XGGB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 1364
•6 May 2022
XGGB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1364 (6 May 2022)
Division:GENERAL DIVISION
File Number(s):2022/1310
Re:XGGB
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member W Frost
Decision date: 6 May 2022
13 May 2022
Place:Canberra
The Tribunal affirms the decision under review not to revoke the mandatory cancellation of the Applicant’s visa under subsection 501(3A) of the Migration Act 1958 (Cth).
........[SGD]...........
Member W Frost
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class XB Subclass 202 Global Special Humanitarian visa – where Applicant does not pass character test – whether “another reason” to revoke visa cancellation – Protection of the Australian community - Family violence – Best interests of minor children – Expectations of the Australian Community –– Criminal record – Ministerial Direction No 90 – Whether Australia owes international non-refoulment obligations – Real chance of persecution – Extent of impediments if removed – Decision under review affirmed
Legislation
Migration Act 1958 ss 189, 197C, 198 499, 500, 501 and 501CA
Migration Amendment (Clarifying International Obligations for Removal) Act 2021Cases
Taulahi v Minister for Immigration and Border Protection [2018] FCAFC 22
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
Ali v Minister for Home Affairs [2020] FCAFC 109Secondary Materials
Department of Foreign Affairs and Trade Country Information Report on Iraq dated 17 August 2020
1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (Refugees Convention)
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
International Covenant Civil and Political Rights and its Second Optional ProtocolDirection No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member W Frost
13 May 2022
INTRODUCTION
The Applicant, XGGB, sought review by the Administrative Appeals Tribunal (Tribunal) of a decision by a delegate of the Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), not to revoke a decision to mandatorily cancel his Class XB Subclass 202 Global Special Humanitarian visa (Visa) under subsection 501(3A) of the Migration Act 1958 (Act).
XGGB is an Iraqi male citizen who in 2018 arrived in Australia on the Visa with his Wife (Wife) and four children. XGGB was subsequently convicted of multiple offences, including related to acts of family violence against his Wife, and was sentenced to an aggregate period of 14 months’ imprisonment. XGGB’s Visa was thereafter mandatorily cancelled under subsection 501(3A) of the Act. He sought revocation of the cancellation decision, but a delegate of the Minister refused this request. As a result, XGGB applied to the Tribunal for merits review of the decision. For the following reasons, the Tribunal has decided to affirm the decision under review.
BACKGROUND
In 1984, XGGB was born in the Sinjar district of Iraq.[1] XGGB is 38 years old and an Iraqi citizen.[2]
[1] Exhibit 2, page 1.
[2] Exhibit 1, pages 2 and 86.
In 2007, XGGB married his first wife and in 2010 they had a daughter.[3]
[3] Exhibit 2, page 2.
In 2009, XGGB married his second wife, being the Wife the subject of his family violence offending.[4]
[4] Ibid.
In 2010, XGGB and his Wife had their first child and his first wife subsequently divorced him.[5] XGGB and his Wife had a further three children.[6]
[5] Exhibit 2, page 2.
[6] Ibid., page 3.
In 2013, XGGB and his family left Iraq and travelled to Turkey.[7]
[7] Ibid., page 3; Exhibit 1, pages 123-124.
On 7 December 2017, XGGB applied for the Visa to Australia.[8]
[8] Exhibit 3, pages 208-237.
On 29 August 2018, the Visa was granted to XGGB, his Wife and their four children.[9]
[9] Exhibit 1, page 164; Exhibit 3, pages 178-188.
On 13 December 2018, XGGB arrived in Australia on the Visa with his Wife and their children.[10]
[10] Ibid., page 163.
From January 2019, XGGB commenced his offending in Australia when he was arrested and subsequently charged with the offence of ‘Common assault (DV) T2’ against his Wife.[11]
[11] Ibid., page 66.
On 5 December 2019, XGGB was convicted of the following offences and sentenced to a 12 month Community Correction Order (CCO) concluding on 4 December 2020:[12]
(a)‘Common assault (DV) - T2’;
(b)‘Attempt stalk/intimidate intend fear of harm (domestic) – T2’;
(c)Three counts of ‘Contravene prohibition/restriction in AVO (Domestic)’; and
(d)‘Stalk/intimidate intend fear physical etc harm (domestic) – T2’.
[12] Ibid., pages 40-42.
In June 2020, due to a breach of an Apprehended Domestic Violence Order (ADVO), XGGB’s CCO was called up and the 12 month period re-commenced from 23 June 2020.[13]
[13] Ibid., pages 39-40.
In November 2020, XGGB was convicted of ‘Drive with middle range PCA – 1st off’ and ‘Drive motor vehicle while licence suspended – 1st off’.[14] He was sentenced to a four month intensive correction order commencing on 10 November 2020 and concluding on 9 March 2021 (ICO).[15]
[14] Ibid., pages 38-39.
[15] Ibid., page 38.
On 18 January 2021, a New South Wales (NSW) Local Court sentenced XGGB to an aggregate sentence of 14 months imprisonment, with a non-parole period of seven months, following his conviction of ‘Drive with high range PCA – 2nd +off’ and the calling-up of the previously made CCOs and the ICO in relation to the earlier domestic violence and drink driving offences.[16]
[16] Ibid., pages 35-36.
On 25 March 2021, the District Court of NSW confirmed the 14 month term of imprisonment imposed on XGGB.[17]
[17] Ibid., pages 32-35.
On 5 May 2021, XGGB’s Visa was cancelled under the mandatory cancellation power pursuant to subsection 501(3A) of the Act.[18] XGGB was invited to make representations to the Minister about revoking this cancellation decision.[19]
[18] Ibid., pages 164-191.
[19] Ibid., pages 165-168.
On 9 May 2021, XGGB made representations to the Minister and requested revocation of the mandatory cancellation of his Visa pursuant to subsection 501CA(4) of the Act.[20]
[20] Ibid., pages 81-84.
On 1 August 2021, XGGB was released on parole and transferred to Villawood Immigration Detention Centre, where he continues to reside.
On 10 February 2022, a delegate of the Minister found that XGGB did not pass the character test and that there was not ‘another reason’ to revoke the mandatory cancellation of the Visa under subsection 501CA(4) of the Act.[21]
[21] Ibid., pages 7-15.
On 17 February 2022, XGGB applied to the Tribunal for review of the delegate’s decision not to revoke the mandatory cancellation of his Visa.[22]
LEGISLATION & DIRECTION
[22] Ibid., pages 1-6.
The Act
Subsection 501(3A)(a) of the Act relevantly provides that the Minister must cancel a visa that has been granted to a person if satisfied that the person does not pass the ‘character test’ because they have a ‘substantial criminal record’ and the person is ‘serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory’.
Under subsection 501(6)(a) of the Act, a person does not pass the character test if they have a ‘substantial criminal record (as defined by subsection (7))’. Pursuant to subsection 501(7)(c) of the Act, a person has a ‘substantial criminal record’ where the person ‘has been sentenced to a term of imprisonment of 12 months or more’.
Pursuant to subsection 501CA(3) of the Act, when a decision has been made under subsection 501(3A) to cancel a visa that has been granted to a person, the Minister must give the person written notice setting out the cancellation decision, particulars of the relevant information and invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
Subsection 501CA(4) of the Act provides that the Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) of the Act. Accordingly, the delegate’s decision not to revoke the decision to cancel the Visa is reviewable by the Tribunal.
The Direction
Under section 499 of the Act, the Minister may give written directions to a person or body, such as the Tribunal, having functions or powers under that Act, if the directions are about the performance of those functions or the exercise of those powers and are not inconsistent with the Act or the regulations made under it. The person or body must comply with such a direction pursuant to subsection 499(2A) of the Act.
On 8 March 2021, the Minister made a written direction under section 499 of the Act, being Direction 90 titled, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under s501CA, which commenced on 15 April 2021 (Direction 90).
The Preamble to Direction 90 sets out its objectives and principles, relevantly including:
(a)a non-citizen who does not pass the character test is liable for cancellation of their visa (paragraph 5.1(1));
(b)a non-citizen who has had their visa cancelled under subsection 501(3A) of the Act may request revocation of that decision under section 501CA of the Act (paragraph 5.1(3));
(c)where a decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case (paragraph 5.1(3));
(d)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 (paragraph 5.2(1));
(e)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 (paragraph 5.2(2));
(f)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns (paragraph 5.2(3));
(g)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 (paragraph 5.2(4)); and
(h)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 (paragraph 5.2(5)).
Paragraph 6 of Direction 90 provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations set out at paragraphs 8 and 9 of Direction 90, where relevant to the decision.
Paragraphs 8 and 9 of Direction 90 identify the considerations relevant to deciding whether to revoke a mandatory cancellation of a non-citizen’s visa under subsection 501CA(4) of the Act. They comprise four ‘primary considerations’ and four specified, but non-exhaustive, ‘other considerations’ which must be taken into account in relation visa applicants.
Paragraph 8 in Direction 90 sets out the four ‘primary considerations’ as follows:
(a)protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(b)whether the conduct engaged in constituted family violence (Primary Consideration 2);
(c)the best interests of minor children in Australia (Primary Consideration 3); and
(d)expectations of the Australian community (Primary Consideration 4).
Paragraph 9 in Direction 90 lists ‘other considerations’ that must be taken into account where relevant, which 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;
(ii)impact on Australian business interests.
Paragraph 7 of Direction 90 states that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
ISSUES
The issues for the Tribunal to determine in this proceeding are:
(a)whether XGGB passes the ‘character test’ defined in subsection 501(6) of the Act, for the purpose of subsection 501CA(4)(b)(i) of the Act; and
(b)if not, whether there is ‘another reason’ why the original decision cancelling the Visa should be revoked under subsection 501CA(4)(b)(ii) of the Act.
EVIDENCE
XGGB
XGGB provided a written statement to the Tribunal, which has been considered in making this decision.[23] XGGB gave evidence at the Tribunal hearing by Microsoft Teams from Villawood Immigration Detention Centre and confirmed adherence to his written statement provided in this proceeding.
[23] Exhibit 2, pages 1-7.
By way of cross-examination, XGGB confirmed that he lived in Iraq until October 2013. He then went to Turkey with his Wife and their four children. XGGB stayed with one of his brothers in Ankara during this time. He told the Tribunal he went to Germany in 2015 and briefly returned to Iraq and then Turkey to join his family. XGGB confirmed he came to Australia in December 2018. XGGB said he occasionally drank alcohol in Iraq and Turkey. He told the Tribunal that his drinking became a problem for him in Australia because his intake increased mainly because it was cheap, but if he was working he would not drink heavily.
XGGB was referred to his first offence in Australia in January 2019 and the associated NSW Police Facts Sheet regarding the circumstances leading up to and involving the offence of common assault against his then Wife.[24] XGGB was asked whether he accepted the version of events described in the Facts Sheet and told the Tribunal that he did not really assault her in the way described, he wanted to tell his Wife that she can leave the children and instead take his sister to a medical appointment to interpret for her because it was a very hot day. XGGB was asked whether he accepted that he raised his voice and said the court had confirmed that there was not violence involved. According to XGGB, it was a simple demand he made of his Wife not to take the children to the appointment. He accepted that he grabbed his Wife by the arm and attempted to drag her back into the home. He said he was frustrated, he felt sorry for his children because it was a hot day and had said to his Wife that she should leave them at home. He was asked whether this justified grabbing his Wife and attempting to drag her inside. He said no. It was put to XGGB that he knew at the time that it was wrong to be violent towards his Wife. He said that he did not know this was Australian law and if he had known he would not have done anything like that. He agreed he was arrested on that day by police. It was again put to XGGB that he knew at this time that violence against his Wife was unacceptable and he agreed.
