WQKK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 319

WQKK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 319 (26 February 2020)
Division:GENERAL DIVISION
File Number(s): 2019/8296
Re:WQKK
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Date:26 February 2020
Place:Sydney

The Tribunal sets aside the decision dated 6 December 2019 and substitutes it with a decision revoking the mandatory cancellation of the applicant’s Class XA Subclass 866 Protection Visa made on 1 March 2019
........................................................................
Deputy President Britten-Jones
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record –- whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – non-refoulement obligations – applicant is stateless – consequence of non-revocation – whether removal would not be reasonably practicable – indefinite detention - decision under review set aside
Legislation
Migration Act 1958 (Cth)
Cases
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BAL19 v Minister for Home Affairs [2019] FCA 2189
CWGF v Minister for Home Affairs [2019] FCA 1802
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gasper v Minister for Immigration and Border Protection [2016] FCA 1166
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56
Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620
PRHR v Minister for Immigration and Border Protection [2017] AATA 2782
SZRTN v Minister for Immigration and Border Protection (2014) 63 AAD 243
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION

Deputy President Britten-Jones
26 February 2020

This is an application for review of a decision of a delegate of the Respondent not to revoke a mandatory cancellation of the applicant’s visa under s 501(3A) of the Migration Act 1958 (the Act).
THE DECISION TO CANCEL THE VISA
On 1 March 2019, the applicant’s Class XA Subclass 866 Protection visa (the protection visa) was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) of the Act on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment.
On 11 July 2019, the applicant made representations seeking revocation of the cancellation decision.
On 6 December 2019 a delegate of the respondent decided not to revoke the cancellation decision under s 501CA(4).
LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in (3A) is outlined in s 501(6) of the Act. Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)).
For the purposes of subsection (6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[1]
[1] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled under s 501(3A), the Minister has a power to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked.[2] The discretion to revoke the cancellation on the grounds that ‘the Minister is satisfied that there is another reason why the original decision should be revoked’ is a broad one.
[2] Ibid s 501CA(4).
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
Further, the applicant’s situation is affected by s 197C and s 198(2B) of the Act. Those provisions state:
197C Australia’s non‑refoulement obligations irrelevant to removal of unlawful non‑citizens under section 198
(1)       For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2)       An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
…
198 Removal from Australia of unlawful non‑citizens
(2B)    An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:
(a)       a delegate of the Minister has cancelled a visa of the non‑citizen under subsection 501(3A); and
(b)       since the delegate’s decision, the non‑citizen has not made a valid application for a substantive visa that can be granted when the non‑citizen is in the migration zone; and
(c)       in a case where the non‑citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate’s decision—either:
(i)        the non‑citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii)       the non‑citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.
Note:    The only visa that the non‑citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).
ISSUES BEFORE THE TRIBUNAL
The applicant does not pass the character test prescribed under s 501(6)(a) of the Act as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has “a substantial criminal record” as defined under s 501(7) of the Act. Therefore, the applicant cannot rely on s 501CA(4)(b)(i) of the Act in order to have the mandatory visa cancellation revoked.
The issue for the Tribunal to determine is whether having regard to Ministerial Direction No. 79 (Direction 79) there is another reason why the cancellation decision should be revoked. Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must decide to revoke the decision.[3]
[3] Gasper v Minister for Immigration and Border Protection [2016] FCA 1166 at [38].
The respondent provided supplementary submissions to draw the Tribunal’s attention to the decision of Rares J in BAL19 v Minister for Home Affairs [2019] FCA 2189 (BAL19). The decision of BAL19 found that s 36(1C) of the Act was inserted by Parliament to codify Australia’s non-refoulement obligations for a protection visa applicant or holder who otherwise raised character issues and that the power to refuse or cancel such a visa could only be enlivened by relying on s 36(1C). Therefore it was found, since that amendment, s 501(1) and its analogues could not be relied on as a basis to refuse to grant or to cancel a protection visa. The Minister has appealed that decision.
BAL19 does not consider ss 501(3A) or 501CA(4) and it is not authority for the proposition that those provisions cannot apply to the cancellation of a protection visa. In the absence of any authority to the contrary I will determine the application in the usual way on its merits.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
When considering whether to revoke the delegate’s decision, the Tribunal must have regard to Direction 79. The objective of Direction 79 is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[4]
[4] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018) at 6.1.
