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

XZYK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 4494 (30 August 2023)
Division: GENERAL DIVISION
File Number(s): 2023/4099
Re:XZYK
APPLICANT

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

DECISION

Tribunal:Senior Member Dr Linda Kirk
Date:30 August 2023
Date of written reasons: 4 October 2023
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the Reviewable Decision dated 5 June 2023 to refuse to revoke the Mandatory Visa Cancellation Decision and, in substitution, decides that the cancellation of the Applicant’s Protection visa is revoked.
.................................[SGD]....................................
Senior Member Dr Linda Kirk

CATCHWORDS

MIGRATION – mandatory cancellation of Applicant’s visa – Applicant has a substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – strength, nature and duration of ties to Australia - best interests of minor children – expectations of the Australian community – other considerations – protection finding – legal consequences of the decision – extent of impediments if removed – decision under review set aside and substituted
LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES

DMDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1993
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR and Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
Jal v Minister for Immigration and Border Protection [2016] AATA 789
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration v HSRN [2023] FCAFC 68
MNLR v Minister for Immigration, Citizenship and Multicultural Affairs [2021] FCAFC 35
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 587
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Viane v The Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SECONDARY MATERIALS

Direction No. 99 – Migration Act 1958 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
WRITTEN REASONS FOR DECISION

Senior Member Dr Linda Kirk
4 October 2023

XZYK (‘the Applicant’) is a 44-year-old citizen of Iraq who arrived in Australia on 9 April 1983.[1] On 3 December 1994, the Applicant, his mother, father and brother were granted a Protection (Class AZ) (Subclass 866) visa (‘the visa’).[2]
[1] Exhibit R1, G1, 2; G30, 236.
[2]Ibid, G33, 254; G20, 177-178.
On 19 June 2020, the Applicant was convicted by the NSW District Court at Penrith of Aggravated enter dwelling w/i – use corporal violence – SI and sentenced to three years’ imprisonment with a two-year non-parole period.[3]
[3]Ibid, G7, 35.
On 15 September 2020, the Applicant’s visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) (‘the Mandatory Visa Cancellation Decision’) because a delegate of the Minister (‘the Respondent’) was not satisfied that the Applicant passed the character test in subsection 501(6) of the Act. The Applicant was considered to have, pursuant to subsection 501(7)(c), a ‘substantial criminal record’ within the meaning of section 501(6)(c) as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution: section 501(3A)(b).[4] At the time, the Applicant was serving a sentence of full-time imprisonment at Shortland Correctional Centre in New South Wales for an offence against a law in Australia. The Applicant was invited to make representations to the Respondent about revoking the decision to cancel his visa within 28 days of receipt of the Mandatory Visa Cancellation Decision.5F[5]
[4] Ibid, G33, 254-260.
[5] Ibid, G1, 6.
On 12 October 2020, within the prescribed period, the Applicant made representations seeking revocation of the Mandatory Visa Cancellation Decision.[6]
[6] Ibid, G11-G12, 74-94; G36, 267-348.
On 5 June 2023, a delegate of the Respondent decided, under subsection 501CA(4) of the Act, not to revoke the Mandatory Visa Cancellation Decision (‘the Reviewable Decision’).[7]7F The Applicant was notified of the Reviewable Decision on 7 June 2023.[8]
[7]Ibid, G3.
[8]Ibid, G2.
On 13 June 2023, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Reviewable Decision under subsection 500(1)(ba) of the Act.8F[9]
[9]Ibid, G1.
The matter was heard by the Tribunal on 16 and 17 August 2023. The Applicant attended the hearing in person and was represented by counsel.
The following persons gave oral evidence and were cross-examined at the hearing:
- the Applicant
- IS, Applicant’s step-daughter
- SRM, Applicant’s mother
- SRF, Applicant’s father
- ARB, Applicant’s brother
- Mr Andrew McKinley, Psychologist
- Mr Tim Watson-Munro, Psychologist
The material before the Tribunal consists of:
- Section 501 G-Documents (G1 – G38, pp. 1 – 386) filed 26 June 2023 – Exhibit R1
- Respondent’s Tender Bundle (TB1 – TB6, pp. 1 – 235) filed 2 August 2023 – Exhibit R2
- Respondent’s Supplementary Tender Bundle (TB7 – TB8, pp. 236 – 320) filed 14 August 2023 – Exhibit R3
- Respondent’s Statement of Facts, Issues and Contentions dated 2 August 2023 (‘RSFIC’)
- Applicant’s Tender Bundle (A1 -A14, pp. 1 – 406) filed 5 June 2023 – Exhibit A1
- Applicant’s Supplementary Tender Bundle (AA1-AA6 pp. 1 – 46) filed 18 July 2023 – Exhibit A2
- Applicant’s Statement of Facts, Issues and Contentions dated 18 July 2023 (‘ASFIC’)
The Tribunal has reviewed the evidence before it and refers to relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(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:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; 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.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7) of the Act provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i) been found by a court to not be fit to plead, in relation to an offence; and
(ii) the court has nonetheless found that on the evidence available the person committed the offence; and
(iii) as a result, the person has been detained in a facility or institution.
Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
(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.
Paragraph 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) not to revoke a decision.
MINISTERIAL DIRECTION NO. 99
Subsection 499(1) of the Act provides:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Subsection 499(2A) of the Act provides that ‘A person or body must comply with a direction under subsection (1).’
On 23 January 2023, the Minister, for the purposes of section 499 of the Act, made a Direction titled Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The commencement date for operation of the Direction was 3 March 2023.[10]
[10] Upon its commencement, the Direction revoked the operation of “Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”.
Paragraph 5.1 sets out the objectives of the Direction. Sub-paragraphs 5.1(1) and (2) provide:
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
(2)Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
Paragraph 5.1(4) provides:
(4)The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of the Direction sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse a visa under section 501 of the Act. These principles are 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 measureable [sic] 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.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) 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 8.55(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 [sic] risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘information and evidence from independent and authoritative sources should be given appropriate weight.’
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give a ‘other’ consideration the equivalent of or greater weight than a primary consideration.[11] Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as Kenny and Mortimer JJ stated in their joint judgment in Jagroop v Minister for Immigration and Border Protection and Another, ‘the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under section 501’.[12]
[11]Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
[12](2016) 241 FCR 461, [57].
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account. They are:
1)protection of the Australian community from criminal or other serious conduct;
2)whether the conduct engaged in constituted family violence;
3)the strength, nature and duration of ties to Australia;
4)the best interests of minor children in Australia; and
5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
a)legal consequence of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
ISSUES FOR DETERMINATION
Before the power in subsection 501CA(4) of the Act to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by sub-section 501CA(4)(a) of the Act. The issue before the Tribunal is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo,13F[13] the Full Court of the Federal Court of Australia made the following observations in relation to subsection 501CA(4):
there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view ...[14]
[13] [2018] FCAFC 151.
[14] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are:
1)whether the Applicant passes the ‘character test’; and
2)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Migration to and life in Australia
The Applicant was born in Baghdad, Iraq in 1979. He and his family are ethnic Turkoman.[15] His mother worked as a schoolteacher and his father as a botanist.[16] He arrived in Australia as a four-year-old child on 9 April 1983 with his mother (SRM), father (SRF) and older brother (ARB). The family settled in Sydney and the Applicant’s parents owned and ran a cleaning company.[17]
[15]Exhibit R1, G14, 135, [1]-[2].
[16]Ibid, G36, 281.
[17]Ibid.
The Applicant attended school until year 11 and was reportedly ‘an average student, with no indications of intellectual disability or other learning difficulties.’[18]
[18]Ibid.
In his statement dated 26 June 2016, the Applicant describes his father as ‘extremely authoritarian’ and claims his father ‘regularly hit him and was verbally abusive towards him as a child.’[19] He stated:[20]
Although my father was abusive towards my brothers, I bore the brunt of his abuse because hitting me or forcing me to stay in a room was the only way he knew how to respond to the way I was behaving which he found particularly annoying or stressful. Again, as no one thought I might have an underlying mental health issue, not steps were taken to address my behaviour until I was a teenager, by which time I was acutely depressed, I had low self-esteem and was taking drugs regularly.
As it was obvious that I was being punished and screamed at more often than my brothers made me think that my father really disapproved of me and from a very young age l experienced feelings of worthlessness fairly constantly. To make matters worse, because my father would scream abuse at me from a young age I was, and have always been, very sensitive to being criticised and other events that are emotionally stressful.
[19]Ibid, G14, 137, [15].
[20]Ibid, G14, 137, [16]-[17].