[24] Exhibit 3, page 105.
XGGB was referred to the second incident that occurred on 12 February 2019 and the related NSW Police Facts Sheet for the offence.[25] This stated that there was an enforceable ADVO in place against XGGB in relation to his Wife from 27 January 2019, being the date of the earlier common assault offence. XGGB was referred to the terms of the ADVO regarding what he must not do to his Wife, such as assault, threaten, stalk or intimidate her, or approach her in any way unless through a lawyer. XGGB was asked whether he accepted that this was issued after the common assault offence for the purpose of protecting his Wife. XGGB said he had been told, but he did not really know what an ADVO was. XGGB was further referred to the Facts Sheet which stated that he attended his Wife’s house, knocked on the door for her to speak to him, she observed his intoxicated state and he initiated an argument regarding the ADVO. He was asked by the Minister’s representative whether he accepted that he initiated such an argument. XGGB said no, this was not true, he did not know what an ADVO was and they were talking behind the door. The Facts Sheet stated that XGGB continued to berate his Wife regarding the issues she had caused for him by involving the police. XGGB was asked whether he accepted this occurred. He told the Tribunal he rejected this and had told his Wife that he was collecting his clothes and would then leave. XGGB was then referred to the statement that he threatened to kill his Wife and asked whether he accepted that he made this statement. He told the Tribunal that he did not recall this statement and said he was unsure about it.
[25] Exhibit 1, pages 69-71.
XGGB was referred to two charges arising from this incident in February 2019, being contravening the ADVO and attempting to stalk/intimidate intend fear of harm and was asked whether he pleaded guilty to the latter offence. He said he did not comprehend the concept of the ADVO and would not do any of it if he knew it was the case. He was again asked whether he accepted that he had threatened to kill his Wife on this occasion. XGGB said again that he did not recall. The Minister’s representative put to XGGB the sentencing remarks of the Local Court on 9 September 2019.[26] The Magistrate noted that XGGB pleaded not guilty to a charge of intimidation. XGGB told the Tribunal he did not recall his Wife giving evidence to the Local Court and the Minister’s representative said that the basis of the Magistrate’s findings was that his Wife’s version of the complaint had been made out beyond reasonable doubt. It was put to XGGB that he did commit those offences. XGGB told the Tribunal he and his Wife have spent their life together, have four children together, that he did not recall saying those things and that there was no reason he would do such a thing given she has spent her life raising their children. It was further put to XGGB that his failure to accept he committed these crimes exhibited a lack of insight into his family violence offending. He repeated his inability to recollect anything like that and said that he was unsure whether he said that to her. XGGB was asked whether what his Wife had told the police and the court was incorrect. He said he did not know.
[26] Exhibit 3, pages 171-174.
XGGB was referred to the next recorded incident between himself and his Wife, on 6 May 2019, and the NSW Police Facts Sheet stating that they ‘have recorded domestic violence incidents in the past’ and detailed the content of the ADVO and prohibitions on XGGB regarding his Wife.[27] He was asked whether by this time he knew the ADVO was in place. XGGB again told the Tribunal that he did not understand the concept of the ADVO. It was put to him that he was charged with offences before this time regarding breaching this ADVO and was asked whether the Tribunal should accept that he did not know what it meant at this time in May 2019. He said he is under an oath to tell the truth and he did not know or understand the ADVO. He was asked whether he knew it was wrong to threaten his Wife and he said if he was aware of the law he would not do anything like that. XGGB was asked whether he knew by May 2019 that it was wrong to threaten his Wife and he told the Tribunal that he did not know, and he did not violate the policies and orders. He was referred to the incident on 6 May 2019 when it was reported that he contacted his Wife by telephone and her statement to the NSW police that XGGB had said to her in this call that he would kill her and send her body to Iraq and that he had told her that he had been drinking.[28] XGGB was asked whether he accepted that he had threatened to kill his Wife and return her body to Iraq. XGGB told the Tribunal that he was not aware of saying that and did not recall it and that maybe his Wife was bringing up ‘old stuff’. XGGB said he had no intention to kill the mother of his children. He was again asked whether he said these words and he replied that he was not aware of it, and that he could not recall it even if he had said it. XGGB was again asked whether he accepted that he did say it. He said he was unaware of it and could not recall it. XGGB was asked whether his Wife was making up the story to police. He said he did not know. He was referred to his guilty plea for the offence and said he could not recall it. The Minister’s representative referred XGGB to Court orders and again asked whether he accepted that he threatened to kill his Wife and return her body to Iraq.[29] XGGB said that if the court has said he did it then he would accept that. XGGB was asked what he said and he told the Tribunal that he was ‘not conscious basically’ and if he said it he could not recall, but when fully sober and conscious he would never say anything like that to his Wife. XGGB was asked whether he accepted that he had threatened his Wife as stated. He said he was unaware of himself at that time, but was not fully conscious. It was put to XGGB that he had a lack of insight regarding family violence committed against his Wife, to which he replied, ‘sure’.
[27] Ibid., page 131.
[28] Exhibit 1, page 75.
[29] Exhibit 3, pages 127-128.
The Minister’s representative put to XGGB that the three aforementioned incidents were not the only times he was violent towards his Wife. He said, ‘Okay’. Specifically, it was put to XGGB that he had threatened his Wife on multiple occasions before they came to Australia. XGGB replied, ‘No’. He was referred to the NSW Police Facts Sheet from an incident on 12 February 2019 and his Wife’s reported statement that XGGB had ‘regularly subjected his Wife to regular verbal abuse and threats prior to moving to Australia’.[30] XGGB said this was not true. He was asked whether his Wife was lying to police. XGGB said he did not agree with her claim. He was asked why his Wife would lie to police. XGGB told the Tribunal that ever since they were married he has ‘never hit’ or ‘assaulted’ his Wife and that his family are witnesses to this non-violence towards his Wife. XGGB was asked again why his Wife would lie to police about threats and abuse. XGGB told the Tribunal that he did not know why, but all his family have witnessed him never hitting or assaulting his Wife during their marriage. It was put to XGGB that he was convicted of common assault in 2019 against his Wife. In response, he said he had told the court to conduct finger printing and more examination to see if it had been caused by himself. XGGB said at that time his Wife had a skin allergy around that area of her body and was scratching it and, as a result, it turned red and his niece was a witness to that condition.
[30] Exhibit 1, page 70.
XGGB was referred to another report made by his Wife to the police in NSW Police Records on 5 December 2019, which identified XGGB as a person of interest and further identified XGGB as being married but separated from his Wife.[31] It stated that XGGB’s Wife had ‘provided information that there were incidents of Domestic Violence while they lived in Iraq and Turkey’ and that she understood that only incidents in Australia could be investigated.[32] XGGB told the Tribunal this reported family violence was not true. He was asked why his Wife would lie about it on this occasion. XGGB told the Tribunal that his family have not witnessed him assaulting or threatening his Wife. It was again put to XGGB that he has been convicted of domestic violence offences against his Wife and that he was doing these things before they came to Australia. XGGB said that he had never hit his Wife and would tell the Tribunal if he had done so.
[31] Exhibit 3, pages 11-12.
[32] Ibid., page 12.
The Minister’s representative referred XGGB to his written statement provided to the Tribunal that he has ‘not touched alcohol since I was arrested in 2021. I will never drink again. I have seen how much it has affected my life and my family’.[33] XGGB told the Tribunal that he would fully commit himself to not drinking again even if this required reporting daily to police. He was asked whether his view was that alcohol is the sole source for the commission of the offences and he said, ‘Yes’. It was put to XGGB that alcohol was not the sole cause of his domestic violence against his Wife. He replied that he was devastated when he was separated from his children and was really frustrated not to see them. It was put to XGGB that the clear reason for his offending is his attitude to domestic violence. He replied, ‘No’. It was further put to XGGB that he used threatening behaviour and violence towards his Wife in Iraq and Turkey before his problems with alcohol. He said he is not violent and has not had a fight in his life. The Minister’s representative said to XGGB that by refusing to accept his commission of domestic violence crimes and by attributing his behaviour to alcohol, he is avoiding acceptance of these offences and therefore has a lack of insight into his offending. XGGB said it is ‘not my nature’ to do anything violent in the family and whatever happened was when he was intoxicated.
[33] Exhibit 2, page 7.
XGGB was referred to the sentencing remarks of the Local Court Magistrate on 5 December 2019 regarding his conviction for common assault and other offences.[34] Those proceedings occurred with the assistance of an interpreter in the Kurdish Kurmanji language.[35] The Magistrate placed XGGB on a CCO for 12 months and he was ordered to abstain from alcohol.[36] XGGB was asked by the Magistrate whether he had any questions about this order to which he responded, ‘No, I’m ready to comply, I have no questions’.[37] XGGB was asked by the Minister’s representative whether he accepted that on this occasion he was told to abstain from alcohol for the duration of the CCO. He agreed. XGGB was further asked whether he understood that he was required to abstain from alcohol. He agreed. It was put to XGGB that he was saying similar things to this Tribunal regarding abstaining from alcohol. He said yes and pledged to return to work and not touch alcohol and to report daily to authorities. It was also put to XGGB that the Tribunal would have questions regarding his compliance having regard to the previous outcomes of such statements he had made regarding alcohol consumption. XGGB said that for the sake of his children, as they need him and need for him to be around, he would accept a requirement to report daily to police.
[34] Exhibit 1, pages 57-65.
[35] Ibid., page 59.
[36] Ibid., page 64.
[37] Ibid., page 65.
The Minister’s representative put to XGGB that 10 months after this conviction he committed a mid-range driving offence in September 2020. He told the Tribunal that he accepted this happened and again expressed his willingness to attend daily to report to police.
XGGB was also referred to a further incident on 31 October 2020, where it was reported that he had been observed entering female public toilets multiple times, he seemed to be watching his phone as he exited and when police attended he was sitting in his car.[38] He told the Tribunal that he used the toilet twice, he was unaware they were female toilets and police had searched his car. XGGB agreed that his evidence to the Tribunal was that he twice mistakenly entered the female toilets and was not under the influence of alcohol.
[38] Exhibit 3, pages 4-5.
XGGB was also referred to his sentencing on 10 November 2020 and the CCO, which contained a requirement that XGGB abstain from alcohol and drugs, unless prescribed, for the duration of the CCO.[39] XGGB said he has never touched drugs, but recalled signing the CCO. It was put to XGGB that he knew he was required to abstain from alcohol for 12 months. He agreed. It was further put to XGGB that in signing the CCO he agreed to abide by its terms regarding abstention. He agreed. It was then put to XGGB that this was another occasion when he said he would stop drinking alcohol and had not honoured that commitment. He replied, ‘Yes’.
[39] Ibid., pages 147-149.
XGGB was referred by the Minister’s representative to the evidence that on 2 January 2021, less than two months after entering into the CCO, he was found to be driving with a high range level of alcohol in his system and while his licence was disqualified. He agreed and accepted this occurred, but said he was not really drunk or intoxicated, but admitted he had consumed ‘some alcohol’. XGGB told the Tribunal that he had immediately informed the police that he had consumed alcohol. It was put to XGGB that he was found to be intoxicated at a high level range and was asked whether he was saying he was not that drunk when driving. XGGB said he was not drunk and if he were he would have had an accident. It was put to XGGB that this was implausible because of the high range drink driving charge. XGGB replied, ‘Yes’. He was asked whether he accepted that he put members of the community at risk due to drink driving. XGGB said if he was drunk he would have had an accident or maybe overturned his car while driving. XGGB was again asked whether he did not think he put community members at risk due to driving while intoxicated. He said a drunk person causes danger, but he was not drunk otherwise he would have caused an accident.