The guiding principles in Direction 79 that the Tribunal must apply in determining whether or not to revoke a visa cancellation include:
·Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia bearing in mind that being allowed to remain in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law abiding.
·The Australian community expects that the Australian Government can and should cancel a non-citizen’s visa if they commit serious crimes in Australia or elsewhere.
·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 the elderly or disabled, should generally expect to have to forfeit the privilege of staying in Australia.
·Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
·The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled.
Keeping those guiding principles in mind, I turn my mind to the primary considerations and other considerations set out in Part C of Direction 79:
·Primary considerations:
oProtection of the Australian community
oThe best interests of minor children in Australia
oExpectations of the Australian community
·Other considerations include (but are not limited to):
oInternational non-refoulement obligations
oStrength, nature and duration of ties
oImpact on Australian business interests
oImpact on victims
oExtent of impediments if removed
Protection of the Australian community – 13.1 of Direction 79
When considering the protection of the Australian community, I have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity. I give consideration to:
·the nature and seriousness of the non-citizen’s conduct to date; and
·the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 13.1.1 of Direction 79
The first offence was a fine of $500 imposed by the Parramatta Local Court on 24 May 2017 for possessing a prohibited drug. There then followed more serious offences for which the applicant was convicted in the Taree Local Court on 20 November 2017. These offences involved obtaining prescriptions and prohibited drugs by false representations and forged documents. In addition he was convicted of having custody of a knife in a public place.
In 2018 the applicant was fined on three separate occasions in February, March and May for driving his motor vehicle while his licence was suspended or disqualified. In July 2018 he was fined in the Parramatta Local Court for possessing a prohibited drug. In August 2018 in the Fairfield Local Court the applicant received a suspended sentence for possessing a prohibited drug and two counts of driving a motor vehicle whilst disqualified. In the Yass Local Court in December 2018 he was convicted of possessing a prohibited drug, obtaining a prohibited drug by false representation and two counts of driving a motor vehicle whilst disqualified. He was sentenced to a term of imprisonment of 12 months on each offence. Whilst in custody he was convicted after pleading guilty in the Parramatta Local Court in January 2019 for driving whilst disqualified and possessing a forged prescription. He was sentenced to a term of imprisonment of five months in relation to driving disqualified and for one month in relation to possessing the forged prescription.
He was released from prison and put into immigration detention in June 2019.
Each offence was not particularly serious but the cumulative effect of the offending makes it more serious. The offending took place over a period from May 2017 to December 2018 during which the applicant started smoking ice, forging and obtaining painkiller prescriptions and driving whilst his licence was suspended or disqualified. I note that the crimes were not violent or sexual. They were not committed against vulnerable members of the community. He pleaded guilty to the offences which were all dealt with in the Local Courts of New South Wales.
The applicant explained that he was under a great deal of stress because in mid 2017 he was told that his daughter in Iran had brain cancer. There is a letter from a neurologist in Iran which supports this. Shortly after receiving the news about his daughter he was told that his father had to amputate both his legs from the knee down. He wanted to help his father and daughter and so began sending painkillers to them. The applicant had previously been prescribed Fentanyl as a painkiller for his own back problems. He sent some Fentanyl patches to his father who reported how much they helped him so he decided to provide a regular supply to his father and daughter. In addition to the painkillers, he was also sending money back to Iran to help his family.
The applicant admitted that in August and October 2017 he attended at numerous pharmacies or medical centres with a forged prescription in the name of another man. In October 2017 the police attended a pharmacy because there were issues with the prescription. The applicant’s car was searched and numerous forged documents and prescriptions in the name of the fictitious man were found. In addition, numerous drug paraphernalia and a knife were found in the applicant’s vehicle. He was taken into custody a few days later. The applicant pleaded guilty in the Taree Local Court in November 2017 to the charges that followed. The applicant denied any personal gain from his offending and said that he was attempting to illegally obtain additional Fentanyl patches so he could send them back to his father in Iran. He was given a good behaviour bond for 2 years and was released.
