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

XPLW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4777 (23 November 2022)
Division:GENERAL DIVISION
File Number(s): 2022/7552
Re:XPLW
APPLICANT

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

Decision
Tribunal:Deputy President Britten-Jones
Date:23 November 2022
Place:Melbourne

The decision of the Tribunal is to set aside the decision of 13 September 2022 and to substitute a decision that the cancellation of the applicant’s Class BS Subclass 801 Partner visa is revoked
.....................[sgd]...................................................
Deputy President Britten-Jones
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether there is “another reason” to revoke mandatory cancellation decision – applicant has strong links to the Australian community and would face significant impediments and serious risk of harm if removed to Egypt – the primary considerations of the protection and expectations of the Australian community are outweighed by the countervailing considerations - the decision under review is set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56; [2016] FCAFC 120
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
REASONS FOR DECISION
Deputy President Britten-Jones
23 November 2022

This is an application for review of a decision to not revoke the mandatory cancellation of the applicant’s Class BS Subclass 801 Partner visa (the visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
The decision to cancel the visa AND SUBSEQUENT PROCEDURAL HISTORY
On 20 June 2018, the visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment amounting over 12 months.
On 7 July 2018, the applicant sought revocation of the cancellation decision and made representations in support of that request.
On 13 September 2022, a delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision). On 15 September 2022, the applicant applied to the Tribunal for review of the non-revocation decision.
Legislative Framework
Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by ss (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[2]
[2] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is “another reason” why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) 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.
(4) 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.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
Issues before the Tribunal
The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a “substantial criminal record” as defined under s 501(7). Therefore, the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision, to assess if there is “another reason” why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which I am required to read, identify, understand and evaluate.[3] Deciding whether or not to be satisfied that “another reason” exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.[4]
[3] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].
[4] Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [14].
The applicant concedes that he does not pass the character test and that the only issue for the Tribunal is whether there is “another reason” to revoke the cancellation decision having regard to the principles and considerations in Direction 90.[5]
[5] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).
Direction 90
The purpose of Direction 90 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.
The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 90 as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
In making a decision under s 501CA(4), the following are primary considerations:
(c)protection of the Australian community from criminal or other serious conduct;
(d)whether the conduct engaged in constituted family violence;
(e)the best interests of minor children in Australia; and
(f)expectations of the Australian community.
In making a decision under s 501CA(4), other considerations must also be taken into account, including (but not limited to):
(g)international non-refoulement obligations;
(h)extent of impediments if removed;
(i)impact on victims; and
(j)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[6]
[6] Direction 90 at 7.
SOME BACKGROUND FACTS
The applicant was born in Egypt in 1975. His parents are Australian citizens having been granted protection visas after arriving in Australia. The applicant has a younger brother who is a permanent resident in Australia and a younger sister who is an Australian citizen. He and his family are of Coptic Christian faith. He and his family faced hatred from many Muslims in Egypt and they were persecuted and discriminated against by virtue of that faith.
The applicant was bullied as a child and in particular was wounded and scarred by a knife attack by some older boys who threatened him if he did not convert to Islam.
The applicant completed his secondary and tertiary education in Egypt. He has a Bachelor of Mass Media and Mass Communication from the University of Cairo. From a young age, the applicant worked in his family’s jewellery stores. He arrived in Australia in 2007 on a student visa. He married a woman who had two children. He worked full time as a courier driver from 2008 until 2014 when he was incarcerated. After his incarceration, he and his wife mutually decided to end their marriage.
The applicant’s parents were still in Egypt in 2011 when the Muslim Brotherhood took control of the country and forced the closure of the family’s jewellery stores. The family lost everything in the revolution. The parents were forced to flee to Australia in 2011 where they were recognised as refugees. The applicant’s brother has three children. His sister has two children from her first marriage and one child, a daughter who is 5 years old, from a second marriage. His sister was physically and psychologically abused by her first husband. In June 2019 she was diagnosed with metastatic breast cancer which is now terminal. She does not expect to live much longer and she is very concerned about who will look after her daughter when she is gone.
