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

WWMD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3630 (11 October 2021)
Division:GENERAL DIVISION
File Number: 2021/4871
Re:WWMD
APPLICANT

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

DECISION
Tribunal:Senior Member D. J. Morris
Date:11 October 2021
Place:Melbourne

The Tribunal decides to set aside the decision of the Respondent dated 17 July 2021. In its place, under section 43(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal substitutes a decision that the mandatory cancellation of the Applicant’s Class BA Subclass 200 Refugee Visa be revoked under section 501CA(4)(b)(ii) of the Migration Act 1958.
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Senior Member D. J. Morris
Catchwords
MIGRATION – cancellation of class BA subclass 200 refugee visa – where application is citizen of Iraq – where visa cancelled mandatorily because of substantial criminal record as defined in Migration Act – where applicant invited to make representations that there is another reason under s 501CA of Act for visa cancellation to be set aside – where delegate of Minister decided discretion not enlivened – where applicant sought review by Tribunal – where ministerial direction made under s 499 of Act – decision-makers must comply with direction – Direction No. 90 – primary considerations – special consideration relating to prospect of prolonged detention – other considerations – discretion enlivened – decision under review set aside and new decision substituted
Legislation
Administrative Appeals Act 1975 (Cth), ss 33A, 35
Migration Act 1958 (Cth), ss 36, 499, 500, 501, 501CA
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 33
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Secondary Materials
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (as later amended)
Department of Foreign Affairs and Trade - Country Information Report – Iraq (20 August 2021)
International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976)
Migration Act 1938 – direction under s 499 – Direction No. 75 – Refusal of Protection Visas relying on section 36(1C) and section 36(2C)(b) (Made 6 September 2017/commenced 7 September 2017)
Migration Act 1958 – direction under s 499 – Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Made 8 March 2021/commenced 15 April 2021)
World Health Organisation ATLAS of Substance Use Disorders – Resources for the Prevention and Treatment of Substance Use Disorders – Country Profile Iraq - (2010)
REASONS FOR DECISION
Senior Member D. J. Morris
11 October 2021
PRELIMINARY

The Tribunal issued an order under section 35 of the Administrative Appeals Tribunal Act1975 (‘the AAT Act’) to prohibit the publication of the name of the Applicant in these proceedings. He will instead be known by the anonym “WWMD”. The identity of other persons or features that might tend to identify him will be anonymised.
WWMD was born in 1983 in Iraq and is a citizen of that country. When he was a young child, his parents and siblings left Iraq and travelled via Iran to Pakistan, where they lived for about 11 years. His parents and most of his siblings came to Australia in August 2000; one sister arrived the previous year, another sister the next year. WWMD was granted a Class BA Subclass 200 Refugee Visa. Other than one journey out of Australia, he has remained in this country since his arrival.
WWMD’s visa was cancelled on 23 September 2020, under section 501(3A) of the Migration Act 1958 (‘the Act’) on the basis that he had a ‘substantial criminal record’ and was serving a sentence of full-time imprisonment on the date of the visa cancellation. Section 501(3A) of the Act provides, that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) must cancel a person’s visa if the Minister is satisfied that the person does not pass the character test in the Act because of, relevantly in WWMD’s case, a ‘substantial criminal record’, which is defined in section 501(7)(c) of the Act as a sentence of imprisonment of 12 months or more.
A person whose visa is mandatorily cancelled under section 501(3A) of the Act must receive notice from the Minister of the decision and an invitation to make representations about the revocation of the original decision, (i.e. the decision to cancel the visa under section 501CA(3) of the Act).
The Minister may revoke the original decision if representations are made and one of two conditions are met:
(a)either the Minister is satisfied that the person passes the character test as defined in section 501 of the Act (section 501CA(4)(b)(i)); or
(b)“there is another reason why the original decision should be revoked” (section 501CA(b)(ii) of the Act).
The Applicant made representations to the delegate in response to the invitation. On 17 July 2021, the delegate decided not to revoke the mandatory cancellation of the visa. The Applicant was notified of that decision on 19 July 2021.
Section 500(1)(ba) of the Act, provides that a person may make an application to the Tribunal for review of the decision made by a delegate of the Minister to not revoke a mandatory cancellation decision. WWMD made an application to the Tribunal on 21 July 2021.
Section 500(6L)(c) of the Act, provides that if the Tribunal has not made a decision in relation to an application of this nature within a period of 84 days from the date of notification of the decision to the non-citizen, the decision is taken to be affirmed. In this case, the parties agreed that the 84^th day is 11 October 2021.
HEARING
The hearing was on 29 and 30 September 2021, by video link as permitted by section 33A of the AAT Act, because of the current public health emergency. WWMD was represented by Mr Dushan Nikolic, with Ms Toniey Munro, of Carina Ford Immigration Lawyers. The Applicant gave evidence and was cross-examined by Ms Sarah Thompson of HWL Ebsworth Lawyers, representing the Minister. The Applicant called the following witnesses who also gave evidence, two by video and the remainder by telephone: his mother, Ms AH; his brothers and sisters: Mr BI; Ms MI; Ms NI; Mr DI; Ms ZI and Ms FI; and Mr Jeffrey Cummins, clinical and forensic psychologist, who gave evidence as an expert witness.
The following documents were admitted into evidence by the Tribunal:
·Volume of ‘GD’ documents, lodged on 5 August 2021 (Exhibit R1);
·Volume of Supplementary, or ‘SGD’ documents, lodged on 14 September 2021 (Exhibit R2);
·Volume of Further Supplementary, or ‘FSGD’ documents, lodged on 21 September 2021 (Exhibit R3);
·Statement of WWMD, lodged 27 August 2021 (Exhibit A1);
·Further statement of WWMD, lodged 24 September 2021 (Exhibit A2);
·Applicant’s bundle of country information, lodged 24 September 2021 (Exhibit A3);
·Statement of Ms AH, lodged 27 August 2021 (Exhibit A4);
·Statement of Mr BI, lodged 27 August 2021 (Exhibit A5);
·Statement of Ms MI, lodged 27 August 2021 (Exhibit A6);
·Statement of Ms NI, lodged 27 August 2021 (Exhibit A7);
·Report dated 23 September 2021 of Mr Jeffrey Cummins, psychologist, together with briefing letter from Applicant’s solicitors dated 31 August 2021 (Exhibit A8);
·Statement of Mr DI, lodged 26 August 2021 (Exhibit A9);
·Statement of Ms ZI, lodged 26 August 2021 (Exhibit A10); and
·Statement of Ms FI, lodged 26 August 2021 (Exhibit A11).
The Tribunal also had regard to Statements of Facts, Issues and Contentions lodged by each party, and a statement in reply lodged by WWMD.
LEGISLATIVE FRAMEWORK
What is the matter for the Tribunal to decide?
In reviewing a decision not to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act two things should be remembered. First, the Tribunal is not reviewing the decision of the delegate. The Tribunal is making a fresh decision based on the law and the information before it. Secondly, both parties are entitled to make submissions and provide further information to the Tribunal as it conducts the review, including information that was not before the delegate when the original decision was made.
The Tribunal is required to make an evaluation of the factors for and against revocation. North ACJ said in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, (‘Gaspar’) at [38]:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. In this instance the Minister acted in accordance with that construction of the section. He did not apply the wrong test.
The Tribunal therefore must decide two questions. First, whether the Applicant fails the character test in the Act. If it is found that he does not, then the cancellation of the visa is set aside, and that is the end of the matter. However, if the Tribunal finds that WWMD does fail the character test, there remains a second question for the Tribunal to consider – whether there exists ‘another reason’ as to why the cancellation of his visa should be revoked.
The mandatory cancellation of the visa
Does the Applicant have a ‘substantial criminal record’?
An Australian Criminal Intelligence Commission report dated 23 November 2021 (‘ACIC report’) relating to the criminal history of WWMD was in evidence (GD, pp 27-32). The ACIC report records that in December 2018 WWMD was convicted before the Magistrates’ Court of Victoria of 13 counts of the offence of Theft from shop (shopsteal) and sentenced to an aggregate of 12 months’ imprisonment. On the same day, he was convicted of the offence of Commit indictable offence whilst on bail.
He has a significant list of other convictions but, for the purposes of section 501(7)(c) of the Act, a person need only be convicted of a term of imprisonment for 12 months or more, which includes shorter terms of imprisonment which when counted together amount to 12 months or more (section 501(7)(d)). Mr Nikolic, for the Applicant, conceded that WWMD has a ‘substantial criminal record’, thus meeting the criterion in section 501(3A)(a)(i).
Section 501(3A)(b) of the Act requires that the non-citizen must be serving a sentence of full-time imprisonment, for an offence against a law of the Commonwealth, a State, or a Territory, at the time his or her visa was cancelled. In August 2020, also before the Magistrates’ Court of Victoria, WWMD was convicted of (six counts) of Theft from shop (shopsteal), and the offences of Commit indictable offence whilst on bail (five counts); Theft of bicycle; Obtain property by deception (four counts); and Contravene a conduct condition of bail. He was sentenced to an aggregate term of three months’ imprisonment, and a Community Corrections Order (‘CCO’) for 12 months.
As the visa cancellation occurred on 21 September 2020, while WWMD was serving the first month of his three months’ full-time prison sentence, I am satisfied that this requirement is also met. The consequence is that the visa was cancelled mandatorily because WWMD failed the character test.
The ministerial Direction – Direction No. 90
Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2) of the Act, comply with a relevant direction.
On 8 March 2021, the Minister made a direction under section 499, Direction No. 90. Direction No. 90 (‘the Direction’) which commenced on 15 April 2021. The Tribunal must have regard to the contents of the Direction in considering whether there is ‘another reason’ to revoke the mandatory cancellation. The Direction requires that some considerations must be taken into account, where they are relevant. However, the Direction does not contain the Tribunal’s task; it must look at any other relevant factor in the circumstances of the case.
OFFENDING HISTORY
WWMD first appeared in the Magistrates’ Court in October 2001, charged with one count of Theft from shop (shopsteal). The matter was adjourned without conviction.
In March 2004, he was again before the Court on the same charge, this time he was convicted and fined $50.
In May 2004, WWMD was charged with the offence of Possess cannabis. No conviction was recorded, and he was ordered to pay $50 into the Court Fund. In July 2004, he was convicted of the offence of Careless Driving and fined $400, and his driver licence or permit was suspended for two months.
In October 2004, WWMD faced Court over charges of Theft from shop (shopsteal) and Possess cannabis. No convictions were recorded, and the matters were adjourned for one year.
Later in October 2004, the Court made a Community Based Order (‘CBO’) that WWMD perform 19 hours of community work for defaulting on payment of the $400 fine above in respect of his conviction for the offence of Careless Driving. In June 2006, he was again before the Court for breaching this CBO and sentenced to three days’ in prison.
In March 2009, WWMD was convicted of the offences of: Theft, Possess controlled weapon without excuse (two counts), Possess dangerous article in public place. He was placed on a CBO for 12 months to perform 50 hours of unpaid community work.
In April 2009, WWMD was convicted of Possess cannabis (two counts), and Use cannabis (two counts), and fined an aggregate of $300.
In April 2010, the Applicant was before the Court. The charge of Failure to comply with CBO was proven. He was convicted of the offences of: Theft from shop (shopsteal) (four counts); Use heroin; Failure to answer bail; Possess heroin; Obtain property by deception. He was placed on a fresh CBO for 12 months.
In June 2011, WWMD was convicted of Failure to comply with CBO; Shop Theft – Less than $600 (three counts); Theft from shop (shopsteal) (four counts); Theft; Obtain property by deception (two counts); Fail to answer bail; Fail to report to police owner not present; Theft of bicycle; Attempt to commit indictable offence. For this group of offences, he was ordered to serve a CBO for 12 months to perform 100 hours of unpaid community work. On the same day, he was convicted of Possess heroin (two counts); Theft from shop (shopsteal) (two counts); Failure to comply with CBO; a breach regarding the offence of Possess controlled weapon without excuse.
In February 2012, WWMD was convicted of the offences of Theft from shop (shopsteal) (two counts) and sentenced to serve 60 days in prison, 40 days of which was suspended.
In August 2013, he was before the Court which found the charge of Failure to comply with CBO proven.
In January 2014, the Applicant was convicted in the Magistrates’ Court of the offences of Shop Theft – Less than $600 (three counts); Theft from shop (shopsteal) (two counts); Threat to inflict serious injury; Theft; Unlawful assault; Failure to answer bail (two counts). For this group of charges, he was placed on a CCO for 12 months.
Later in January 2014, WWMD was before the County Court of Victoria, convicted of a large number of charges. He was convicted of breaching the CBO of June 2011. He was also convicted of the offences of: Shop Theft – Less than $600 (three counts); Possess heroin (two counts); Theft from shop (shopsteal) (six counts); Theft; Obtain property by deception (two counts); Fail to answer bail; Theft of bicycle; Attempt to commit indictable offence; Fail to report to police owner not present; breach of the suspended sentence imposed in February 2012 which was reinstated; further counts of Theft from shop (shopsteal) and Theft and Fail to answer bail. He was sentenced to an aggregate term of 44 days’ imprisonment.
In March 2014, before the Magistrates’ Court, WWMD was convicted of (two counts) of Theft from shop (shopsteal) and sentenced to 15 days in prison.
In May 2014, the Applicant was convicted of the offences of: Theft from shop (shopsteal) (six counts); Attempt to obtain property by deception; Shop Theft – Less than $600 (three counts); Attempted Theft from shop (shopsteal); Unlawful assault; Criminal damage (intent damage/destroy); Fail to answer bail; Possess heroin; Robbery. He was sentenced to an aggregate of 42 days’ imprisonment.
In February 2015, before the County Court, WWMD was convicted of breaches regarding January 2014 convictions and contravening a CCO. He was also convicted of the offences of: Obtain property by deception; Theft from shop (shopsteal) (three counts); Knowingly deal with the proceeds of crime; Theft; Burglary; Obtain property by deception. He was sentenced to 162 days’ imprisonment.
In April 2015, WWMD was before the Magistrates’ Court. He was convicted of Theft from shop (shopsteal) (six counts); Conspiracy to commit indictable offence (two charges); Contravene a conduct condition of bail; Go equipped to steal or cheat (five charges). He was sentenced to an aggregate term of two months in prison.
WWMD was back in Court in May 2015 and convicted of the offences of Theft from shop (shopsteal) (four counts); Intentionally damage property. He was sentenced to serve two months in prison.
In February 2016, before the Magistrates’ Court, WWMD was convicted of Without authorised excuse entering a private place and (three counts) of Theft from shop (shopsteal). He was sentenced to 114 days’ in gaol.
In September 2016, WWMD was convicted at Heidelberg Magistrates’ Court of: Theft from shop (shopsteal) (eight counts); Commit indictable offence whilst on bail (seven charges); Dishonestly receive stolen goods; Possess controlled weapon without excuse; Unlawful assault; Obtain property by deception (three counts); Possess cannabis; Contravene a conduct condition of bail. For this group of offences, the Applicant was sentenced to an aggregate of three months in prison.
In January 2017, WWMD was convicted of Theft from shop (shopsteal) (seven counts); Attempted theft from shop (shopsteal); Possess heroin. He received a sentence of 48 days in prison and a CCO for 12 months.
In May 2017, the Applicant was convicted of the offence of Theft from shop (shopsteal) (four counts) and Commit indictable offence whilst on bail. He was sentenced to an aggregate of three months in prison.
In July 2017, WWMD was in Court in relation to breaching a CCO, which was found proven. The order was cancelled, and he was sentenced to 14 days’ imprisonment in relation to offences dealt with by the Court in January 2017.
In February 2018, WWMD was before the Court and convicted of the offences that follow: Handle/receive/retention of stolen goods; Obtain property by deception (nine counts); Attempt to obtain property by deception (two counts); Theft from shop (shopsteal) (eight counts); Commit indictable offence whilst on bail (seven counts); Deal in property suspected the proceeds of crime; Possess heroin. He was sentenced to an aggregate of two months’ imprisonment and given a CCO for 12 months.