XGGB was taken to the sentencing remarks of the NSW District Court on 25 March 2021.[40] XGGB told the Tribunal he recalled attending court on this occasion and having the assistance of a Kurdish Kurmanji interpreter. He was referred to the following exchange with the Judge:[41]
HIS HONOUR: Are you saying that you are not guilty of those charges of common assault and contravention of the apprehended violence order and intimidation?
INTERPRETER: Actually, your Honour, basically the only thing that was in place, it was a sort of a, with my, for my family which I have never under any circumstances I’d sort of insulted them or got any close to them of assaulted them. I don’t recall any, doing any of this.
HIS HONOUR: You tell me you don’t recall. Are you saying that you are not guilty of those offences?
INTERPRETER: Yeah, I mean, I admit the fact that I wasn’t supposed to driving and I did. I wasn’t basically supposed to drinking, which I did basically, but the other charges that, you know, sort of common assault or the sort of violating one other AVO conditions, I don’t remember and I have not committed that.
[40] Exhibit 1, page 43.
[41] Ibid., page 45.
When XGGB was asked by the Minister’s representative whether he accepted that he had told the District Court that he was not guilty of the domestic violence charges, he replied, ‘Sure’. XGGB was further asked whether at that time he was attempting to avoid responsibility to receive a lesser sentence. He said the Judge told him the sentence could not be changed and there were then only three months left and it would remain in place. As a result, XGGB was asked again in cross-examination whether he told the Judge he was not guilty of the offences in order to receive a lesser sentence. He told the Tribunal that as far as he was concerned, he was asked if he had violated any ADVO condition or not and he wanted to say that he did not violate the ADVO during that time. The Minister’s representative asked XGGB whether he was still of the view that he was not guilty of the domestic violence charges for which he was convicted. He told the Tribunal that he is not denying everything, but because of the psychological pressure and frustration at the time, he probably did something that he was unaware of.
XGGB was asked whether he had attempted to amend the relationship with his Wife after the various incidences of domestic violence. XGGB replied that ‘we have mended the relationship’ following a traditional intervention with 17 members of the Yazidi community and they are ‘again back together’. XGGB was asked whether he did anything to resolve the issue of his Wife calling police multiple times due to being scared of him. XGGB replied that the court contact told him it will respect whatever traditional agreement or community agreement is reached and that it would be honoured and accepted. XGGB was again asked what he had done to resolve the relationship problems with his Wife. He said there was nothing illegal or forceful involved in any kind of mending of the relationship. As a result of this response, XGGB was asked whether he had not done anything wrong to his Wife. XGGB told the Tribunal that he had not done anything wrong by her. The Minister’s representative asked XGGB what then caused his Wife to call police multiple times regarding his actions. XGGB said he was separated from his Wife and children and devastated at that time.
XGGB was taken to a NSW Corrective Services Case Note Report from October 2019.[42] He confirmed to the Tribunal his recorded statement in that report that his Wife purchased alcohol for him on the day of his arrest. XGGB was referred to a further statement that his Wife ‘lied about her injuries’ related to his first offence. He agreed. XGGB was asked whether his Wife caused him to commit the offence and he replied that he was not blaming her for anything but that the mental and psychological pressure on him back then was enormous so he does not know. He was further asked whether he accepted the reported statement that he had said his Wife was ‘in the wrong’ and he had done ‘nothing’.[43] XGGB said there was a misunderstanding regarding hitting someone and he never hit his Wife. He was referred to the offence of common assault, which resulted from a finding that XGGB grabbed his Wife by the arm and attempted to drag her into the house, and was asked whether he was saying it was her fault that they occurred. In response, XGGB told the Tribunal that they fell in love and were married, he has never assaulted or hit his Wife and his family is aware of their strong relationship.
[42] Exhibit 3, page 30.
[43] Ibid.
The Minister’s representative referred XGGB to a ‘Sentencing assessment report’ completed by a Community Corrections Officer for certain domestic violence offences and the statement that XGGB ‘denies he has been violent or aggressive towards anyone including his family.’[44] He told the Tribunal that this was correct and that he has never assaulted or fought with anyone in the past. XGGB was asked whether he had not threatened anyone including his Wife. XGGB replied that it was not in his nature to threaten anybody, but if it had occurred then he was not aware of himself. It was put to XGGB that his assertion that he was never violent or aggressive towards his Wife was implausible given his various domestic violence convictions involving his Wife, including pleading guilty to offences and a court finding beyond reasonable doubt that it occurred. XGGB told the Tribunal that it was an unintentional action or as a result of not being fully conscious at the time, and that he did not recall the incidents. It was further put to XGGB that his ongoing failure to accept these convictions demonstrates a lack of insight into his offending and that the Tribunal cannot be satisfied that they would not reoccur. XGGB stated that he was not really aware of the allegations against him.
[44] Ibid., pages 90-94.
XGGB agreed that he has four minor children in Australia born to his Wife, with whom they currently live. He also agreed that they are being primarily cared for by his Wife, but said he had helped when he was with them. XGGB said his extended family are in contact with his Wife and children and he has told his family to provide his Wife and children with any required support. XGGB did not know the residential address of his Wife and children, but said that yesterday he was on the phone with his children who were crying for him. XGGB told the Tribunal that, if returned to the community, initially he would live with his sister and follow whatever legal processes are required before returning ‘back together’.
XGGB was referred to the lack of written evidence from his Wife for him to stay in Australia. He said he did not know why a statement was not provided by his Wife because they do not call each other, he only speaks with his children, but said she told his mother and sister that she was willing to provide him with whatever support is required. It was put to XGGB that if his Wife wanted him to live with her and the children she would have made such a statement in this proceeding. He told the Tribunal that he did not know whether she had written anything, but that her mother had recently passed away. XGGB’s family attended the funeral and his Wife told them that she was willing to provide whatever is necessary for him.
The Minister’s representative put to XGGB that his Wife is scared of him due to events in their marriage. XGGB stated that he did not know how to take the statement because they met and fell in love and he had never caused fear to his Wife and did not know how this suggestion could be made. To this end, XGGB was asked how he explained his Wife’s calls to police regarding her fear of him on multiple occasions. He said he did not know because of his psychological condition and could not say anything about it. XGGB referred to the killing of his brother and the impact it had on him. He agreed that he has not seen his children in person since 2019 and said this had a big psychological impact on him but that he had to obey the ADVO conditions.
XGGB told the Tribunal that he has nine nieces and nephews in Australia under the age of 18.[45] They all live in the same area. He agreed that these children are cared for, and supported by, their own parents, but also said that he had supported them ‘in every way’. It was put to XGGB that the children’s parents provide daily care and support to them in Australia. He agreed the children’s parents were their principal carers but he assisted wherever he could, including by taking them to work with him. XGGB also said his mother, who lives in the same area, is unwell and had operations in Iraq and Australia. She was said to live with XGGB’s brother in Australia.
[45] Exhibit 1, page 114.
XGGB was asked about the things he contends will happen to him should he return to Iraq. XGGB told the Tribunal that he will be targeted by his Wife’s family in Iraq. He said he was in danger of ISIS because it is still operating in Iraq and that his Wife’s family also pose a risk to him. XGGB told the Tribunal that his Wife’s family threatened him, that there is animosity between them and that he paid USD13,000 to keep the peace, but the hate and animosity is still alive. He twice confirmed to the Tribunal that the last time her family contacted him about this issue was in 2013 when they threatened to kill him and his family, and said this, together with the threat from ISIS, was why they escaped to Turkey. He was asked whether he had received any further threats from his Wife’s family since 2013 and he replied that he had indirectly received information that his Wife’s family are aware of the visa cancellation and are preparing themselves. XGGB told the Tribunal that he would rather die here than be killed in Iraq.
XGGB was taken to NSW Case Records from 31 August 2020 which reported that his Wife’s family in Iraq had informed her that XGGB ‘had been contacting family members in Iraq and asking if they could ask the victim [his Wife] if they could get back together’.[46] He told the Tribunal that there is a nephew in Germany whom he is speaking to, but he is not speaking to anybody in Iraq. XGGB was asked in cross-examination whether he accepted that he contacted his Wife’s family members in Iraq in an attempt to get her to reconcile with him. He told the Tribunal he was under threat so he said to his Wife’s family, ‘let’s make peace and get back together’ and that while he has been in Australia he had received threats from his Wife’s brother. XGGB said he did not call his Wife’s family in Iraq, but her brother called and threatened him. This was said to have occurred when XGGB was living with his sister in Australia. It was put to XGGB that this was different to what he had earlier told the Tribunal about not receiving any threats since 2013. XGGB told the Tribunal that is exactly what he said and there is animosity and hate still there and they will threaten and target him anytime they can, but they now do not have his contact number. It was put to XGGB that he was changing his evidence to make his claim more believable. He denied changing anything.
[46] Exhibit 3, page 8.
XGGB was referred to his visa application made in 2017 that led to him coming to Australia.[47] He recalled that this was interpreted into English at the Embassy in Ankara, Turkey. XGGB was referred to there being no reference to threats on his life from his Wife’s family. He said it was mentioned but not recorded and that it was ‘very well known’ in the whole community; his family knew of this threat and risk.
[47] Ibid., pages 208-237.
XGGB was taken to the interview report in relation to his visa application, which contained no reference to claims regarding threats from his Wife’s family.[48] It was put to XGGB that this was because he did not fear living in Iraq due to his Wife’s family. He said the reason he escaped from Iraq was not purely because of his Wife’s family, but due both to ISIS and her family. It was further put that XGGB’s claims were inconsistent and the reason they were not included in the visa application or mentioned at interview was because he was not telling the truth and was concocting claims to support his case to remain in Australia. XGGB told the Tribunal that he was under oath and has conveyed information truthfully and would not say anything else.
[48] Exhibit 1, pages 120-126.
XGGB was taken to his claim to fear harm in Iraq due to being Yazidi, including his statement in this proceeding that the Yazidi ‘community has been targeted for many years, by our own government, by other religions and terrorist groups. The Da’esh invaded, killing many of our people and forcing us from our lands’.[49] XGGB was referred to three separate interview reports from the NSW Department of Corrections which stated that he identified as Muslim.[50] XGGB told the Tribunal that he did not know how to read and write, but had not identified as a Muslim; he has always identified as Yazidi.
[49] Exhibit 2, page 1.
[50] Exhibit 3, pages 53, 56 and 59.
XGGB was taken to his written statement provided to the Tribunal and the reference to his army service from 2006.[51] XGGB confirmed this was a reference to the Iraqi army. He agreed that his evidence was that he served in the army as a cook, then a soldier, and in 2013, whilst on duty as a soldier, was involved in a grenade attack on a vehicle in which he was travelling. XGGB was taken to the interview report from 2018 in relation to his visa application which recorded him as having said he had not served in the armed forces.[52] XGGB told the Tribunal this was a reference to not undertaking compulsory military service. He was again referred again to the claims section of his visa application and there being no reference to an attack on a vehicle while he was in the Iraqi army. XGGB said he had answered whatever had been asked. In reference to XGGB’s employment history in the visa application form which stated that he was a ‘builder worker’ in Iraq between 2004 and 2014, XGGB told the Tribunal he had done all types of work. The Minister’s representative took XGGB to the character questions in his visa application form regarding military service or training, in which he answered no to both questions. XGGB told the Tribunal he had mentioned this service to the court in Australia, but that at the time this application was completed the only question he recalled being asked about was any political activity, to which he answered no. XGGB was asked whether he was concocting evidence regarding Iraqi military service and the incident in 2013 to support his case to stay in Australia. He said whether he is deported or not, the Yazidi community faces persecution; there are still kidnappings occurring and they are still in danger.
