrors that which appeared in the previous Ministerial Direction 65 at 11.3 and has been the subject of extensive judicial consideration.

29. In Uelese Robertson J stated:[89]

    [64]  In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. The language in paragraph 6.3(2) of the Direction, that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia, is found in a list of seven “Principles”. There is a further reference to the expectations of the Australian community in paragraph 9.3 of the Direction where the statement is made that the Australian community expects non-citizens to obey Australian laws while in Australia. It states that 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, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate, the paragraph states, “simply because the nature of the character concerns or offences were such that the Australian community would expect that the person should not continue to hold a visa”. The paragraph ends by stating that decision-makers should have due regard to the Government’s views in this respect.

    [65]  This ground of review does not attack the statements in Direction no. 65. In my opinion it is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community and for the Tribunal to act on that statement.

    [66]  I conclude that there was no jurisdictional error in the statement of the Tribunal, at [109]: “I have no evidence to enable me to determine the expectations of the Australian community in this matter, other than the guidance provided by the Direction itself” or in the Tribunal’s consideration of the expectations of the Australian community. (emphasis added)

    [89] Uelese v Minister for Immigration and Border Protection [2016] FCA 348.

30. In YNQY, dealing with the exactly analogous provision of Ministerial Direction 65, Mortimer J made the same point more explicit, stating:[90]

    76. In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is 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.

    77. I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do. (emphasis added)

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

31. In Oluwafemi, Thawley J stated:

    37. ... is inconsistent with the general scheme of the Direction and the way the primary considerations operate. These parts of the Direction are statements as to what the expectations of the Australian community are for the purposes of determining whether the visa should be refused. It is not for the Tribunal to determine the expectations of the Australian community by reference to the applicant’s circumstances or evidence as to what the expectations of the Australian community are. The Direction requires a decision-maker to assess each of the primary considerations as they apply to the circumstances of the applicant’s case, and to weigh the various considerations against each other in order to reach a conclusion as to how the discretion should be exercised. [91]

    [91] Oluwafemi v Minister for Home Affairs [2018] FCA 1389.

32. All of these authorities were considered most recently by Perry J in FYBR where his Honour stated:[92]

    (42) It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases. (emphasis added)

    [92] FYBR v Minister for Home Affairs [2019] FCA 500.

33. The decision by Perry J to dismiss the appeal in FYBR was appealed to a bench of the Full Federal Court. In that Court, the majority (Charlesworth and Stewart JJ, Flick J dissenting) upheld the Primary Judge’s decision.[93]

    [93] Special leave has been sought to appeal this decision to the High Court, Case S325/2019.

34. Charlesworth J stated:[94]

    [94] FYBR v Minister for Home Affairs [2019] FCAFC 185.

    67       To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”, in the sense explained by Mortimer J in the limited passage from YNQY upon which the Tribunal relied at [54] of its reasons (extracted at [20] above).  It is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”.  I do not understand the judgment of Griffiths J in DKXY to differ from that of Mortimer J in YNQY in that respect.  For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.

    68       It is necessary to give content to the deemed expectation of the Australian community in a way that is capable of being afforded weight as a primary consideration in a particular case.  In the particular case, the Australian community will either expect the visa to be refused, or it will not.  In light of what is said above, the present enquiry does not concern what the Australian community expects in fact (assuming such expectations could be objectively ascertained), but rather concerns what the government has deemed the community’s expectations to be.  The content of the deemed expectation is to be discerned by construing cl 11.3 itself.

    69       The clause expresses two expectations, the first concerning norms of conduct to be expected of non-citizens, as expressed in the opening sentence:

    The Australian community expects non-citizens to obey Australian laws while in Australia.

    70       This statement is a reflection of the rule of law as it applies to citizens and non-citizens alike.  It is an expectation that will not have been met in respect of a visa applicant who cannot pass the character test in s 501(6) of the Act and so must, of its nature, weigh against the refusal of a visa in all cases to which the Direction applies.

    ………

    75       Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused.  The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1.  The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.

35. Stewart J stated:[95]

    [95] Ibid.

    100     To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:

    onon-citizens will obey Australian laws when in Australia;

    oit may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;

    oin a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.

    101     Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”  This limited expression of “community expectations” by the Government is, one would expect, quite uncontroversial which is an attractive feature given the heterogeneity of views in this area.