In June 2018, WWMD was convicted of (11 counts) of Theft from shop (shopsteal), and sentenced to three months’ imprisonment on each charge, to be served concurrently.
In December 2018, the Applicant was convicted of: Theft from shop (shopsteal) (17 counts); Commit indictable offence whilst on bail. He was sentenced to an aggregate of 12 months in gaol.
In September 2019, at the Melbourne Magistrates’ Court, WWMD was convicted of (two counts) of Theft and sentenced to an aggregate term of five days’ imprisonment.
In April 2020, WWMD the Applicant was convicted of Theft from shop (shopsteal) (seven counts); Commit indictable offence whilst on bail. He was sentenced to an aggregate 67 days’ in gaol.
In August 2020, WWMD was convicted of the offences referred to above in relation to him serving a full-time term of imprisonment at the time his visa was cancelled. The Tribunal notes that the ACIC report records five other offences which were pending at the time the report was produced. As the ACIC report states, pending charges which have not been determined by a Court cannot be regarded as a finding of guilt against the individual named in the report, WWMD.
OPENING SUBMISSION OF APPLICANT
Mr Nikolic said that the parties were in general agreement over various considerations in the Direction to which the Tribunal is obliged to have regard. He said the considerations relating to whether the conduct of the Applicant constituted family violence, the best interests of affected minor children in Australia and non-refoulement obligations are matters in dispute between the parties.
Mr Nikolic said that WWMD concedes that his offending is serious but disagrees with the Respondent about the level of risk. He said a greater level of tolerance should be afforded to the Applicant because of the length of time he has lived in Australia and because of three identified health conditions he has, namely post-traumatic stress disorder (‘PTSD’), schizophrenia and epilepsy.
ORAL EVIDENCE AT THE HEARING
The Applicant
WWMD confirmed that he was born in Iraq but does not remember anything about that country because he went to Pakistan with his parents and siblings aged around five or six. He said the family first lived in Quetta and then in Rawalpindi. He went to school with his brothers and sisters. He said life was hard, “it was hard for citizens, let alone being an immigrant. We were refugees. We were given green cards after some time.”
WWMD said he arrived in Australia in 2000 at the age of 16 or 17. He was accompanied by his late father, his mother, two brothers and two sisters. Another two sisters were married: Ms MI had already arrived in Australia and Ms FI arrived sometime later. WWMD said he did not have any family in Iraq.
WWMD said they first were settled in Launceston where he attended language school. Subsequently, the family moved to Melbourne where he attended a high school for one year. He said he left at the end of first or second term in grade 12.
WWMD said he then undertook a security course and started working as a security guard in crowd control, a job he held for two years. He then worked in hospitality, waitering and cooking.
When asked to list his medical conditions, WWMD said that he has epilepsy, schizophrenia, depression, and previously psychosis which has since been diagnosed as schizo-affective disorder. When asked directly by the Tribunal whether he has any physical health conditions, the Applicant said he did not. He said the medication he takes is Epilim 500mg, Seroquel and Methadone.
Mr Nikolic asked WWMD how long he had been taking methadone, and he responded: “maybe one year, maybe 15 months, I started just before coming into the prison.”
WWMD said he had used illicit drugs in the past, using heroin daily. He responded: “Yes. Mainly using heroin daily. Ecstasy a long time ago. Ice a few times. Cannabis a bit. My longest using drug was heroin”. WWMD said he started using heroin aged 24 or 25, initially smoking it for three or four years and then started injecting it.
He said he used ‘ice’ for four or five years but took it very rarely, he estimated a maximum of ten times. He said his first illicit drug taking was cannabis.
Mr Nikolic referred to his written statement where WWMD said he started using drugs as a coping mechanism. WWMD said “in the past I had abuse. Mentally I couldn’t handle it. I used drugs to cope.”
When pressed on what he meant by abuse, WWMD said “sexual abuse, when I was 10 or 11 years old, in Pakistan.”
When asked what impact he thought drug taking has had on his behaviour, WWMD responded: “It made things worse. I started using drugs and it destroyed my life. I became disconnected with my family. I had my visa cancelled. I was working five days a week and then moving around to get drugs.”
WWMD was taken to the ACIC report (GD, pp 27-32) and said he accepted it and agreed it was a long list. “Ninety-five per cent of my offending was either to get drugs or while on drugs.”
WWMD said that being on the methadone programme has been very positive for him. He said he is now on an 80mg dose. He said he started at 20mg and then after a month or two months he saw a doctor every week and the dosage went up in 10mg increases.
Mr Nikolic asked WWMD whether he thought he would use drugs again. He responded: “Never. I don’t have the cravings now, or the physical pain. I don’t have the urge to use at all. I put myself on methadone in the community and was doing it for two months or so before I went to prison.”
When asked whether he has had visitors in prison, WWMD said not on the most recent occasion because of visiting restrictions owing to the pandemic. He said all the prisoners were confined to their cells except for daily exercise breaks. He said he had had no visitors in detention because the ban on visitors owing to the Covid-19 lockdown was lifted for only for a week before being reimposed.
WWMD said there were no courses offered in prison on the most recent occasion because of the pandemic but he has undertaken courses in the past. He named skill certificates, a 44-hour drug programme, certificates I and II in cleaning operations, courses in microbusiness, literacy and numeracy, elevated work platforms and had obtained a white card (construction), all done during previous sentences.
The Applicant said he did a drug and alcohol course in 2019 when he was serving a one-year sentence and found it “a bit helpful”.
Mr Nikolic asked WWMD about his relationship with his parents. He said that his father died in 2009 or 2010. He said: “My mother and all my siblings live separately except my younger brother who lives with my Mum. I have a good relationship with Mum, but I haven’t been a good son.”
WWMD said that his oldest brother, Mr BI, is “like a father. He’s been there for me. A good brother”. He said Mr BI is a painter and “he might be able to give me a job if things work out”. The Applicant said he would like to work with his brother in his business because it would be a good opportunity to learn a new skill.
WWMD said all his siblings except his youngest brother, Mr DI, were married and had children. He said he keeps in contact with them by telephone. “My sisters are very disappointed. I talk to them maybe once a week, maybe every two weeks. It’s been a while since I have been outside.”
WWMD said that one sister, Ms MI, has five children, another, Ms FI, has two, and his other sisters have two each. “I wish I could be with (my nieces and nephews). I would love to be there for them in the future. I haven’t been around for them much. I would like to make an effort.”
Mr Nikolic asked the Applicant what he thought life would be like in Iraq. He responded:
“I don’t have a clue. I left when 5 or 6. I don’t know anything about the city there. There is a lot of trouble in Iraq. I wouldn’t know where to go, where to live. They will believe I have betrayed Iraq. They will think I should be punished. I don’t know anything about the society. I wouldn’t last one day. I don’t speak Arabic very well. I understand it a bit. I wouldn’t know how to get my medication. I am pretty sure there is no methadone there. Medication would be a cost I cannot afford. I have no memory of it.”
In respect of the Arabic language, WWMD said his level was ‘very low’. “I can’t write it. I can read a little bit. I can make conversation but very broken. I can understand it better.”
When asked whether he could speak any other language, WWMD said: “I speak Kurdish, and a tiny bit of Farsi. Kurdish is the language I speak at home.”
When asked if he has any contact with anyone in Iraq, WWMD said he did not. He said: “I believe there is one uncle there, but I have never communicated with him. He may not be there. My grandparents have passed on.”
Mr Nikolic asked WWMD whether he knew where he would live if repatriated to Iraq. He said, “I have no idea, none whatsoever”. He said he did not think his family would be able to assist him if he was returned there.
WWMD was asked where he planned to live if released into the community. He replied: “With Mum or my brother, Mr BI for a period, until I get my own place.”
Mr Nikolic asked WWMD whether he thought he could play a positive role in the lives of his nieces and nephews. He responded: “I could be a better uncle. I won’t say a role model. I could show them what not to do. How it affects you and the community, and why they should stay away from drugs and all that.”
When asked whether he would like to use other services in the community apart from continuing on the methadone programme, WWMD said: “Yes. I would love to go into alcohol and drug rehabilitation. Would like to get help not to use drugs, for a couple of weeks or a couple of months, even though I am clean. I will use drug and alcohol counselling.”
Mr Nikolic asked WWMD if he had contemplated what would happen if he re-offended. He responded: “Re-offending is not going to happen. Major eye-opener for me. I would go to prison and then detention. There is no doubt about that.”