[51] Exhibit 2, page 2.
[52] Exhibit 1, page 122.
XGGB was taken to his written statement in this proceeding and his reference to his eldest daughter being killed fleeing from ISIS, being the child he had with his first wife. He confirmed this occurred and said he had mentioned everything, including this incident, when making his visa application, together with the death of his brother, but that it may not have been recorded. XGGB told the Tribunal that his family took refuge here to save their lives and for protection.
XGGB confirmed that he lived in Turkey between 2013 and 2016 and then Germany before returning to Turkey. During this time, XGGB also travelled to Iraq, but this was said to be for the sake of his family and he did not stay for more than a week. XGGB was asked why the threats from his Wife’s family and ISIS did not prevent him from returning to Iraq. He said he never returned to the particular region, but landed by plane elsewhere and stayed in an airport hotel until he left the country.
XGGB told the Tribunal that he has a sister in Iraq but she has been accepted as a refugee and will shortly come to Australia. He said all his family are in, or coming to, Australia. His sister still in Iraq is not living in the area where he grew up; she was said to have escaped and married. XGGB was asked in which part of the country he would live if he returned to Iraq. He replied, ‘I don’t have anywhere to go, my family live here. Australia is my saviour and protector’ and he would rather the ‘Australian government to kill me here rather than send me back anywhere else’. XGGB did not agree he could return to the village where he was born in Sinjar, Iraq, because he has ‘nowhere to go and cannot return anywhere’ and going back ‘means death for me so if you want to send me to death kill me here’.
XGGB agreed that one of his brothers lives in Turkey and was said to also be coming to Australia. XGGB would not return to Turkey because all his family are all in Australia and he ‘can’t live in Turkey’. He agreed that he spoke Turkish, Arabic and Kurdish and had worked in Turkey as an interpreter for refugees in the Turkish language along with having labouring jobs.[53]
[53] Ibid., page 123.
The Minister’s representative referred XGGB to the Department of Foreign Affairs and Trade Country Information Report on Iraq dated 17 August 2020 (DFAT Report) and the following statement:[54]
Following three years of conflict, the government declared final victory over Da’esh in December 2017 after recapturing the last areas under Da’esh control along the Syrian border. The conflict with Da’esh significantly damaged the Iraqi economy and Da’esh continues to represent a security threat within the country.
[54] Ibid., page 25.
XGGB said Da’esh or ISIS is still in Iraq. He was asked whether he accepted that the situation in Iraq is not the same as when he was present in 2013, when ISIS had control over the majority of the country. XGGB accepted that there is decreased activity, but that ISIS still exist and are ‘popping up here and there’, with the occurrence of a recent missile attack. XGGB was taken to an assessment in the DFAT Report that ‘Yazidi face a low risk of official discrimination. Like other minorities, Yazidi face a moderate risk of societal discrimination and violence in areas where they are a minority’.[55] XGGB told the Tribunal that the Yazidi community are ‘always in danger’ and the risk of genocide persists. He did not accept that if he returned to an area where Yazidi were not a minority, such as Sinjar, that he would not be at moderate risk. XGGB told the Tribunal that ‘we have enemies basically surrounding us’ and women are ‘still captive’, and they are ‘under no protection’.
[55] Exhibit 1, page 48.
Re-examination
By way of re-examination, XGGB was referred to his first offence in January 2019 and asked whether the police provided him with paperwork after he was charged. XGGB said he probably was but could not recall. He was asked whether an interpreter was used by police. XGGB said there are a few dialects in the Kurdish language and another was used so he did not really understand much of what was being said, including regarding the ADVO. He was referred to the incidents in February and May 2019 and asked what type of interpreter was used on these occasions. He said it was a long time ago and did not recall.
XGGB was referred to the interview with NSW Community Corrections in October 2019 and said he attended with another person to interpret in an Arabic dialect.[56] He denied saying at that interview that his Wife had stopped practising the Muslim faith and told the Tribunal that this was said by the other person attending the interview to interpret for him because he was illiterate. XGGB also confirmed that he was unaware why the reference to him being Muslim was contained in various statements.
[56] Exhibit 3, page 30.
XGGB’s representative took him to his visa application from 2017 and said he did not know or review what had been written by the person completing the form on his behalf, including because he only had a limited understanding of the English language. XGGB agreed that if he made the application again he would disclose ‘all the circumstances’, including his army service and threats in Iraq.
XGGB’s sister
XGGB’s sister provided a written statement dated 18 March 2022, which was filed in this proceeding and considered by the Tribunal in determining this application. XGGB’s sister gave evidence at the hearing by video and confirmed adherence to her written statement. Under cross-examination, XGGB’s sister was asked when she first became aware of XGGB’s problems with alcohol. She said XGGB increased his intake of alcohol when he was separated from his Wife. XGGB’s sister thought she first became aware of her brother being charged with domestic violence offences against his Wife about 19 to 20 months ago, but was unsure of the dates. XGGB’s sister was asked what she knows of her brother’s domestic violence offences and what they involved. She told the Tribunal that she knew alcohol was involved and that he violated an ADVO.
Mr Tim Watson-Munro – Consultant Psychologist
A report prepared by Mr Watson-Munro and dated 22 March 2022 was filed in evidence on behalf of XGGB.[57] The Tribunal has considered this report in reaching its decision. Mr Watson-Munro gave evidence at the hearing by telephone. He confirmed adherence to his report and also that he is a Consultant Psychologist who has been working in this field since 1978.
[57] Exhibit 4, pages 1-10.
By way of cross-examination, Mr Watson-Munro told the Tribunal that his assessment of XGGB was based on one telephone interview with no psychometric testing due to logistical difficulties. He also had regard to the documentation provided to him in relation to this proceeding. Mr Watson-Munro disagreed that his assessment of the prospect of recidivism could only be limited because there had been no psychometric testing of XGGB. He said this was one assessment tool and in an ‘ideal world’ information would be gathered in this way, but these also included a person’s prior history and substance abuse among other factors. Mr Watson-Munro also referred to, and took account of, an assessment of XGGB by NSW Corrections in 2019 that he was considered at low risk of reoffending at that time.
The Minister’s representative referred Mr Watson-Munro to the section of his report stating that XGGB has had no treatment for his psychological condition and was asked whether his assessment is that XGGB used alcohol for self-medication and that this was the predominant contributing factor to his offending. Mr Watson-Munro agreed this was a ‘fair comment’, and told the Tribunal that it appears that this really developed when XGGB arrived in Australia and alcohol was a ‘central theme’ to his domestic violence and drink driving offending and was used as self-medication.
Mr Watson-Munro was asked whether his assessment that XGGB’s abuse of alcohol was the predominant contributing factor in his domestic violence offending would change if there was evidence that XGGB did not accept responsibility for the commission of the offences or their commission at all. He told the Tribunal that XGGB may not accept that alcohol is relevant, but in his assessment it is ‘relevant’. Mr Watson-Munro further said that it would speak to a lack of insight if XGGB is denying the offences or not accepting responsibility for them, in circumstances where he has been charged and convicted of them and because such denials would have been made during a state of sobriety and would indicate other factors are at play.
Mr Watson-Munro was referred to the section of his report in which he stated that XGGB’s risk of reoffending would reduce with ‘protective factors’ in place and confirmed this opinion applied to both family violence and drink driving offending. Mr Watson-Munro told the Tribunal that if XGGB undertook treatment, was employed, his family issues stabilised and he had the support of the community, then the likelihood of XGGB resorting to alcohol as self-medication would reduce and that if XGGB was not abusing alcohol the likelihood of him reoffending would reduce. Mr Watson-Munro said that treatment would provide XGGB with more effective ways of dealing with stress, thinking clearly and being less impulsive, which would therefore reduce his risk of reoffending in the community.
Mr Watson-Munro was asked whether his assessment that XGGB is at low risk of reoffending at present is premised on him having the aforementioned protective factors in place. He agreed this was a fair comment and referred again to XGGB being assessed in 2019 by NSW Corrections as low risk, but then reoffending. Mr Watson-Munro told the Tribunal that XGGB has been in an artificial environment and therefore the insights XGGB is developing while in detention would need to be tested in the community and are reliant on those protective factors. He said that XGGB’s risk of reoffending was ‘trending from moderate towards low’. The Minister’s representative further asked if Mr Watson-Munro would consider that XGGB was not trending towards a low risk of recidivism if XGGB did not display a meaningful insight into, or remorse for, his domestic violence offending. Examples were provided such as XGGB not accepting he committed offences for which he had been convicted or that he was ever violent or threatening towards his domestic partner. Mr Watson-Munro told the Tribunal that XGGB clearly needs to have insight in any treatment proposition, together with empathy, and this then allows the development of skills to not reoffend. To this end, Mr Watson-Munro said that if there is a denial of offending, XGGB clearly lacks insight and the domestic violence issue would require ‘a lot more work’. He again noted that XGGB has not had treatment and that domestic violence would be one of the first things addressed. Mr Watson-Munro referred to XGGB’s obfuscation on the issue and said that he needs better education about it and why domestic or family violence is totally unacceptable as a universal proposition.
In re-examination, Mr Watson-Munro confirmed that it takes time for a person to develop insight, especially where there is obfuscation and denial. He considered that XGGB had developed a ‘generic level’ of insight due to being in gaol, immigration detention and facing possible deportation. Mr Watson-Munro told the Tribunal that insight is a gradual phenomenon for many and generally a ‘work in progress’ in a criminal context. It requires ‘fairly frank’ discussions with a person regarding their offending behaviour and breaking down their denial. He said a person needs to understand what they have done wrong and why it is wrong; this is the function of therapy.
Mr Watson-Munro was referred to the evidence from XGGB’s caseworker and other service providers regarding support available for XGGB. He agreed that these support services would assist XGGB in developing insight and rehabilitating and that his willingness to attend appeared to be the ‘seeds’ of insight developing. These services are recommended as ‘protective factors’ and if they were in place and XGGB committed, and applied himself, to treatment his insight will develop and the risk of reoffending will reduce and ‘continue to trend towards low’.
CONTENTIONS
XGGB
XGGB accepted that he does not pass the character test under subsection 501(6) of the Act because he has a ‘substantial criminal record’, as defined by subsection 501(7) of the Act. However, XGGB contended that there is ‘another reason’ why the original decision to cancel his Visa should be revoked pursuant to subsection 501CA(4)(b)(ii) of the Act.
XGGB submitted that Primary Consideration 3 in Direction 90, the best interests of minor children in Australia, weighs significantly in favour of revocation of the original decision given the significant harm to his children and nephews and nieces in Australia should he be permanently removed from this country. Additionally, while XGGB accepted he has a history of offending which includes family violence, he submitted that this should be viewed through the prism of his vulnerabilities as a newly arrived refugee with inherent vulnerabilities and that the Tribunal should be satisfied that there is little to no risk that he will re-offend having regard to his abstinence from alcoholic consumption for 14 months, engagement with available programs and the availability of support upon release. In this regard, XGGB contended that Primary Consideration 2 in Direction 90, being family violence committed by the non-citizen, should not weigh heavily against revocation of the original decision.