When he was 13 years old, the Applicant left home for a period of time because he could no longer cope with how he was being treated by his father.[21] In his late teens, the Applicant left school and moved out of home.[22] He was often able to stay with friends, but sometimes ‘ended up on the street.’[23]
[21]Ibid, G14, 137, [18].
[22]Ibid, G14, 138, [22].
[23]Ibid, G14, 138, [23].
Employment
At the age of 15, the Applicant had a casual job at a local KFC restaurant. After leaving school he worked at his cousin’s butcher shop, at fruit markets, and as a form worker for various construction businesses.[24] He holds certificates for work as a dogman,[25] driving a forklift, carpentry, and form work.[26]
[24]Ibid, G14, 137, [21].
[25] A dogman is someone who slings loads to cranes and directs their movement.
[26]Exhibit R1, G36, [17].
Drug use
The Applicant was introduced to marijuana by his friends when he temporarily left home at the age of 13. He found it provided him ‘with a way to temporarily escape the constant feelings of worthlessness and disappointment.’[27] In his statement dated 26 June 2016, the Applicant described using marijuana as ‘probably the worst thing [he] could have done’ as it made his ‘situation worse in that it set off a vicious cycle wherein [his] drug taking caused [him] to have problems at school’ and in turn this fuelled his father’s abuse of him. This led the Applicant to increase his drug use ‘as the need to escape these feelings of rejection and worthlessness intensified.’[28]
[27]Ibid, G14, 137, [18].
[28]Ibid, G14, 137, [19].
By the age of 15, the Applicant’s drug taking had ‘escalated’.[29] He used a variety of recreational drugs, including LSD, ecstasy [MDMA], amphetamines and cocaine. In his late teens or early 20s, the Applicant was using and addicted to heroin.[30]
[29]Ibid.
[30]Ibid, G14, 137, [20].
In 2008, at the age of 29, the Applicant commenced a rehabilitation program at Adele House and obtained treatment for his addiction over a period of four and a half months.[31] The Applicant subsequently abstained from drugs for a period of about 18 months.[32] The Applicant reported relapsing into drug use ‘during periods of high stress’ arising from domestic and financial pressures.[33]
[31]Exhibit A1, A2, 27.
[32]Exhibit R1, G36, 282.7.
[33]Exhibit A1, A2, 27.
From May 2011, the Applicant experienced a ‘marked decrease’ in his heroin use until the death of his best friend, JF, in 2013, when he suffered ‘intense grief’ that resulted in him resuming to use heroin and to offend to ‘feed’ his addiction.[34]The Applicant was using cocaine approximately 2-3 times per week in the years leading up to his offending and arrest in June 2019. He was using about 3-4g of cocaine in total each week.[35]
[34]Exhibit R1, G14, 141, [44].
[35]Ibid, G36, 282.
The Applicant was also addicted to benzodiazepine prescription pills, including Rivotril (Clonazepam), Xanax (Alprazolam) and Valium (Diazepam) ‘for a long time.’[36] He was typically taking five Valium tablets and two Xanax tablets each day up until his arrest in June 2019.[37]
[36]Ibid, G14, 137, [20].
[37]Ibid, G36, 282.
Back injury
The Applicant suffered a fracture to his 3rd and 5th lumbar vertebrae when he was arrested by police in around 2010. His back injury was associated with sciatic nerve compression and severe pain. He started using OxyContin, an opiate analgesic medication with addictive properties. His use of this opioid was excessive and he eventually relapsed into using heroin.[38] The Applicant was treated on the Opioid Substitution Program through Garden Court with his then General Practitioner, Dr Manee Vendabona, and he was prescribed Buprenorphine.[39] Dr Vendabona also prescribed the anticonvulsant/analgesic medication Lyrica (Pregabalin) for the Applicant’s chronic backpain.[40]
[38]Ibid, G36, 283.
[39]Ibid, G36.
[40]Ibid, G36, 283.
Mental health
The Applicant first saw a psychiatrist at the insistence of his mother when he was around 17 years old. He only saw the psychiatrist ‘on a handful of occasions’ before he ‘discontinued treatment.’ At this time the Applicant ‘had really given up on [him]self and was in a very dark place.’[41]
[41]Ibid, G14, 138, [22].
After the Applicant left school, his mental health deteriorated, and he ‘experienced ongoing bouts of depression.’ He continued to feel like he ‘was a worthless person’ and there were times when he contemplated suicide.[42] He found using drugs to be ‘a way of providing temporary respite from [his] feelings of depression and worthlessness.’[43]
[42]Ibid, G14, 138, [24].
[43]Ibid, G14, 138, [23].
Commencing in around 2001, the Applicant saw a number of psychiatrists for his mental health issues and to help with his opioid addiction. He remembers being told that he had ‘problems with depression, anxiety and addiction’ but he does not remember receiving a more specific diagnosis. He was prescribed medication which he took, and which gave him a ‘small amount of relief’ from his symptoms, however the side effects were ‘terrible’ and he ‘quickly discontinued treatment.’[44]
[44]Ibid, G14, 138, [26].
In November 2016, the Applicant’s general practitioner, Dr Vendabona, prescribed him Seroquel and referred him to Mr Andrew McKinley, Psychologist, for treatment of his depression, anxiety, and Post-Traumatic Stress Disorder (PTSD).[45]
[45]Ibid, G14, 138, [27]; G36, 282.
Criminal history in Australia
The Applicant’s National Criminal History Check dated 9 July 2020 records his criminal convictions in Australia.32F[46]
[46]Ibid, G7, 35-41.
Juvenile offending
The Applicant’s first court appearance was on 27 March 1996 when he appeared before the Children’s Court of New South Wales on the charge of Custody offensive implement.[47] He was released without conviction on entering recognisance to be of good behaviour for 12 months.
[47]Ibid, G7, 41.
In his statement dated 26 June 2016, the Applicant outlined the circumstances surrounding this offending:[48]
Shortly after I left my parent's house I was charged with being in possession of an offensive implement, which was a knife. To the best of my recollection I did not have any fixed address at the time I was charged and was sometimes sleeping on the streets. I was carrying the knife as a means of self-protection in the event I was attacked.
[48]Ibid, G14, [39].
On 3 June 1996, the Applicant appeared again before the Children’s Court of New South Wales on charges of Carry cutting weapon and two counts of Assault.[49] He was released without conviction on entering recognisance to be of good behaviour for 12 months.
[49]Ibid, G7, 41.
In his statement dated 26 June 2016, the Applicant referred to this offending:[50]
In 1996 I was convicted of assault and carrying a cutting weapon. I do not remember the circumstances surrounding these offences, but I am almost certain that at the time of the offence I did not have a fixed address and I was also addicted to heroin.
[50]Ibid, G14, [40].
Adult offending between November 1997 and July 2008
The Applicant’s first conviction as an adult was recorded on 21 November 1997, for the charges of Goods in personal custody reasonably suspected being stolen and Carry cutting weapon upon apprehension for which he was fined $400 and $100 respectively.[51]
[51]Exhibit R2, TB 86-89; Exhibit R1, G7, 41.
Between March 2000 and October 2001, the Applicant appeared in court on four occasions, incurring several fines and a 12-month good behaviour bond. This offending included Destroy or damage property, Enter inclosed land not presc premises w/o lawful excuse, Custody of knife in public place, Resist officer in execution of duty-T2 and Possess prohibited drug.[52]
[52]Exhibit R2, TB 90-95; Exhibit R1, G7, 41.
On 5 September 2003, the Applicant was ordered to serve 18 months’ good behaviour with supervision for offences of Goods in personal custody reasonably suspected being stolen, Unlicensed for Class, Class C/R/LR/MR-1^st offence, two counts of Break and Enter building (steal) value <= $15000-T1, Take & drive conveyance w/o consent of owner-T2, Steal property in dwellinghouse <= $2000-T2 and Possess implements to enter/drive conveyance-T2.[53]
[53]Exhibit R2, TB 96-106; Exhibit R1, G7, 39-40.
On 7 March 2005, the Applicant was convicted of Bring/introduce syringe into place of detention and Common assault-T2 and, on appeal to the Sydney District Court, he was sentenced to 12 months’ imprisonment.[54]
[54]Exhibit R1, G7, 39-40.
On 4 May 2005, the Applicant was convicted of six offences in the Central Local Court and received fines for two of these offences. On 16 June 2005, on the Applicant’s severity appeal for the remaining four convictions, the District Court:
·confirmed the sentence of three months’ imprisonment for Have custody of an offensive implement in a public place;
·confirmed the sentence of six months’ imprisonment and a three-year disqualification for Licence expired 2 years or more before-1st offence;
·confirmed the sentence of six months’ imprisonment for Resist officer in execution of duty-T2; and
·Increased the sentence for Drive vehicle recklessly/furiously or speed/manner dangerous from six to nine months’ imprisonment.[55]
[55]Ibid, G7, 40.
On 26 April 2007, the Applicant was convicted of Resist or hinder police officer in the execution of duty, Possess implements to enter/drive conveyance-T2, four counts of Possess prohibited drug, two counts of Goods in personal custody suspected being stolen (not m/v), two counts of Custody of knife in public place, Larceny value <=$2000-T2 and Enter vehicle or boat without consent of owner/occupier, and was sentenced to 12 months’ imprisonment. For these offences, he received sentences of imprisonment of between one month and 12 months duration.[56]
[56]Ibid, G7, 41; Exhibit R2, TB 109.