Cross-examination of the Applicant
WWMD said he stopped doing security work. When asked whether he lost his security officer’s licence because he had a conviction, he responded: “I don’t really remember what I lost it for.”
WWMD was taken through his nieces and nephews. He said that his oldest sister, Ms MI, has two who are adults and two who are younger. He said another sister, Ms FI, has two boys who are both teenagers. WWMD said that his older brother Mr BI has three children. He guessed their ages with the older being “16 or 14, the daughter is two years younger, and the youngest 6 or 8. I can’t recall”. He said his sister Ms NI has two young children, as did his sister Ms ZI, one of whose children is a new baby. He said his younger brother, Mr DI, did not have children and was not married. WWMD said that he had been thinking, and said Ms MI has five children, which he named.
The Applicant said that he calls his family “once a week or once every ten days or couple of weeks”. He said he speaks sometimes to the older nieces and nephews. He agreed that some of the younger nieces and nephews have been born since he has been in prison and detention.
WWMD said that before his most recent prison sentence he had been living with his mother for three or four months. He said before that he lived in private rental accommodation, generally shared houses. He said he did rent his own two-bedroom unit when he was doing security work but after he lost that job, he could not afford the rent.
WWMD agreed with Ms Thompson that he had period of homelessness. “I could have gone home but avoided that when on drugs. I didn’t want them to see me like that.”
He said that when he took drugs while living with his mother, he would stay out at a friend’s house.
Ms Thompson asked WWMD about convictions recorded in 2009, 2014 and 2016 for possessing a controlled weapon. WWMD said that he believed the weapon referred to was a baton. When asked whether he ever had been in possession of a knife, WWMD responded “Maybe a pocketknife, I’ve never carried a knife in my life.”
When asked why he was carrying a baton, he responded: “It might have been in my car. I don’t really remember whether it was on me.”
WWMD was taken to a report of him being found carrying a bag containing a knife in 2008 (FSGD, p 729). He responded: “I don’t recall it.”
Ms Thompson asked WWMD whether he remembered his 2014 conviction for unlawful assault where he was sentenced to 42 days in prison. He responded: “To be honest, I don’t remember exactly. Maybe the taxi driver.”
Ms Thompson then asked WWMD about an offence in 2012 when he left a taxi without paying the fare. He said: “We had a little fight. He broke my necklace”. The Applicant was taken to a police report (SGD, p 356), which relevantly read:
The accused caught the taxi to [address redacted], where he told the taxi driver to pull over. The accused exited the taxi, leaving without paying. When approached by the taxi driver, the accused pushed him, grabbed him by the shirt. The accused attempted to punch the taxi driver with his right hand but the taxi driver deflected the punch. The accused then released the taxi drivers shirt, punching with a closed fist and kicking the taxi driver in the stomach, causing the taxi driver to bend over in pain.
WWMD agreed that he assaulted the taxi driver. He said: “I do not remember how it happened or what happened.”
Ms Thompson asked WWMD if he remembered an incident in 2016 (FSGD, p 650) where he was accused of spitting on a prison officer at Melbourne Assessment Prison. WWMD said: “No, I never spat on a prison officer.”
WWMD agreed with Ms Thompson that he had ‘multiple’ convictions for unlawful assault, and convictions for threatening behaviour.
Ms Thompson asked the Applicant whether he recalled ever being the subject of a Family Violence Intervention Order (‘IVO’). He responded: “With my family. The Order was put on by the police, not by my mother, and then varied.” WWMD said he could not recall why the IVO was put in place.
WWMD was then asked whether he recalled any incident where he may have threatened a member of his family. The Applicant said that he did not. WWMD was then taken to a police report (SGD, p 356) which relevantly read:
At approximately 3.00am the accused has gone to his mother’s house [address redacted] where he has began [sic] banging on the outside of the windows and doors of the house. On Police arrival the accused had left the premises. While police were speaking with the accused’s mother, the accused returned. During a verbal argument between the accused and his mother, the accused in a foreign language has made a threat towards his mother, saying “Next time I see you, I am going to kill you.” The accused’s mother has become distraught from this comment, fearing he may follow through with the threat.
When this was read to him at the hearing, WWMD said: “I don’t recall it, no.”
WWMD was then asked whether he remembered an incident (FSGD, p 747) where he visited the residence of a sister, because he knew that his mother would be there at that time. The report says WWMD demanded $20 from his mother and when she refused to give him the money, he threatened to go to her house and ‘smash up’ the house.
WWMD said: “If it says that there, I must have, if my mother said that”. Ms Thompson noted that the report also says that the Applicant’s mother did not want to pursue the matter.
Ms Thompson took WWMD to a recent incident involving an altercation between him and his younger brother, Mr DI. He said: “Yes, we had an argument and a bit of a scuffle. We had a fight.”
Ms Thompson asked WWMD whether anyone was injured on that occasion. He responded: “Yes. I was. My arm, my rib and my head”. He said that he thinks Mr DI had a broomstick on the occasion and agreed Mr DI had swung it at him. “He hit me on the arm. I was asking why he didn’t mow the back yard. I was trying to tell him to do more, he didn’t agree with me.”
WWMD was asked whether he had ever stolen from his family. The Applicant said he had not. He was then taken to a report (SGD, p 357) which recorded that he had taken Mr DI’s driver licence to a cash convertor shop and used it to loan a mobile telephone for an amount of $90. WWMD said: “I don’t remember that incident, I’m being very honest”. Ms Thompson asked if it might have led to his conviction in May 2014 of the offence of Attempt to obtain property by deception. WWMD said: “It would have been that, 100 per cent.”
Ms Thompson then asked WWMD whether he had taken methadone on a prior occasion, that is, before his most recent prison sentence. In answer to a direct question from the Tribunal, the Applicant said he was on it for “about five weeks” before he commenced his prison sentence and had continued it in gaol.
Ms Thompson asked WWMD whether he had been on methadone in 2013 and again in 2015. He responded: “No, I had never been on methadone.”
The Tribunal was then taken to a letter from Dr Noah Diner of Flemington Medical Centre, dated 11 April 2013 which referred to the Applicant being on methadone (SGD, p 351). The letter referred to a discharge summary from the Northern Psychiatric Unit noting a short admission for eight days in January 2013 where WWMD had been admitted as an involuntary patient. It relevantly stated (SGD, p 351):
It was noted that he had had multiple admissions to psychiatric units since 2007. He had been diagnosed with schizoaffective disorder and bipolar affective disorder. He was also noted to have a history of opiate dependence, marijuana and amphetamine abuse and was a heroin user. He had apparently been on methadone in the past and, prior to admission to the psychiatric unit, had been on Suboxone 2mg…
Ms Thompson also noted that a 2015 file note from Melbourne Assessment Prison (SGD, p 530) refers to the Applicant being on methadone 45mg. He responded: “Honest to God, I don’t remember.”
The Applicant was taken to a prison medical file note (SGD, p 475) which read:
01/08/2017 4:13 PM, Port Phillip Prison, [name of officer redacted], Non Direct Clinical Contact
I clarified for [redacted] Pharmacy that the methadone dose was changed to 75 mg daily before [WWMD] was released.
When asked directly by the Tribunal whether he remembered being on methadone in 2017, WWMD responded: “I would have been.”
When asked directly by the Tribunal whether he remembered going to a pharmacy in the community to obtain his methadone treatment in 2017, WWMD responded: “No. I would have had to but don’t remember that. I was using heroin at that time.”
WWMD conceded that he might have asked to go onto the methadone programme in 2018 but did not recall that.
The Applicant was taken to a prison medical file note dated February 2018 (SGD, p 463) which records planning for his discharge from prison. The file note refers to three general practitioners where WWMD has told the prison staff member that he has previously attended, for methadone prescribing. The names of the doctors were redacted. WWMD said he did not recall this.
Ms Thompson put to WWMD that he has been on methadone before, which he accepted. He said he had not been directed to undertake treatment in the past. When asked about CCOs in 2011, 2017 and 2018 which included various requirements for him to undertake treatment, WWMD said he did not recall these requirements, but did recall the 44-hour drug course he had done. The Applicant agreed that he had breached most of the CCOs imposed on him.
Ms Thompson asked WWMD what is different now. He responded:
“It will only work when a person wants to change. I didn’t have the intention to quit before. If you don’t want to quit the drugs, it is not going to work. One – I don’t want to use. Two – my visa has been cancelled. Three – I am nearly 40 years old; I want to change my life.”
WWMD said he want to attend Moreland Rehabilitation Centre. “I am clean now. I want to go to detox and rehab and do one-on-one counselling. I mean it this time. I want to change.”