XGGB further submitted that Primary Consideration 1, being protection of the Australian community, should not weigh heavily against revocation of the cancellation decision and accepted that Primary Consideration 4, being expectations of the Australian community, weighed against revocation.
However, XGGB contended that the three relevant ‘other considerations’ in Direction 90, being Australia’s international non-refoulment obligations, the extent of impediments if removed and links to the Australian community all weigh heavily in favour of revoking the original cancellation decision. It was submitted that there is a real prospect that XGGB will suffer serious harm on return to Iraq or alternatively face indefinite detention in Australia in circumstances where non-refoulement obligations are owed to XGGB. He contended that very significant weight should be given to Australia’s international non-refoulment obligations in favour of revocation of the original decision, such that it may outweigh any other consideration.
The Minister
The Minister contended that there is not ‘another reason’ why the cancellation decision should be revoked and that, accordingly, the correct decision is to affirm the decision not to revoke the mandatory cancellation of XGGB’s Visa. The Minister submitted that Primary Consideration 1, Primary Consideration 2 and Primary Consideration 4 all weigh heavily against revocation of the mandatory cancellation of XGGB’s Visa and that Primary Consideration 3, the best interests of minor children in Australia, does not outweigh the other primary considerations. In relation to the ‘other’ considerations submitted by XGGB to weigh in his favour, being international non-refoulment obligations, extent of impediments if removed and links to the Australian community, the Minister contended that they do not outweigh the primary considerations weighing against revocation of the decision to cancel XGGB’s Visa.
CONSIDERATION
Does XGGB pass the character test under the Act?
On 18 January 2021, XGGB was sentenced to an aggregate term of 14 months imprisonment in Australia. Under subsection 501(7)(c) of the Act, XGGB has a ‘substantial criminal record’ because he has been sentenced to a term of imprisonment of 12 months or more. Pursuant to subsection 501(6)(a) of the Act, XGGB fails the character test due to having a substantial criminal record. Accordingly, for the purpose of subsection 501CA(4)(b)(i) of the Act, the Tribunal is not satisfied that XGGB passes the character test as defined by section 501 of the Act. The Tribunal also notes that XGGB accepted that he does not pass the character test under the Act.[58]
[58] Applicant’s Statement of Facts, Issues and Contentions dated 19 March 2022 at paragraph [45].
Is there another reason why the original decision to cancel the Visa should be revoked?
As a result of the Tribunal’s finding that XGGB does not pass the character test, pursuant to subsection 501CA(4)(b)(ii) of the Act, it turns to consider whether there is another reason why the mandatory cancellation decision should be revoked.
In accordance with subsection 499(2A) of the Act, the Tribunal must comply with Direction 90 in making a decision regarding a request for revocation of a mandatory cancellation decision pursuant to section 501CA of the Act. Paragraph 5.1(4) of Direction 90 relevantly provides that the purpose of Direction 90 is to guide decision-makers in performing functions or exercising powers under section 501CA of the Act. Accordingly, the Tribunal sets out below its decision against the criteria under Direction 90.
Primary Consideration 1 – Protection of the Australian Community
Paragraph 8.1 of Direction 90 states that:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of XGGB’s conduct
Paragraph 8.1.1 of Direction 90 sets out a list of factors that decision-makers must have regard to in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, which relevantly includes:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed.
…
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending…
In January 2019, XGGB commenced his criminal offending less than two months after arriving in Australia.[59] He has been convicted of a number of family violence offences and multiple instances of driving under the influence of alcohol.[60]
Family violence offences
[59] Exhibit 1, page 66.
[60] Ibid., pages 32-42.
The victim in each instance of XGGB’s family violence offending was his Wife, who is the mother of his four children in Australia.
On 27 January 2019, according to the NSW Police Facts Sheet before the Tribunal, a fight began when XGGB’s Wife stated that she was going to a medical centre for an unrelated issue. XGGB told his Wife to leave the children at home with him, but she reportedly feared doing so due to XGGB’s intoxication. The Facts Sheet continued as follows:[61]
This situation has escalated until the point where the Victim [XGGB’s Wife] has felt the need to escape the environment and the Accused by leaving the house. The Accused has become enraged at this situation and begun yelling at the Victim, the Accused has then grabbed the Victim by her arms and attempted to drag her back inside the home. The Accused has caused the Victim to have small red marks/bruises on her left forearm and this has also made the Victim feel pain immediately.
The Victim has gathered her children and run across to her neighbours to escape the Accused.
[61] Ibid., page 67.
XGGB was arrested and charged with ‘Common assault (dv) T2’ in relation to this incident.[62]
[62] Ibid., page 66.
On 12 February 2019, according to another NSW Police Facts Sheet, XGGB attended the home of his Wife. She answered the door and realised it was XGGB and that he was ‘well effected with intoxicating liquor’.[63] The Facts Sheet further states that:[64]
The Accused spoke to the Victim [his Wife] and initiated an argument in relation to the ADVO in place. The Accused continued to berate and verbally abuse the Victim about the issues the Victim has caused to him in involving Police previously. This caused her to feel fear and apprehension due to his behaviour. The Accused proceeded to verbally threaten the Victim stating he was going to kill her. Distressed the Victim attempted to contact triple 0 however due to not being able to speak any English was unable to convey her situation to the Triple 0 operator. The Accused realising the Victim had contacted Police and immediately absconded from the area.
[63] Ibid., page 71.
[64] Ibid., pages 71-72.
The Facts Sheet also noted that: ‘[i]n speaking to the Victim the Accused has regularly subjected his Wife to regular verbal abuse and threats prior to moving to Australia’.[65] XGGB was arrested and charged with ‘Contravene prohibition/restriction in Avo (domestic)’ and ‘Attempt stalk/intimidate intend fear of harm (domestic) T2’ in relation to the incident in February 2019.[66]
[65] Ibid., page 70.
[66] Ibid., page 69.
On 6 May 2019, according to a further NSW Police Facts Sheet, XGGB contacted and spoke with his Wife by telephone and it was alleged that:[67]
the accused threatened to kill her. The accused has said “I kill you and send your body to Iraq”. The victim [XGGB’s Wife] informed Police that the accused said to her “I have been drinking”. The victim took this to mean alcohol. The accused’s words made the victim fear for her safety and the safety of her children who were in the house at the time.
The victim went to her neighbours house and communicated that she believed the accused had been at her house drinking alcohol as the victim had found an empty plastic bag of beer bottles on her veranda. The neighbour contacted Police for the victim.
[67] Ibid., page 75.
A subsequent NSW Police Facts Sheet completed after XGGB’s arrest on 10 May 2019 noted that ‘[t]he Accused has displayed no regard or comprehension of laws and offences surrounding Domestic Violence and had continued to breach his ADVO conditions, despite all Police attempts to explain them to him’.[68] XGGB was charged with ‘Stalk/intimidate intend fear physical etc harm (domestic) T2’ and ‘Contravene prohibition/restriction in Avo (domestic)’ in relation to the incident in early May 2019.[69]
[68] Ibid., page 74.
[69] Ibid., page 73.
On 5 December 2019, a NSW Local Court convicted XGGB of ‘Common assault (DV)-T2’, ‘Attempt stalk/intimidate intend fear harm (domestic)-T2’, ‘Stalk/intimidate intend fear physical etc harm (domestic)-T2’ and three counts of ‘Contravene prohibition/restriction in AVO (Domestic)’.[70] XGGB was sentenced to a 12 month CCO.[71] The sentencing Magistrate explained the details of the ADVO to XGGB, including as follows:[72]
you can go to gaol for two years for just breaching this apprehended violence order. And the apprehended violence order includes conditions that the lady [XGGB’s Wife] is not to be assaulted or threatened and I note for the purposes of the record that the interpreter is interpreting this for the defendant and he is nodding. That she is not to be stalked, harassed or intimidated. And that no property that she possesses is to be damaged by the defendant. That the defendant cannot contact her at all except through a lawyer or to attend medication or conciliation; or as ordered by this or another court about contact with children; or as agreed in writing between the parties about contact with children. and so the absolutely safest course for the gentleman would be that if he wishes to commence having contact with the lady that it be done through a lawyer.
[70] Ibid., pages 40-42.
[71] Ibid.
[72] Ibid., page 64.
At that sentencing hearing, XGGB confirmed that he did not have any questions about the ADVO and stated that ‘I’m not going to violate any order or any policies and law here’.[73] The sentencing Magistrate also explained that XGGB was to abstain from alcohol and that any further offending would be in breach of the CCO, with the available sentencing options including imprisonment.[74]
[73] Ibid..
[74] Ibid.
On 22 June 2020, XGGB was found in the company of his Wife in a car that he was driving.[75] As a result, on 23 June 2020, XGGB was convicted of ‘Contravene prohibition/restriction in AVO (Domestic)’ and fined $200. His CCO was called up due to the breach and another 12 month CCO was imposed.[76]
[75] Exhibit 3, page 9.
[76] Exhibit 1, page 40.
Based on the evidence before the Tribunal, it is satisfied that XGGB has engaged in repeated acts of family violence which, pursuant to paragraph 8.1.1(1)(a) of Direction 90, are crimes or conduct that are viewed very seriously by the Australian Government and the Australian community. For the avoidance of doubt, the Tribunal also finds these crimes and conduct of XGGB to be very serious.
While XGGB’s Wife did not give evidence at the hearing before the Tribunal, the documentary evidence details the harm and distress caused by XGGB to his Wife due to his family violence offending. For example, NSW Police records state that XGGB’s Wife told them in August 2019 that she ‘maintained that she was extremely fearful for when [XGGB] will be released and that he would find her and kill her’.[77] Additionally, the NSW Local Court Magistrate accepted XGGB’s Wife’s evidence at XGGB’s criminal trial in June 2019 regarding his family violence offending and noted that she was ‘extensively cross-examined’ and ‘[n]o inroads were made into her credibility, in my view she appeared to be an honest witness endeavouring to give honest answers as best she could’.[78]
[77] Exhibit 3, page 13.
[78] Ibid., page 173.
In cross-examination at the hearing of XGGB’s Tribunal application, he gave concerning evidence regarding his family violence conviction of common assault arising from the incident in January 2019. The NSW Police Facts Sheet recorded that XGGB had become enraged and began yelling at his Wife, he grabbed her by her arms and attempted to drag her back inside the home.[79] This, it continued, caused XGGB’s Wife ‘to have small red marks/bruises on her left forearm’ and also feel immediate pain.[80] However, in cross-examination, while XGGB accepted that the incident occurred, he queried whether a skin condition may have caused this bruising or marking on his Wife’s body. The Tribunal is satisfied, on all the available evidence, that XGGB committed the offence as described in the NSW Police Facts Sheet, to which he pleaded guilty and was so found by the NSW Local Court.
[79] Exhibit 1, page 67.
[80] Ibid.
XGGB’s evidence to the Tribunal also disclosed his reluctance to accept the nature of the incident in February 2019, less than 3 weeks after being arrested in relation to then alleged common assault, where it was found that XGGB attended his Wife’s house and verbally abused her, including by threatening to kill her. The sentencing Magistrate found this incident occurred as reported by NSW Police in its Facts Sheet and also found XGGB’s Wife credible and rejected XGGB’s evidence. XGGB at the Tribunal hearing both rejected the account accepted by the Court and also said that he could not recall it. In this way, XGGB did not discharge the heavy onus required for the Tribunal to go behind the facts of this conviction. The Tribunal is satisfied, on all the available evidence, that XGGB committed the offence as described in the NSW Police Facts Sheet for which he was found guilty by the NSW Local Court.