On 8 July 2008, the Applicant was sentenced by the Waverley Local Court to 15 months’ good behaviour with supervision for three counts of Possess prohibited drug being heroin.[57] He later appeared in the Central Local Court on 10 November 2010, where he was sentenced to four months’ imprisonment for Larceny value <=$2000-T2, Destroy or damage property <=$2000-T2, two counts of Resist officer in execution of duty-T2, Possess implements to enter/drive conveyance-T2, drive conveyance taken w/o consent of owner-T2 and Goods in personal custody suspected being stolen (not m/v). Whilst he was in possession of a prohibited drug during that offending, he received no further penalty.[58]
[57] Exhibit R1, G7, 38-39; Exhibit R2, TB 109-118.
[58]Exhibit R1, G7, 38.
November 2010 convictions
On 10 November 2010 the Applicant was convicted of Use etc offensive weapon to prevent lawful detention etc-T1 and two counts of Drive vehicle recklessly/furiously or speed/manner dangerous. He lodged a severity appeal, and on 5 January 2011 the District Court reduced his sentence from 16 to 10 months’ imprisonment for the driving offences but confirmed the other conviction.[59]
[59]Ibid, G7, 37-38.
In his statement dated 12 July 2023 the Applicant wrote:[60]
In relation to the 2010 conviction, I was driving a car under the influence of drugs (possibly heroin, cocaine or oxycontin) when - to the best of my recollection - the police rammed my car after I refused directions to pull over. I accept driving under the influence of drugs was dangerous and I should have stopped for the police …
[60]Exhibit A1, 3, [17].
March 2016 convictions
On 10 March 2016, the Applicant was sentenced to an aggregate term of 32 months’ imprisonment for two counts of Supply prohibited drugs on an ongoing basis-SI and one day of imprisonment for two counts of Deal with proceeds of crime, money/property of any value. Six counts of Supply a prohibited drug and two counts of Possess prohibited drug were taken into account by way of a Form 1.[61]
[61]Exhibit R1, G9, 36-37.
These convictions arose from the Applicant’s ‘street dealing’ of heroin in the Redfern and Waterloo area in 2015.[62] In his sentencing remarks, Judge McClintock SC noted that the Applicant had supplied prohibited drugs in the area during one period, involving about 20 separate transactions and about six or seven individuals. In the second set of supplies he was involved in about five transactions. His Honour observed that it appeared that the Applicant was ‘meeting the demand of persons who were requesting to be supplied with heroin’ and that it could be described as ‘street dealing or just above street dealing’. He found the offending was serious and ‘required some degree of planning’.[63] He remarked that the Applicant’s criminal record ‘contains what might be regarded as essentially a continuous series of relatively minor matters that are clearly reflective of a person with a drug problem that has existed for at least the last 20 years’.[64] His Honour observed that the Applicant ‘pleaded guilty at the first available opportunity’ and the amount of drugs he supplied was ‘not in reality particularly significant’. His Honour added that his actions in supplying the heroin was ‘indicative of the proposition that he was an addict.’[65]
[62]Ibid, G8, 52.
[63]Ibid, G8, 53.
[64]Ibid, G8, 54.
[65]Ibid, G8, 52.
The Applicant’s evidence is that he resumed using heroin following the death of his best friend, JF, in 2013 and that this was the catalyst for this offending:[66]
In 2013 my best friend [JF] committed suicide and this had a devastating impact on me. I started taking heroin again, initially in small amounts, but as time progressed I was using it more and more frequently .... It was this increasing need, at a time when I was in a very bad place in terms of my mental health, that was more than anything else, the catalyst for me to commit these offences in 2014.
[66]Ibid, G14, [43].
In his sentencing remarks, Judge McClintock noted ‘what appear[ed] to have been a significant effect on [the Applicant’s] psychology which is the death of a close friend some years ago. There appears to have been some associated depression with that.’[67]
[67]Ibid, G8, 57.
June 2020 convictions
On 26 March 2019, the Applicant and his co-offender attended the victim’s house to collect a debt. His co-offender was armed with a ‘full-size axe’.[68] The Applicant encouraged his co-offender’s acts of violence and restrained the victim so that his co-offender could punch him several times.[69] The agreed facts indicate the struggle/offending in the victim’s unit went on for 15-20 minutes and that the injuries suffered by the victim included various cuts and wounds.[70]
[68]Exhibit R2, TB3, 55.
[69]Ibid, TB3, 55.
[70]Ibid, TB3, 56.
On 19 June 2020, the Applicant was sentenced to three years’ imprisonment for Aggravated enter dwelling w/i - use corporal violence - SI and convicted with no further penalty for Possess prohibited drug.[71] In her sentencing remarks, Judge Harris stated that the Applicant ‘is not to be sentenced in relation to any wounding that was caused to the victim by virtue of the use of the axe’ and that this referred to not only the actual use but also the threatened use of a weapon.[72]
[71]Exhibit R1, G7, 35-36; Exhibit R2, TB 82-85, 119-121; G8; G36, 283.
[72]Exhibit R1, G8, 47
In his statement dated 12 July 2023, the Applicant described what he remembers about this offending:[73]
In relation to the 2019 offence, I was asked by a person to help him collect a debt. I was using amphetamine at the time and agreed to go with the person. While I was travelling to the home of the victim, I was given a cigarette laced with Dimethyltryptamine (DMT) a psychedelic which I had never used before.
To the best of my memory, when we got to the victim's house the co-offender and I entered after the victim opened the door. When this happened, the co-offender and the victim started fighting. I remember pulling the victim off the co-offender and while I held the victim, he was hit a number of times by my co-offender. The co-offender had a small axe on him. I do not remember whether the co-offender had the axe in the car. If he did, I did not notice it. I may not have noticed it because of the effects of the DMT and or because he travelled in the front seat of the car while I sat in the back.
[73]Exhibit A1, 3-6, [18]-[19].
Remorse and responsibility for offending
In his statement dated 12 July 2023, the Applicant stated that he is remorseful for his criminal behaviour:[74]
I am ashamed of my behaviour and am sorry for the injuries sustained by the victim. I have tried to stay away from violence in the past and will do so in the future. I have completed a Violent Offenders Treatment Program in prison and have been taking part in the SMART program in immigration detention. I have also tried to be a better Muslim and pray at least three times a day. These programs - and my faith - has taught me to be less impulsive and to think about the consequences of my actions.
[74]Ibid, 3-6, [20].
In June 2020, the Applicant told Dr Richard Furst, Forensic Psychiatrist, that he regrets his actions, and described his offending as ‘really stupid.’ He said, ‘If I knew that was going to happen I wouldn’t have gone there … I feel really sorry for [the victim].’[75]
[75]Exhibit R1, G36, 283.
During his oral evidence, the Applicant was asked whether he could put himself in the shoes of the victim of his 2019 offending and imagine how he felt being attacked. He stated:[76]
It would’ve been terrifying … I didn’t know that his partner and kid were in the house, but if that happened to my daughter, … I’d be really upset.
[76] Transcript of proceedings, 16 August 2023, 10.
Drug rehabilitation
In his statement dated 26 June 2016, the Applicant stated that as of that date he had been abstinent from drugs for two years:[77]
Since entering prison and immigration detention approximately 2 years ago I have not taken heroin. I now feel, more so than I did in May 2011, that I am in control of my addiction to opiates and no longer want heroin. I am not so naive as to think that my drug problems are completely resolved, obviously they are not because I am still taking medication for my opiate addiction.
[77]Exhibit R1, G14, 141, [45].
When the Applicant was examined by Mr Tim Watson-Munro, Psychologist, in July 2023, he told him that he had been drug free for four years.[78]
[78]Exhibit A1, A2, 29.
In his oral evidence at the hearing, the Applicant explained how the monthly injection of Buvidal, that he has been receiving for the past three years, has allowed him to remain abstinent from hard drugs:[79]
I think [Buvidal’s] great because it deals with - the main problem for me was the day-to-day picking up like the automatic take the stuff every day, otherwise you’re going to be sick. But this, in turn, you get an injection once a month and I’m able to act and perform like a normal person. I can - if I was to get out, I could go to work. Like what I do nowadays, I get up, like, I get up and pray, do my training, stretch my back out so I can be active during the day, and I don’t even think about using once. Whereas in the past, on the other [methadone] program, you still pick it up every day, so your head’s still like in an active way or of - your activities still, like they’re automatic, and you feel that way too; or I did, anyway. And also, when you’re picking up every day, you’re around other people that have drug issues as you, same as you, because you have to go to a clinic to pick up. So you meet and you see a lot of old acquaintances or other people that use drugs.
…
It’s like I woke up and I’m finally seeing everything how it is, because you’re not trapped in that day-to-day picking up where everyone looks at you in a certain way. I don’t know how people say no, they don’t; they do, because I look at people who pick up methadone now in a certain way. So now I’ve stopped, it’s brightened everything up for me. I’m able to get back to do my prays every morning. I’m more focused. I wouldn’t be able to help out [IS] or [TR] if I wasn’t - just more clear in my head. Yes, it’s made me a little more clear in my head and able to do a lot more.
[79] Transcript of proceedings, [9], [30]-[31].