Ms Thompson then asked WWMD about his concerns about Iraq if he is deported there. WWMD agreed he was ethnically Kurdish and speaks Kurdish. “I don’t know how to write it, but I can speak and understand it.”
Ms Thompson asked WWMD if he had looked into going to Kurdish regions of the country if he is repatriated. He responded: “I wouldn’t know where to start.”
When asked whether he accepts that he would not be at risk of harm if in a Kurdish region, WWMD responded: “I wouldn’t know how to survive there.”
The Tribunal asked WWMD about his memory. He responded: “Drug use has affected my daily life. It has taken a toll”. When pressed about whether it has had a particular effect on his memory, WWMD responded: “It might have.”
In response to direct questions from the Tribunal, WWMD said he believed he was diagnosed with epilepsy in “2008 or 2009”. He said that he had had “a few” seizures and the worst one involved a fall where he dislocated his shoulder and had to be admitted to hospital.
Ms AH
The Applicant’s mother gave evidence by telephone through an Arabic interpreter.
She confirmed that she was born in Kurdistan, Iraq. She told the Tribunal about a range of medical issues affecting her. Ms AH said that the reason the family left Iraq was because of the war between the Kurdish and the Arabs.
Ms AH said the family initially went to Iran and then to Pakistan where they stayed for around 11 years before coming to Australia. She confirmed that she has seven children, all of whom live in Melbourne.
Ms AH said she had a good relationship with WWMD and then added: “He is tired and sick, and his psychological state is not good.”
Ms AH said that the Applicant was living with her before his most recent prison sentenced but that she has not been able to visit him in gaol because of the coronavirus restrictions. She said she speaks to him almost every day.
Ms AH said that WWMD has a mental condition because of his drug taking, observing: “When he was with us, he never sleeps. Always awake, talking to himself all the time.”
Ms AH was asked about relatives she had in Iraq. She replied: “We have nobody at all in Iraq. WWMD was very young when he left. They have all died. My brother who was there left for Europe. I have a sister there who is very sick with clotting in her blood”. Ms AH did not think any remaining relative was in Iraq who would be in a position to help WWMD if he was returned there.
Under cross-examination, Ms AH was asked what WWMD was like when he was taking drugs. She responded: “His condition was not good. He never sleeps. Talking to himself in front of a mirror.”
Ms AH was asked if she was ever scared of WWMD when he has been taking drugs. She responded: “For sure, when you see him unnatural, I am afraid about him and about myself”. Ms AH said that WWMD has never threatened her.
Ms Thompson took Ms AH to the police report about the incident at her home and in response to the suggestion that WWMD had said ‘I’m going to kill you’. Ms AH said: “I never remember he threatened me at all. Maybe I couldn’t express myself to the police.”
When asked whether WWMD had ever threatened to damage her property, Ms AH responded: “I cannot remember exactly what has happened. I have a remote memory he has broken a door or a window.”
Ms AH said she remembered the incident between WWMD and her younger son, Mr DI. She said: “Mr DI took a bicycle off WWMD. WWMD was angry. Mr DI hit WWMD. WWMD telephoned the police. The police came and took WWMD away, instead of Mr DI.”
Ms Thompson asked about the IVO against WWMD. Ms AH said that she took out the Order with the police because she was afraid about her two daughters who were living with her at the time. She said she was not afraid that WWMD would hurt the girls, but she did not want them to learn about drugs from her son.
Ms AH said WWMD would live with her if he is released. She said Mr DI will move out. She said she was not concerned about the Applicant. “My fear before was for my girls. I am not scared of WWMD. He would never hurt me.”
Ms AH said she had tried more than once to take WWMD for treatment, but she felt he needs long-term treatment, not for one or two months.
Mr BI
Mr BI gave evidence by video. He confirmed he had come to Australia with his parents and siblings, including WWMD, in 2000. He said he has three children: a son aged 14, a daughter aged 10, and a son aged six.
Mr BI said they are a close family and WWMD maintains contact with his nephews and niece through him. He said it will have a big impact on them if they could not see their uncle. Mr BI said that he had tried to talk to his brother about his drug-taking and had taken him to hospital in the past for treatment. He said he has found himself in a ‘father’ type role in regard to WWMD.
Mr BI said: “WWMD did not have a normal childhood. He wasn’t looked after like a normal child.”
Mr BI referred to WWMD’s mental health conditions and said the Applicant has never been in immigration detention before, and “now he knows it is serious.”
Mr BI said, in regard to the conditions in Iraq, “They don’t have Medicare or equivalent. There would be zero support for his mental health and if they know he has been using drugs they will be harsh on him.”
Mr BI said that the family would not be able to offer support for WWMD if he is repatriated and would not be in a position to visit him in Iraq.
If released into the community, Mr BI said that WWMD would live with his mother and that he would be able to give his brother work in his painting business.
When asked if he thought WWMD would be a risk to the community, Mr BI said: “No. He is a calm person. He harms himself rather than harming others.”
Under cross-examination, Mr BI said that WWMD would see his children when they visited his mother. He said he was aware of the IVO that had been taken out and said his mother had initiated it because she did not want her other children to be exposed to drugs.
Mr BI said he was aware of the incident in the police report where WWMD was said to have threatened his mother. He said: “We all have fights. I don’t believe he would have harmed her.”
Mr BI said he was aware of WWMD’s other offending and considered it was all related to his brother’s drug-taking, especially heroin.
When asked about the incident between WWMD and Mr DI, he said he was aware of the fight: “They are close, but family under one roof always have fights”. He said that Mr DI has a girlfriend and is planning to move out to live with her.
Mr BI said WWMD would talk to him about his hospitalisations and his medication. “At one stage he was seeing a care team from The Northern Hospital. I don’t know about the drug treatment he has had; I only know through the hospitals.”
In answer to direct questions from the Tribunal about what might have happened in Pakistan to WWMD, Mr BI said: “Our father was harsh to him. He got beaten, and no love from a caring father. WWMD was raped. This has been eating away at us. Not all of my family knows. I am not sure my Mum knows.”
Ms MI
The Applicant’s sister gave evidence by telephone. She said she came to Australia in 1999 with her husband and two children, the year before her parents and other siblings arrived.
Ms MI confirmed to the Tribunal that she has five children, a daughter aged 28; a son aged 26; a daughter aged 20; a son aged 17 and a daughter aged 10. She said the two oldest were born in Pakistan and WWMD would come and visit them. She described the Applicant as ‘gentle and caring’ but said she had had much less interaction with him in Australia.
Ms MI confirmed that the last time she saw the Applicant was in 2019. She said it was after her father’s death and she came across him at her mother’s house “lying on the ground in a foetal position, crying and pleading for forgiveness. It was a raw moment and I saw that he really wants to get better. He knew he had let our father and mother down.”
Ms MI said she had not spoken to WWMD while he has been in prison or detention.
When asked about family in Iraq, Ms MI responded: “He won’t be able to survive. If we have family members in Iraq, they are not close. There is no support system in Iraq. The society there would treat him as a failure.”
Ms MI expressed the opinion that WWMD’s use of illicit drugs was “100 per cent” the reason for his offending.
Ms MI said her mother has a range of health issues and was recently in hospital. “She takes everything to heart. It took years for her to recover from our father’s death. She went into deep depression.”
Under cross-examination, Ms MI said that Mr BI has always tried to help WWMD. “I didn’t, but I gave emotional support.”
When asked about the nature of the Applicant’s offending, Ms MI said she was not aware of the details, but did know of the theft and shoplifting offences.
Ms Thompson asked if she would be surprised to know some of the offending has been violent. Ms MI responded: “I would be. I know his nature. I have never seen him raise a hand. He was timid as a kid. He by nature is mellow and mild, not aggressive.”
Ms MI said she would look forward to resuming contact with WWMD if he is released into the community, “if I know it would help him.”
Ms NI
Ms NI gave evidence by telephone. She said she was born in Pakistan and came to Australia in 2000 with her parents, the Applicant, Mr BI, Mr DI, and Ms ZI. She said she has two other sisters, Ms MI, and Ms FI.
Ms NI said she has two children, a son aged three and a daughter who is 18 months old. She said she was aware of WWMD’s offending. She said she had spoken to him a few times while he has been in prison, but it has been hard as she has been coping with two young children. She said WWMD visited her in hospital when her daughter was born.
In terms of WWMD’s relationship with her children, Ms NI said: “He’s been away for a lot of their life, but he is a loving uncle”. She said that if the Applicant was returned to Iraq, they would lose contact with their uncle, and she would with her brother. “They would be able to speak on the phone, but that would not be enough.”