XGGB also told the Tribunal that he never assaulted or threatened his Wife. The Tribunal does not accept this evidence. Based on the overwhelming weight of evidence before the Tribunal, XGGB committed acts of family violence against his Wife, including assault and threats of violence. In this regard, the Tribunal is satisfied that XGGB committed the family violence offences on 5 May 2019, which included threatening to kill his Wife and send her body back to Iraq. The Local Court found XGGB guilty of these offences and the Tribunal also accepts that XGGB committed them.
Additionally, the Tribunal does not accept XGGB’s contention that it took time for him to understand his offences and the nature of the ADVO. For example, XGGB agreed under cross-examination that he knew at the time of his first family violence offence in January 2019 that violence against his Wife was wrong and unacceptable. The conditions of the ADVO imposed on XGGB were explained to him by NSW Police. This was also done through an interpreter by the NSW Local Court in September 2019 and December 2019.[81] Whether or not XGGB understood the precise terms of the ADVO, the Tribunal is satisfied that he knew at least by the time of the second standalone incidence of family violence in Australia, which occurred in February 2019, that such offending was wrong and unacceptable in Australia because it was the second time he had been arrested and charged for such offending and he was reported by NSW Police to have raised with his Wife during this incident the issue of the impact of the ADVO on his access to his family. As set out above, XGGB also acknowledged to the Tribunal that he was aware from the first incident in January 2019 that violence against his Wife was wrong and unacceptable. Despite this, XGGB committed further family violence offences in May 2019 and attended a court hearing regarding his offending in mid-2019. Accordingly, the Tribunal finds it implausible that XGGB did not know from early to mid-2019 that family violence was wrong and unacceptable in Australia.
[81] Exhibit 3, page 176 and exhibit 1, pages 57-65.
In addition, as demonstrated in these reasons, XGGB’s family violence offending occurred frequently over a short period of time soon after he arrived in Australia. This offending continued despite XGGB being aware of the existence of the ADVO and making associated formal undertakings. The Tribunal finds that the cumulative effect of XGGB’s repeated offending exacerbates its seriousness and it does not accept the submission that this offending should be viewed through the prism of XGGB’s vulnerabilities, namely being newly arrived in Australia with little command of English, being unaware of his trauma, feeling psychological pressure and frustration, self-medicating with alcohol and having no understanding of Australian law and customs. While these may provide some context for XGGB’s offending, there is no excuse for acts of family violence, including of the nature committed by XGGB on a number of occasions and despite multiple interactions with law enforcement and the courts in order to prevent such offending. This is compounded by XGGB’s testimony to the Tribunal in which he refused to accept that he had ever been violent or threatening towards his Wife, despite accepting that he knew violence against his Wife was wrong and unacceptable at the time of his first family violence offence in Australia. XGGB’s evidence amounted to more than what was described as him being a ‘poor historian’ and demonstrated a distinct lack of insight into his offending and its impact on individuals and the Australian community.
Overall, the Tribunal finds that XGGB’s family violence offending is very serious, such offending being well accepted, regrettably, as a scourge in the Australian community. Furthermore, based on the available evidence, the Tribunal is satisfied that XGGB’s offending represents a continuation of similar conduct from before he arrived in Australia. There was sufficient evidentiary material before the Tribunal that XGGB subjected his Wife to family violence in Iraq and Turkey before they arrived in Australia. Whilst there was no evidence of criminal charges or convictions against XGGB in either of these countries, this does not mean that the Tribunal cannot be satisfied that the alleged offences occurred. In this regard, the Tribunal follows the decision of the Full Federal Court of Australia in Taulahi v Minister for Immigration and Border Protection [2018] FCAFC 22, in which it said, at [31], that: ‘it was open to the Minister to conclude that the events set out in the ACIC’s report had occurred even where there were no criminal charges or criminal convictions. Put differently, there was material before the Minister on which he could base the conclusions that he reached’. In this proceeding, there were two police records where XGGB’s Wife detailed family violence alleged to have been committed by XGGB before they arrived in Australia in 2018. The Tribunal accepts these reports, including having regard to the findings by a court in Australia regarding the credibility of XGGB’s Wife’s testimony in relation to this type of offending, and finds that this is sufficient material to be satisfied that a pattern of family violence offending has occurred before XGGB’s arrival in Australia. Accordingly, the continuation of this pattern makes XGGB’s offending in Australia even more serious.
Driving offences
On 2 September 2020, according to a NSW Police Facts Sheet before the Tribunal, XGGB was driving a motor vehicle and signalled to stop by police.[82] A police check revealed that XGGB’s learner driver licence had been suspended on 22 June 2020 after he was driving without a suitably licensed supervisor.[83] XGGB denied that he had consumed alcohol, but a roadside breath test returned a positive result.[84] On 10 November 2020, XGGB was convicted of ‘Drive with middle range PCA – 1st off’ and ‘Drive motor vehicle while licence suspended – 1st off’.[85] XGGB was disqualified from driving for 5 years from 10 November 2020.[86]
[82] Exhibit 1, page 78.
[83] Ibid.
[84] Ibid., page 79.
[85] Ibid., pages 38-39.
[86] Exhibit 3, page 168
On 18 January 2021, XGGB was convicted by a NSW Local Court of ‘Drive with high range PCA – 2nd+off’.[87] The NSW Police Facts Sheet records that, on 2 January 2021, and while disqualified from driving until 10 November 2025, XGGB was stopped by police for a roadside breath test ‘due to his manner of driving’ and that he had ‘prior to this been observed by police…slumped over the steering wheel and spending and [sic] unusually long time stopped before driving off’.[88] He returned a positive result. A subsequent breath analysis at the Police Station ‘returned a result of 0.182 grammes of alcohol in 210 litres of breath’.[89] The Facts Sheet also stated that:[90]
The Accused is currently under the conditions of an intensive corrections order until the 9/3/2021. Despite the Accused currently being on an ICO and disqualified from driving, he has continued to drink and drive, directly breaching these court orders. He appears to show little to no regard for his actions, continually laughs off the seriousness of his actions, indicating that where he is from this is only a minor problem. He laughed at his high range reading stating it was only small. From all these factors, it is highly likely that the Accused will not only continue to drive, but most likely drink and drive also.
[87] Exhibit 1, page 36.
[88] Exhibit 3, page 139.
[89] Ibid.
[90] Ibid.
Paragraph 9.1(2) of Direction 90 relevantly provides that, in making a decision under section 501CA of the Act, decision-makers should carefully weigh any non-refoulment obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. It further provides that in doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198 of the Act, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189 of the Act, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulment obligations in respect of an unlawful non-citizen. However, paragraph 9.1(3) of Direction 90 states, that does not mean the existence of a non-refoulment obligation precludes non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulment obligation exists. In this regard, following a non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
Additionally, paragraph 9.1(6) of Direction 90 relevantly provides that it may not be possible at the section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application and notes that the process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act. The evidence before the Tribunal is that XGGB may make an application for a protection visa. A decision-maker, in making a decision under section 501CA of the Act, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen’s favour that claimed harm will occur and make a decision on that basis.
XGGB contended that Australia has international non-refoulement obligations in relation to him because he is at risk of harm or persecution due to being Yazidi and because of threats of harm made against him by his Wife’s family in Iraq. XGGB submitted that where he cannot be returned to Iraq, he faces the real prospect of indefinite detention in Australia. For the following reasons, on the available evidence, the Tribunal is satisfied that XGGB is owed non-refoulement obligations by Australia.
Article 33 of the Refugees Convention provides that:[107]
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
[107] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 July 1967, 606 UNTS 267 (entered into force 4 October 1967).
Article 3.1 of the CAT provides that:[108]
No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
[108] 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).
Additionally, Articles 2, 6 and 7 of the ICCPR are taken to create an obligation not to remove a person to a place, if there are substantial grounds for believing that there is a real risk of irreparable harm in the form of torture or cruel, inhuman or degrading treatment or punishment, or being arbitrarily deprived of their life.[109]
[109] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976); Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, GA Res 44/128 (15 December 1989, entered into force 11 July 1991).
Based on all the evidence, the Tribunal accepts that XGGB is Yazidi. The current Department of Foreign Affairs and Trade Country Information Report on Iraq dated 17 August 2020, relevantly states that:[110]
The Yazidi (also commonly spelt Yezidi) are a religious group concentrated in Sinjar, 150km west of Mosul. Their religion is distinctive and highly syncretic, influenced by beliefs and practices of Zoroastrianism, Islam and Christianity. The Yazidi are mainly impoverished cultivators and herders who have a strictly graded religio-political hierarchy and tend to maintain a more closed community than other ethnic or religious groups in Iraq. It is impossible to convert to being a Yazidi and marriage outside the community is forbidden. Some Yazidi identify as ethnically Kurdish, while others view themselves as having a distinct ethnic identity as Yazidi. The community speak the Kormanje dialect of Kurdish, but use Arabic as a liturgical language. Article 2 (2) of the Constitution explicitly protects the freedom of belief and practice of the Yazidi.
Yazidis have traditionally existed on the fringes of Iraqi society. During the Ba’ath era, repeated efforts were made to ‘Arabise’ the area around Sinjar Mountain (due to its strategic value), while religious extremists targeted the community in the years following the March 2003 US-led invasion. Yazidis also came under persistent pressure to assimilate with Iraqi Kurds, and abduction and forced marriage with members of Kurdish militia groups were particular risks for Yazidi women. Such marriages effectively sealed off these women from their families and communities as Yazidi beliefs prohibit marriage outside the religion, and those who undertake such vows, even under duress, thereby renounce their faith and must identify as Kurdish.
Prior to the rise of Da’esh, the Yazidi community numbered around 500,000. The advance of Da’esh into Sinjar in August 2014 led to the displacement of almost the entire Yazidi community and the capture, killing and enslavement of thousands. After Kurdish Peshmerga forces withdrew without warning, leaving the local population defenceless, an estimated 200,000 Yazidi civilians fled their homes. At least 50,000 headed to Sinjar Mountain, where they were trapped in the scorching summer heat for days without food or water. Those unable to escape or who attempted to defend their villages from Da’esh fighters were subsequently murdered or abducted, with large-scale massacres of Yazidi men and boys occurring in the villages of Qiniyeh, Kocho and Jdali. Thousands of Yazidi women and girls were abducted for the purpose of forced marriage or sexual slavery. Large numbers of women were subsequently transported to Syria to be sold or forcibly married to Da’esh fighters. Da’esh’s treatment of the Yazidi minority has been labelled as genocide by the United Nations and several other international organisations. According to recent international estimates, around 6,800 Yazidi were kidnapped and around 3,100 killed during the Da’esh advance, primarily over a few days in early August 2014.
According to international observers, as of the end of 2019 only a small proportion of displaced Yazidi had returned to their homes. Many have chosen to stay in camps, primarily within the KRI, saying that the lack of a reconstruction plan and public services and general insecurity discouraged them from returning home. Ongoing residence within the camps has reportedly had an institutionalising effect upon many within the community, reducing their readiness to live outside the camps. As noted in Stateless Persons, the Yazidi community has frequently forced Yazidi women who had children fathered by Da’esh fighters (through rape) to give up their children upon threat of expulsion from the community, causing further social dislocation within the community.