In his statement dated 26 June 2016, the Applicant described how he will abstain from drug-taking if he returns to the community:[80]
I know there will be challenges ahead, but with the support of [TR], [IS], and increased support from my brothers and mother, I have a degree of confidence given the amount of time I have spent away from heroin that I will be able to maintain control of my situation, which is so crucial to me not reoffending.
Having experienced a relapse following [JF’s] death, and thereby gaining an insight in relation to what can trigger problems, I know that if an event of such magnitude were to happen again I need to immediately reach out and seek help.
[80]Exhibit R1, G14, 141, [46]-[47].
In his statement dated 10 August 2023, the Applicant admitted that his earlier statement to Mr Watson-Munro that he has been drug free for four years was untrue, and that he has resumed using marijuana:[81]
I acknowledge that I have said before that I have been sober for a long time. Those statements were not true. I apologise for making those statements.
I continue to use marijuana and the prescribed medication I am told to take. Unlike in the past, I have not turned to any hard drugs, such as heroin, at all. The extent to which I use marijuana in detention depends on how I am feeling. When I am feeling reasonably good, I might use it a couple of times a month. When I am feeling bad, which is often, I use marijuana a number of times each week and sometimes I use it every day. While it is an illegal drug, it is very effective at helping with my symptoms of PTSD.
After I received the decision that my application to be released from immigration detention was declined, I felt overwhelmed and my mental health got a lot worse. I smoked marijuana regularly for about a week, or so, to try and escape these feelings.
[81]Exhibit A2, AA1, 2.
During his oral evidence at the hearing, the Applicant said that he wants to apologise for not being honest about his use of marijuana. He explained that he was ‘scared’ that it would affect the outcome of his case, and he does not see marijuana as his ‘problem drug.’[82] He told the Tribunal why he continues to take marijuana in immigration detention:[83]
I feel it helps me out it a lot. It helps me - help with PTSD like, sort of, calmer, able to think and cope with what I have to deal with there.
[82] Transcript of proceedings, 16 August 2023, 9.
[83]Ibid.
Mental health
In his statement dated 10 August 2023, the Applicant described the current state of his mental health, the medication he is taking, and the treatment he has received:[84]
I have PTSD, anxiety and depression; I have been diagnosed by psychologists. As I have said before, I am anxious and have panic attacks from time to time. I am depressed and find it very difficult to see positives in anything. I have a lot of trouble sleeping. When I do sleep, I have nightmares about what has happened to me in the past.
I am taking Avanza which I believe is an antidepressant. I do not feel Avanza does anything for my depression, but it does help me sleep. Without Avanza it is impossible for me to have a proper night’s sleep. To the best of my knowledge, I am not receiving any medication that specifically treats my PTSD.
Even though I have serious mental health problems I receive almost no support services in immigration detention. I have seen a psychiatrist only once since coming to immigration detention, and that was earlier this year; I entered immigration detention in mid-2021. I have never seen a psychologist.
It is not a case that I have not been attending appointments with the psychiatrist. The first time a psychiatrist organised to see me was in December last year, more than 18 months after I was placed in immigration detention. I understand I did not attend the December appointment with the psychiatrist, but I cannot remember why. I had a number of problems with my elbow and my dental health at the time, and I may have just forgotten to attend the appointment. I did attend the rescheduled appointment, a month or two later, earlier this year.
[84]Exhibit A2, AA1, 1.
In his statement dated 24 February 2023, the Applicant described the recent deterioration of his mental health condition following the suicide of his friend, JAZ, at Villawood Immigration Detention Centre (‘VIDC’):[85]
I recently had a breakdown. I just could not cope. I became extremely angry and I end up hitting the boxing bag so hard that I broke my hand. I also hit other objects in the detention centre. I apologise for this behaviour but my mental health was very poor when this happened.
I was under a lot of stress at the time. I was worried about [IS], my mother and brother were overseas, and I was dealing with the stress that is part of day-to-day life in immigration detention.
What actually caused the breakdown was the death by suicide of my close friend, and fellow detainee, [JAZ]. [JAZ] was the fourth person to have committed suicide in the detention centre - that I know of - since I arrived here.
[85]Exhibit R1, G36, [32]-[34].
Back condition
In his statement dated 26 June 2016, the Applicant described his back condition caused by the injury he sustained in 2010:[86]
I sustained a serious back injury in 2010. As a result of that injury I experience constant pain in my lower back and am unable to sit for long periods, walk for long periods, I have a reduced range of movement in my back and I am not supposed to undertake manual labour, heavy lifting or repetitive tasks because of the risks that it will aggravate my condition. I take gabapentin to alleviate the pain associated with this injury and I understand that I will need to take pain killers of this nature of the rest of my life owing to the severe and chronic nature of the pain associated with my back injury.
[86]Ibid, G14, 139, [34].
In his statement dated 24 February 2023, the Applicant described the treatment he has received for his back condition:[87]
Following the injury, my doctors said that while spinal surgery could provide me with some benefit, there were considerable risks associated with any operation, i.e. my condition could have ended up a lot worse if the surgery did not go as planned.
Ultimately, surgery was taken off the table because my vertebrae ended up fusing together in such a way that surgical repair was no longer possible.
...
Prior to my arrest in 2019, I was treated with a combination of pain medication (Pregablin and panadol) and psychological support through the chronic pain clinic at Prince of Wales Hospital. The pain clinic also gave me cortisone injections.
I did not receive much treatment for my back after I entered prison. Consequently, this pain has become worse. I am now receiving physiotherapy - which only started recently - and I am taking Panadol Osteo and Lyrica, which is a type of painkiller.
[87]Ibid, G36, [23]-[27].
In his statement dated 12 July 2023, the Applicant provided further detail about his treatment:[88]
I am … receiving Lyrica for my chronic back and leg pain. I am no longer receiving physiotherapy because the therapy only involved the therapist briefly using electric charges to make the muscles spasm, which did nothing. As a result of the limited treatment I am receiving in immigration detention, my back and leg pain continues to be a lot worse than what it was before I was sent to prison.
[88]Exhibit A1, A1, [3].
Risk of re-offending
In his statement dated 12 July 2023, the Applicant outlined why he believes he will not reoffend if he returns to the community:[89]
I think I am better able to control my actions now than I have been in the past and this will reduce my risk of reoffending. Still, I accept I am going to need support to stay away from drugs. I know that drug use contributes to my offending because it makes me more impulsive.
[89]Ibid, A1, [21].
In his statement dated 10 August 2023, the Applicant explained further why he believes he will not reoffend:[90]
I know that it is going to be challenging for me if I am released from immigration detention. I know that the fact I have completed the Violent Offenders’ Treatment Program [VOTP] and the SMART program does not mean I am in the clear. I know I am going to need support from my family (parents and siblings primarily) and health care professionals.
In the hope that I will be released from immigration detention I have recently spoken with Mr McKinley, my psychologist before I was placed in prison. Mr McKinley said he is willing to help me with treatment if I am released and I am grateful for this. I have tried to contact my long-time GP, Dr Vandebona. I am having some trouble contacting her because she is no longer working at the same clinic, but I will keep trying. I have also investigated a number of online support services.
I know I have said in the past that I will not reoffend, but I did. I am ashamed of what I have done. I am particularly ashamed because it has put my parents under a lot of stress, it has taken the last five years of my life from me and it has taken me away from [IS] in particular. I do not want this to happen again.
I have some confidence that I will not reoffend because, through the SMART and VOTP programs, I have learnt more about the importance of talking to people about how I am feeling as a way of dealing with feelings of anger, disappointment etc. I also understand there is a connection between those negative feelings and drug use, and then my offending. I also draw confidence from the fact I am off any hard drugs and I have renewed my Islamic faith.
I am particular committed to engaging with Mr McKinley, talking with my parents and siblings and getting involved in work etc as a way of managing any negative feelings. I also understand the importance of avoiding situations and people that might harm my health and cause me to relapse. To an extent, this includes altering my relationship with [TR]. This will be something I will discuss with Mr McKinley.
[90]Exhibit A2, AA1, 2.
Applicant’s family members