Ms NI said her brother has ‘hit rock bottom’. She said prison and detention has changed him dramatically. She said if he was sent back to Iraq “we don’t have any family there. He would be left on his own.”
When asked by Mr Nikolic of the effect on her mother, Ms AH, if WWMD was repatriated, Ms NI said: “She would be devastated, as any mother would be. She needs family help and medical help.”
Under cross-examination, Ms NI said she would do what she could as a sister to help him. She said the family knows he needs both rehabilitation and psychiatric help. When asked if the family has made specific inquiries, Ms NI said: “No, we are trying to get him out first. Then we will take that step.”
Ms NI said she was aware of the IVO. She said her mother was afraid for her two youngest children and that WWMD might influence them, so her mother thought the best way to protect them would be to obtain an IVO.
Ms NI said she was aware of WWMD’s shoplifting and stealing offences but was unaware of his conviction for unlawful assault or making threats to harm.
Mr Cummins, expert witness
Mr Jeffery Cummins, psychologist, gave evidence by video as an expert witness. He confirmed he has prepared a report on WWMD dated 23 September 2021 (Exhibit A8).
When asked about his opinion that WWMD might have an acquired brain injury (‘ABI’). Mr Cummins said the Applicant presented as an unusually vague interviewee, with difficulty with long-term memory and short-term verbal memory.
Mr Cummins said he did not consider WWMD exhibited antisocial traits at examination, but that he was aware of his antisocial history as reflected in his criminal record. Mr Nikolic asked Mr Cummins whether he was of the view that WWMD might be suffering from a heroin use disorder, but that was not mentioned in his report. Mr Cummins said that was an omission, and that he was of the view, on the Applicant’s history, that he was suffering from an opioid use disorder which was severe in type but technically now in remission because he was not identified as a drug user in detention.
Mr Cummins said when he discussed his criminal history with WWMD he showed “limited” insight and remorse. When asked whether he thought WWMD was able to identify right from wrong, Mr Cummins said:
“Yes. My overall sense is ABI. Maybe mild, it could be moderate. Dr Driver in April 2013 saw the Applicant on two occasions and diagnosed schizo-affective disorder and bipolar disorder. Dr Vickers in 2013 recorded that WWMD was on Epilim because of seizures. This medication is also prescribed for depressive disorders.”
Mr Cummins said he applied the HCR20 assessment tool which assessed WWMD’s risk of violent re-offending as ‘low-moderate’. He also assessed the Applicant using the Structured Assessment of Protective Factors for violent risk (‘SAPROF’) assessment tool, which assessed his protective factors as ‘moderate’. He said the information WWMD himself provided was limited.
Mr Cummins noted that protective factors included that WWMD has currently re-attached to his mother and his siblings, that he was on methadone and had been on it for an extended period of time. Mr Cummins also stated that detention has had a salutary impact on the Applicant, prompting him to recognise the true seriousness of the situation he has placed himself in.
Mr Nikolic asked Mr Cummins how significant methadone is as a protective factor. He responded: “Quite significant. He told me he’d never been on methadone or Suboxone before, but there were references in the material that he had been.”
Mr Cummins was referred to sentencing remarks of the sentencing Magistrate in August 2020 where Her Honour remarked that WWMD’s period on methadone is the longest time he has been on opioid replacement therapy (GD, p 35) and said “that might well be the difference now between his ability to comply with the Corrections order or not”. Mr Cummins said he would agree with that comment, which led to a shorter sentenced and a fresh CCO.
Mr Nikolic noted that Mr Cummins wrote in his report, at paragraph 62:
Based on my assessment of [WWMD] I would expect his mental health problems would only be exacerbated if he were returned to reside in Iraq.
At the hearing, Mr Cummins said:
“I am satisfied the Applicant has genuine mental health problems and probably an ABI. He is an ‘at risk’ person. I am generally familiar with the policies in Iraq for drug-users and that the standard approach is incarceration.”
Under cross-examination, Ms Thompson asked Mr Cummins whether it was his opinion that WWMD’s memory difficulties might make him likely to forget past participation in a methadone programme. He responded:
“It could. He had been leading an aimless lifestyle and drug-using for years. Such people simply don’t remember things we would think are important. He said to me ‘I steal alcohol to get drugs’.”
When asked whether recent successful engagement with methadone treatment help WWMD’s memory or has historical damage been done, Mr Cummins responded: “Historical damage has been done. However, his memory of more recent events should improve the longer he has been on methadone.”
Ms Thompson said she asked the Applicant whether he had engaged in drug counselling outside prison, and his response was that he had never been directed to. She asked Mr Cummins was he aware that several CCOs included a direction for drug and alcohol treatment. Mr Cummins said he was, and that one of the Orders referred to a 24-hour programme. He said that sometimes people fail to engage and noted that WWMD has a history of major mental health problems.
When asked about the Applicant’s report of childhood sexual abuse and whether he needs to address that, Mr Cummins said:
“On the basis of what he indicated to me, I would say ‘yes’. At first, he didn’t want to discuss it with me. Then he did and kept coming back to it when I was asking him about other things. I decided he was suffering from complex PTSD.”
Mr Cummins said that WWMD did not regard himself as a person with a history of violent offending. When asked whether the Applicant has a sense of his previous violent offending, Mr Cummins said, “I think it is quite limited”, and agreed that his memory difficulties affect his insight.
Mr Cummins was asked, apart from assessing the risk of violent offending, whether he had made an assessment of WWMD’s likelihood of re-offending more generally. He replied:
“Guarded, was the view I formed. If he remains off heroin his prospects of rehabilitation would be much improved. If he doesn’t address his substance abuse issues, the likelihood [of general re-offending] would be moderate-high, if not high.”
Ms Thompson asked if WWMD’s memory problems would cause him to forget the names and ages of some of his nieces and nephews. He responded: “He has been disconnected for several years and has only recently re-connected.”
The Tribunal directly questioned Mr Cummins about the HCR20 tool. He said historical risk factors include a history of violence; a history of other antisocial conduct; problems with relationships; problems with employment; substance abuse; mental health problems; one or more personality disorders; multiple traumatic experiences. He said he concluded that WWMD had no overriding violent attitudes and that his violent offending was situationally motivated. He said he did not detect an anger management problem with WWMD.
In terms of recent risk factors, Mr Cummins listed insight; violent ideation – which the Applicant does not have; major mental disorder – which the Applicant does have; instability – which he said the Applicant has had in the past, but now has more stabilisation both with his family and future accommodation, and with methadone treatment. Mr Cummins noted that the Applicant has not been able to prove himself in regard to his most recent CCO because he went from prison into detention.
In respect of future risk issues, Mr Cummins identified the CCO which includes mental health and drug treatment elements; a living situation where he has re-engaged with his mother; personal support; treatment with methadone, stress, and coping. He noted WWMD was very focussed on being in detention and the possibility of being deported.
Mr DI
The Applicant’s younger brother gave evidence by telephone. He said he was born in Iraq and came with his family to Australia in 2000 after around 11 years living in Pakistan.
Mr DI said his relationship with WWMD was “pretty good, aside from a couple of arguments we have had”. He said he was aware of his brother’s drug use, using heroin, cannabis, and amphetamines.
Under cross-examination, was asked about the fight in 2020. He responded: “We argued about a bicycle. WWMD called the cops and they took him.”
Mr DI said that his brother changes when he takes drugs and he needs support for his mental health. Mr DI said if released into the community he hoped the Applicant would live with him and Ms AH, but this would also give him the opportunity to move out with his girlfriend, because WWMD would then be able to assist their mother with her care needs.
Ms ZI
Ms ZI gave evidence by telephone. She said that, being the youngest, growing up WWMD looked after her a lot. “He would take care of me. He has an amazing caring side. We were always outsiders in Pakistan, so we valued each other.”
Ms ZI said her relationship with the Applicant had ‘drifted’ in the last few years because of WWMD’s drug abuse. “I can’t see him like that. I had to pull away for my own mental health.”
Ms ZI said although she had never witnessed WWMD being violent, she was aware that some of his offending has been violent. Ms ZI responded:
“I don’t think he is a violent person. It is an external factor, not of his nature. Being in detention has been the biggest wake-up call for him, to be possibly sent to a country you only know by name or memory.”
Ms ZI said her view was that WWMD would deteriorate very quickly in Iraq because “his conditions would not be recognised in Iraq.”