According to in-country sources, the highly visible and widely publicised nature of the Da’esh crimes against the Yazidi represents a test case for Iraqi authorities, who acknowledge the state’s failure to provide protection to a segment of its citizenry. As a result, authorities are reportedly paying special attention to the Yazidi community through the provision of services that were not previously available, such as specialised education and primary health care. This targeted assistance has reportedly led to some resentment from other communities who were also targeted by Da’esh.
DFAT assesses Yazidi face a low risk of official discrimination. Like other minorities, Yazidi face a moderate risk of societal discrimination and violence in areas where they are a minority. Those living in areas where violence continues or who have been displaced, face a risk of societal violence similar to that faced by other groups living in those areas or situations. Yazidi women who have borne children of Da’esh fighters are likely to have to choose whether to give up their children or leave their community.
[110] Exhibit 2, pages 47-48.
The DFAT Report also notes that:[111]
Ongoing sectarian tensions fuelled the rise of Da’esh…a militant Salafi jihadist group that follows a fundamentalist version of Sunni Islam, and culminated in Da’esh’s occupation of large parts of Iraq in 2014. At its height, Da’esh held approximately 40 per cent of Iraq’s territory. During its occupation, Da’esh committed numerous atrocities, particularly against minority groups, including mass murder and sexual enslavement. Da’esh defeated Iraqi security forces in multiple battles, and came within 50 kilometres of Baghdad before being halted by Iraq’s regular forces, supported by a US-led international coalition, and irregular Popular Mobilisation Forces (PMF). Following three years of conflict, the government declared final victory over Da’esh in December 2017 after recapturing the last areas under Da’esh control along the Syrian border. The conflict with Da’esh significantly damaged the Iraqi economy and Da’esh continues to represent a security threat within the country…
[111] Ibid., page 25.
XGGB was granted the Visa in 2018 on the basis that he faced substantial discrimination in Iraq as a Yazidi. Based on the DFAT Report, the Iraqi government claimed victory over Da’esh almost four and a half years ago, in December 2017. That is, the temporary control of certain areas of Iraq by ISIS, which was responsible for the recent persecution of Yazidis in Iraq, ended some years ago. Despite this, the Tribunal accepts the assessment in the DFAT Report that the security situation in Iraq remains ‘highly unstable and fluid’, with Da’esh remining a ‘major perpetrator of abuses and atrocities’.[112] As set out above, the DFAT Report also states that Yazidi face a ‘moderate risk of societal discrimination and violence in areas where they are a minority’.[113] The Tribunal is satisfied that this presents a real chance of XGGB being persecuted or a real risk of him suffering serious harm in Iraq. It was unclear from the evidence before the Tribunal where XGGB would settle if he was returned to Iraq, although the Sinjar district, where he previously lived, is the predominant area in which Yazidi settle upon returning to Iraq. The International Organization for Migration, in a report titled, ‘An Overview of Return Movements in Iraq’, states that 76% of the households in the Sinjar district that have returned following the official end of the conflict with ISIS are Yazidi.[114] However, while accepting the ongoing security threat from ISIS in Iraq may have reduced, the Tribunal also accepts that Sinjar continues to present significant difficulties for Iraqis, including for minority groups such as the Yazidi, due to the history of their persecution, the remaining threat of ISIS, and also from various militia in the area and because Sinjar continues to be disputed territory, including with the threat of airstrikes from Turkey.[115]
[112] Ibid., page 35. See also Exhibit 2, pages 84-108.
[113] Ibid., page 48.
[114] Exhibit 1, page 150-151.
[115] Exhibit 2, pages 84-108.
XGGB told the Tribunal that both his brother and eldest daughter had been killed by ISIS before he left Iraq. These events understandably remain traumatic for XGGB. The Tribunal accepts that these events occurred, that XGGB served in the Iraqi army and that he was injured in an attack by ISIS on an army vehicle that killed another passenger and injured others. At the hearing, XGGB referred to the current continuing presence of enemies of the Yazidi ‘surrounding’ them, ongoing kidnappings and there being no protection provided by Iraqi authorities.
The Tribunal is satisfied that, were he returned to Iraq, there is a real chance of XGGB being persecuted or a real risk of him suffering serious harm due to him being Yazidi and therefore finds that Australia’s non-refoulement obligations are engaged and owed to XGGB. This weighs heavily in favour of revocation of the decision to cancel XGGB’s Visa.
However, the Tribunal is not satisfied, on the evidence before it, that there is a real chance of XGGB being persecuted or a real risk of him suffering serious harm from his Wife’s family living in Iraq. In this proceeding, XGGB stated that in around 2013, his Wife ‘was being threatened by her ex-husband and his family’ and he was being threatened by both her family and her ex-husband’s family’.[116] XGGB submitted that if returned to Iraq he ‘will be targeted by my in-laws in Iraq’ and that they ‘know about my cancelled visa’.[117] This claim was further supported by XGGB’s sister, who stated that she believed that her brother ‘is in danger’ from his Wife’s family in Iraq.[118] She continued as follows:
When they married, there was a dispute between [XGGB’s Wife’s] family and her ex-husband’s family, and our family had to give them about $10,000 USD. Because of this, there has always been tension between the families, and we fear that they will want to get [XGGB] for this reason on his return.
[116] Ibid., page 3.
[117] Ibid., page 6.
[118] Ibid., page 9.
XGGB’s mother, in her written statement, said that her son’s Wife’s family:[119]
will target him because of what happened between them here in Australia and the way [XGGB] married her. To marry [XGGB], [his Wife] had to leave her ex-husband and now they will want [XGGB]’s blood for this.
[119] Ibid., pages 11-12.
XGGB’s brother stated that XGGB’s Wife’s family:[120]
would want to harm him due to existing tension and disapproval from how they were married and for disrespecting [his Wife] now. Being sent to gaol and living separately is not acceptable in our culture, it is shameful and embarrassing. Iraq is lawless and they could do anything to him without consequence.
[120] Ibid., page 15.
In an earlier statement from members of XGGB’s family, including his brother and mother, they stated that ‘he has personal enemies in Iraq through his wife’s previous partner that put a threat on his life’.[121]
[121] Ibid., page 116.
Despite these and other related statements, there was insufficient evidence before the Tribunal to establish or corroborate these particular claims or to allow for an evaluation of the likelihood of the risk of harm to XGGB. While XGGB’s family asserted that he is at risk of harm due to existing tensions with his Wife’s family, these claims were unparticularised and the Tribunal is not satisfied that they rise to the sort of harm that would engage Australia’s non-refoulement obligations.
XGGB married his Wife in Iraq in 2009 and they lived in that country until 2013. However, despite being married for approximately 4 years while living in Iraq and purportedly having paid a substantial amount of money to his Wife’s family, it was claimed that it was not until around 2013 that XGGB began receiving threats from his Wife’s and her ex-husband’s families. Additionally, despite these purported issues being due in large part to XGGB’s marriage to his Wife, which took place prior to him applying for the Visa in 2018 and some years before the threats commenced, the Interview Report from XGGB’s interview with the Minister’s Department in 2018 as part of his application for the Visa does not record any claims relating to a fear of harm from his Wife’s family or any other family or individual in Iraq.[122] There was also no mention of this claim in XGGB’s application for the Visa.[123] The Tribunal does not accept XGGB’s evidence that he made claims of this nature in these processes but that they were not recorded.
[122] Ibid. 1, page 123.
[123] Exhibit 4, page 225.
XGGB’s evidence to the Tribunal regarding his claimed fear of harm from his Wife’s family was vague and inconsistent. For example, under cross-examination, XGGB twice said he last received a threat from his Wife’s family in Iraq in 2013, however he later said that he had received a threat from her brother when he was in Australia, which was from late 2018. XGGB told the Tribunal that his Wife’s brother had threatened him, but this claim appeared to be a late attempt by XGGB to substantiate this particular claim. There had been no earlier reference to such a threat in the evidence before the Tribunal, including in his visa application and associated interview. The evidence indicates that any threats from XGGB’s Wife’s family did not constitute a reason for him to depart Iraq in 2013, with his Wife and their children, and then apply for the Visa to Australia in 2018. Overall, the Tribunal finds that there is insufficient evidence to demonstrate that XGGB’s Wife’s family, her ex-husband or her ex-husband’s family have an active interest in locating XGGB if he returned to Iraq and carrying out the claimed threats of harm against him. Accordingly, the Tribunal is not satisfied that Australia’s non-refoulement obligations are engaged and owed to XGGB in relation to this particular claimed harm. As a result, the Tribunal does not give this claim any weight in its determination of this consideration in favour of XGGB.
Paragraph 9.1(3) of Direction 90 relevantly states that the existence of non-refoulement obligations does not preclude non-revocation of the mandatory cancellation of a Visa because such a decision will not necessarily result in removal of the non-citizen. In this regard, while XGGB’s cancelled Visa was a Global Special Humanitarian visa, he has never held a protection visa to remain in Australia. XGGB is therefore not prevented from making an application for a protection visa. Were XGGB to make such an application, he would not be liable to be removed while that application is being determined. The Tribunal also notes that, pursuant to subsection 197C(3) of the Act, an unlawful non-citizen in respect of whom a protection finding has been made in relation to a finally determined application for a protection visa will not be liable for removal pursuant to section 198 of the Act.
By way of further background, on 24 May 2021, the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 received Royal Assent and commenced the following day. The amendments to the Act modify the effect of section 197C to ensure it does not require or authorise the removal of an unlawful non-citizen who has been found to engage protection obligations through the protection visa process unless:
(a)the decision finding that the non-citizen engages protection obligations has been set aside;
(b)the Minister is satisfied that the non-citizen no longer engages protection obligations; or
(c)the non-citizen requests voluntary removal.
Whether or not XGGB makes an application for a protection visa at a future point in time, given the Tribunal’s findings regarding Australia’s non-refoulement obligations, XGGB will likely face indefinite detention in Australia with no fixed chronological end point. In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55, the Federal Court observed at [123] that:
The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a visa decision maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law. As we explain below, for our own part we see no difficulty in attaching the adjective “indefinite” to such further period of detention, in circumstances where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom.
XGGB spent 7 months in gaol and has spent approximately 9 months in immigration detention. XGGB submitted that indefinite detention would be a disproportionate punishment for his offending. The Tribunal has previously addressed this claim in these reasons, but accepts that the prospect of XGGB losing his liberty, or continuing not to enjoy that liberty due to ongoing and indefinite detention, is a significant matter that the Tribunal readily apprehends will impact on XGGB, especially considering his mental health as documented in Mr Watson-Munro’s report and ongoing separation from family, although these may be somewhat alleviated through available support services and familial contact via technological or other means in Australia. The Tribunal finds that the prospect of indefinite detention weighs in favour of revocation of the decision to cancel XGGB’s Visa. For completeness, the Tribunal has elsewhere in this decision referred to the status of XGGB’s rehabilitation. While XGGB has certainly served the requisite sentence for his criminal offending and the likely loss of liberty for an indefinite period of time is a grave consequence arising from this decision, the Tribunal weighs that potentiality against its findings regarding the unacceptable risk of harm to the Australian community if XGGB were to reoffend. The Tribunal is satisfied that this latter factor outweighs XGGB’s loss of liberty through indefinite detention in Australia. The Tribunal has found that XGGB repeatedly engaged in very serious conduct, including acts of family violence, and there is presently a real and not insignificant risk of him reoffending and endangering the safety of members of the Australian community.