Whilst in custody the applicant’s licence was suspended and after his release he was arrested for driving in January 2018. He said that he was not aware that his licence had been suspended. The applicant explained that he needed to drive so as to continue to work and earn money from his job as a painter and handyman so that he could send money back to his family in Iran. I accept that the applicant was working as a painter and handyman in 2018 but that does not justify his continuing to drive, which resulted in fines for driving whilst his licence was suspended or disqualified in March, May, August and December 2018. The applicant showed a complete disregard for the authorities by continuing to drive after his licence was suspended especially after being caught so many times. I accept that he was sending money back to Iran but his benevolence towards his family was not absolute given that he often rented expensive European cars.
During this period of offending the applicant was using ice which he said helped him to stay awake and work longer hours. He was convicted for possessing a prohibited drug on numerous occasions namely in May 2017, July, August and December 2018. He said that the most he paid for ice was $50 and he was never involved in supplying it to others. He said he has not used ice since he was imprisoned in November 2018. He has tested negative to drugs whilst in prison and detention.
Not only did the applicant continue to drive whilst disqualified but he also continued to forge prescriptions. This resulted in the applicant being charged with further similar offences (12 counts) and convicted in the Fairfield Local Court in August 2018 for which he received a term of 12 months imprisonment suspended on entering into good behaviour bonds. Soon after, he was caught speeding on the Hume Highway. He lied to the police about his licence but then admitted he was disqualified. In December 2018 he was convicted in the Yass Local Court for the driving offences and the bonds were revoked. The magistrate in Yass noted that he had been sentenced to a term of imprisonment in August 2018, which was suspended, but three weeks later he was caught driving along the highway in breach of the bonds. He was sentenced to a term of imprisonment for 12 months with a non-parole period of 6 months.
There was a further offence of possessing a forged prescription and driving whilst disqualified to which the applicant pleaded guilty and was sentenced in the Parramatta Local Court on 23 January 2019. The magistrate in Parramatta said:
At the time you committed these offences, you had received a suspended gaol sentence for the same type of charges. This was later revoked but the Court imposed a fulltime gaol sentence for the offences. It is important for me to remember this because it is the same type of offences. Your criminal record is very recent and, as your lawyer has said, there are not that many offences on the record. I have listened to what I have been told about your family and what you said you were doing to try and help your family and I have considered that you want to get some help with your drug issues.
Today I have decided that there is no option but to impose a gaol sentence, given that they are the same offences and the fact you were already on a suspended gaol sentence at the time you committed the offences. … In terms of the seriousness of these matters, it is always serious when people have forged prescriptions because people are trying to get access to drugs to which they are not entitled and in relation to the driving whilst disqualified, you tried to give the police the wrong information to start with and you should not have been driving.
The magistrate sentenced him to a term of five months for driving whilst disqualified and one month for possessing the forged prescription.
The applicant served his term of imprisonment from mid-December 2018 to late June 2019. He has since been in immigration detention. The applicant has behaved well during these periods of incarceration.
While the offending took place over a relatively short period of approximately 18 months, it was frequent, in particular, from November 2017 to November 2018. The applicant has been sentenced three times to a term of imprisonment, the longest of which was 12 months. I take into account the cumulative effect of this repeated offending noting that some of the offending took place during the period of earlier imposed suspended sentences and after judicial warnings as to what would happen if there was further offending. The fact that terms of imprisonment were imposed reflects the seriousness of the offending, although it is noted that the length of sentences imposed were at the lower end of the scale.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 13.1.2 of Direction 79

In considering whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, I have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I also have regard to:
·the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and
·the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[5] Her Honour states that to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[5] (2014) 225 FCR 424.
If the applicant were to engage in further similar offending, then the nature of the harm is not as serious as that arising from violent offending or from drug trafficking. Nevertheless, the resulting harm would be significant. Fentanyl is an opioid that is often abused for non-medicinal purposes. It is a major contributor to the number of fatalities caused by drug overdose. It should be reserved for those who have a medicinal need. The applicant obtained fentanyl for illegitimate purposes. This has an adverse impact on those who have legitimate needs for such painkillers.