In his statement dated 24 February 2023, the Applicant detailed his family members and his relationship with them:[91]
I am in a relationship with [TR], who is an indigenous Australian. [TR] and I have been in a relationship for more than 20 years.
[TR] has a daughter from a previous relationship, [IS]. I have treated [IS] as my daughter from the very beginning of my relationship with [TR]
[IS] has recently given birth to a baby boy, [AJHS], on 8 February 2023, so I am now a grandfather of sorts.
My parents [SRM and SRF] and two siblings (brothers) [ARB and MRB] reside in Australia. My brothers are married and have children of their own. I do not have any siblings who live outside Australia.
Prior to being incarcerated, I would see my mother several times a week. I also tried to spend time with my brothers and their respective families.
I have an excellent relationship with my mother. I speak to my mother usually every day. It has been very difficult because my mother has not been able to see me in VIDC because she cannot have a third COVID vaccine.
I have a good relationship with my brothers and their wives, even though our lives have taken different paths. I speak to my brothers and/or their wives a couple of times a week. I speak mostly to my brother, [MRB].
My relationship with my father is still strained, although it has improved a little over the last few years. I speak to my father, but it is not very often.
[91]Exhibit R1, G36, [5]-[12].
In his oral evidence at the hearing, the Applicant told the Tribunal that he and TR had a ‘big break up’ in January and they are no longer in a relationship, however they continue to support each other emotionally and she is supporting him in these proceedings.[92]
[92] Transcript of proceedings, 16 August 2023, 26.
In his statement dated 26 June 2016, the Applicant described the role he has played in IS’s life:[93]
I have always tried to play an active role in [IS’s] life. Early on I made sure I was the one how (sic) dropped [IS] to school and picked her up at the end of the day. I would help [IS] with her homework, take her to the park and generally try to encourage her. Of late I have acknowledged my mistakes to [IS] and tried to emphasise the dangers of the way I have behaved and the importance of self respect.
[93]Exhibit R1, G14, [6].
In his statement dated 12 July 2023, the Applicant stated that he recently had the opportunity to see TR, IS and AJHS, whom he had not previously met. He ‘spent a lot of time holding [AJHS], changing his nappies and making funny faces at him.’ When the Applicant calls IS and AJHS hears his voice ‘his little legs start kicking.’ Knowing that AJHS recognises the Applicant is ‘special’ to him.[94] The Applicant further described his relationship with IS and AJHS:[95]
Speaking to [IS] and [AJHS] also makes me feel a little better for a short period of time. I want to be there for [AJHS]. I think he will be tall and will be a good basketball player. I would love to have the opportunity to teach him how to play basketball.
[94]Exhibit A1, A1, [12].
[95]Ibid, A1, [10].
In his statement dated 26 June 2016, the Applicant described his relationship with his two brothers:[96]
I have always had a good relationship with my … brother, [MRB]. Although there have been times where my relationship with my other brother [ARB] has been strained, of late we have reconnected and now enjoy a positive relationship.
[96]Exhibit R1, G14, [3].
Applicant’s concerns for his family
In his statement dated 12 July 2023, the Applicant outlined the concerns he has for his family if he is required to remain in immigration detention:[97]
I am really worried about what might happen to [TR] and [IS] if I am required to remain in immigration detention. [T]hey were both really upset when I got the decision. While [IS] is coping as far as I can tell, I am worried that she could start using again, self-harming etc. I am also worried about [TR]. She has stopped working and, as far as I understand things, has starting using drugs again. She seems really down at the moment, and I worry she could easily get worse.
…
In terms of my mother, she is tired - we are all tired. I think she keeps a lot from me because she does not want to upset me. It makes me feel terrible that I am putting my mother through all of this at her age. I think she would end up very, very upset if she found out that I might never leave immigration detention.
[97]Exhibit A1, A1, [13]-[14].
Applicant’s concerns for his health in immigration detention
In his statement dated 12 July 2023, the Applicant outlined his concerns for his health if he remains in immigration detention:[98]
I am really worried about what will happen to my physical health and mental health if my visa is not reinstated. I feel hopeless and, as I have said, this is making my anxiety, depression etc a lot worse. I hope I would not kill myself, but I cannot rule it out… Given the option of possibly spending the rest of my life here and death I do not think I could be blamed, if at some point, I chose death.
[98]Ibid, A1, [11].
Future plans
The Applicant’s evidence is that if he is permitted to return to the community, he will live with his parents in their family home.[99]
[99] Transcript of proceedings, 16 August 2023, 31.
During his oral evidence at the hearing the Applicant outlined the work he would like to do if he returns to the community:[100]
If no one else can pick me up, I’ll call my older brother [ARB] who has got his own business … I’m a very hands on person myself as it is, so I’ve … ask him if (indistinct) employ me.
[100]Ibid, 32.
The Applicant told the Tribunal that in the past he has helped his brother, ARB, with orders for the products for which his brother has his own design and patent. He said that he has also helped his younger brother, MRB, when he had a construction business. However, the Applicant does not want to work in construction in the future; he wants ‘to be helping people, not building.’[101]
[101]Ibid.
In relation to treatment for his mental health in the community, the Applicant outlined his plans in his statement dated 12 July 2023:[102]
I will start seeing Mr McKinley - who is the psychologist I saw previously - once I am released from immigration detention. I will also get help from my general practitioner.
[102]Exhibit A1, A1, [21].
In his statement dated 10 August 2023, the Applicant stated that if he returns to the community, he will seek to obtain a prescription for medicinal marijuana from his doctor:[103]
… I will obtain marijuana with a medical prescription, which is not something that I was doing before. Being able to access marijuana in this way means I will not need to associate with people from whom I could also access hard drugs.
[103]Exhibit A2, AA1, 1.
At the hearing, the Applicant was asked why he believes that medicinal marijuana will be the only drug he uses if he returns to the community:[104]
… I don’t want to take any other drugs anymore, to be honest. What works for me now, it’s great. That’s basically it … And if I could get a, like, medicinal marijuana as well then, there’s no need to commit any crime to obtain marijuana or anything else. Like I’ve got the - I think I’ve got the - more than likely I’ve got the heroin, it’s been dealt with. It’s done. So the marijuana one, that’s the one that I need really to have, so. I know they do it now, whereas when I was growing up we never had a place where you do get medicinal marijuana. Now I think it will be a great help
[104] Transcript of proceedings, 16 August 2023, 10.
The Applicant told the Tribunal that about a month ago he made contact by phone with an external service about obtaining medicinal marijuana in the community, and he is waiting for them to arrange a teleconference with him. He wants to organise this before he is released so that he can go straight to his doctor and be advised about what he has to do in order to obtain medicinal marijuana.[105]
[105]Ibid, 28.
Fear of harm on return to Iraq
In his statement dated 26 June 2016, the Applicant outlined his fear of harm if he is returned to Iraq:[106]
I believe that if I am returned to Iraq I will be harmed because of my Turkoman race; my family's prior association with the Baath Party (my father was a member of the Party my perceived connection with the West because of my extended absence from Iraq; the perception that my family is wealthy because they live abroad and have done so for an extended period; my mental illness; my physical health issues and my ongoing addiction to opiates as a result of an extended period of drug use, but also related to the treatment of my serious back injury. I fear that I will be particularly vulnerable to being harmed because I do not have any immediate family in Iraq who are able to support me or offer me protection.
I will instantly be recognisable as someone who has, and whose family has, a strong connection with the West because I will be identified as a stranger (having not lived in Iraq for more than 30 years); I have not knowledge of Iraqi / Turkomen culture; I do not speak Arabic only only (sic) speak limited Turkish; and I speak with an obvious Australian / Western accent.
…
My grandfather, [IR], was killed in a massacre of Turkomen in 1959, in Kirkuk. Although this happened a tong time ago my understanding is that the sectarian tensions persist in Iraq and continue to serve as motivation behind ongoing attacks against Turkomen on the one hand, and other ethnic groups on the other.
[106]Exhibit R1, G14, [10]-[11], [13].
Impediments on return to Iraq
In his statement dated 26 June 2016, the Applicant stated that he has no connections with Iraq or Iraqi society:[107]
The amount of time I have spent outside Iraq, and the fact that I have not spent any of my formative or adult years in Iraq, means that I do not have any connection with Iraq and am only understanding of Iraqi society comes from what my family have told me, which has not been a tot.
[107]Ibid, G14, 140, [37]-[38].