To this end, while the Tribunal has found that Australia’s non-refoulement obligations are engaged and owed to XGGB, this consideration alone is not determinative of the application in favour of XGGB. As the Full Federal Court held in Ali v Minister for Home Affairs [2020] FCAFC 109 at [110], it is open to the Tribunal to:
conclude that Australia does owe non-refoulement obligations in respect of a person but that the risk to the Australian community posed by the person outweighs Australia[’s] compliance with those obligations such that there is no ‘other reason’’.
Accordingly, while the Tribunal finds that this other consideration weighs heavily in favour of revocation of the decision to cancel XGGB’s Visa, it does not outweigh the ongoing unacceptable risk to the community posed by XGGB.
Extent of impediments if removed
Paragraph 9.2 of Direction 90 requires consideration of the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: the non-citizen’s age and health; whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to them in that country.
The Tribunal finds that XGGB will likely face some difficulty if removed from Australia to Iraq, noting that he left that country in 2013. However, XGGB is 38 years old, has worked in physical roles in both Iraq and Australia and does not have any diagnosed physical medical conditions, although he has abused alcohol while in Australia and Mr Watson-Munro identified ‘symptoms of depression, anxiety, low self-esteem and some features of Post Traumatic Stress Disorder’, all of which require treatment.[124] XGGB is an Iraqi citizen and has lived in Iraq for the majority of his life. XGGB told the Tribunal that he speaks Kurdish Kurmanji, the dialect of the Yazidi, and some Arabic, and there are accordingly unlikely to be any substantial language or cultural barriers for him in returning to that country, particularly if he were to reside in the Sinjar district where there is a large population of Yazidi.
[124] Ibid., page 8.
The DFAT Report notes that the Iraqi Constitution guarantees citizens the right to heath care and commits the State to maintaining public health and providing the means of prevention and treatment.[125] The DFAT Report further states that the World Health Organization considers there to be 229 hospitals and over 1,000 primary health care centres led by doctors, although decades of conflict and economic sanctions, together with underinvestment have led to a decline in the Iraqi population’s health.[126] More specifically, ‘there are very few mental health services’ available to the general public and a 2017 study found there were only around 80 clinical psychologists in Iraq, with much of the work falling to international non-government organisations. In this regard, the Tribunal accepts Mr Watson-Munro’s opinion that XGGB requires a detailed treatment plan to focus on his untreated psychological condition and finds that this is presently unlikely to be implemented in Iraq in a wholly satisfactory manner.[127] The Tribunal also accepts that COVID-19 will likely have a profound impact on Iraq’s health outcomes, economy and security environment for a number of years.[128] However, while acknowledging XGGB’s psychological condition, which is in the process of being addressed in Australia through counselling, there was no evidence that XGGB would be denied access to the general health system in Iraq or would otherwise not have access to medical and economic support services that are available to other Iraqi citizens, although the Tribunal accepts that any available support will be of a lesser standard to that which is available to XGGB in Australia. As previously stated in these reasons, the Tribunal is satisfied that there is a real chance or real risk that XGGB will suffer serious and significant harm if he was returned to Iraq. Therefore, the Tribunal accepts that XGGB’s mental health will deteriorate due to this factor and he may again be susceptible to misusing alcohol, despite committing to refrain from its consumption, although this factor was apparently not present in Iraq due to its cost and limited access.
[125] Exhibit 2, page 31.
[126] Ibid..
[127] Ibid., page 32; Exhibit 4, page 9.
[128] Ibid., page 31.
The Tribunal also accepts that XGGB would have little social support in the form of family if he were to return to Iraq because the majority of his family are, or are in the process of, residing in Australia. In this regard, the Tribunal also accepts that XGGB will be required to secure accommodation in Iraq without familial support, which may be difficult but, given the history of his ability to work, including in physically demanding roles, the Tribunal is satisfied that this potential impact is lessened. To this end, XGGB’s submission that he will likely be rendered homeless and destitute in Iraq, including due to the lack of familial support in that country, is not accepted. The DFAT Report from August 2020 noted that unemployment is high in Iraq, at 11 per cent, with labour force participation at almost 50 per cent.[129] It also states that the Iraqi Constitution guarantees Iraqis the right to work in a way that provides a dignified life for them.[130] While the Tribunal accepts that XGGB has no formal education and is illiterate, this has not previously prevented XGGB from working productively in both Iraq and Australia. There was evidence before the Tribunal that, in Iraq, XGGB worked as a farmer, builder’s labourer, a cook, and an officer in the Iraqi army and, in Australia, he worked for a short period of time in an abattoir.[131] As a result of his income from the abattoir, XGGB was able to secure and maintain a rental property in which to reside.[132]
[129] Exhibit 2, page 29.
[130] Ibid.
[131] Ibid., pages 1-7.
[132] Ibid., page 5.
As the Tribunal has already found with respect to the consideration of Australia’s international non-refoulement obligations, there are significant impediments that would arise if XGGB were returned to Iraq, particularly because he is Yazidi, noting that XGGB does not have a right to reside in any third country. Those matters canvassed in relation to non-refoulement are also relevant to this factor regarding the extent of impediments if XGGB is removed to Iraq and this factor weighs in favour of revoking the decision to mandatorily cancel XGGB’s Visa. However, given the Tribunal’s findings and discussion regarding non-refoulement, including the Australian Government’s associated obligations and undertakings, coupled with XGGB’s ability to apply for a protection visa, the weight afforded to this finding is lessened.
Accordingly, the Tribunal considers the extent of the impediments for XGGB if he were removed from Australia and returned to Iraq are lessened for the aforementioned reasons. As a result, the Tribunal finds that this other consideration weighs moderately in favour of revocation of the decision to cancel the Visa.
Impact on victims
Paragraph 9.3(1) of Direction 90 relevantly states that decision-makers must consider the impact of the section 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available.
It was not contended by XGGB that this consideration weighed in favour of revocation and there was no direct evidence or information before the Tribunal from the victim of XGGB’s family violence offending, being his Wife, regarding the impact, if any, the decision may have on her and her family members. In the absence of any evidence in relation to this consideration, the Tribunal finds that it is neutral in the decision-making process.
Links to the Australian community
Paragraph 9.4 of Direction 90 states that, reflecting the principles set out at paragraph 5.2, decision-makers must have regard to the following paragraphs of Direction 90:
9.4.1 The strength, nature and duration of ties to Australia
(1) Decision-makers must consider any impact on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. in doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrives as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
9.4.2 Impact on Australian business interests
(3) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The strength, nature and duration of ties to Australia
As set out above in these reasons, paragraph 9.4.1(1) of Direction 90 requires the Tribunal to consider any impact of the decision on XGGB’s immediate family members in Australia. The Tribunal must also consider the strength, nature and duration of any other ties that XGGB has to the Australian community, including how long he has resided in Australia and familial or social links in this country. XGGB arrived in Australia with his immediate family almost three and a half years ago, in December 2018, as a 34 year old. Shortly after his arrival, XGGB commenced offending. He was ultimately sentenced to a period of imprisonment in January 2021 and, since the end of his non-parole period, XGGB has resided in immigration detention. That is, XGGB was living in the Australian community, and not in some form of detention in Australia, for just over two years.
The Tribunal accepts that an unfavourable decision for XGGB will have a negative impact on his immediate family members, most particularly his children, for reasons previously described in this decision, and on XGGB’s mother, who suffers from various health conditions. However, in this regard, there was no evidence that XGGB has previously engaged in an active caring role in relation to his mother or that he would be required do so in the future, although the Tribunal accepts that he may do so in future if released into the community. XGGB’s mother’s written evidence was that she fears her health conditions will worsen if XGGB remains in detention or returns to Iraq.[133] The Tribunal was told that XGGB’s mother relies on other family for support and there was no evidence before the Tribunal that they will not continue to provide her with any future required support, including to attend medical appointments or related care. The Tribunal also considers that XGGB’s Wife is taken to be his immediate family, but there was no direct evidence of the impact of the decision on her. The Tribunal accepts that XGGB’s Wife’s role as their children’s primary carer would continue and not be assisted by his ongoing absence, although she has also been the victim of his repeated acts of family violence.
[133] Exhibit 2, page 12.
The Tribunal accepts the submission that XGGB has a close extended family in Australia, numbering approximately 29 members and that these links are strong. In addition to XGGB’s mother, these include two of his sisters and a brother, noting that another sister was said to shortly be moving to Australia. To this end, the Tribunal has considered the statements in support of XGGB and accepts that his family in Australia would be negatively impacted by a decision not to revoke the decision cancelling his Visa. In addition, while living in Australia, XGGB has made modest positive contributions to the Australian community, most specifically through his brief period of employment and therefore payment of income tax.
On balance, the Tribunal finds that the weight attributable to revocation of the decision to cancel the Visa in relation to the strength, duration and nature of XGGB’s ties to Australia is moderated due to XGGB having spent a short period of time living in Australia, the commencement of his serious offending occurring less than two months after arriving in Australia and, as a result of his repeated and serious offending, XGGB’s minimal positive contribution to the Australian community.
Impact on Australian business interests
XGGB worked as a meat packer at an abattoir from September 2020 until his imprisonment in January 2021.[134] Paragraph 9.4.2 of Direction 90, set out above in these reasons, relevantly states that an employment link would generally only be given weight where the decision under section 501CA of the Act would significantly compromise the delivery of a major project or delivery of an important service in Australia. There was no evidence before the Tribunal that the decision would have the impact contemplated by this consideration. Accordingly, the Tribunal finds that this consideration is neutral in its decision and is given no weight.
[134] Exhibit 1, page 110.
For the foregoing reasons, the Tribunal finds that this ‘other consideration’, links to the Australian community, weighs moderately in favour of XGGB and revocation of the decision to cancel his Visa.
CONCLUSION
The Tribunal has found that XGGB does not pass the ‘character test’ as defined in subsection 501(6) of the Act because of his ‘substantial criminal record’. Following this finding, the critical issue for determination by the Tribunal was whether there is ‘another reason’ why the original decision to cancel XGGB’s Visa should be revoked. This required a consideration of Direction 90.
The Tribunal has found that there is not another reason why the original decision should be revoked. The Tribunal is satisfied, based on its assessment of all considerations in Direction 90, that the three relevant listed ‘other’ considerations, together with Primary Consideration 3, regarding the best interests of minor children in Australia, which all weigh in favour of revocation, do not outweigh the three remaining primary considerations, being the protection of the Australian community, family violence committed by the non-citizen and the expectations of the Australian community, which all weigh heavily against revocation. The Tribunal again notes that, pursuant to paragraph 7(2) of Direction 90, primary considerations should generally be given greater weight than other considerations. In this regard, the Tribunal has found that Primary Consideration 1, Primary Consideration 2 and Primary Consideration 4 outweigh those considerations in favour of XGGB and revocation of the decision to mandatorily cancel his Visa. Accordingly, XGGB’s application before the Tribunal is unsuccessful.
DECISION
The Tribunal affirms the decision under review not to revoke the mandatory cancellation of the Applicant’s visa under subsection 501(3A) of the Act.
I certify that the preceding 200 (two-hundred) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
........................................................................
Associate
Dated: 13 May 2022
Date(s) of hearing: 13 and 14 April 2022 Date final submissions received
8 April 2022
Solicitor for Applicant:
Mr Duy Pham, Legal Aid NSW
Solicitor for Respondent:
Mr Cormac Burke, Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Natural Justice
-
Jurisdiction
-
Statutory Construction
-
Remedies
0
2
0