CONSIDERATION
Protection of the Australian community – 8.1 of Direction 90
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering 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. As required by paragraph 8.1(2) of Direction 90, I give consideration below 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 the non-citizen’s conduct – 8.1.1 of Direction 90
The applicant was found guilty by a jury on 6 November 2014 of intentionally causing serious injury to his sister’s then partner. He pleaded not guilty but was convicted of the offence and sentenced to seven years imprisonment with a non-parole period of four years on 17 December 2014. He has only been convicted of the one offence in Australia.
The offence took place at about 10.30am on 4 February 2013. The applicant’s sister and her partner were in his car parked in the driveway of his house. The applicant approached the car and asked why they were together. The partner started to explain and then according to the sentencing remarks:
[4] At about this point, according to the evidence of [the partner], the prisoner produced a knife from his back pocket and yelled, “I’ve told you to keep away from her. I will kill you. I will kill you now. I told you to keep away”. At this point, again according to [the partner’s] evidence, [the partner] stabbed him in the right eye and then, twice, in the left hand, through the open car window. [The sister] began screaming. [The partner] attempted to reverse his car down the drive but could not get it out of the driveway because the prisoner’s van was blocking the exit. He then drove forward causing the car to collide with a palm tree in front of his house, at which point the prisoner stabbed him again a number of times to the right upper chest and throat. [The partner] stumbled from his vehicle and staggered to the nature strip on the street and collapsed. His next recollection was of being in hospital about a week later.
[5] Medical evidence established [the partner’s] injuries as comprising a laceration to his right eyelid, a stab wound to the neck, another stab wound to a point just below his chin and two further stab wounds to his right upper anterior chest. These injuries were, unsurprisingly, regarded by the doctor who treated [the partner] on his arrival in hospital as life threatening. Although he recovered, he has been left with residual physical disability, particularly with respect to his neck injury and the underlying structures in that area, and significant psychological injury.
[6] A victim impact statement filed by [the partner], consisting of a report they by a psychologist, … , of 21 June 2013, notes ongoing psychological problems suffered by [the partner] including depression, flashbacks of the assault, interrupted sleep with nightmares, a preoccupation with his own security, slow and confused thinking, indecision and poor judgement and social withdrawal. [The partner] also complained to the psychologist of constant right-sided chest pain, pain and numbness in his left hand and headaches with occasional dizziness. Mr … was of the opinion that it was too early to predict [the partner’s] psychological outcome but that he would require psychiatric assessment and treatment.
He claimed self defence at the trail which was rejected by the jury. He realises now that he alone was responsible for the attack but his sister provided an additional perspective to the crime. She was always very close to her brother who was very protective of her. He provided emotional support to her during her abusive first marriage. He defended her against her ex-husband. She commenced another relationship with a man who was a friend of the applicant but who introduced the applicant to drugs. The applicant did not like him getting close to his sister because he thought he was dangerous. She said in her statement:
I think that he felt extremely protective over me because I was so badly abused and that may have contributed to why he committed the offence later on. He was worried for my safety and always did everything he could to protect me.
The applicant accepts full responsibility for his criminal conduct but said in his statement:
I was concerned for her welfare, particularly after everything that had happened with her ex-husband. I wasn’t thinking clearly and I did a terrible thing to [the victim]. I am deeply ashamed about what happened that morning and the harm that I caused [the victim].
When asked about the particulars of his offending in cross examination, the applicant said that he recalled very little about the incident but he did not deny his conduct. He had smoked ice late on the Friday night before the incident and stayed up all that night and the following night. He started work early on the Monday morning which was when the offence took place.
The other factor relevant to the nature of the applicant’s offending was that about a month before the applicant had been prescribed with medication used to treat major depressive disorders. He said he was depressed at the time. The sentencing Judge said:
[17] The only conclusion I am prepared to draw from this material favourable to the prisoner, is that a combination of stress about his sister’s welfare and her relationship with [the victim] and perhaps the ingestion of illicit drugs may have affected his mental functioning at the time of this offence. However I do not accept that his volition was in any way affected or that he lacked an appreciation of the full impact of what he was doing when he attacked [the victim].
…
[21] …Taking into account all of the matters to which I have referred, the objective gravity of this offence must not be overlooked. The inflicting of multiple stab wounds to the upper body of a person seated in a motor car, unable to take effective evasive or defensive action, is a serious crime. It must be visited with serious consequences.