The respondent contends that the applicant is likely to reoffend because he has continued to offend in the past even after receiving numerous warnings including a suspended sentence. Further, the respondent says that the factors leading to the applicant’s offending in the past have not changed, namely that his daughter and father are still suffering from their ailments in Iran and he still does not have a strong support network in Australia. There is some merit in these contentions but there is an important factor to the contrary which is that the applicant expressed a genuine realisation after being in prison for over 6 months that he will not be able to provide his desired level of monetary assistance to his family in Iran if he is unable to work because he is in prison. I consider that he remains motivated to assist his relatives in Iran and that he realises now the best way to do that is to stay out of trouble and to work hard. Further, he expressed his desire to one day bring out his family to Australia which adds a further incentive for him to behave.
The applicant has made efforts to participate in rehabilitative processes. He saw Yalda Latifi, a bi-lingual drug and alcohol clinician from DAMEC (a drug and alcohol counselling service) in October 2018. He attended with her once a week or sometimes twice a week but this ceased when he was imprisoned in mid-December 2018. He said that he gained a lot during this period of about 40 days. He said there were about 10 attendances but the respondent considered there would have been no more than 6 sessions. I accept the respondent’s contention, but in any event, his willingness to attend is a positive indicator for him. In a review conducted by his parole officer on 29 November 2018, it was reported that the applicant had been attending DAMEC and that speaking to the counsellor had assisted his cultural misunderstandings and that the applicant now wanted to “change his whole life not just driving.” It was unfortunate that the applicant was not able to continue these sessions whilst in prison but he did continue his rehabilitative process by working closely with the prison chaplain and by attending chapel services and doing bible study courses.
I consider that there is some evidence of rehabilitation and given the strong incentives to not re-offend I conclude that there is a low risk of re-offending.
Conclusion as to protection of the Australian community
The government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[6] Given the not particularly serious nature of the harm that flows from the offences committed by the applicant, I consider that a low risk of further similar harm is acceptable. Nevertheless, there is some risk of further offending which would result in some harm (albeit not of the most serious nature) and therefore I conclude that the primary consideration of protection of the Australian community weighs in favour of non-revocation of the cancellation decision but only to a minimal degree.
[6] Direction 79 at 13.1(1).
Best interests of minor children – 13.2 of Direction 79
The applicant has no children or any other relatives in Australia. Consequently, this is a factor that neither weighs for nor against revocation of the cancellation decision.
Expectations of the Australian community – 13.3 of Direction 79
In YNQY v Minister for Immigration and Border Protection,[7] Mortimer J held that the expectations of the Australian community were inextricably linked to the other primary consideration about the protection of the Australian community, and that the expectations referred to in Direction 79 were those espoused in clause 13.3(1), rather than any objective expectations put forward by an applicant. This position has been affirmed by the Full Court of the Federal Court in FYBRv Minister for Home Affairs.[8]
[7] [2017] FCA 1466.
[8] [2019] FCAFC 185.
In exercising my discretion, I am also informed by the principle at paragraph 6.3(1) of Direction 79 that:
Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
The applicant has not been law abiding and he has shown disrespect to authority by lying to the police and by breaching good behaviour bonds. However, he has not caused or threatened harm to anyone and his offending has had no impact on women or children or the less vulnerable in the community The Australian community expects non-citizens to obey Australian laws while in Australia. This expectation has not been met with respect to the applicant for the period from May 2017 to November 2018. However, he has been law abiding for the majority of his time in the Australian community. He arrived in 2010 and spent 2 years in detention but thereafter from 2012 until May 2017 he did not offend except for some traffic infringements.
During that period of 5 years the applicant was able to consistently find work, often for 6 days a week. He worked as a handyman and painter and for a short time as a removalist. He was able to send regular sums of money back to Iran to help his struggling family. I also note that he maintained the same residential address whilst in the community. All this suggests that he is a stable and hardworking person who has made a positive contribution to the Australian community. I note that he did not declare all his income to the Australian Taxation Office or to Centrelink, so that detracts from his contribution but it remains positive and commendable.
Despite this positive contribution, it remains the case that the applicant has failed to satisfy the expectations of the Australian community for its non-citizens to be law abiding. Consequently, this is a factor that weighs in favour of non-revocation of the cancellation decision. Because of his lengthy and positive contribution, I give this factor less weight.
Other considerations
In deciding whether to revoke the cancellation of the applicant’s visa, I must take into account the other considerations listed in Direction No. 79 but these are not exhaustive.[9]
[9] SZRTN v Minister for Immigration and Border Protection (2014) 63 AAR 243 [5].