In his statement dated 24 February 2023, the Applicant stated that he has no family or friends in Iraq:
I do not have any connections whatsoever with any of my extended family in Iraq, indeed I am not sure of the whereabouts of any of my aunts, uncles, cousins etc. It would have been more than 30 years since I had any contact with family in Iraq, if I have had contact with them at all. I do not retain any friends in Iraq.
In his statement dated 26 June 2016, the Applicant outlined his concerns about returning to Iraq:[108]
I know from the discussions I've had with my mother and brother that Iraq is a very dangerous place and everyone, including my father, is very worried about what might happen to me in the event I am required to return there.
I know they are worried that I will be killed or otherwise harmed because I’ll be perceived as a foreigner as a result of the amount of time I have spent out of Iraq and because I do not speak the language and have no idea about Iraqi society.
[108]Exhibit R1, G14, 139, [32]-[33].
The Applicant described the impact of his being separated from his family and on his mental health if he is returned to Iraq:[109]
If I am forced to return to Iraq I will lose [TR] and [IS] forever because it will not be safe for them to travel to Iraq. I will also be separated from my family in Australia. Given my long-standing and extremely serious mental health issues, being separated from [TR] and [IS], as well as the other members of my family, will be catastrophic for my psychological well-being, especially in circumstances where there is no way I could access appropriate psychological care in Iraq, I will be dealing with the stress associated with being in a country that I have no knowledge of and where people will want to hurt me, and where I will be withdrawing from medication to assist me opiate addiction.
[109]Ibid, G14, 138-139, [28].
The Applicant outlined his fears of not finding accommodation and work in Iraq:[110]
I also fear that I will become destitute because I will be unable to secure accommodation or employment in Iraq because of the discrimination I will experience because of my Turkomen race; my family's connection with the Baath Party; my chronic mental illness (which will only deteriorate as I am unable to access appropriate treatment at a time when I will be withdrawing from opiates); my physical health problems; my addiction to opiates, and the fact that I cannot communicate in Arabic or Turkish. The effects of this discrimination will be particularly pronounced because I do not have family in Iraq who are willing or able to provide me with/ or assist me with locating accommodation or employment etc.
[110]Ibid, G14, 136, [12].
He further described his concerns about the availability in Iraq of treatment for his back injury:[111]
I do not believe that I would be able to access pain therapy for this injury or have surgery in Iraq, I therefore believe that my physical health will deteriorate / the pain associated with my back injury will intensify if I am required to return to Iraq.
[111]Ibid, G14, 140, [35].
Andrew McKinley, Psychologist
Mr McKinley provided a letter dated 10 August 2023 and gave oral evidence at the hearing. In his letter he stated:[112]
[The Applicant] was first referred by their treating doctor in 2016 for treatment of depression and anxiety symptoms, primarily related to Post Traumatic Stress Disorder. He also suffers from chronic pain from physical conditions caused from injuries.
[The Applicant] has once again contacted me to continue treatment and I have agreed to this.
[The Applicant] will require ongoing psychological treatment for the foreseeable future his trauma is severe and his symptoms chronic. It is anticipated that with regular treatment he can reduce the impact of his symptoms. It would also be hoped that with treatment he can avoid his previous maladaptive coping via heavy drug use and can develop better coping strategies.
[The Applicant] would be a good candidate for medicinal marijuana as it has been shown to have favourable outcomes for similar patients, with trauma, chronic pain and to avoid more serious drug abuse and would no longer need to resort to criminal activity to support this.
[112]Exhibit A2, AA4.
In his oral evidence at the hearing, Mr McKinley said that he last had a phone consultation with the Applicant in June 2019, and their last in person session was in December 2018.[113] He confirmed that he treated the Applicant for his PTSD, and the primary treatment was ‘cognitive behavioural therapy based kind of treatment’.[114] He was asked why he believes that, despite the Applicant having received treatment in 2017 and 2018, he continued to offend. Mr McKinley said that he believes it is the ‘inconsistency’ and ‘irregular engagement’ of the Applicant with treatment during these years that is the ‘biggest factor’.[115] He believes that the Applicant did not attend sessions when he ‘wasn’t doing as well’.[116] He was asked whether, when the Applicant did attend appointments, he was ‘engaged and responsive’. He stated:[117]
Overall very much so. At times incredibly so and at other times less so, so - and again I think that being the seesaw of his condition and I would say that’s not unique to [the Applicant].
[113] Transcript, 17 August 2023, 4.
[114]Ibid, 4.
[115]Ibid,, 4, 7.
[116]Ibid,, 12.
[117]Ibid, 15.
Mr McKinley was asked about whether he believes that medicinal marijuana may be beneficial to the Applicant. He stated:[118]
I’ve certainly spoken to people previously who’ve benefitted very much from that … The difficulty that [the Applicant] was facing … was that the harder drugs seemed to create more chaos in his life and, again, thinking about another example from another client who I’m currently seeing and they’re benefitting very well from getting medicinal marijuana. They similarly have a lot of injuries. They’ve got a history of violence, both as a victim and as the perpetrator, a lot of trauma and a history of, sort of, chronic drug abuse. More serious drug abuse, if I can use that terminology, like more harder drugs, and they’ve benefitted greatly from - you know, it’s changed their association, you know, therefore not kind of leading them down that path, if I can use that terminology and it’s made such a difference. And, like I say, they’re of similar background to [the Applicant] and it just parallels - it just seems so obvious to me with this one particular case that it just seems striking.
[118]Ibid, 5.
Mr McKinley said that he cannot prescribe the Applicant medicinal marijuana as he is not a doctor. He understands that a patient must seek approval from their GP and have support from another practitioner. He told the Tribunal that he would be willing to ‘make a case’ for the prescribing of medicinal marijuana to the Applicant.[119] In his opinion, medicinal marijuana would be beneficial for the Applicant as he would not have to be in contact with a ‘criminal element’.[120] He explained:[121]
… you don’t need to steal to fund it. You don’t need to associate with certain type of people to get it. You know, it’s not as - what’s the word, debilitating. The use of it isn’t as debilitating, as some other harder substances. So I think, yes, it would just be like a more maintenance dose as I understand it.
[119]Ibid.
[120]Ibid, 6.
[121]Ibid, 13.
Mr McKinley confirmed that he would be able to treat the Applicant using the range of modalities recommended by Mr Watson-Munro, with the exception of the eye movement desensitisation reprocessing (‘EMDR’).[122] He told the Tribunal that he would aim to see the Applicant fortnightly to begin with, and then maybe move to monthly appointments depending on his progress. Medicare funds 10 sessions per year and any additional appointments would need to be privately funded by the Applicant.[123] Mr McKinley said he was ‘optimistic’ about the Applicant’s engagement in treatment, because previously they made ‘really good progress’ at times and he is ‘encouraged to sort of pick up where [they] left off if [they] can.’[124]
[122]Ibid, 7.
[123] Transcript of proceedings, 17 August 2023, 12.
[124]Ibid, 16.
Mr Tim Watson-Munro, Psychologist
Mr Watson-Munro provided a report dated 12 July 2023[125] and gave oral evidence at the hearing. He had previously examined the Applicant on 12 August 2016 and provided a report dated 19 September 2016.[126]
[125]Exhibit A1, A2, 25-42.
[126]Exhibit R1, G26, 193-213.
In his July 2023 report, Mr Watson-Munro noted that the Applicant ‘expressed appropriate remorse for his past conduct’[127] and that he ‘has been drug free for about four years.’[128] He opined that this, ‘in conjunction with [his] general maturation with the effluxion of time, indicates that the risk of him reoffending is now trending towards Low.’[129]
[127]Exhibit A1, A2, 30.
[128]Ibid.
[129]Ibid, A2, 29.
During his oral evidence at the hearing, Mr Watson-Munro was asked to comment on the Applicant’s admission contained in his statement dated 10 August 2023 that he continues to use marijuana and whether this affects his assessment of the Applicant’s risk of reoffending. He stated:[130]
I’m concerned about the drug use in immigration detention because some of my argument is based on the fact, as I’ve stated, that he’s been drug free for four years but I’m encouraged that he’s now being honest about that as reflected in the statement that I read, which I think is dated 10 August this year. So he’s been less than candid in that respect but I think the critical difference is this, much of his crime in the past seems to have been related to what I’d describe as harder drugs, opiates and so on. His major drug of dependence now appears to be cannabis and, according to his statement - I’ve not had an opportunity to speak with him about this most recent development in terms of the documents I received … But he says that he intends to obtain medically prescribed cannabis, which will certainly reduce potential for criminal associations in terms of acquiring that drug. In my report, I said he was trending from moderate to low. I think provided that treatment continues, and that he maintains his honestly, that would continue to be the case, although I’m perhaps less optimistic than I was when I wrote the report given these recent developments but at least he’s being honest, so that’s where he is at the moment in my view.
[130]Transcript of proceedings, 17 August 2023, 19-20.
Mr Munro-Watson commented on the use by the Applicant of Buvidal to treat his drug addiction, and how it may assist his compliance with mental health treatment and impact the risk of him re-offending. He stated:[131]
[Buvidal is] a powerful treatment for opiate dependence. As I understand it, it’s intramuscular injection, similar to buprenorphine which is taken orally and it’s an opiate blocker. So his statements regarding - as I said in my report, it’s been a game changer for him in many ways. I think it’s realistic, subject to him continuing with Buvidal. Unlike buprenorphine, which is orally ingested, Buvidal is a drug that can be administered once a month by injection and, as a consequence of that, generically speaking it improves prospects of compliance with psychotropic medication, that type of treatment.
…
[Buvidal has] been very effective and I might say in passing [the Applicant is] not the first person I’ve assessed in recent years that has been prescribed this drug in custody and, almost to a person, they speak about its positive therapeutic benefits in terms of, not only reducing cravings, but eliminating them. So you’re not preoccupied with acquiring opiates and so on and that then leaves room for the individuals to be more receptive to psychological interventions along the lines as I’ve described. I think the other point that I made earlier, but just to reiterate it, if he’s taking a drug once a month, and he’s compliant with that, then he’s not attending every day to get his buprenorphine or every week to get it. Part of the dynamics with his offending over the years as I see it, and it dates back a fair way, has been, amongst other things, beyond his drug use, it’s been adverse peer group dynamics and often they fit together like a hand into a glove but if you need drugs, inevitably, you’re going to associate with individuals who use drugs. The potential for criminal activity is consequently heightened because of that. If he’s getting medically prescribed Buvidal, he’s attending a doctor’s clinic to receive his medication once a month, then that reduces the potential for interacting with adverse peer groups.
[131]Ibid, 19, 20.
Mr Watson-Munro was asked to comment on the progress the Applicant has made towards recovery from his Substance Use Disorder:[132]
The generally accepted criteria, or benchmark to be considered, to be in full remission is a period of abstinence of two years. Clearly he has used marijuana. I’m not aware of any evidence that he’s used harder drugs. So he’s in a state of partial remission trending towards full remission if he maintains the medication and remains free of illegal drugs. So the longer he goes without using drugs, the less likely it becomes that he would relapse into drug use, particularly if he’s receiving, in addition to the medication, the type of treatment which I have advocated and which his psychologist, or potential psychologist, has agreed with and will implement.
[132]Ibid, 20.
During cross-examination, Mr Watson-Munro was asked whether individuals such as the Applicant, with a drug history who are in remission and using prescribed medication to address their drug addiction still relapse. He stated:[133]
Yes, they do. The caveat I put on the statement is this; that I’ve certainly observed, over decades, when people are prescribed, for example, methadone, which was a primary drug of choice, in terms of treating opiate dependence in the past, a number of individuals, I couldn’t put a percentage on it, but certainly a number of the people that I’ve assessed in the past, would obtain what they described as ‘top ups’, where they would have breakthrough cravings with the methadone and they would relapse into heroin use. Buvidal seems to be a different drug. It’s hard to predict, with him, whether he would relapse but all the indicators are, at the moment, that it’s a drug that’s, as I say, not only reduce the cravings but, by his account, has eliminated the cravings. But, in generic terms, certainly people on psychotropic medication can relapse and do.
[133]Ibid, 23.
He was asked how the Applicant’s use of medicinal marijuana may affect the likelihood of relapse into using hard drugs. He stated:[134]
It’s a good question. If he’s taking medically prescribed cannabis, if he’s having treatment, as I’ve described, if he’s employed and those other protective factors are in play, then the likelihood of him relapsing into harder drugs, if I can describe it that way, would be lessened. If he continued to use cannabis obtained illegally, on the street, which inevitably would draw him back into a peer group that is breaking the law, then the likelihood of him relapsing into other drugs would obviously be greater.
[134]Ibid, 24.
Mr Watson-Munro was asked to comment on the protective factors available to the Applicant following his release, specifically employment with his brother, ARB, and accommodation with his parents. He stated:[135]
I think they’re positive protective factors. Employment provides structure during the day. He has a brother, who’s self-employed and clearly successful, who can monitor him. The security of employment is probably enhanced because it’s a family member. There’s certainly been difficulty with his family in the past in terms of his parents, and with no disrespect to his father, there’s been difficulties earlier on in his life in relation to his father but discussions with his father and, indeed, his mother indicates that they’re very supportive of him. They want to assist him and clearly they’re not drug users. So they are very strong protective factors, in addition to him complying with treatment.
[135]Ibid, 21.
Mr Watson-Munro was asked what his opinion was in relation to how the Applicant’s mental health would be impacted if he were required to remain in indefinite detention and could only see a psychiatrist every 18 months. He stated:[136]
Well, I’d say this without criticising any psychiatrist who may be seeing him, but as a matter of logic given the intensity of his problems over the years, his substance use disorder, visiting a psychiatrist once every 18 months is not even valued his care in my view. He needs regular intense treatment, probably on a weekly basis, and I would hope that that would occur in the community. So to answer your question, if he remained in indefinite detention and the regime of treatment is seeing a psychiatrist once every 18 months, he’d have some involvement, as I note with mental health nurses - I’d say with respect to them but they’re not psychiatrists and attendant to not having any prospects of being returned to the Australian community, inevitably his mood state would significantly deteriorate.
[136]Ibid, 22.
IS, Applicant’s step-daughter
IS provided two statements, one undated made in 2016[137] and another dated 10 July 2023.[138] At the date of her first statement, IS had known the Applicant for 14 years. She described her relationship with the Applicant:
[The Applicant] has been a big part of my life since I was a young child. My very first memory of [the Applicant] was the first time that I met him at the age of either 2 or 3. I remember being in my mum's car and he got in the front seat of the car and introduced himself as my mum's friend. From that day many things have changed. Throughout my schooling year starting from pre-school, [The Applicant] would drop me off to school and pick me up to take me home …
During high school, if I had struggled with any homework, he would sit down with me and the table and we would go through it and work out the answers together. He was particularly good at Mathematics and at the time that's what I was struggling at. He used to always help me in with any sort of work that I had because he could see I was a bright student, I just wasn't putting in the effort and he was there for the support and he pushed me to achieve the goals that I have reached today:
In Year 8, I started Water Polo. Water Polo was an activity that I did every Saturday morning and [the Applicant] was more than happy to take me to the game, watch it with me, then go to lunch with me after. I really enjoyed spending quality time with him as it made me happy that I could have a male role model, who wasn't my biological father, but did everything a father should do. Myself and [the Applicant’s] relationship has grown stronger over the years, and I have trust in him to always be there for me and that is the main reason that I have come to the position that I am at today. I now have more confidence in myself, seeing as [the Applicant] has taught me how to go about and approach different situations to deal with confidence, school, work and many other things.
His big love of learning and teaching me new things has given me constant encouragement. [The Applicant] was the main reason why I want to go to University, as for years he has been telling me and assisting me in a great education path. Me and [the Applicant] have had our ups and downs, but at the end of the day he only ever wanted to be there for me and guide me into a good and right career path, seeing as he didn't have that for himself. [The Applicant] is a generous and loving man, because he has taken me and mum under his wings and has always protected us during tough times.
[137]Exhibit R1, G15, 157-158.
[138]Exhibit A1, A1, 10-12.