There is no excuse for the applicant’s behaviour and he did not offer one. The seven year sentence reflects the seriousness of the crime. It was a violent crime which is viewed very seriously by the Australian Government and community. The applicant is not a repeat offender. He was never violent before or after this incident. Nevertheless, the applicant’s offending was very serious and the applicant accepts this.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 90
In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.[7] As required by paragraph 8.1.2(2) of Direction 90, I also have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non- citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[7] Direction 90 at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[8] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of re-offending are as well as the likelihood of the person engaging in that conduct in the future.
Nature of harm if the applicant engaged in further criminal or other serious conduct – 8.1.2(2)(a) of Direction 90
[8] (2014) 225 FCR 424; [2014] FCA 673.
If the applicant were to engage in further similar criminal offending, then the nature of the harm would be very serious because the offending was an unprovoked attack with a knife which caused serious and permanent physical and psychological injuries to the victim and a huge amount of stress to his sister and her family.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 90
The applicant contends that there is a low risk of re-offending because the applicant’s offending was once off and because he has engaged in genuine rehabilitation since he offending in 2013. The sentencing Judge said that “it should be inferred from the prisoner’s previously unblemished record that he is unlikely to offend in this way again.”[9] Since the time of sentencing, the applicant has maintained unblemished record during his time in prison and detention.
[9] G6 p 61 of exhibit 1
I was impressed with the applicant as a witness. He explained that he understands how his offending impacted the victim. He realizes that it was wrong to plead self defence and he accepts full responsibility for his conduct. He no longer blames the victim in any way and he feels sorry for what he did to him and how it impacted both him and his family. I find that his remorse is genuine.
The respondent submitted that his remorse was not genuine because it took him until early 2019 to genuinely accept responsibility for his conduct. The respondent refers to a letter from the applicant written in December 2018 in which he continues to assert self defence and to blame the victim. I reject this submission because the applicant has proved that his remorse is genuine by his conduct since that time. Mr Newton who is a clinical and forensic psychologist explained that remorse generally takes time. His opinion, as referred to below, is that the applicant has demonstrated genuine remorse and insight related to his offending.
The applicant has taken every opportunity to engage in rehabilitative programs and his behaviour has been faultless whilst in prison. The applicant admitted that he turned to heroin after his offending and as a result he was on a methadone program for the first two and a half years of his incarceration. He has addressed his drug problem by engaging in a 44 hour semi-intensive drug and alcohol program whilst in prison.
I was shown a significant number of certificates of completion for programs from about 2014.[10] The applicant explained that he kept himself busy in prison and that he was proud of what he had achieved. In particular, the applicant spoke very positively about the impact of programs from 2019 including the Positive Problem Solving Program, Successful Conversations, Managing Emotions, Managing Sleep, Managing Worry, Building Healthy Relationships and Inside Parenting. He also completed certificates directed towards obtaining employment or more general self improvement such as word processing, prepare and serve espresso coffee and certificate II in Engineering and in Warehousing Operations. He said that his life changed from about 2019 when he commenced engaging with these rehabilitative courses offered in prison. The positive influence that these programs had is reflected in the glowing references from his supervisors at the Ravenhall Correctional Centre. I find that there is significant evidence of rehabilitation.
[10] See Prisoner Education Summary Report dated 10 March 2021 at G89
My finding as to rehabilitation is supported by the expert medical opinion of Mr Patrick Newton who is a clinical and forensic psychologist. In his report dated 22 July 2020 he said that the applicant had participated actively in extensive rehabilitative programs and was able to demonstrate good insight into issues associated with anger and conflict management. With respect to the risk of recidivism, Mr Patrick carried out an extensive risk assessment by applying a structured professional judgment instrument which suggested he is at low risk for violent recidivism. Mr Newton concluded:
The evaluation with this instrument reveals that the main extant risk factors reflect his past offending conduct which in turn had its genesis in substance use. Other factors related to his mental health in childhood harassment were also identified. The clinical factors considered by the instrument indicated that treatment has already conferred significant containment of risk. No “risk management” factors remain extant. In short, beyond the offending itself, there are no persisting indications suggestive of an elevated risk of violence. Accordingly, [the applicant] is assessed as posing a low risk to future violent offending in the general community.
Mr Newton has provided two further written reports dated 30 June 2022 and 10 November 2022 in which he confirms his earlier opinions. In his oral testimony he emphasised that while in prison the applicant was a ‘prison listener’ who helped other prisoners to deal with conflict issues, adjustment and drug use. Mr Newton considered that this demonstrated his genuine insight into his own offending and risk factors and that he was committed to a better life by helping others. Mr Newton also noted that the applicant had reached out to Foundation House who were providing counselling with positive benefits.
This positive prognosis for the future gains further weight because of the significant level of support the applicant would receive from his family if released into the community. Support would also be provided by the applicant’s ex-partner from Egypt who has written two very supportive statements in favour of the applicant which refer to his expressions to her of remorse which she believes is genuine. Further, the applicant is committed to helping his terminally ill sister and her 5 year old daughter. This gives the applicant a genuine incentive to remain free from drugs and crime and gives him a real purpose in his life. I am confident that he will not re-offend. The likelihood of further criminal conduct by the applicant is extremely low.
Family Violence – 8.2 of Direction 90
There is a dispute as to whether the offending involved family violence. The victim was in a serious relationship with the applicant’s sister at the time of the offending. He was described in the sentencing remarks as the sister’s fiancé but they were not living together at the time. The sister said in her statement that they were not officially engaged and that they saw each other about once a week for approximately six months. The applicant’s conduct towards the victim was predicated upon his relationship with his sister. He was concerned about their relationship and in that sense it has connotations of family violence. In Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456, Halley J said that the term ‘family member’ should not be construed narrowly for the purpose of the family violence consideration in Direction 90. The applicant’s violent conduct was directed at preventing the victim from keeping his connection with the applicant’s sister and therefore falls within one of the indicia of family violence in paragraph 4(1) of Direction 90.
I find that this consideration is engaged but I note that the violence was not directed against a relative or a woman or someone with whom the applicant was having a relationship. Consequently, I make no finding adverse to the applicant for not having engaged in specific programs of rehabilitation related to family violence. Indeed, I have found that the applicant engaged in rehabilitative programs that were appropriately connected to his offending. This finding is supported by the expert opinion of Mr Patrick Newton. The consideration of family violence as a factor should in this case provide no additional weight to the weight to be applied towards the seriousness of the offending. For this reason, I give this consideration minimal weight when determining whether there is another reason to revoke the cancellation decision. I note that primary considerations should generally be given more weight than other considerations,[11] but in this case the contrary applies.
[11] Direction 90 paragraph 7(2)
Best interests of minor children – 8.3 of Direction 90
I must determine whether non-revocation of the cancellation of the visa is, or is not, in the best interests of a child who is affected by the decision. The best interests of each child should be given individual consideration to the extent that their interests may differ. The following factors that we must consider and are relevant to this application include:
(a)The nature and duration of the relationship between the child and the applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
(b)the extent to which the applicant is likely to play a positive parental role in the future;
(c)the impact of the applicant’s prior conduct and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the applicant would have on a child, taking into account the ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The applicant has no children of his own, but he has two nieces and two nephews who are minor children. The applicant spent time with the oldest nephew before being imprisoned in 2014. The father of that nephew gave evidence that the applicant played a role in bringing him up. Further, the father said that his three children have regularly spoken to the applicant whilst he has been outside of the community. The relationship with these children is very limited and is non-parental and therefore less weight should be given to it but nevertheless I find that it would be in the best interests of these three children if the applicant were released and he could adopt a role as their uncle in the community.
Further, there is the 5 year old daughter of the applicant’s sister who is terminally ill. The sister gave written and oral evidence to the Tribunal about her illness and how desperate she is to have the applicant released so he can help her with her daughter. In particular, the sister recognizes that she may not have much time to live and she wants the applicant to look after her daughter after her death. Her husband is over 65 years old and does not have a licence. He finds it difficult with the baby. He gave a positive statement[12] to the Tribunal asking him to be released because he is a good man and so that he can help with the family. The niece has developed a close relationship with the applicant as a result of regular communications by phone. It is most likely, because of the sister’s terminal illness, that the applicant will play a positive parental role for the niece in the future. There is no doubt it would be in the niece’s best interests if the applicant were released. In addition to the direct benefit to her of having the applicant help bring her up both before and after the likely death of the sister, there is the indirect benefit of taking some of the pressure off the sister and her aging parents. I give the best interests of the sister’s daughter very significant weight when determining whether there is another reason to revoke the cancellation decision.
[12] G70 p 234
The remaining child to be considered is the daughter of the applicant’s ex-partner with whom he had a relationship back in Egypt. They still have a close but not romantic relationship. The ex-partner and her four year old daughter have visited the applicant in prison and spoken by phone regularly. The ex-partner has provided two very supportive statements about the applicant which include her belief that her daughter would be seriously affected if the applicant is not released into the community. I consider it would be in the best interests of the ex-partner’s daughter for the applicant to be released but I give this less weight because the relationship has involved limited meaningful contact and is non-parental.
This is a factor that weighs heavily in favour of revoking the cancellation decision.
Expectations of the Australian community – 8.4 of Direction 90
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[13]
[13] Direction 90 at 8.4(1).
Paragraph 8.4(4) of Direction 90 provides that, as a decision-maker, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed therein, without independently assessing the community’s expectations in the particular case. I note the particular circumstances of the applicant, including the extremely low risk of re-offending and that he is required by his terminally ill sister to look after his 5 year old niece, but the expectation of the Australian community is to not allow the applicant to remain in Australia[14] because he has engaged in serious conduct of a violent nature in breach of the Australian community’s expectation that he would obey laws while in Australia.
[14] Direction 90 at 8.4(1).
My conclusion as to the expectations of the Australian community is that it is a factor that weighs against revoking the cancellation decision, but I would not give it determinative weight.
Other Considerations
In deciding whether there is “another reason” to revoke the cancellation of the visa, I must also take into account the other considerations listed in Direction 90, but these are not exhaustive.[15] I must consider and understand the representations received from the applicant.[16] I must also consider the consequences that would flow from not revoking the cancellation decision.[17]
[15] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
[16] See above at [11].
[17] Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 70-71 at [61]; [2016] FCAFC 244.
International non-refoulement obligations – 9.1 of Direction 90
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.[18]
[18] Direction 90 at 9.1(1).
The applicant has articulated the prospect of Australia breaching its non-refoulement obligations as a reason for revoking the cancellation decision. This is in addition to, and distinct from, his underlying claimed fear of harm if removed to Egypt.
I will consider separately the risk of harm if removed to Egypt, but I note that the risks of harm that the applicant will face if removed are also relevant to non-refoulement obligations and the extent of impediments if removed.
The respondent submits that the Tribunal is entitled to and should defer consideration of non-refoulement obligations because it is open to the applicant to apply for a protection visa. The applicant has said that he would apply for a protection visa if he is not successful with this application.
The applicant submits that under Direction 90 I may defer assessment of non-refoulement obligations but that in this case there is sufficient evidence for the Tribunal to make a finding that non-refoulement obligations are owed.
The recent decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs (Plaintiff M1/2021)[19] addressed the issue of decision-makers’ approach to non-refoulement:
“[21] It is in that context that the specific issue in this case is to be addressed — whether a decision-maker considering revocation under s 501CA(4) is required to determine whether non-refoulement obligations are owed to the former visa holder where the person makes representations which raise a potential breach of those obligations but the person remains free to apply for a protection visa. As has been stated, the dispute between the parties was not if, but how, such representations should be considered by the decision-maker.
Decision-makers’ approach to representations
[22] Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason“ why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
… [24] Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. …
Decision-makers’ approach to non-refoulement
… [29] Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error — they are not part of Australia’s domestic law.
[30] Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.”
(footnotes removed)
[19] [2022] HCA 17.

It follows that I am required to read, identify, understand and evaluate the representations made by the applicant. Those representations included a claim of non-refoulement under domestic law. The High Court said that such a claim may be considered by the decision-maker, but that one available outcome is to defer assessment of whether the applicant is owed those non-refoulement obligations.[20] I intend to defer assessment because it is open to the applicant to apply for a protection visa. That does not mean that I ignore the representations made by the applicant. Plaintiff M1/2021 makes it clear that a decision-maker must not do that,[21] but “one available outcome” is the deferral of the substantive assessment of such a claim.[22]
[20] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [30].
[21] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [23].
[22] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [105].
The comments in Plaintiff M1/2021 were made in the context of Direction 65 which has been revoked but they still apply to the decision I must make under s 501CA(4). The current direction is Direction 90 which provides at 9.1:
“(4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6) It may not be possible at the section 501/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. The process for determining protection visa applications is specifically designed for consideration of non refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, 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.
(7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.”
In this case, the applicant has clearly raised claims which may give rise to international non-refoulement obligations. Paragraph 9.1(6) of Direction 90 provides that it may not be possible at the s 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. That sub-paragraph applies in this case and allows the decision-maker to defer substantial assessment of non-refoulement issues. I do note that the delegate making the non-revocation decision[23] considered that a conclusive finding as to whether non-refoulement obligations were owed was not possible without a full and comprehensive assessment through a process similar to what is required to assess a protection visa application but nevertheless the delegate accepted that there is a real likelihood that the applicant could face a real risk of suffering harm in Egypt which might include harassment, discrimination, torture or other cruel and degrading treatment on the basis of his religion as a Coptic Christian. I adopt the approach and findings of the delegate stated above.
[23] G2 Decision of the delegate 13 September 2022 at p31
Applicant’s representations including as to risk of harm
The applicant made representations concerning risk of harm in Egypt. He raised genuine concerns that because he is a Coptic Christian he faces a real risk of being killed by Muslim extremists. The applicant was attacked by Muslim children and received knife wounds to the face as a child. His family’s jewellery business was forced to close during the revolution. The applicant, if returned, would face similar trouble and discrimination. The delegate in the decision under review referred to the country information relating to ongoing violence towards Christians in Egypt.[24] The country information on Egypt provided by the applicant supports the presence of ongoing violence. In particular, the UK Country Policy and Information Note of October 2020[25] refers to societal violence and discrimination against Coptic Christians. His risk of harm would be exacerbated by his mental health condition for which there are limited services in Egypt.[26]
[24] G2 p 26 to 31 of exhibit 1
[25] Exhibit 3 p 170 and p 205 - 206
[26] UK Country Background Note June 2022 at p 233 of exhibit 3
I accept that if returned to Egypt the applicant would be at real risk of the harm claimed by him.
Consequences of cancellation and non-revocation
The consequence of the cancellation[27] of the visa is that he is an “unlawful non‑citizen” as defined in s 14.
[27] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [45] to [49].
If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen the officer must detain the person under s 189(1). A person so detained must be kept in immigration detention until he or she is removed from Australia accordance with s 198, deported under s 200, or granted a visa under s 196.
If the cancellation decision is not revoked, s 198(2B) would require the applicant’s removal from Australia if he did not make an application for another visa. If he does make an application for another visa, he would be liable to be removed from Australia under s 198(6) if that application were to be refused.
If a cancellation decision is revoked, it is taken not to have been made pursuant to s 501CA(5). In that event, the applicant would not meet the description of an unlawful non‑citizen and would not be subject to removal from Australia as mandated by s 198(2B) or s 198(6) as the case may be.
The applicant contends that if the cancellation decision is not revoked that he will either be removed to Egypt or face ongoing detention. In either event, the consequence for the applicant would be serious. In Egypt he would likely be harmed and face discrimination for being a Coptic Christian. In detention, his mental health will deteriorate and his family will continue to be without his assistance when it is sorely needed.
I note that if the visa cancellation is not revoked, the applicant may remain in detention whilst any protection visa application is considered or while the Minister considers the possibility of re-settlement or the exercise of a personal discretion in favour of the applicant. There is no evidence before me suggesting that re-settlement or the exercise of a personal discretion would be considered. Ongoing detention would impact the mental health of the applicant and would have adverse consequences. In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Kenny and Mortimer JJ considered the impact of further detention which is apposite to the applicant:[28]
“… The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end.”
[28] [2021] FCAFC 55 at [132].
The applicant has been in detention since November 2021. As found by Mr Newton, his mental health will deteriorate if his detention is extended. The prospect of further detention is a factor that weighs heavily in favour of revoking the cancellation decision.
Extent of impediments if removed – 9.2 of Direction 90
Direction 90 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to South Sudan in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
The applicant is 47 years old and has both physical and mental illnesses. In his personal circumstances form the applicant said that he suffers from diabetes, high blood pressure and chronic back pain. In addition, the applicant has suffered from depression since about 2011. Mr Newton diagnosed a major depressive disorder in partial remission but, if returned to Egypt, Mr Newton considered he would be at risk of a relapse. The UK Country Background Note[29] of June 2022 notes that the availability of mental health care is limited in Egypt which would create a significant impediment for the applicant if returned. The applicant has also suffered from sleep apnoea. The respondent accepts that the applicant would face difficulty if returned to Egypt. I consider that the difficulty would be significant because of the poor health services which would be exacerbated by the discrimination he would face for being a Coptic Christian. I accept that he would not face any language barriers.
[29] Exhibit 3 p221
Further, the UK Country Policy and Information Note of October 2020[30] refers to discrimination against Coptic Christians applying for employment.
[30] Exhibit 3 p 170
The applicant’s immediate family is in Australia and he has not been in Egypt since 2007. He would find it very difficult in Egypt to establish himself and to maintain a basic living standard without any family or social support.
This is a factor that weighs heavily in favour of revocation of the cancellation decision.
Impact on victims – 9.3 of Direction 90
There was no evidence of impact on victims within the meaning of the Direction. This factor is neutral.
Links to the Australian community – 9.4 of Direction 90
The applicant has significant links to the Australian community. He arrived in Australia aged 32 in 2007. His parents, sibling and nieces and nephews live in Australia as permanent residents or Australian citizens.
Since arriving in Australia he has contributed by working full time and by helping his family. This represents a positive contribution to the Australian community which is to be given significant weight.
The applicant’s family would be significantly impacted if he were not released into the community. His sister is terminally ill and is desperate for him to be released to help her, her mother and her daughter. The sister’s husband (brother-in-law to the applicant) would be adversely impacted by a negative decision because he is struggling to look after their child as well as his terminally ill wife. The applicant’s mother is 69 years old and is awaiting surgery on her arm. She has issues with her knee and neck. She would benefit from his assistance because of her old age and poor health. The applicant’s father is also in poor health and would benefit from assistance. He has been seeing a psychologist since June 2015 under a GP Mental Health Care Plan. The psychologist’s opinion[31] is that his psychological impairments and physical ailments are highly likely to worsen if the applicant is not released. In summary, the applicant’s family are in a very difficult and sad situation which could be significantly improved if the applicant were released so that he could be them.
[31] G84 p 274 of exhibit 1
The applicant also has an ongoing close relationship with his ex-partner from Egypt who lives in Melbourne. She wants to maintain that relationship with the applicant and it is apparent from her positive statements that she will help support him if released.
There would be no impact on any Australian businesses if the applicant is not allowed to stay in Australia.
In conclusion with respect to his links to the Australian community, I consider this to be a factor that weighs significantly in favour of revocation of the cancellation decision.
Conclusion as to whether to revoke the cancellation of the visa
I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is “another reason” to revoke the cancellation decision.
I give some weight to the primary considerations of the protection and expectations of the Australian community which weigh in favour of not revoking the cancellation decision, but I do not consider that they outweigh the countervailing considerations. I give minimal weight to family violence as a primary consideration for the reasons set out above. The countervailing factors are the best interests of minor children, risk of harm if returned, the prospect of indefinite detention, the extent of impediments if removed and links to the Australian community.
The factors which weigh most heavily in favour of the applicant are the extent of his rehabilitation, his very low likelihood of re-offending, the desperate need for the applicant to assist with the 5 year old niece and the aging parents plus the risk of harm he would face if returned to Egypt. I have heard oral evidence from the applicant and his sister, brother and mother and I have reached the view that the applicant and his family are good people who came to Australia under very difficult circumstances. The applicant committed an awful crime and has been incarcerated in prison and detention since 2014. He has used that time to rehabilitate himself and to gain the skills needed for life in the community. The prison system has served its purpose of rehabilitating the applicant. I believe that he will not re-offend. The medical expert puts him in the low risk category for re-offending. I believe that he should be released so that he can start a new life and, most importantly, help his family through what will be difficult times for them.
I reach this conclusion by applying the principles in paragraph 5.2 of Direction 90 to the specific circumstances of the applicant who has committed a serious crime involving violence. Being able to remain in Australia is a privilege Australia conferred on the applicant in the expectation that he would be law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community. The applicant has committed a serious offence but he has otherwise shown respect for Australia’s law enforcement framework. The applicant, as a non-citizen who has committed a serious violent crime should generally expect to forfeit the privilege of staying in Australia. However, the Australian community would take into account his particular circumstances namely his positive steps towards rehabilitation, his extremely low likelihood of re-offending and the need for him to assist his family.
It follows from the application of these principles that I am satisfied that there is “another reason” why the cancellation decision should be revoked.
Decision
The decision of the Tribunal is to set aside the decision of 13 September 2022 and to substitute a decision that the cancellation of the applicant’s Class BS Subclass 801 Partner visa is revoked

I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

..........................[sgd]..............................................
Associate
Dated: 23 November 2022

Date(s) of hearing:

22 and 23 November 2022

Counsel for the Applicant:

Mathew Kenneally

Solicitors for the Applicant:

Carina Ford Immigration Lawyers

Advocate for the Respondent:

Samantha Liddy

Solicitors for the Respondent:

Sparke Helmore Lawyers

[2022] AATA 4777

23 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Date(s) of hearing:	22 and 23 November 2022
Counsel for the Applicant:	Mathew Kenneally
Solicitors for the Applicant:	Carina Ford Immigration Lawyers
Advocate for the Respondent:	Samantha Liddy
Solicitors for the Respondent:	Sparke Helmore Lawyers