I take into account that the applicant claims to fear serious harm if returned to Iran or Iraq and that he wants these fears to be considered under Australia’s non-refoulement obligations.
The concerns that the applicant will face if removed are relevant to international non-refoulement obligations and the extent of impediments if removed. The level of detail necessary for these considerations will depend, among other things, on the likelihood of the applicant being removed and the level of generality or specificity of the information suggesting harm.[10] In addressing these considerations I must properly understand and consider the legal consequences of the decision being made (in particular detention and removal). What the legal consequences are is a question of fact.
[10] Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620 at [62].
International non-refoulement obligations
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.[11]
[11] Direction 79 at 14.1(1).
The question before the Tribunal in considering any non-refoulement claims is a state of satisfaction as to whether there was “another reason” why the original decision should be revoked.[12] I am required to properly consider the claims being made and the factual material being relied upon by the applicant.[13]
[12] Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28].
[13] Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [27].
The applicant contends that he would face harm if returned to Iran or Iraq and that the Tribunal needs to consider Australia’s international non-refoulement obligations.
In his written request for revocation the applicant said:
I have very serious concerns about being returned to Iran or Iraq. I have no citizenship to either country and my conversion to Christianity would make me a target to be killed.
During the hearing the applicant explained that he and his family are Faili Kurds and that they are not accepted by either Iraq or Iran.
Protection Visa
The applicant came to Australia as a refugee in 2010. He was granted a protection visa on 25 January 2012. An independent merits review by the Department of Immigration and Citizenship found that the applicant met the criterion for a protection visa set out in s 36(2) of the Act. The applicant said that he was born in Iraq in 1967, is stateless and is a Shi’a Muslim and a Faili Kurd. As to why he left his country of residence, the applicant stated that Iran was not his country and did not give him citizenship. He and his children could not get an identification card, could not go to school and get an education. He first felt that he had to leave when he was shot in the leg by the Basij. He has two bullets in his upper right leg. He said that he was detained by the Basij for 48 hours in a mosque and was held in a storage room and beaten and abused.
The reviewer found the applicant to be a credible witness in relation to his own experiences and accepted that the applicant’s encounters with the Basij occurred. The reviewer accepted that the applicant is a stateless Faili Kurd and that he did not have any documents of nationality or identity. Given that the applicant resided in Iran for a considerable period, including marrying and raising two children there, the reviewer found that Iran is the applicant’s country of former habitual residence. However, the reviewer also found that Iraq would meet the requirements to be considered the applicant’s country of former habitual residence. The reviewer decided that the applicant’s refugee status would be determined in relation to Iran, the country where his immediate family reside and where he lived for almost 40 years.
The reviewer accepted that the applicant suffered serious physical harm including torture in Iran. The applicant faced discrimination by reason of his perceived nationality or ethnicity as a Faili Kurd and by reason of his membership of a particular social group being displaced persons in Iran. The applicant did not have any documentation and faced a precarious and vulnerable existence. This impacted his ability to have a reasonable and appropriate level of education, have access to regulated employment, own property, open a bank account, travel freely, easily access government health services and receive subsidized medicines and avoid intimidation and extortion at checkpoints and other situations when identification papers were demanded. The reviewer accepted that there is a real chance that the applicant would suffer further discrimination and ill treatment in the reasonably foreseeable future if he were to return to Iran and such discrimination and maltreatment would constitute for the applicant serious harm. The reviewer found that the applicant had a well-founded fear of persecution in Iran and that this risk of persecution would arise in the reasonably foreseeable future. The reviewer considered it would be unreasonable to return the applicant to Iraq where the country information indicates that he may suffer hardship given his association with a country such as Iran and for being a Faili Kurd.
I accept the findings made by the Department of Immigration and Citizenship and find that there is a continuing real risk of harm if the applicant were to return to Iran or Iraq and that the applicant is owed non-refoulement obligations.
Consequences of a decision to not revoke
I now have regard to the legal consequences of a decision to not revoke the cancellation decision bearing in mind my determination that the applicant is a person in respect of whom non-refoulement obligations are owed.