Having regard to the factors in paragraph 8.4(4)(a), the evidence before the Tribunal is that the Applicant and his grandson and his nieces and nephew have a good relationship, and they like and respect each other. He has maintained continued and meaningful contact with them during his incarceration in gaol and immigration detention. Whereas the Applicant has a positive relationship with his grandson and his nieces and nephews, as required by this sub-paragraph of the Direction, the Tribunal has given less weight to their interests for reason that the relationship is non-parental.
Relevant to the factors in paragraph 8.4(4)(b), the evidence is that the Applicant will reside in his parents’ own home if he is released into the community, and therefore he will not be living with any of the affected minor children and seeing them on a daily basis. However, the children all are aged under 10 years, and accordingly there are many years before they respectively reach adulthood during which the Applicant can contribute to their development and upbringing through his regular interactions with them at family gatherings and visits to their homes.
In relation to the factors in paragraph 8.4(4)(c) and 8.3(4)(d), although the Applicant’s offending has resulted in his physical absence from the lives of grandson and his nieces and nephew since he has been in gaol and immigration detention, there is no evidence before the Tribunal to demonstrate that the Applicant’s offending has directly affected them. Further, having found that the risk of the Applicant engaging in similar criminal or other serious conduct in the future is trending from moderate to low, the Tribunal finds that it is unlikely that there will be any future negative impact on the Applicant’s grandson or his nieces and nephews. The Applicant currently communicates with his grandson via phone and video calls and him remaining in immigration detention would not impact his ability to remain in contact with AJHS in the way in which they are accustomed to communicating.
In relation to the factors in paragraph 8.3(4)(e) of the Direction, the evidence is that the Applicant’s grandson lives with his mother, IS, and his nieces and nephew live with their parents, who fulfill the primary parental role in their lives.
Having regard to the evidence before it, the Tribunal finds that if the Mandatory Visa Cancellation decision is not revoked and the Applicant is required to remain in immigration detention, this will limit his ability to develop and strengthen his relationship with his minor aged grandson and his nieces and nephew, and this would adversely impact their development in the years until they reach adulthood.
For the stated reasons and having applied the guidance in paragraph 8.4 of the Direction, the Tribunal finds that Primary Consideration 4 weighs strongly in favour of revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 5 – Expectations of the Australian Community
Paragraph 8.5 of the Direction relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) …
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature …;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties
(e)…
(f) ...
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable (sic) risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The effect of paragraph 8.5 is that it imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. This consideration does not involve an inquiry into what the Australian community does or does not expect, because this is normatively expressed in the terms of the consideration: paragraph 8.5(4). Rather, the relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed community expectation’ of refusal of a visa ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[175] As a normative expression, this consideration indicates the likelihood that community expectations will in most cases lead to refusal of a visa, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.[176]
[175]FYBR and Minister for Home Affairs (2019) 272 FCR 454 per Charlesworth J [77].
[176]Minister for Immigration v HSRN [2023] FCAFC 68.
Relevantly to the expectations of the Australian community as stated in paragraph 8.4, particularly paragraph 8.4(2)(c), and in accordance with principles 5.2(2)-(5) of the Direction, the Applicant’s offending has included violent offences and drug possession and supply. Given the seriousness and nature of this offending, the Australian community would expect that the Applicant should no longer have the privilege of holding a visa to remain permanently in Australia.
The Applicant has resided in Australia as a permanent resident for a period of more than 40 years. Accordingly, the factors in principle 5.2(4) of the Direction, particularly the length of time the Applicant has been in Australia, support a finding that there would be higher level of tolerance by the Australian community for his criminal conduct than there would be for a non-citizen who has not lived in the community for an extended period of time.
Having had regard to the factors in paragraph 8.4 of the Direction in relation to the expectations of the Australian community, giving them appropriate weight, and taking into account the nature, seriousness and impact of the Applicant's criminal offending, and the duration of his residency in Australia, the Tribunal finds that Primary Consideration 5 weighs against revocation of the Mandatory Visa Cancellation Decision.
OTHER CONSIDERATIONS
Paragraph 9 of the Direction sets out the ‘Other considerations to be taken into account in making a decision under section 501(1) as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
While the Primary considerations carry particular weight, the Direction provides at paragraph 9 that ‘Other considerations’ must be taken into account by the decision-maker where relevant. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection (‘Suleiman’):[177]
Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[177](2018) 74 AAR 545, [23].
In FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[178] Wigney J held that this analysis ‘tends to overcomplicate or over intellectualise the issue’. His Honour held that the use of the word ‘generally’ in clause 8(4) of Direction 79 (the same wording is used in section 7(2) of the Direction) ‘recognises that there may well be cases where the circumstances are such that one or more “other considerations” may be deserving of more weight than one or more primary considerations’.[179] His Honour also held that the formulation identified in Suleiman ‘is at least potentially problematic because it tends to suggest that a decision-maker cannot give greater weight to one or more of the “other considerations” in any given case unless they consider that the case is somewhat unusual or out of the ordinary’.[180]
[178][2021] FCA 775 [22].
[179] Ibid, [23].
[180] Ibid.
The ‘other’ considerations relevant to the Applicant’s circumstances are considered in the following paragraphs.
a)Legal consequence of the decision
Paragraph 9.1 of the Direction provides:
1)Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
2)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
3)International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
The Direction contains specific provisions relevant to non-citizens in relation to whom a protection finding has been made (paragraph 9.1.1) and to non-citizens in relation to whom no protection finding has been made (paragraph 9.1.2). A protection finding has been made in relation to the Applicant, and therefore paragraph 9.1.1 is relevant to his circumstances.
Paragraph 9.1.1 provides as follows:
.9.1.1 Non-citizens covered by a protection finding
(1)Where a protection finding (as defined in section 197C ofthe Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
(2)Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3)Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A ofthe Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B ofthe Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E ofthe Act and regulation 2.12AA ofthe Regulations.
The Respondent accepts that the Applicant has been found to engage Australia’s non-refoulement obligations, in circumstances where, in granting the Applicant the visa on 3 December 1994, a delegate of the Respondent made a positive protection finding within the meaning of section 197C(5)(a) of the Act.[181]
[181] RSFIC, [69]; Exhibit R1, G34-G35, 261-266.
In circumstances where the Applicant has been found to satisfy the Protection visa criteria in sections 36(2)(a) and 36(1C) of the Act, his removal to Iraq would not be a legal consequence of the Tribunal’s decision. The consequence of a decision not to revoke the cancellation will be that the Applicant remains in immigration detention until such time as the Respondent’s non-compellable powers under sections 195A or 197AB are exercised, the Applicant is resettled in a safe third country, or one of the circumstances in section 197(3)(c) apply, namely that the protection finding is quashed, the Respondentdecides that a protection finding would no longer be made, or the Applicant requests voluntary removal. The consequence of this is that the Applicant’s detention would continue until one of these eventualities arises.[182]
[182] RSFIC, [70] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55.
Guidance in relation to the legal consequences of a non-revocation decision where non-refoulement obligations are engaged is provided by the Full Court of the Federal Court decision in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘WKMZ’).[183] This decision was made in the context of Ministerial Direction No. 79, but the principles it outlines in relation to how a decision-maker should consider the legal consequences of a non-revocation decision are also relevant to the Direction. Kenny and Mortimer JJ observed that the completion of the various steps and inquires available to the Respondent may take some time. Accordingly, it follows that: [184]
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. It may be inferred that any decision by the executive to abandon its adherence to Australia’s international obligations would, as White J said in AQM18, be a serious step and not a decision taken quickly.[185]
[183] [2021] FCAFC 55.
[184] Ibid, [132].
[185] Ibid.
In MNLR v Minister for Immigration, Citizenship and Multicultural Affairs, Wigney J considered the potential for ‘indefinite detention’ arising from circumstances where it is not reasonably practicable to remove an unlawful non-citizen from Australia:
There could be little doubt that the length of time that an unlawful non-citizen may spend in immigration detention may in some circumstances be very uncertain and very lengthy. That is particularly the case where the circumstances are such that it is not reasonably practicable to remove the unlawful non-citizen from Australia, for example where they are stateless or their nationality or citizenship is uncertain and no country will agree to receive them, and it cannot be said with any certainty when those circumstances may change. Detention is nonetheless to continue indefinitely in those circumstances until the person is able to be removed: Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 at [33]-[35] (per McHugh J), [227]-[231] (per Hayne J), [299], [301] (per Callinan J) and [303] (per Heydon J).’[186]
[186][2021] FCAFC 35, [93]–[94].
There is no evidence before the Tribunal that consideration had been given to the removal of the Applicant to another country in circumstances in which he is unable to be removed to Iraq. Nor is there evidence as to whether the Respondent has considered exercising his discretionary powers in favour of the Applicant. In the Applicant’s circumstances, there is most likely to be a significant delay while steps are taken to identify a country, if any, which will agree to receive him. During this period, he would be subject to ongoing immigration detention. In WKMZ, Kenny and Mortimer JJ recognised the significant impact on a person who is subject to immigration detention for an undefined or ‘indefinite’ period:
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.’[187]
[187]Ibid, [123].
The Respondent accepts that the legal consequences of a decision not to revoke the Mandatory Visa Cancellation Decision is that the Applicant’s detention would be prolonged for a period while any administrative processes are carried out.[188] The Tribunal finds that the legal consequence of a decision not to revoke the Mandatory Visa Cancellation Decision is the continued detention of the Applicant in immigration detention without a fixed chronological end point.
[188] RSFIC, [70]
The Applicant contends that the impacts of prolonged detention on his mental health are particularly grave, given the limited treatment available in immigration detention.[189] In his report, Mr Watson-Munro stated that if the Applicant is required to remain in immigration detention and continues to receive limited psychiatric treatment, ‘inevitably [the Applicant’s] mood state would significantly deteriorate.’
[189] ASFIC, [78]-[80].

Having regard to the evidence before it, and its finding that the legal consequence of the Tribunal’s decision will be to determine whether the Applicant remains in immigration detention, the Tribunal finds that Other consideration a) weighs very heavily in favour of revocation of the Mandatory Visa Cancellation Decision.
b)Extent of impediments if removed
Paragraph 9.2 of the Direction provides:
1)    Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)    the non-citizen's age and health;[190]
b)    whether there are substantial language or cultural barriers; and
c)    any social, medical and/or economic support available to them in that country
[190] The word “health” in paragraph 9.2(1) of the Direction is understood to mean any aspect of a person’s physical wellbeing and includes “the overall state of a person’s fitness and condition, including underlying health issues and ongoing effects of any past injury: Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126 at [12].
The Tribunal notes that section 197C(3)(c) contemplates circumstances where section 197C will not prevent the removal of a non-citizen to whom non-refoulement obligations are owed, being when a protection finding is quashed, the Respondent decides that a protection finding would no longer be made, or the Applicant requests voluntary removal. Whereas none of these circumstances currently exist, the Tribunal considers that this ‘other consideration’ is at least potentially engaged in the Applicant’s situation, and therefore makes the following findings in relation to it.
Having regard to the factors in paragraph 9.2(1)(a) and (c) of the Direction, the evidence before the Tribunal is that the Applicant is aged 44 years and suffers from PTSD, Substance Use Disorder and Chronic Pain Disorder.[191] As a citizen of Iraq, the Applicant would have the same access to any social, medical and economic support as other citizens, although such services may not be of the same standard as those available in Australia. The Direction provides that the extent of any impediments to an Applicant in establishing themselves and maintaining basic living standards is to be considered in the context of what is generally available to other citizens of that country.[192] The Applicant however requires ongoing specialist treatment for his physical and psychological problems and addiction, which are unlikely to be readily available to him in Iraq.
[191] Exhibit R1, G36, 284
[192] Exhibit A1, 2, [9].
Guided by paragraph 9.2(1)(b) of the Direction, the Tribunal finds that the Applicant will face language or cultural barriers on his return, as he has not lived in Iraq since he was a young boy, cannot communicate in Arabic, he has no knowledge of the Iraqicommunity and he would be readily identified as a foreigner. The Applicant would struggle to find work due to the language barrier, despite having work skills and experience. Relevantly to paragraph 9.2(1)(c) of the Direction, the Applicant has no family in Iraq with whom he is in contact, and therefore he will most likely not have financial or practical support or assistance from family members upon his return.
Based on the evidence before it, the Tribunal is satisfied that the Applicant will find it difficult, if not impossible, to access mental health services and medical treatment, including Buvidal, if he is returned to Iraq. Consequently, his mental and physical health will likely significantly deteriorate, putting him at risk of experiencing discrimination, stigmatisation and limitations on accessing employment, education and health care. If the Applicant is unable to find employment due to the deterioration of his health , he will face severe financial hardship and will likely become homeless and destitute.
Accordingly, guided by the factors in paragraph 9.2 of the Direction, the Tribunal finds that Other consideration b) weighs very heavily in favour of revocation of the Mandatory Visa Cancellation Decision.
c)Impact on victims
The Direction states in paragraph 9.3(1):
(1) Decision-makers must consider the impact of the section 501 or 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 and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal of the impact on any victims of the Applicant’s offending for a decision to revoke the Mandatory Visa Cancellation Decision. The Tribunal has therefore given this other consideration neutral weight.
d)Impact on Australian business interests
Paragraph 9.4(1) of the Direction provides:
(1) 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 Applicant does not claim that any Australian business interests would be affected by his removal to Iraq.[193] Accordingly, the Tribunal has given this consideration neutral weight.
[193] ASFIC, [92]-[93].
CONCLUSION
In summary, the Tribunal finds that Primary Consideration 1 weighs against revocation of the Mandatory Visa Cancellation Decision. The Applicant’s criminal offending is very serious, particularly as it includes violent offending and drug possession and supply. The moderate to low risk of him committing future criminal offences coupled with the nature and seriousness of the harm this would cause to his future victims and the community is such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 3 weighs heavily in favour of revocation of the Mandatory Visa Cancellation Decision as the Applicant has lived in Australia for more than 40 years and he has close and extensive family ties to Australian citizens and Australian permanent residents, who will be significantly adversely affected if the decision is not revoked.
Primary Consideration 4 weighs in favour of revocation of the Mandatory Visa Cancellation Decision as it is in the best interest of the Applicant’s minor aged grandson and his nieces and nephew for him to be permitted to remain in Australia.
Primary Consideration 5 weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that the Applicant’s serious offending should cause him to forfeit the privilege of remaining permanently in Australia, and this is not outweighed by the duration of his residency in this country.
In regard to the relevant Other Considerations, the legal consequence of a decision not to revoke the cancellation namely the Applicant being held in immigration detention for a prolonged period, and the significant extent of impediments he will face on return to Iraq, weigh very heavily in favour of revocation.
The Tribunal is satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked and decides that the Reviewable Decision should be set aside.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the Reviewable Decision dated 5 June 2023 to refuse to revoke the Mandatory Visa Cancellation Decision and, in substitution, decides that the cancellation of the Applicant’s Protection visa is revoked.

I certify that the preceding 216 (two hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

................................[SGD]........................................
Associate
Dated: 4 October 2023

Date(s) of hearing:

16 and 17 August 2023

Counsel for the Applicant:

T. Baw, Frederick Jordan Chambers

Solicitors for the Applicant:

M. McCrudden, Michael McCrudden Solicitors

Counsel for the Respondent:

G. Johnson, PG Hely Chambers

Solicitors for the Respondent:

A. Wilford, Sparke Helmore Lawyers

[2023] AATA 4494

30 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Statutory Construction

Jurisdiction

Date(s) of hearing:	16 and 17 August 2023
Counsel for the Applicant:	T. Baw, Frederick Jordan Chambers
Solicitors for the Applicant:	M. McCrudden, Michael McCrudden Solicitors
Counsel for the Respondent:	G. Johnson, PG Hely Chambers
Solicitors for the Respondent:	A. Wilford, Sparke Helmore Lawyers