    102     It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa.  In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight.  In another case, because of the severity of the character assessment, the weight may be substantial.  Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant.  In many cases it will not be.  That is why the decision-maker must assess what is “appropriate” in the particular circumstances.  Nevertheless, an adverse character assessment is necessarily against a visa applicant, to some degree or other; no one will be awarded a visa because they are of bad character.

    103     The community expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case.  This means that it would be wrong for the decision-maker to ask themselves a question along the lines of “what would the community expect in this case?”  It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa.  In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in-between the community expectation will not express or require one or the other.  That is a matter for the decision-maker.

1. This line of authority makes it clear that the Tribunal has no role in “determining” what the expectations of the Australian community might be. They are a given. The Australian community is taken as expecting that non-citizens who have broken the law will have the “privilege” of remaining in Australia withdrawn by cancellation of their visa.

2. The only role for the Tribunal, and this is a role for it alone, is to determine the weight which should be accorded to this primary consideration when undertaking the “calculus”[96] of weighing each of the considerations set out in the Direction to come to an overall assessment or conclusion.

   [96] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].

3. In this instance the Tribunal considers that significant weight should be given to this consideration on the basis that the offences against women are clearly identified in the Direction as being matters of a very serious nature and it follows that the community expectations (as defined by the Government) would be that significant weight be attached to any such considerations.

4. Having discussed the primary considerations, the Tribunal turns to consideration of the other considerations, reiterating the point that although “other” they are not “lesser” that those designated as “primary”.

   International non-refoulement obligations

5. Subsection (1) of section 14.1 of the Direction sets out the basic principles involved as follows:

   A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

6. Decision-makers also have their attention drawn to the consequences of decisions not to revoke visa cancellations as follows:

   In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

7. The Applicant has raised concerns about his physical safety should he be returned to Iraq. As such it is necessary to say something about the nature of those claims.[97]

   [97] These are set out in the Applicant’s Statement of 18 December 2019 throughout.

8. The Applicant states that he was forced to leave Iraq primarily as a result of his marriage to a Shi’a woman, he being of the Sunni sect in Islam. The marriage took place in 2001, although the Applicant cannot remember the precise date. This marriage was opposed by both families. In the case of his own family it led to his father throwing him out of the house and in terms of the wife’s family it led to her relatives attempting to have the marriage somehow cancelled and when that failed they both wrecked the Applicant’s home and subjected both his wife and himself to extreme physical violence.

9. The Applicant claims that members of his wife’s family shot him in the leg and stabbed him in the hand and that his wife was stabbed above her breast and in her leg. The marriage had taken place in their home town of Fallujah from where they fled. The Applicant sought help from his siblings in Najaf, which was refused, so the couple took up residence in Baghdad, apparently for a period of some 18 months.[98]

   [98] Tender Bundle at 281.

10. By 2003 it appears that the Applicant’s father had fled from Fallujah to Turkey where the Applicant joined him and where he and other members of his family (father and brother) were eventually accorded refugee status by the UNHCR and hence made their way to Australia.

11. The Applicant claims in his Statement that he returned to Iraq in 2016. However this date is not correct as the Applicant’s movement record, maintained by the immigration authorities, show that his period in Iraq was from March to May 2015.[99]

    [99] G Documents at G22/90.

12. Regardless of the date, the Applicant claims that on this return visit to see his sister in Najaf and then stay at the house of his aunt in Baghdad he was subject to a further shooting attack suffering a bullet wound to his leg which was treated at the Alkadmiya Hospital. He claims in his Statement that it was either his “ex-wife’s father’s nephew, or her brother that did this to me.”

13. In rigorous cross-examination, the Respondent drew attention to a number of matters which call into question the veracity of the Applicant’s narrative. It was established that:

    ·In his interviews with the representatives of the UNHCR the Applicant claims refugee status based upon his inter-sectarian marriage and its opposition from family members and the fact that his wife’s family were involved in “illegal activities” including “criminal and terrorist activities such as killing of former old Baath party members or people with money.” He claimed that his wife’s family members threatened to abduct his wife and children.[100] However, at no time did the Applicant report to the UNHCR that he and his wife had been the subject of gross physical assaults (shooting and stabbing) by members of his wife’s family.

    ·Similarly in his interview with the Australian authorities based in Ankara (Turkey) the Applicant spoke at length about the problem’s arising from his marriage but in terms of physical assault only said that her relatives had subjected him to beating and had broken his finger.[101] Again, there was no mention of any shooting or stabbing. The Australian authorities concluded their assessment thus: “Claims fairly general for Faiysal (sic) and family, but credible given their mixed marriage and residence in Fallujah. (G) and (K) have very weak claims, but as a family group they are accepted. No real possibility of return to Iraq.”[102]

    ·When pressed on these omissions the Applicant stated: “It did happen but I didn’t tell them”.

    ·It is also the case that when questioned by the Respondent, KK admitted that he had no knowledge of any stabbings or shootings that had occurred in Iraq in 2001 (at which stage he would have been 5 years of age) nor of any assault on his brother in 2015.

    ·In further cross-examination the Applicant claimed that in 2015 he was shot in the foot or ankle and not in the leg.

    [100] Tender Bundle at 286.

    [101] Tender Bundle at 280.

    [102] Fallujah has a reputation for extreme Shi’a militia operations. G and K are the Applicant’s father and brother.

14. The Respondent invites the Tribunal to discount the evidence of the Applicant in relation to having been shot or stabbed, either in 2001 or in 2015, on the basis that had this been the case he would have reported it to either the UNHCR or the Australian authorities to bolster his refugee status claims and would not have withheld details from close members of his family such as his brother.

15. There is considerable strength in the Respondent’s submission.

16. The Applicant’s general claim however, is fear of reprisal if returned to Iraq on the basis of his inter-sectarian marriage per se. However, the couple were divorced in 2012 and this does not appear to continue to be a live issue. There is absolutely no evidence to support the Applicant’s claim that the 2015 shooting (if it occurred) had anything to do with the family of his former wife. Their base is in Fallujah and the suggestion that, in a relatively short period of stay (March to May 2015),  they had identified the Applicant as having returned to Baghdad, located him and arranged to shoot him is another claim straining the bounds of credulity.

17. The Tribunal is aware that when an Applicant raises the issues of non-refoulement it is confronted with an assessment of whether or not the return of that Applicant to his country of origin (or any other accepting country) places him at risk of physical harm.

18. In Hands, the Full Court outlined the issue faced by decision-makers by stating:

    By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.[103]

    [103] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3] per Allsop CJ, Markovic and Stewart JJ agreeing.

19. A decision to revoke a non-citizen’s visa exposes them to the prospect of being returned to their country of origin under the provisions of sections 197C and 198 of the Act, as well as to potential indefinite immigration detention under sections 189 and 196.

20. However, Applicants in this situation have the right to apply for a Protection Visa, since neither sections 48A or 501E otherwise preclude that. If such an application is made than all of the Applicant’s claims for protection must be assessed in detail and no refoulement activity can take place while that assessment is under way.

21. In some previous decisions of the Tribunal, once that point had been reached, the Tribunal failed to take further any consideration of the actual claims made by the Applicant. This course of action was disapproved by the Court. In CTB19 the Court stated:

    (44)It was in that context that the Court drew a distinction between the state of satisfaction required to be reached under s 501CA(4)(b)(ii) and the finding that the criteria prescribed by s 36(2) had been satisfied. The present case is quite different. The applicant made submissions with regard to the harm that he would face if returned to Iraq as a reason to revoke the cancellation of his visa under s 501CA(4)(b)(ii). That is distinct from, although obviously overlapping with, the harm that might enliven Australia’s non-refoulement obligations.

    (45)The Tribunal, in paragraph [72], explicitly considered that it did not need to make “a specific determination” in regard to those submissions. That is directly in conflict with the judgment of the Full Court in Omar; the submissions were “clearly expressed relevant representations made in support of a revocation request”, as recognised by the Tribunal at [65]-[69], such that the Tribunal was required “to engage in an active intellectual process” with them. It was required to “consider” those submissions by “having regard to what is said in the representations, to bring [its] mind to bear upon the facts stated in them and the argument or opinions put forward and to appreciate who is making them”: Tickner v Chapman [1995] FCA 1726; 57 FCR 451 at 495 and Omar at [36(c)]. See also BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 at [48]-[49] and [63] and Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALD 123 at [53]-[54].

    (46)That the Tribunal merely put the applicant’s stated fear of harm to one side without deciding it is further demonstrated by its paragraph [93] (quoted at [27] above). That paragraph reveals that the Tribunal regarded the harm feared by the applicant as being synonymous with circumstances that might or would give rise to Australia’s international non-refoulement obligations and for that reason had “discharged its obligations to consider [that] matter” by saying (in paragraph [72]) that it need not make a specific determination in regard to it.

    (47)Further, in the reasoning section of the Tribunal’s decision, there is no assessment or quantification of the applicant’s stated fears of harm. In paragraph [105], quoted at [28] above, the Tribunal merely says that the applicant’s “fears of harm” as an “issue” weighs “in his favour” in making the decision. It had also been said at [93] that “this consideration weighs in [the applicant’s] favour”. However, there is no engagement with the relevant submissions or evidence in support of them; there is no weighing of the evidence, and there is no assessment of the likelihood or severity of the harm. In the absence of that, it is impossible to attach any particular weight, small or large, to that consideration in order to perform the balancing exercise required by Direction 65.[104]

    [104] CTB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2218 per Stewart J.

22. The complexity of dealing with such claims is outlined in the Respondent’s Statement of Facts, Issues and Contentions, which the Tribunal thinks useful to set out in full:

    (49) However, the Minister notes the tension in the current case law concerning consideration of non-refoulement obligations.

    (50) In Omar v Minister for Home Affairs [2019] FCA 279 Mortimer J held that, if: (a) a person has made a representation under s 501CA(3) of the Act that they are owed international non-refoulement obligations “and sets out a serious and substantive basis in fact and in law for that representation”; and (b) the representation is advanced as “another reason” why the cancellation of the person’s visa should be revoked, then a decision- maker must not decline to consider whether or not the person is owed international non- refoulement obligations on the basis that the person is able to apply for a protection visa in future.

    (51) In DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [193], Robertson J rejected the premise that it is always a jurisdictional error for a decision-maker to reason that whether non-refoulement obligations are owed would be fully considered in the course of making a valid application for a protection visa, which an applicant is able to make. His Honour held that no jurisdictional error was disclosed in that case in circumstances where the Minister considered the factual basis said to engage non-refoulement obligations and took that hardship into account. His Honour noted that, in Omar, the nature and content of the submissions made to the Minister were one of the matters which contributed to Mortimer J’s conclusion. At [38], Logan J expressed agreement with Robertson J’s reasons.

    (52) In Ibrahim v Minister for Home Affairs [2019] FCAFC 89 at [106]- [112], the Full Court of the Federal Court held that the Minister in that case conflated international non- refoulement obligations with protection obligations under the Act.

    (53) The Full Court’s most recent decision, Minister for Home Affairs v Omar [2019] FCAFC 188, did not resolve the questions of whether Mortimer J erred, whether international non- refoulement obligations are a mandatory relevant consideration and whether Ibrahim was plainly wrong. Rather the Full Court allowed the appeal on the basis that the Assistant Minister had failed to give meaningful consideration to the factual claims of harm raised by the representations, irrespective of whether non-refoulement obligations were engaged.

    (54) The Minister submits that the Tribunal should proceed on the basis of the Full Court’s reasoning in DOB18 and Omar, and consider and make findings on the applicant’s claims to fear harm.

23. The Tribunal accepts that this is what it is required to do under current authority to demonstrate its active intellectual engagement with the claims laid before it.

24. The Applicant does not make a specific claim for revocation of the cancellation decision by reference to refoulement as such. In his Statement at paragraph 96, he states:

    I cannot go back to Iraq because of the poor security situation there. I am Sunni and the majority of Iraq is Shia. Furthermore I am still threatened by the issues I had before.

25. In the Applicant’s Statement of Facts, Issues and Contentions his representative asserts:

    [17] However our client is at risk of return to Iraq and cannot be deported. This is because the general security situation there has deteriorated significantly (we reiterate that the DFAT travel guide reaffirms that people should not travel there). Furthermore, his religion is Sunni Muslim, whereas the majority of Iraq is Shia Muslim.

    …….

    [19] And finally, he cannot be returned to Iraq because of the reasons he fled in the first place, which is the risk of harm towards him from his ex-wife’s family. He explains how returned to Iraq a few years ago and was shot. This is an example of the real risk he faces if he is deported there.[105]

    [105] Applicant’s Statement of Facts, Issues and Contentions dated 18 December 2019.

26. These statements raise three issues:

    1.        The general security issue in Iraq;

    2.        The position of Sunni Muslims in a predominantly Shi’a Muslim country, and

    3.        The Applicant’s fear of harm or reprisals from his ex-wife’s family.

27. On the first issue: Evidence before the Tribunal includes a Country Information Report on Iraq (dated 18 October 2018) prepared by the Department of Foreign Affairs and Trade (DFAT).[106] This appears to be the latest DFAT Country Report and the Tribunal is aware that the security situation in Iraq has deteriorated considerably since October 2018 especially following the recent collapse of the Abdul Mahdi Government in December 2019 and unrest spurred by the assassination of Iranian general Qassem Soleimani in January 2020. The security situation in Iraq remains fluid.

    [106] Tender Bundle at 295-328.

28. The Tribunal notes the Iraq Travel Advice and Safety | Smartraveller Report on Iraq, dated 18 December 2019, which advises against travel to Iraq.[107] This however, must be read in the context of general advice given to Australian travellers. It is advisory only and may have less applicability to people returning to what is their own country of origin where they have knowledge of the country, possible family there, or have previously undertaken such travel and/or are more aware and informed about the situation(s) they may face.

    [107] Smarttraveller – Iraq Travel Advice and Safety dated 18 December 2019.

1. On the second issue: The DFAT Report states:

   3.37 DFAT assesses that, outside areas recently controlled by ISIL, Sunnis face a low risk of societal violence on the basis of their religion. DFAT assesses that Sunnis face a moderate risk of official and societal discrimination in areas where they are a minority. The risk of discrimination varies according to an individual’s local influence and connections.[108]

   [108] Tender Bundle at 312.

2. A somewhat more negative assessment may be found in the report of the Country of Origin Information Services Section of the Department of Home Affairs entitled Return and Relocation – Iraq dated 10 October 2019. It states:

   Failed asylum seekers would not be harmed following their return to Iraq, but returning to Iraq may be difficult for those who do not return to their original community. The practice of departing Iraq to seek asylum overseas and then returning once conditions permit is one that is well accepted among Iraqis. Iraqis reportedly return to Iraq to reunite with families, establish and manage businesses, or take up or resume employment.  Family networks play an important role in providing support to persons returning to Iraq.  DFAT reported in October 2018 that returning to Iraq can be difficult, particularly if the individual in question does not return to their original community. This is because integration within new communities is difficult, and complicated by the influence of patronage and nepotism on many aspects of Iraqi life.[109]

   In a May 2019 advisory, the UNHCR stated that an individual’s ties ‘to an ethnic and/or religious community and existing tribal and family links in the area of relocation are crucial when assessing the availability of an IFA/IRA [internal flight or relocation alternative]’. This is because these ties or links ‘generally ensure a certain level of community protection, as well as access to services and employment.’ The UNHCR stated that this was ‘true for cities, but even more so for semi-urban and rural areas, where newcomers without such links may be discriminated against.’ In addition, ‘those originating from the area may be perceived as newcomers if they have lost all links with their community.’ The UNHCR also stated that ‘an IFA/IRA to an area with a predominantly different ethnic or religious demography may also not be possible due to latent or overt tensions between groups.’ This was seen as being ‘particularly the case for Sunnis in predominantly Shi’ite areas, and vice versa.’ In addition, it was advised that ‘[m]embers of religious or ethnic minority groups should not be expected to relocate to an area with no presence of members of the same community that would allow for a certain level of support.’ In this context, it should be noted that DFAT stated in October 2018 that conflict in Iraq ‘has led to previously religiously mixed areas becoming more homogenous – usually Shi’a or Sunni – thereby limiting internal relocation options.’ DFAT also assessed that ‘in most cases, internal relocation for religious and ethnic minorities is difficult.’ [110]

   [109] Country of Origin Information Services Section of the Department of Home Affairs entitled Return and Relocation – Iraq dated 10 October 2019 page 5. Footnotes omitted.

   [110] Ibid at page 12. Footnotes omitted, however quotations from DFAT are to be found in DFAT: Country Information Report on Iraq (dated 18 October 2018).

3. On the third issue: The Tribunal does not believe that the Applicant would be at risk of physical harm from his ex-wife’s family or other sources. It does not accept that there is any basis for the Applicant’s claim that when he returned (voluntarily) to Iraq in 2016 his assailants were members of his ex-wife’s family. That is pure speculation. No harm came to his brother when he (voluntarily) retuned to Iraq as recently as 2019. His marriage to the lady in question ended as far back as 2012 and the likelihood that her family in Fallujah would be monitoring the Applicant’s possible return to Baghdad with an intention of seeking to find him and do him harm appears equally speculative.

4. In considering all the material available to it, the Tribunal assesses that were the Applicant to be returned to Iraq he would be potentially subject to some degree of social discrimination,[111] depending upon where he chose to live and that his reintegration into Iraqi society would be more difficult were he unable to re-establish a support network with his brother and sister there. The evidence suggests that he would not have difficulty in reintegrating into a society with which he is familiar and in which he lived for the first thirty years of his life. He has employment prospects based upon his identified professional skills and his fluency in five languages.

   [111] For the important distinction between “Official” and “Social” discrimination see Respondent’s Tender Bundle at 299.

5. In considering the claims made by the Applicant, the Tribunal assigns them some weight in his favour. It accepts that the security situation in Iraq is potentially dangerous; that there may be social discrimination against Sunni Muslims but it does not accept that the Applicant is at direct risk of physical harm. The weight given to this consideration must be balanced against the other factors being considered by the Tribunal.

   Strength, nature and duration of ties to Australia

6. Section 14.2 of the Direction provides:

   (1)  The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

   (a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

   (i)     less weight should be given where the non-citizen began offending soon after arriving in Australia; and

   (ii)    More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

   (b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non­ revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

7. The Applicant has been resident in Australia for something in the order of nine years since his arrival in August 2010. He was 30 at the time of his arrival. He began his offending behaviour within a few months of his arrival. There is no evidence of any significant contributions made to the community by the Applicant apart from some unspecified time when the Applicant claims he was ”sorting clothes with St Vincent de Paul in Adelaide.”[112] The Applicant has certainly been in employment in Australia for prolonged periods and appears to have had only limited periods in the welfare system.

   [112] G Documents at G14/76.

8. As noted above he does not appear to pay child support nor does he make an active contribution to either the welfare or support of his ex-wife and their children in Adelaide.

9. Similarly his relationship with Ms EE involves, at various stages both some degree of commitment and attachment and at other times their relationship is marked by argument, separation and physical violence.

10. There is no doubt that the Applicant and his brother KK are close but it is also clear that the Applicant does not share some of the most significant details of his life with his brother.

11. The Tribunal cannot but conclude that the Applicant’s ties to Australia are of a limited nature and while this consideration should weigh in favour of the Applicant it cannot be said to weigh particularly heavily.

    Impact on Australian Business interests

12. Although the Applicant’s brother (KK) has made offers of employment for the Applicant should he be released from custody there are no significant details in this regard and there is simply no basis for this consideration to be given any further attention. Nothing can be assigned to the Applicant in this regard.

    Impact on Victims

13. There is no material before the Tribunal other than that related to the potential impact on the Applicant’s ex-wife and on Ms EE, both of whom may be regarded as victims for the purposes of section 14.4 of the Direction.

14. As already noted the Applicant’s relationship with his ex-wife has, in effect, terminated and there would be no impact on her were he to be removed from Australia.

15. In relation to Ms EE, there is no doubt that there would be some impact upon her were the Applicant to be removed from Australia and she has given evidence to the effect that she wishes him to remain.[113] However, given the ambiguous nature of their relationship and her evidence to the effect that she is unsure about their future together it is difficult for the Tribunal to assign much weight to this factor. It is only marginally supportive of the Applicant’s claim.

    [113] Statutory Declaration of EE, Applicant’s Evidence at Tab [6].

    Extent of impediments faced if removed

16. To some extent these have been considered in the discussion above related to non-refoulement and fear of return issues. However, in addition to those matters the Tribunal must take several other factors into account. The relevant part of the Direction provides:

    (1)  The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)The non-citizen's age and health;

    (b)Whether there are substantial language or cultural barriers; and

    (c)Any social, medical and/or economic support available to them in that country.

17. The Applicant is a relatively young man, and while not in perfect health (having some problems with his hand[114]) there is nothing that renders him unfit or unhealthy and nothing in terms of health which prevents his gainful employment. He has skills in both the goldsmith and jewellery trade and in construction activities as a welder and concrete renderer.[115] He is fluent in four languages and competent in a fifth (English). He speaks Arabic and grew up in Iraq for long enough to be aware of the cultural norms, mores and practices of that country. He is a practicing Muslim, albeit of the Sunni faith which is a minority position in Iraq.

    [114] Applicant’s Statement at [87].