The respondent contended that the legal consequences would be that the applicant would be barred under s 48A of the Act from making another application for a protection visa. In light of this and given his statelessness, the respondent contended that the applicant would be detained unless or until such time as it is reasonably practicable to remove him; that is until:
(a)the Minister exercises his personal discretion to grant the applicant a visa under s 195A or s 417 of the Act;
(b)the Minister exercises his personal discretion under s 48B to remove the statutory bar under s 48A of the Act; or
(c)the applicant is successfully resettled to third country.
The respondent’s contention reflects that the applicant is stateless and that therefore returning him to Iran or Iraq is not an option. Nevertheless, as a result of s 197C and s 198(2B), the legal consequence of refusing to revoke the cancellation of the applicant’s visa is that the applicant is required to be removed from Australia as soon as reasonably practicable.[14] In the meantime, as Gleeson J found in CWGF v Minister for Home Affairs [2019] FCA 1802:
…the applicant will be subject to “indefinite detention” in the sense that detention would be limited only by the time taken for the Minister to consider “alternative management options” or until removal is “reasonably practicable”…
[14] see CWGF v Minister for Home Affairs [2019] FCA 1802 at [10] and the cases cited therein.
In the case of the applicant who is stateless, removal to his home country is not “reasonably practicable” and therefore the option of removal would require resettlement in a third country. Despite being invited to do so, the respondent provided no evidence regarding the prospects of a person in the position of the applicant being successfully resettled to a third country, nor that this was even currently being considered by the Minister.
In Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, the Full Court of the Federal Court considered the exercise of the Minister’s power in s 501(1) and s 501(2). What the Full Court said at [61] is apposite to this case:
[61] All these factors have a bearing upon the issue whether Australia’s non-refoulement obligations and the prospect of indefinite detention are mandatory considerations at the time when consideration is being given to the exercise of the powers in s 501(1) or (2). Given the inherent complexity of the matter, it would be unwise to be overly prescriptive in summarising the relevant legal principles, however, the Full Court decisions referred to above support the following non-exhaustive summary of some of the relevant principles:
(a) in determining whether or not to exercise the powers in s 501(1) or (2) of the Migration Act, the decision-maker must take into account the legal consequences of the decision made under either of those provisions;
(b) those legal consequences may include the prospect of the affected person being held in indefinite detention because of the operation of ss 189, 196 and 198 of the Migration Act;
(c) the test is whether, on the basis of all the material which is before the decision-maker at the time of considering whether or not to exercise the powers in s 501(1) or (2), there is at least a real possibility that the person’s removal from Australia would not be reasonably practicable with the consequence that the person faces the prospect of indefinite detention by operation of ss 189, 196 and 198 of the Migration Act; (emphasis added)
(d) the factual circumstances which can give rise to the prospect of indefinite detention can vary considerably — for example, that real possibility may exist because Australia owes the person protection obligations and there is no other country to which the person can be removed consistently with Australia’s non-refoulement obligations. Or there may be some other reason which is personal to the individual concerned as to why that real possibility exists, such as the state of the person’s health, which affects the duty under s 198(6) to remove the person as soon as reasonably practicable;
(e) in determining whether or not to exercise the powers in s 501(1) or (2) of the Migration Act, Australia’s non-refoulement obligations and the prospect of indefinite detention are not mandatory considerations in circumstances where it is open to the person whose visa has been refused or cancelled on character grounds to apply in Australia for a protection visa or some other visa (which visa application the decision-maker is legally bound to consider and determine) and the consideration of the visa application must involve regard being paid to the prospect of indefinite detention if the visa is refused;
(f) this position is generally unaffected by the presence in the Migration Act of various provisions which confer personal powers on the Minister to “lift the bar” (such as s 48B) or to grant a visa to a detainee which would have the effect of changing the detainee’s status from being an unlawful non-citizen (such as s 195A). There is no legal duty on the Minister to consider whether to exercise such a personal power, whether he or she is requested to do so by any person or in any other circumstances (see, for example, ss 48B(6) and 195A(4)). Hence there is no assurance that the Minister will even consider whether or not to exercise such a personal power, with the consequence that there is no assurance that any consideration will subsequently be given in a relevant case to Australia’s non-refoulement obligations or the prospect of indefinite detention. This difficulty may be overcome in a case where, at the time consideration is being given to the exercise of the powers under s 501(1) or (2), there is some material which indicates the real possibility of the Minister exercising his or her personal powers in favour of the affected person; and
(g) the position is also different where, in a case such as NBMZ or NBNB, the person whose visa application has been refused or whose visa has been cancelled under s 501(1) or (2) respectively is prevented by the Migration Act from applying in Australia for a protection visa. In such a case, the Minister’s obligation to consider the legal consequences of a decision in the circumstances under either of those provisions will include consideration of Australia’s non-refoulement obligations and the prospect of indefinite detention, where those matters are relevant to the person’s particular circumstances…

In the absence of any evidence as to the prospects of resettlement, I am not satisfied on the material before me that resettlement to a third country is, or will become, reasonably practicable. There is at least the real possibility that the applicant’s removal would not be reasonably practicable.