When asked whether there was capacity for her to visit WWMD if he was repatriated, Ms ZI said: “Mum has a brother there and she speaks to him. I could not go, and not just because of Covid-19, it is dangerous to visit there.”
Ms ZI said that WWMD had met her older child but not her younger one, because she has been born in 2020. She said WWMD had seen pictures and videos of her daughter, and her son asks after him, and asks where he is.
Under cross-examination, Ms ZI said that she and the Applicant have two uncles, one in Iraq and one she thinks now lives in Turkey. She said she was aware her mother arranged the IVO.
Ms FI
Ms FI gave evidence by telephone. She said she arrived in Australia after WWMD. When asked whether she had lost contact with the Applicant, Ms FI said: “Physically. But we still had contact. I was in Pakistan and they were in Australia. I have lost some contact here because he has been in and out of gaol.”
Ms FI told the Tribunal she has two children, sons aged 20 and 16. She said they used to have a close relationship with their uncle but had lost contact more recently.
Ms FI said she had seen WWMD’s criminal record. She said: “WWMD is a good person. His behaviour mostly comes from drug use. He has not been in a usual state of mind, plus he is mentally ill. I blame drugs and mental health.”
She said she did not think the Applicant would be a risk if released into the community. Ms FI said she believed they had an aunt and uncle in Iraq, but she had not seen them and did not know them.
Ms FI said that WWMD has “hit rock bottom” and has learnt his lesson. She said Ms AH would be devastated if he is returned to Iraq.
Under cross-examination, Ms FI said she recently spoke to the Applicant on the phone. She said she has been busy working but would speak to him ‘every now and then’. She said WWMD has not spoken to her children for a while now.
Ms FI said that Mr BI has been the main person helping WWMD and has ‘done much’ to look after him.
APPLICANT’S CLOSING SUBMISSION
Mr Nikolic said that the Applicant is embarrassed by the length of his list of offences. He noted Mr Cummins’ evidence about a possible ABI. Mr Nikolic submitted that there has not been an increase in seriousness in WWMD’s offending, and noted the view taken by the Magistrate (GD, p 36) was that his offending is best characterised as “persistent and frustrating.”
Mr Nikolic noted that Mr Cummins did not consider WWMD a violent offender, rather that he has been involved in ‘situational’ offending. Mr Nikolic stated that Mr Cummins’ evidence was that he would expect to see more violent offending spread throughout the record of someone with such a long period of offending.
Mr Nikolic submitted that after traumatic experiences in Pakistan before coming to Australia, WWMD had fallen into a spiral of daily drug use, quickly resorting to heroin.
Mr Nikolic said, in terms of protection of the Australian community, WWMD acknowledges that any violence is serious and notes three convictions for assault in January 2014, May 2014 and June 2016. The first led to 162 days’ imprisonment; the second to 42 days’ imprisonment, and the third to a gaol term of 2 months.
Mr Nikolic said that any acts of family violence should be viewed seriously but should also be viewed in the context of the Applicant’s drug use and mental health history.
In terms of risk, Mr Nikolic reiterated Mr Cummins’ conclusions and noted that WWMD had voluntarily entered a methadone programme. Mr Nikolic said it is accepted on the evidence that the Applicant has been on methadone before, but there is no evidence that it has been for as long as his current period of treatment which is now around sixteen months. He noted that the sentencing Magistrate said this might be the difference in compliance, now, with his CCO obligations.
Mr Nikolic said that the fact that WWMD has been in Australia since the age of 17 should allow him some greater tolerance, as reflected in the Direction. He submitted that WWMD’s offending is not a type where any risk of re-offending is unacceptable.
In respect of the primary consideration in the Direction relating to conduct constituting family violence, Mr Nikolic submitted that the 2012 incident where there were threats to his mother may be relevant. He pressed however, that there has been no increase in seriousness and no physical violence, and a significant time has elapsed since the last family violence offence.
In terms of the expectations of the Australian community, Mr Nikolic said he accepts that case law is against the Applicant and submitted the Tribunal must consider the weight applicable in the circumstances of WWMD.
In respect of the consideration relating to the best interests of affected minor children, Mr Nikolic submitted that there are ten relevant minor children, the nieces and nephews of the Applicant. He said it is accepted that the Applicant does not have a parental relationship with the children but noted that each parent had said that repatriation of the Applicant would have an impact on their children if WWMD was deported.
In relation to the consideration as to WWMD’s ties with Australia, it was submitted that having arrived in Australia more than 20 years ago, the Applicant considers himself to be an Australian. His entire family reside in Melbourne and he has no ties anywhere else. He submitted that some siblings have had less contact than others, because of WWMD’s offending, but that all would be affected, especially Ms AH. Mr Nikolic submitted that there was a prospect of prolonged if not indefinite separation if the Applicant is removed to Iraq.
In respect to the consideration relating to the extent of impediments if removed, it was submitted that due weight should be given to Mr Cummins’ conclusions as to the Applicant’s mental health and that it would be unlikely that the Applicant could manage his life without the support he receives in Australia.
Mr Nikolic drew the Tribunal’s attention to the DFAT Country Information Report – Iraq (‘CIR’) (Exhibit A3) which refers to a shortage of medication in Iraq, the stigma attaching to persons with mental health conditions, and the fact that rehabilitation in Iraq would be, at best, limited. He said that WWMD would also have to self-identify as a drug-user.
In respect of the consideration relating to non-refoulement obligations, Mr Nikolic noted that WWMD was ethnically Kurdish and also a former drug-user who would have to identify that fact. He said the Applicant does not speak Arabic and would have to live in Northern Iraq, where ISIS is present.
RESPONDENT’S CLOSING SUBMISSION
Ms Thompson noted that the parties agreed the Applicant does not pass the character test owing to his 12-month prison sentence in 2018.
She noted that it was conceded by the Applicant that his offending was serious and agreed on behalf of the Minister that it has not escalated and that Mr Cummins is of the opinion that WWMD’s instances of violent offending have been ‘situational’. Ms Thompson submitted that it is difficult to say whether future offending would not exclude violent offending.
Ms Thompson submitted that there has been conduct constituting family violence, evidenced by the imposition of an IVO, but that Minister concedes there have been no physical events, apart from the 2020 fight between the Applicant and Mr DI.
Ms Thompson noted that the Applicant began offending, according to the report, in 2001, one year after his arrival in Australia. She submitted that the Applicant’s offending has been of an overwhelming nature, frequent and serious.
Ms Thompson noted that the Applicant has been the subject of several CCOs but has failed to engage with treatment orders in the past. She noted Mr Cummins’ evidence that the overall risk of WWMD engaging in general re-offending is moderate to high.
In respect to family violence, the Respondent accepted that charges laid in relation to the fight between the Applicant and Mr DI were struck out or withdrawn and that there was no physical violence.
In terms of the best interests of affected minor children, Ms Thompson said that WWMD’s involvement with his nieces and nephews has been limited by periods in prison and by his disconnection with his family. She said it is accepted by the Respondent that the nieces and nephews would be upset if their uncle was returned to Iraq.
In terms of the primary consideration relating to expectations of the Australian community, Ms Thompson submitted that this weighs in favour of non-revocation and the Minister accepts that WWMD’s offending is not in the nature captured in paragraph 8.4(2) of the Direction.
The Respondent conceded that the Applicant has lived in Australia since he was aged 17 and that his family are all in Australia and would be affected if he is removed. Ms Thompson said the Minister accepts this consideration weighs in favour of the Applicant.
In terms of impediments if removed, Ms Thompson said that WWMD has conversational Arabic but was more fluent in Kurdish. She accepted that living standards in Iraq were not equivalent to those in Australia and that the Applicant has no contact with any relatives in Iraq.
In terms of non-refoulement obligations, Ms Thompson submitted that WWMD is ethnically Kurdish and noted his evidence that he had not thought of whether he would go back to the Kurdistan region of Iraq. The Respondent noted that it was open to the Applicant to apply for a Protection Visa. Ms Thompson also noted that the Applicant may face indefinite detention until he is able to return to Iraq.
In answer to a direct question from the Tribunal, Ms Thompson said that the Respondent accepts the Applicant may attract non-refoulement obligations but that such findings are more appropriate in the context of a future application for a Protection Visa. Ms Thompson reiterated the Minister’s position that WWMD would not be returned to Iraq if non-refoulement obligations were found to be owed, so therefore this consideration carries limited weight.
CONSIDERATION OF THE DIRECTION
Paragraph 5.2 of the Direction sets out principles which provide the framework within which decision-makers should approach the task of deciding whether to revoke a mandatory cancellation of a visa under section 501CA of the Act. The principles are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Direction also provides (Part 2, paragraph 7) that primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations.
Part 8 of the Direction relevantly provides that, in making a decision under section 501CA of the Act, the following are primary considerations:
(1) Protection of the Australian community from criminal or other serious conduct;
(2) Whether the conduct engaged in constituted family violence;
(3) The best interests of minor children in Australia; and
(4) Expectations of the Australian community.
Part 9 of the Direction provides that, where relevant, other considerations must also be taken into account. These considerations include, but are not limited to:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Links to the Australian community, including:
(i)strength, nature, and duration of ties to Australia; and
(ii)impact on Australian business interests.
Paragraph 9(1) of the Direction makes clear that the other considerations include those stipulated in the Direction, but a decision-maker is not confined only to those. This means that if there is another fairly put claim that something is relevant in the particular circumstances of an Applicant, and the claim relates to a matter that is consistent with the purposes of the Act, that claim should be properly addressed. Any such claim must be material to the matter being considered, which is the exercise of a discretionary power under the Act.
PRIMARY CONSIDERATIONS
Protection of the Australian community (paragraph 8.1)
The Tribunal should consider the nature and seriousness of the non-citizen’s conduct 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 conduct (paragraph 8.1.1)
The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence.
As set out above, WWMD has accumulated a significant criminal record since his first Court appearance in October 2001. The significant stream of offending in which he has engaged is stealing from shops and other theft. However, there are offences of violence against the person, namely a conviction for the offence of Unlawful assault in May 2014; a further conviction for Unlawful assault in February 2015; and a further conviction for Unlawful assault in September 2016. For the 2014 offence, which was coupled with a conviction for Criminal damage (intent to damage/destroy) the ACIC report records a sentence of 42 days in gaol. For the 2015 offence, WWMD received a sentenced of 162 days’ imprisonment, but this was aggregated with other convictions the same day for shoplifting and theft offences and, relevantly in terms of violence or potential violence, a conviction for the offence of Threat to inflict serious injury. For the 2016 offence, the unlawful assault conviction earned a two-month imprisonment base sentence.
There is no evidence before the Tribunal that WWMD has been convicted of any sexual crimes or crimes of a violent nature against women or children. In respect of acts of family violence, I will consider that question under the later relevant primary consideration.
It is evident from the ACIC report that WWMD’s offending has been regular and depressingly monotonous for around 20 years, especially in regard to stealing from shops and other theft offences. The Tribunal accepts the submissions from the Applicant’s legal representative and the observation made by the expert witness Mr Cummins that there has not been a consistent thread of violent offending in WWMD’s cumulative criminal record. His offending has however been habitual and, as the Respondent submitted, frequent and repeated.
It would appear to me that WWMD’s offending does not come within the categories of offending set out in paragraph 8.1.1(1)(b)(i) to (iv) of the Direction.
In respect to paragraph 8.1.1.(1)(c), the Tribunal must have regard to the sentences imposed. WWMD was subject to a significant range of sentencing tools available to the Magistrates in the period from 2001 to 2012. He then received his first custodial sentence, partly suspended. It is evident to me that the Courts have attempted to deal leniently and proportionately with the Applicant in relation to his regular appearances before the bench, but after other tools did not seem to ameliorate his behaviour, several prison sentences resulted. WWMD has a regrettable history of not complying with CCOs, conditions of bail and other judicial measures designed to regulate and improve his conduct.
Paragraphs 8.1.1(1)(e) of the Direction requires the Tribunal to have regard to the cumulative effect of repeated offending. It may be accepted that shoplifting is not at the higher end of seriousness in terms of the scale of offences, however such offending does come at a commercial cost to retailers, often small retailers, not only for the goods lost, but because of the need to expend further money on security. However, when the shoplifting offences are in such a large number as WWMD has amassed, the sheer volume of them leads me to conclude this accumulates to be serious offending.
Paragraph 8.1.1(1)(f) and (g) require me to have regard to any false or misleading information given by the Applicant to the Department or whether he has re-offended since being given a formal warning about the possible effect on his immigration status by the Department, noting that the absence of a warning should not be considered to be in his favour. There was no evidence before me that WWMD had not disclosed his prior offending, indeed, he was frank in accepting the ACIC report and other documents referring to the details of his offences. There is no evidence before me that WWMD has received a previous warning from the Department.
The Tribunal accepts the submissions from the Applicant that a significant driver, perhaps the most significant driver, of his offending has been his illicit drug use, coupled with his diagnosed mental health conditions. I cannot ignore the fact that the Courts have been aware of these two factors, as well, and have sought to address them in attaching treatment conditions to CBOs and CCOs, which the evidence shows have been largely not taken up by WWMD.
The Tribunal finds that overall, principally because of the significant accumulation of convictions, WWMD’s offending is serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)
The Direction requires the Tribunal to consider both the nature of harm should the Applicant engage in further criminal or other serious conduct and the likelihood of him so engaging.
I do not conclude that there is a high risk of WWMD engaging in violent offending. I give due weight to Mr Cummins’ report and his application of the HCR20 assessment tool and consider that his opinion that the Applicant presents a ‘low-moderate’ risk of violent offending to be reflective of the evidence before me.

During his oral evidence, Mr Cummins was pressed on what his view was on the risk of WWMD engaging in general offending. He expressed the professional opinion that this risk was guarded. The Tribunal divines that in using the word ‘guarded’, Mr Cummins was using it in a clinical context, where it means ‘uncertain’. This was to me a reasonable opinion to advance because a major factor in whether WWMD is likely to re-offend is whether he reverts to illicit drug use. Mr Cummins then proffered the view that the risk of re-offending of WWMD is “medium-high, if not high”. Again, this opinion would depend on whether WWMD sticks to the methadone treatment and undertakes other drug and alcohol treatment and counselling.
In terms of the likelihood of the Applicant re-offending, an extract of the sentencing remarks of the learned Magistrate in August 2020 is particularly germane. Her Honour relevantly said (GD, p 35):
…as [WWMD] has pointed out, and I think probably quite correctly, the significant change of recent times is his commencing on the methadone program and that the two months or so that he’s been on that program is the longest time he’s been on opioid replacement therapy and that might well be the difference between his ability to comply with the Corrections order or not.
Her Honour is necessarily engaging in speculation, but it is informed speculation from an experienced judicial officer, and it is relevant to the Tribunal that the Applicant has adhered to his methadone regimen now for some 16 months. This shows a desire by him to tackle his own significant addiction.
A significant element in WWMD’s re-offending would seem on the evidence to be a lack of insight into his offences. The Tribunal was struck by the Applicant’s apparently confident evidence in chief that he had not engaged in methadone treatment before his most recent commencement in 2020, just prior to commencing his most recent gaol term. However, when offered evidence by the Respondent that he has engaged in methadone treatment on at least two occasions before, WWMD readily accepted that could be the case. It is also notable that Mr Cummins told the hearing that WWMD had told him, when he was examined, that he had not engaged in methadone treatment before 2020, and yet Mr Cummins suggested to him that this was inconsistent with the other medical evidence which he had been provided prior to assessing the Applicant.
For instance, Dr Diner’s 2013 report (SGD, p 351) records:
He had apparently been on methadone in the past and, prior to admission to the psychiatric unit, had been on Suboxone 2mg. This had been continued throughout his inpatient stay. He was asked to return on […] February 2013 with a dispensing chemist organised. Following assessment, he was commenced on buprenorphine 2mg per day. He only picked up one does then did not return to the pharmacy. His permit was subsequently cancelled.
The Tribunal has carefully considered the inconsistency in this evidence. From the demeanour and responses of the Applicant, I do not conclude he was lying, that is, saying something in oral evidence that he knew not to be true. It is my conclusion that WWMD has significant difficulties in recalling events and that the possibility of an ABI, as suggested (but properly not diagnosed) by Mr Cummins, is realistic. Although he saw Mr Cummins on 23 September 2021 and was then corrected in his recollection during Mr Cummins’ examination of him as to whether he had been on methadone before, he reverted to his erroneous memory in his evidence at this hearing. It would also seem to the Tribunal that other minor discrepancies in the Applicant’s evidence, for example, about the names and ages of some of his nieces and nephews, may be ascribable to some cognitive disfunction.
There is an established diagnosis of several neural conditions, but not a specific diagnosis of neurocognitive impairment. In the absence of that, the Tribunal cannot speculate any further, except I feel confident to note that the difficulties WWMD experiences in recalling his medical history would not be inconsistent with the effect of long-term and heavy heroin addiction.
In this respect, it is correct to separate remorse from insight. WWMD, in his evidence and statements, was openly remorseful for his offending, and the Tribunal considers genuinely so, especially about the incident where he had made a wild threat that scared his mother. The Tribunal is also inclined to accept the evidence of his siblings who, when asked about this particular incident, were all consistent in the adamant view that WWMD would never physically harm Ms AH.
Nonetheless, even if it may be partly the effects of a medical condition, including neural deficits possibly attributable to prolonged heroin use, coupled with his existing epilepsy and diagnosed psychiatric conditions (notably including complex PTSD), a lack of insight into past offending may also heighten the risk of recidivism.
Overall, the Tribunal finds that this consideration weighs against revoking the mandatory cancellation of the Applicant’s visa.
Family violence committed by the non-citizen (paragraph 8.2)
Paragraph 8.2 states:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen…
(2) This consideration is relevant in circumstances where:
(a)A non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)There is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
The Direction requires the Tribunal to consider the frequency of the conduct, and whether there is any trend of increasing seriousness; the cumulative effect of repeated acts of family violence; rehabilitation achieved at the time of the decision since the person’s last known act of family violence, including:
·The extent to which the person accepts responsibility for their family violence related conduct;
·The extent to which the non-citizen understands the impact of their behaviour on the abused and witnesses of that abuse, particularly children; and
·Efforts to address factors which contributed to their conduct.
The Respondent in written submissions contended it is unclear whether the Applicant concedes that he has breached an IVO. The Tribunal also notes the evidence of Ms AH that she, in concert with the police, arranged for an IVO to be invoked against WWMD. Ms AH said that she did so at a time when two of her younger daughters were living with her in the family home. She said she did not want WWMD visiting when drug-affected, because she considered it could expose her younger children to illicit drugs. This evidence of Ms AH was also echoed by other family witnesses who gave evidence. It would seem to the Tribunal that, in the circumstances, while this may have been a somewhat drastic thing to do. It reflected Ms AH’s concerns about the level of WWMD’s drug-taking at that time, and her completely understandable desire to protect other members of the family.
There was no evidence before me that this IVO was imposed because of physical actions by WWMD.
In respect of the altercation between Mr DI and the Applicant, the consistent evidence was that the Applicant himself had called the police after the fight erupted, and the reason he was arrested when the police attended was because he was breaching the old IVO. The general tenor of the evidence was that, on this occasion, it was the Applicant’s brother, not WWMD, who had initiated the fight and who inflicted some minor injuries on WWMD.
A police brief was in evidence concerning an incident in May 2012 (FTSD, p 745) where WWMD was said to have made threats to Ms AH. Ms AH herself was hazy about the details of this incident when she gave evidence. It is also significant to me that, on the police report, the alleged threats were in a foreign language so whatever was said was relayed to the police second-hand. I am not confident to rely on this report as necessarily conclusive of conduct constituting family violence and note that there was no evidence of any physical contact. Although the police report records that a brief was to be compiled relating to the charge for an offence Threat to kill, this did not eventuate.
It would appear that this incident did form the basis for the conviction of the Applicant for the offence of Threat to inflict serious harm, and that conviction cannot be questioned. However, this is a reminder to treat police reports with a degree of caution when, as it transpired, they did not reflect the subsequent charge. It would seem to me that, given the exchange between WWMD and his mother was in another language, and Ms AH relayed what she said had been said, that a later decision was rightly taken that this would not sustain a charge of Threat to kill. I also note her oral evidence about that Ms AH did not confirm that he said this in her recollection of the incident, and expressly said she did not recall him making such a threat. Be that as it may, the Applicant acted in a shameful way that day that distressed his mother, as he openly acknowledged in his evidence.
Overall, the lack of evidence before me inclines me to conclude that this consideration weighs neutrally in this assessment.
Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Tribunal is required to make a determination regarding the best interests of any relevant minor children who may be affected by the decision. The Direction requires the Tribunal to make separate determinations about relevant minor children where there is evidence that their interests might differ.
WWMD has no children of his own, nor does he have responsibility for any minor children. The relevant children who may be affected by the decision are those of the Applicant’s sibling's children who are minors. I am satisfied that one determination may be made applicable to all of these children because there was no evidence before me that singled out any particular child or children.
The evidence of the parents of the Applicant’s nieces and nephews, who all gave evidence at the hearing, varied about the contact WWMD has had. Ms MI said that her children had contact with WWMD when younger but had not had contact of any type in recent years, and one of those children turns 18 earlier next year. It is reasonable to conclude that they would be saddened if their uncle was repatriated, but the effect may not be significant beyond that.
On the other hand, Ms NI said that WWMD had visited her in hospital when she had her first child but did not know her younger child, because that child has been born since the Applicant has been in prison and detention.
There are ten minor children the Tribunal has identified whose interests would be affected: three children of Mr BI; two children of Ms MI (one of whom is 17); two children of Ms NI; two children of Ms ZI and the younger child of Ms FI. There are two minor children in this group whom WWMD has not met because they have been born since his incarceration.
The Tribunal determines that this consideration weighs in favour of revoking the mandatory cancellation of the visa, but that weight is lessened because the Applicant does not play a parental role in relation to any of the identified children as their own parents do.
Expectations of the Australian Community (paragraph 8.4)
Paragraphs 8.4(1) and (2) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia, of the following kind:
…
The Direction lists at paragraph 8.4(2) specific sorts of conduct, none of which is relevant to WWMD’s criminal history.
The expectation of the Australian community is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A superseded version of the Direction (Direction No. 65) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The Court held that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are ‘deemed’; they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may seek to derive by some other evaluative or balancing process.
Direction No. 90, issued after FYBR, imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant (a position accepted by the parties in this matter), the relative weight will be affected by particular circumstances in the individual case.
WWMD has offended since the year after he arrived in Australia. The ACIC report reveals that, during the 20 years since his first Court appearance in 2001, he also appeared before the Courts in 2004, 2006, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, 2019 and 2020. In some of these years he was in Court on more than one occasion.
He has breached conditions and orders imposed by the Courts and has been required to re-appear in relation to those breaches. I consider that the expectation of the community would be that his visa is not restored. The weight of that expectation would however be affected by two factors. The first is that much of WWMD’s offending has been because of his illicit drug abuse, in particular heroin. That does not reduce the culpability of his offending, but it does provide some context. In addition, while the vast bulk of his offending has been property offences, which are serious matters, there are only a limited number of offences against the person. The second factor is WWMD’s diagnosed mental health conditions, including complex PTSD.
Dr Ashis Vikas, consultant psychiatrist, and Mr Peter Sinclair, Registered Nurse Case Manager at North Western Mental Health Services, writing jointly in April 2013 (SG, p 354) referred to WWMD’s history with mental health service treatment since 2003 as being “with multiple admissions to Psychiatric Units” and that he was currently in their care owing to a Community Treatment Order under the Mental Health Act 2014 (Vic). They said:
He has a diagnosis of Schizo-Affective Disorder/Poly Substance abuse and is prescribed medication for the condition. Current medication: [then listed, including daily dosages and intramuscular injection every two weeks]. His compliance is erratic and at time is non compliant with medication. His mental state fluctuates. Insight partial.
In 2013 Dr Diner refers to the diagnosis of schizo-affective disorder and a diagnosis of bipolar affective disorder, and also a diagnosis of hepatitis C.
There is a more recent medical history in September 2020 from the prison where WWMD was then incarcerated. The medical history recorded, some of which was reported by the Applicant, was that he had had hepatitis C which has been treated and a recent negative test reported by WWMD. An opioid addiction for which he is prescribed methadone 80mg daily is recorded. Well-controlled asthma, with prescribed Ventolin, is recorded. A diagnosis of epilepsy was reported with a seizure ‘three months ago’ (i.e. in June 2020).
These medical conditions, with the addition of the possible ABI postulated by Mr Cummins, would in the Tribunal’s view affect the weight attributable to this consideration.
Overall, the Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the Applicant’s visa, but the weight is only moderate.
OTHER CONSIDERATIONS
International non-refoulement obligations (paragraph 9.1)
The Direction sets out that a non-refoulement obligation is an obligation on Australia not to forcibly return, deport or expel a person to a place where they would be at risk of a specific type of harm. Australia has international treaty obligations which it must honour, through the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (‘the Refugees Convention’), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights and its Second Optional Protocol.
In the event the Tribunal affirms the decision, the Applicant would be repatriated to Iraq, which is the country of his citizenship.
The Direction states at paragraph 9.1(5) that international non-refoulement obligations will generally not be relevant to a consideration of revocation of the cancellation of a visa that is not a protection visa, where the person does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision. I note that the visa WWMD held was a refugee visa but not a protection visa.
In the event that this decision is affirmed, it remains open to WWMD to apply for a protection visa. Direction No. 75, made under section 499 of the Act, relevantly provides that where a non-citizen refugee applies for a protection visa, a delegate of the Minister must first assess the refugee’s claims with reference to section 36(2)(a) of the Act and any complementary claims with reference to section 36(2)(aa) of the Act before considering any character or security concerns.
In his 27 August 2021 statement, WWMD relevantly wrote under the heading ‘My fears of returning to Iraq’:
I was quite young when we left, we are ethnically Kurdish and my family escaped the civil war.
I cannot return to Iraq. All my family is here. The medication I’m on now, I don’t think they have methadone or any of the other medications there. There is no concession or care for people with mental health issues. If so, it would be at high cost which I cannot afford. I cannot speak Arabic. I would not know how to communicate. I don’t know where I would live or how I would survive.
We’ve escaped our country, they would see us as ‘traitors’. They don’t think highly of people who have left, especially not if you are Kurdish.
It would appear from the oral evidence that he gave that WWMD can in fact speak some Arabic, though his evidence is that he cannot write or read it. He clearly understood evidence his mother gave to the hearing, which was in Arabic, interpreted, because at one stage he intervened to correct something he felt had not been adequately interpreted.
The Tribunal notes and accepts WWMD’s other remarks about dislocation from his family in Australia and his current medication regimen and the likelihood that he would have difficulty obtaining relevant medicines if repatriated. However, these claims to my mind are properly dealt with under a later consideration, they do not of themselves go to Australia’s international treaty obligations.

In respect of WWMD’s claims about his Kurdish ethnicity contributing to a claim of a real risk of significant harm, the Tribunal notes that section 36(2A)(b) of the Act provides that the Minister may be satisfied that a person could relocate to an area of the country where they may not face a real risk of significant harm. WWMD would not be required to remain in Baghdad if repatriated; he could go to the Kurdistan region of Iraq. The written submissions of the Applicant recorded that the terrorist group ISIS is active in parts of Iraq. That may be accepted but there was no development of that fact, to my mind, to directly imperil WWMD if returned. The volatility and general instability of parts of Iraq is duly noted and accepted by the Tribunal.
In the bundle of documents that the Applicant submitted (Exhibit A3), was a document titled Country Guidance: Iraq, produced by the European Asylum Support Office, dated January 2021. It relevantly states, at paragraph 2.18:
Risk analysis: The lack of personnel and adequate infrastructure to appropriately address the needs of people with (severe) medical issues would not meet the requirement that an actor of persecution or serious harm is identified…unless there is intentional conduct on the part of a third party, in particular the international deprivation of the applicant of appropriate healthcare.
In the case of persons living with mental and physical disabilities, not all individuals under this profile would face the level of risk required to establish a well-founded fear of persecution. Risk-impacting circumstances could include:
·Age
·Nature and visibility of the mental or physical disability
·Negative perception by the family
Potential nexus: membership of a particular social group (e.g. persons living with noticeable mental disabilities).
WWMD reported no physical disablements. His main medical challenges are his mental health conditions and his drug addiction, now in remission owing to being on the methadone programme.
The DFAT Country Information Report - Iraq (‘DFAT report’) dated 17 August 2020 relevantly states, at paragraphs 2.37 and 2.38:
Mental health (see also Persons with Disabilities (PWDs)
Despite enormous need, there are very few mental health services or financial support schemes available to the general public. A January 2017 study found there were only 80 clinical psychologists working in the entire country. Much of the burden for treating mental health issues falls on international non-government organisations (NGOs) such as Médecins sans Frontières. The absence of community-based mental health care means often the only care available is family-based or in psychiatric institutions, which have been linked to inhumane treatment and degrading living conditions. There is significant social stigma against those suffering from mental health issues, which results in under-reporting of problems and under-utilisation of the services that are available.
Substance abuse and treatment
Illicit substance abuse is an increasing problem in Iraq, particularly in Basra. The most commonly abused substance is reportedly crystal methamphetamine, although opium painkillers, hashish and alcohol are also frequently abused. Under legislation passed in 2017, judges can order rehabilitation for drug users or sentence them to jail for up to three years. The law gave the health ministry two years to provide rehabilitation centres, and Iraq opened its first specialised mental health and rehabilitation centre in Basra in 2018. The shortage of available places in such centres means that many drug users are jailed.
(Emphasis added.)
The Tribunal considers that, overall, given that WWMD has long-standing diagnosed mental health conditions and has had a major drug addiction, he is in a category of persons who might attract social stigma if repatriated. The fact that he might be imprisoned, solely because of his drug addiction, is also evident from the DFAT report.
The Tribunal finds that this consideration weighs somewhat in favour of revoking the mandatory cancellation of the visa.
Special consideration – the prospect of prolonged detention
Both parties submitted that the Tribunal should consider the prospect that WWMD may be in immigration detention for a prolonged period. The Respondent submitted that if non-refoulement obligations are found to be owed to a non-citizen, the Australian Government will not refouler (that is, send back) a person in respect of whom protection is owed.
As the Respondent remarked, if WWMD applies for a protection visa, he would be liable to be detained until that application is considered. If there is a finding that he is owed protection so as to prevent his repatriation, he would continue to be held in detention until otherwise removed, or one of a range of other legislative options is exercised under the Act. The Tribunal cannot speculate on the likelihood of any of these options, but it is reasonable to foresee that WWMD might be detained for a period without a set date of release.
Any person, citizen or non-citizen alike, is entitled to a known outcome of an administrative decision, and this is not the case with prolonged (sometimes called ‘indefinite’) detention. It would seem to me that, on one hand, WWMD might actually be assisted by being in detention in terms of adhering to his methadone treatment, noting he has now been on this course for 16 months, which would appear to be the longest period of opioid replacement treatment he has undertaken. That is a good thing. But it is not a purpose of immigration detention to assist people with their healthcare. The detrimental side of detention, which is the deprivation of liberty and, especially during the current pandemic, limitation of social contact, especially with his family, all can be reasonably concluded to have a deleterious effect on WWMD, and one that steadily worsens the longer a non-citizen is detained.
This special consideration weighs in favour of revoking the mandatory cancellation of the visa.
Extent of impediments if removed (paragraph 9.2)
The Direction requires the Tribunal to consider the extent of any impediments WWMD may face if removed from Australia to Iraq 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 his age and health, any substantial language or cultural barriers and any social, medical and economic support available to him.
The consistent evidence of the family witnesses was that they would not be in a position to offer support to WWMD if he is returned to Iraq and would be very unlikely in the present circumstances to be able to visit him there.
The Respondent relevantly said, in written submissions:
The Respondent accepts that the Applicant’s mental health and substance abuse would amount to an impediment to his ability to establish himself and maintain basic living standards in Iraq. The Respondent accepts that the Applicant has not lived in Iraq since he was very young and may face impediments to finding work, and accessing medical, social and economic supports if he was returned to Iraq.
Although there was some inconsistency in the evidence at the hearing, I am satisfied that, in terms of any relatives of WWMD, there may be one uncle and aunt in Iraq. I am further satisfied that the Applicant has not had contact with them at all. I cannot speculate on whether they can offer him assistance if he is returned there; their circumstances are unknown to the Tribunal. All the Applicant’s other relatives are in Australia except for one other uncle who may reside in Turkey.
The Tribunal accepts that WWMD is not fluent in Arabic – he has conversational Arabic. He is, however, on his own evidence, fluent in Kurdish and would no doubt be able to be understood in the Kurdistan region of Iraq. However, his mental health conditions place him in a particular category which I consider removes him from the general category of ‘other citizens’ as that term is expressed in paragraph 9.2(1) of the Direction.
As outlined above in the extracts from both the European Asylum Support Office document and the DFAT Report, there is a significant shortage of mental health supports available in Iraq, including a shortage of psychologists. Resort is had by the authorities to imprisoning persons with mental health conditions, simply because the option of other facilities and care are not available, or if they are, they are provided on an ad hoc basis by non-government organisations such as Médecins sans Frontières.
Exercising the power under section 33 of the AAT Act, the Tribunal considered the World Health Organisation’s ATLAS of Substance Abuser Disorders (2010). That document records, in considering the availability of agonist pharmacotherapy available in Iraq, that neither methadone nor buprenorphine was at that time available. Accepting that this document is eleven years old, there was no information before the Tribunal from the parties that would contradict that information today.
Given that the current treatment of WWMD is essential to his continuing to remain clean of heroin, and that the medical evidence all points not only to significant mental health conditions, epilepsy and opioid use disorder (in remission), the Tribunal agreed with submissions from both parties, and finds that the Applicant would face very significant impediments if returned to Iraq.
The Tribunal finds that this consideration weighs very heavily in favour of revoking the mandatory cancellation of the visa.
Impact on victims (paragraph 9.3)
The Direction requires the Tribunal to consider the impact of the cancellation of the visa on members of the Australian community, including victims of the Applicant’s criminal behaviour, where that information is available.
The Tribunal interprets this to mean; first, that a victim of a non-citizen’s offending must be aware of the immigration action taken by the Minister or delegate and, second, that they must have expressed a view that is before the decision-maker.
The Tribunal finds that this consideration weighs neutrally in this assessment.
Links to the Australian community (paragraph 9.4)
Sub-consideration: The strength, nature, and duration of ties to Australia (paragraph 9.4.1)
The impact of the decision to revoke the visa on WWMD’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely must be considered under this part of the Direction. The Tribunal must have regard to how long the Applicant has resided in Australia, giving less weight where he offended soon after arriving in Australia and more weight to time he has spent contributing positively to Australia.
WWMD has been in Australia since 2000, all of his adult life. He began offending, as recorded above, one year after arriving, and has offended regularly since that time until 2020. He has been in prison and then immigration detention since 2020.
WWMD has made some positive contribution to Australia through employment for a period as security officer and through short-term employment in hospitality and food outlets. This employment contribution is heavily outweighed by his criminal record.
The evidence is that all of WWMD’s siblings are Australian citizens, as is his mother (for example, GD, p 43). His nieces and nephews are Australian citizens. While his criminal conduct and drug addiction caused disconnection with his family, there has more recently been a re-connection, especially with his two older sisters. The Tribunal was impressed with the evidence of the Applicant’s oldest brother, Mr BI. The consistent evidence of other family witnesses has been that Mr BI has been a significant support to his brother throughout his life, including in trying to help WWMD deal with his drug-taking and in facilitating treatment for him in relation to his psychiatric illnesses and epilepsy.
The Tribunal notes that Mr BI has his own painting and decorating business and is willing to offer WWMD employment, should the Applicant be released into the community. This is an offer that is made ‘eyes wide open’ by Mr BI, because he is fully aware of WWMD’s history and the importance of him remaining on opioid replacement therapy.
The Tribunal finds that this sub-consideration weighs relatively heavily in favour of revoking the mandatory cancellation of the visa, though that weight is slightly diluted because of the fact that WWMD has offended on a sustained basis since the year after he arrived in Australia.
Sub-consideration: Impact on Australian business interests (paragraph 9.4.2)
This part of the Direction notes that, in assessing impact on Australian business interests, an employment link would generally only be given weight where the decision under review would “significantly compromise the delivery of a major project, or delivery of an important service in Australia.”
The Tribunal finds on the evidence that this sub-consideration is not relevant, given the relative shortness of WWMD’s employment record in Australia.
The Tribunal’s overall assessment of the consideration of Links to the Australian community is that this consideration weighs relatively strongly in favour of revoking the mandatory cancellation of the Applicant’s visa.
CONCLUSION
The Tribunal has found that, of the primary considerations, the protection of the Australian community weighs against the Applicant. The primary consideration relating to family violence has been found to weigh neutrally. The primary consideration relating to the best interests of minor children weighs in favour of the Applicant, but this weight is not significant because the Applicant does not play a parental role in the lives of any of the affected minor children, and others do. The primary consideration relating to the expectations of the Australian community weighs against WWMD, but that weight is tempered because of his diagnosed and significant mental health conditions.
In respect of the other considerations in the Direction, the consideration relating to international non-refoulement obligations weighs in favour of the Applicant because of the treatment of persons with mental health conditions in the country of reference. The special consideration relating to the prospect of prolonged detention weighs in his favour. The consideration relating to the extent of impediments if removed weighs very strongly in his favour. The considerations relating to impact on victims and the sub-consideration relating to impact on Australians business interests are not relevant and weigh neutrally. The sub-consideration relating to strength and duration of ties with Australia weighs strongly in favour of revoking the mandatory cancellation of the visa.
After careful consideration, the Tribunal has determined that the discretion provided in section 501CA(4)(b)(ii) of the Act is enlivened and there is another reason to revoke the original decision to cancel the visa. Following the reasoning in Gaspar, that means that WWMD’s visa should be restored to him.
Paragraph 7(2) of the Direction states that primary considerations should generally be given greater weight than other considerations. However, the Tribunal in consideration whether there is ‘another reason’ under section 501CA(4)(b) of the Act, necessarily requires me to take into account the totality of the Direction, and any other relevant factor consistent with the Act. Referring to an earlier (but relevantly similar) version of the Direction, the Full Court of the Federal Court of Australia (Kenny and Mortimer JJ, Dowsett J agreeing) stated in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 at 473 [57]:
Notwithstanding these features, as the Minister submitted, the terms of Direction No 55 to not purport to direct a decision maker as to the outcome of the s 501(2) residual discretion in relation to any given individual, or categories of individuals. Further, by the use of qualifying words such as “generally” (for example, in cl 8(4) that primary considerations “should generally be given greater weight than the other considerations”), the weighing process in each case is in substance left, as it must be, to the individual decision maker exercising the power under s 501.
It has more recently been held by the Full Court of the Federal Court (Greenwood, McKerracher and Burley JJ in Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [35]) that the Tribunal would err if it concluded that an ‘other consideration’ in the Direction was incapable of outweighing a primary consideration.
In this case the Tribunal finds that the Direction’s consideration relating to the extent of impediments if removed is determinative in enlivening the discretion provided to decision-makers in section 501CA(4) of the Act.
In making this decision, the Tribunal considers that the importance of WWMD engaging in significant drug rehabilitation, and preferably residential rehabilitation, cannot be overstated. That has been the consistent advice of clinicians, back from at least 2013, noting the opinion of Dr Vikas and Mr Sinclair referred to above. It is essential that WWMD takes full responsibility for rehabilitating himself. His sustained period on methadone treatment over the last 18 months or so is a very positive step, noting that he voluntarily commenced this treatment when in the community prior to being incarcerated. The risk of him re-offending is, in the Tribunal’s view, inextricably linked to him overcoming his drug addiction and the best way to do that is to adhere to the methadone treatment and also engage in counselling and other supports available to him, particularly the support of his family and especially from his brother, Mr BI.
The Tribunal’s decision in this matter relates only to the reviewable decision before it. WWMD must understand that the Minister may take future action to cancel his visa and that such action would be a likely consequence of him re-offending. His future, including his immigration future, is squarely in his own hands.
DECISION
The Tribunal decides to set aside the decision of the Respondent dated 17 July 2021. In its place, under section 43(1) of the AAT Act, the Tribunal substitutes a decision that the mandatory cancellation of the Applicant’s Class BA Subclass 200 Refugee Visa be revoked under section 501CA(4)(b)(ii) of the Act.

333. I certify that the preceding 332 (three hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..................[sgd]......................................................
Associate
Dated: 11 October 2021

Dates of hearing:

29 and 30 September 2021

Advocate for the Applicant:

Mr Dushan Nikolic

Solicitors for the Applicant:

Carina Ford Immigration Lawyers

Advocate for the Respondent:

Ms Sarah Thompson

Solicitors for the Respondent:

HWL Ebsworth Lawyers

[2021] AATA 3630

11 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Standing

Dates of hearing:	29 and 30 September 2021
Advocate for the Applicant:	Mr Dushan Nikolic
Solicitors for the Applicant:	Carina Ford Immigration Lawyers
Advocate for the Respondent:	Ms Sarah Thompson
Solicitors for the Respondent:	HWL Ebsworth Lawyers