    [115] Tender Bundle at 258; 175; 66.

18. He has a brother and sister in Iraq although the Tribunal accepts that there has been no contact with his family since his departure in 2010 and there may be residual family problems arising from his original marriage to a Shi’a lady.

19. It is of course a matter of fact that a constant state of war, civil unrest and political instability has ruined much of the social and physical infrastructure of Iraq and that health and welfare services are in no way comparable to those accessible for the Applicant in Australia.

20. In that respect the Tribunal accepts the Applicant’s assertion that he has “nothing to go back to in Iraq” but that in itself does not constitute a sufficient reason for the revocation of the cancellation decision.

21. The Tribunal accepts that there would be impediments faced by the Applicant if returned to Iraq and that in some respects these would be difficult to manage, however, they would not be insuperable.

22. The Tribunal finds that this consideration weighs in favour of the Applicant but it assigns only limited weight to it in its overall considerations.

    DISCUSSION

23. The Tribunal has considered each of the criteria set out in Ministerial Direction 79 and assigned to each the weight which it assesses as appropriate. In summary:

24. Protection of the Australian Community: As the Tribunal believes there is a moderate to high risk of the Applicant reoffending and because his offences have been of a serious nature involving, in particular, repeated acts of violence against women, the Tribunal weighs this heavily against the Applicant.

25. Best interests of Minor Children: The Tribunal considers that while the Applicant has not played a significant or effective parental role for his biological children, he has a genuine interest in reconnecting with them and they are entitled to seek connection to him at some later stage of their lives. His relationship with other children is of a non-parental and limited nature. This consideration weighs in favour of the Applicant but to a significantly lesser extent than would have been the case had he been an active supporter and participant in the life of his children to date.

26. Expectations of the Australian community: This consideration is deemed to be adverse to the Applicant as a matter of public policy and it is left to the Tribunal to weight it accordingly. Because of the nature of the offences in question, the victimisation of women, the repeated nature of the offences, the propensity of the Applicant to violent outbursts and the increasing seriousness of his offending over time, the Tribunal assigns this significant weight against him.

27. International Non-refoulement obligations: The current situation in Iraq, together with the Applicant’s status as a member of a religious minority, constitute some basis for the Applicant’s own concerns about potential return to Iraq. Such a return is however, not the inevitable consequence of a non-revocation decision. Consideration of the concerns expressed by the Applicant lead to a conclusion that while his return to Iraq would be difficult for him, the associated problems are not insurmountable and his fears of physical harm are not assessed as being significant. As stated above, this consideration weighs in favour of the Applicant but not to an overwhelming degree.

28. Strength and nature of ties to Australia: While the Applicant has some ties to this country they are tenuous and his period of residency here has been limited. He did not arrive as a young child and he has made no significant contribution(s) to the community. This consideration weighs in favour of the Applicant but only to a very minor degree.

29. Impact on Business in Australia: This is not a matter for consideration as no evidence points to there being any such impact.

30. Impact on Victims: There is a marginal impact upon at least one victim of the Applicant’s offending behaviour but it is not of a sufficient level to give this consideration anything other than very limited weight.

31. Impediments if removed: There would be impediments for the Applicant but none of them would be insurmountable. They would be better characterised as inconveniences rather than long term impediments and as such this consideration carries only limited weight in favour of the Applicant.

32. While a number of the considerations tend to favour the Applicant (impact on victims, impediments if removed and ties to Australia) they do so to only a minor degree. The considerations of the best interests of the minor children and the claims for non-refoulement also weigh in favour of the Applicant, to a somewhat greater degree, but not to an overwhelming degree.

33. On the other hand the protection of the Australian community and its expectations are considerations which carry considerable weight. They do so because the Applicant is a repeat offender, his offences which commenced shortly after his arrival in Australia and have, over time, escalated in seriousness, moreover being primarily directed against women as victims count heavily against him. As the Tribunal has said:

    The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.[116]

    [116] Mendoza and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 686 at [48].

34. These two considerations taken together overbear the cumulative weight of the other considerations and result in a negative assessment of the Applicant’s case for revocation of the visa cancellation.

    DECISION

35. The decision under review is affirmed.

I certify that the preceding 209 (two hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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

Associate

Dated: 31 January 2020

Dates of hearing:	16 & 17 January 2020
Applicant:	In person
Solicitors for the Respondent:	Ms M Donald, Sparke Helmore Lawyers