Given my finding regarding resettlement in a third country, the applicant is left in the position of being detained until the Minister exercised his personal discretion to either grant a visa or lift the bar under s 48A of the Act. These “alternative management options” require the Minister to exercise a discretion which would result in the applicant obtaining a visa.
I note that a delegate of the Minister refused to exercise his discretion to revoke the cancellation decision and gave reasons dated 6 December 2019. Those reasons included findings that the applicant represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighs any countervailing considerations including non-refoulement obligations and impediments to return.
The delegate of the Minister further concluded that the Australian community would expect that the applicant should not hold a visa. I also note that the respondent gave no evidence that the Minister was considering exercising a discretion and there is no material before me that suggests he would exercise that discretion in favour of the applicant. In the absence of evidence with respect to the Minister, I consider that the delegate’s findings would be indicative of whether the Minister will exercise a discretion.
Rares J in BAL19 considered the situation where the Minister (as opposed to his delegate) had personally refused to grant a temporary protection visa. Subject to that distinction, the reasoning of Rares J at [42], [46] and [48] has some application to this case:
[42] Once the Minister personally refused to grant the applicant a temporary protection visa on the basis that he acted here, knowing that Australia actually owed non-refoulement obligations in respect of the applicant (as a refugee), no reasonable occasion could arise for the Minister to exercise his non-compellable powers to allow the applicant to apply for another substantive visa, absent a substantial and indefinite period of further immigration detention in which a change could occur and, in fact, had occurred to the risk on which the Minister had acted. That consequence must follow because of the Minister’s finding that the risk that the applicant currently posed, on which the Minister acted under s 501(1), necessarily entailed that no reasonable or rational person in the Minister’s position could grant the applicant any visa in the foreseeable future. That is because the grant of any visa would court the very risk that the Minister found decisive in refusing the protection visa. And, indefinite detention to see if, at an indeterminate future time, the applicant’s circumstances had changed materially, is unlawful and precluded by ss 197C and 198.
…
[46] The Minister’s reasons at [94]–[97] appear to be an attempt to lay the groundwork for keeping the applicant in indefinite immigration detention contrary to ss 197C and 198. That is why he simply referred to the possible grant of another substantive visa if he (the Minister) determined either to grant a visa under s 195A or, pursuant to s 48B, that s 48A would not operate to prevent an application for such a visa. Yet, that speculation about the possibility of the applicant being able to apply for another visa, did not begin to engage with the Minister’s decision, under s 501(1), to refuse to grant the protection visa because of the risk that he found the applicant to pose to the Australian community were he to hold a protection visa. That risk and the Minister’s concerns about it could not change if the applicant applied for any other visa.
…
[48] No Minister, acting reasonably, having made the decision under s 501(1) to refuse the applicant the protection visa he had sought, could consider, at the same time, that an application for another visa had any prospect of being granted before the removal of the applicant had to occur as soon as reasonably practicable after that refusal. That is because the risk of harm to the Australian community from the grant of the visa, on which the Minister based his decision, is necessarily inherent in a grant of any other visa, since a visa allows its holder to be in the community.
In light of my findings with respect to the Minister exercising his discretion in favour of the applicant and with respect to resettlement in a third country, I am not satisfied that it is, or will become, reasonably practicable to remove the applicant from detention. I find there is at least a real possibility that the applicant’s removal would not be reasonably practicable with the consequence that the applicant faces the prospect of indefinite detention by operation of ss 189, 196 and 198 of the Act.
Given that the applicant faces indefinite detention and is owed non-refoulement obligations, these are factors that weigh very heavily in favour of revocation of the cancellation decision.
Strength, nature and duration of ties
In making my decision, Direction 79 requires that I consider the following factors:
·how long the applicant has resided in Australia, including whether the applicant arrived as a young child (noting that less weight should be given where the applicant began offending soon after arriving in Australia, and more weight should be given to time the applicant has spent contributing positively to the Australian community); and
·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.
The applicant arrived in Australia as a refugee in 2010 and has been residing in the community since 2012. His links to Australia arise primarily from his five year period of employment. The applicant did not begin offending soon after his arrival. His first offence was in 2017. The applicant was pressed at the hearing to provide information as to his participation in the community and dealings with other persons whilst in Australia. He mentioned some friends in passing but otherwise said that he goes to work and then comes home to prepare his meal before going to sleep. Consequently, I do not consider that the applicant has strong ties with members of the Australian community outside of those who employed him. His period of employment was substantial being approximately five years and therefore I conclude that this is a factor that weighs in favor of revoking the cancellation decision but I do not give it much weight.
Impact on Australian business interests
No evidence or argument was advanced with respect to any impact on Australian business interests.
Impact on victims
The nature of the offending by the applicant is such that no victims were identified. Consequently, this consideration neither weighs for nor against revocation of the cancellation decision.
Extent of impediments if removed to home country
Direction 79 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to Iran in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
·The applicant’s age and health;
·Whether there are substantial language or cultural barriers; and
·Any social, medical and/or economic support available to them in that country.
The respondent acknowledges that the applicant would face impediments to return to Iran in light of the fact that he has been found to be owed protection obligations. Those impediments are clear from the findings in the independent merits review by the Department of Immigration and Citizenship which I have adopted.
The applicant is 52 years old and suffers from diabetes, gastroesophageal reflux disease, back pain, a history of abdominal surgery, and chronic obstructive pulmonary disease.[15] The DFAT country information report on Iran indicates that registered refugees in Iran have access to healthcare, although such access may be at a lower level than that provided to Iranian citizens. I consider that the health issues of the applicant give rise to significant impediments if he were removed to Iran.
[15] IHMS Health Summary Report for Commonwealth Ombudsman dated 1 October 2019
There are no substantial language barriers and I note that the applicant lived in Iran for nearly 40 years albeit facing the difficulties referred to in the independent merits review.
As I have already found with respect to non-refoulement obligations, there are significant impediments that would arise if the applicant were returned to Iran. The matters raised in the independent merits review with respect to non-refoulement are also relevant to this factor regarding impediments. The applicant faces a real risk of harm if returned to Iran. I note that the same applies if he were returned to Iraq. This factor weighs in favour of revoking the cancellation decision, however, I give less weight to this factor because the applicant is stateless and therefore will not be removed to his home country.
Conclusion as to whether there is another reason to revoke the original decision
I have considered the specific circumstances relating to the applicant as part of my consideration whether to revoke the cancellation decision. I am now required to weigh up those considerations so as to determine whether there is another reason to revoke the cancellation decision.
The primary considerations relating to the protection of the Australian community and the expectations of the Australian community weigh in favour of not revoking the cancellation decision. The other considerations of non-refoulement obligations, strength, nature and duration of ties and the extent of impediments if removed weigh in favour of revocation.
Further, there is the very real prospect that the applicant will be indefinitely detained if the cancellation decision is not revoked. This is a very serious and significant consequence which weighs heavily in favour of revocation.
Given the low risk of further offending, the limited harm that would result from any further offending and the prospect of indefinite detention, the protection and expectations of the Australian community do not outweigh the countervailing considerations. I note that primary considerations should generally be given greater weight than the other considerations but this is a case where the cumulative weight of the other considerations is greater than the weight to be accorded to the primary considerations of the protection and expectations of the Australian community.
DECISION
The decision of the Tribunal is to set aside the delegate’s decision and to substitute a decision to revoke the cancellation decision.

I certify that the preceding 82 paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

...[Sgnd].................................................
Associate
Dated: 26 February 2020

Dates of hearing: 17 February 2020

Representative for the Applicant Self-represented

Representative for the Respondent Mr J Hutton instructed by Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Dates of hearing:	17 February 2020
Representative for the Applicant	Self-represented
Representative for the Respondent	Mr J Hutton instructed by Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs