YBTD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

YBTD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3423 (24 October 2023)
Division:GENERAL DIVISION
File Number(s): 2023/5856
Re:YBTD
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mr Rob Reitano, Member
Date of decision: 24 October 2023
Date of written reasons:
Place:Sydney

I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa
.....................[SGD].............................
Mr Rob Reitano, Member
CATCHWORDS
MIGRATION – mandatory cancellation of Class XB Subclass 202 Global Special Humanitarian visa under section 501(3A) – whether there is another reason to revoke the cancellation – offence involving personal violence – history of many other offences - seriousness of offences – risk of re-offending – nature of harm if applicant reoffends - protection of Australian community – best interests of minor children - strength, nature and duration of ties to Australia – Expectations of the Australian community – legal consequences of decision - impediments if returned to Iraq - decision under review set aside – decision revoking cancellation substituted
LEGISLATION
Migration Act 1958 (Cth)
Crimes Act 1900 (NSW)
Crimes Sentencing Procedure Act 1999 (NSW)
CASES
CRNL v Minister Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
REASONS FOR DECISION
24 October 2023
Mr Rob Reitano, Member

The Applicant was born in Najaf in the south of the Republic of Iraq (Iraq) in May 1984 during the Iran - Iraq war. In 1991, in the wake of the First Gulf War and as a young seven year old, the Applicant left Iraq with his family, and they settled as refugees in Qom in Iran. When he was 20 years old, he returned to Iraq in the hope that he could resume life there, only to find a country once again torn by war and beset by sectarian violence. During his return to Iran, he suffered serious injuries in a bomb blast in a motor vehicle which killed his mother’s sister and left him injured after he was struck by shrapnel.
On 21 June 2007 the Applicant and his family left Iran again, this time for Australia. He was allowed to live in Australia because he held a Class XB Subclass 202 Global Special Humanitarian visa (visa), but on 4 August 2022 that changed when a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) cancelled the visa.
The visa was cancelled because the delegate was satisfied that the Applicant failed the character test in sub-section 501(7)(c) of the Migration Act 1958 (Cth) (Act), as he had been sentenced to a term of imprisonment of more than 12 months and was at that time serving that sentence full time in a custodial institution. The delegate had, because of the terms of the Act, no choice but to cancel the visa. The result of cancelling the visa, and the Applicant having completed serving his six month non-parole period in prison, meant that the Applicant was an unlawful non-citizen and so he was sent to detention where he has lived since.
On 19 August 2022 the Applicant made representations to the Minister seeking to have the cancellation of the visa revoked, but on 9 August 2023, nearly a year later, another delegate decided not to revoke the cancellation of the visa. And so, the Applicant applied to the Tribunal seeking a review of the delegate’s decision with the objective of having the Tribunal setting aside the delegate’s decision and substituting a decision revoking the decision cancelling the visa. The practical effect of doing those things would be that the Applicant would be permitted to remain living in the Australian community.
I have reviewed the delegate’s decision and have decided to set aside the decision refusing to revoke the decision cancelling the visa and to substitute, in its place, a decision revoking the cancellation of the visa. My reasons for that decision follow.
ISSUES
For the Tribunal to decide to revoke the decision that cancelled the visa, the Tribunal must be satisfied that there is ‘another reason’ to revoke that decision because, in this case, that is the only basis in section 501CA(4)(b) of the Act which permits the Tribunal to do so, given that the Applicant fails the character test in the Act by reason of his sentence to 12 months imprisonment. There is no issue about the jurisdiction or power of the Tribunal to review the delegate’s decision declining to revoke the cancellation of the visa.
IS THERE ANOTHER REASON?
The satisfaction about whether there is ‘another reason’ why a decision cancelling a visa should be revoked requires the making of an evaluative judgment about whether there is a reason for revoking the decision to cancel the visa. That evaluation is informed by Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction) which is a Ministerial direction made under the Act. Sub-section 499(2A) of the Act requires the Tribunal to comply with Ministerial directions in performing its functions and exercising its powers under the Act.
The Direction identifies principles that are required to be applied in making decisions about the revocation of decisions cancelling visas. It is unnecessary to set those principles out or to summarise them here. I will refer to them where it is necessary to do so.
The Direction refers to ‘considerations’ which are subject matters that a decision maker must consider in making a decision. Some of them may not be relevant in a given case and need not be considered if that is the case. The objective of these ‘considerations’ is to assist a decision maker’s evaluation of whether there is ‘another reason’ to revoke a visa cancellation. The ‘considerations’ identify within each of them matters that must be taken into account, or in some cases have regard to, when dealing with the particular consideration. Again, some of them may in any given case not be relevant so they can be discarded.
There are ‘primary considerations’ and ‘other considerations’ which are to be weighed or balanced. ‘Primary considerations’ are generally given greater weight than ‘other considerations’, and one or more ‘primary consideration’ can outweigh any other ‘primary consideration’. No single ‘primary consideration’ or ‘other consideration’ is required to be given greater importance than any other, that is left to the decision maker.
The process of weighing or balancing the considerations can fairly be described as having two stages. The first involves considering each of the considerations and the matters which must be taken into account within them and ascribing them weight. The second involves engaging in a ‘a process of balancing the different considerations, or evaluating them against and in comparison, to each other, in order to arrive at a decision whether there is “another reason” to revoke the cancellation’.[1] The process of weighing or balancing the considerations is evaluative and involves the making of an assessment of the quality and significance of each of the considerations, as well as when compared one to the other, with a view to forming a conclusion that satisfies the decision maker that there is, or is not, ‘another reason’ for revoking the cancellation of the visa.
[1] CRNL v Minister Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, [34].
The obligation to consider carries recognition that there must be ‘real consideration of the circumstances of the people affected … confronting what is being done to people’.[2] The obligation to consider is not devoted to some theoretical or esoteric exercise or the completion of a checklist of matters that must be ticked and accounted for in some mechanical way and nor is the obligation to weigh things to be approached formulaically or mathematically.[3]
[2] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225,[3].
[3] CRNL v Minister Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138,[38].
The decision to be made involves something that is likely to have a real, lasting, even lifelong, impact on many people, including the Applicant, given that, absent revocation, he will be excluded from Australia. Further, there are ramifications for his family including his children, which are significant, and which are especially important because they are in this case all Australian citizens living in Australia. There are, of course, significant ramifications for the community as well which is highlighted by the need to consider the protection of the community against criminal or other misconduct in the future. All of this points to the need to consider very carefully everything that is potentially relevant to the decision being made, and weighing up the importance of all the private and public interests that might or will be affected and coming to a conclusion about their respective and relative importance.
The ‘primary considerations’ relevant in this matter involve the ‘the protection of the Australian community from criminal or other serious conduct’, ‘the strength, nature and duration of ties to Australia’, ‘the best interests of minor children in Australia’ and ‘the expectations of the Australian community’.[4] The ‘other considerations’ relevant to this matter involve the ‘legal consequences of the decision’ and the ‘extent of impediments to the Applicant if he is removed from Australia’. Neither the Applicant nor the Minister suggested otherwise.
[4] Paragraph 8 of the Direction.
I will deal with each of the considerations that are relevant in turn, and ascribe them weight, before weighing and balancing them against each other to determine and evaluate whether I am satisfied that there is ‘another reason’ to revoke the cancellation of the visa.
PROTECTION OF THE AUSTRALIAN COMMUNITY
The consideration requires me to keep in mind that the Australian Government is committed to protecting the Australian community from harm that is the consequence of criminal or other serious conduct by those who are not citizens. I am required to consider the nature and seriousness of the Applicant’s criminal offending and the risk to the Australian community, should he re-offend or engage in other serious conduct.
In dealing with the nature and seriousness of any conduct, I must have regard to the fact that the Australian Government and Australian community regard violent offences as very serious. I am also required to have regard to the sentence imposed by courts for any criminal conduct, the frequency of any criminal offending, any trend of increasing seriousness of any criminal offending, and the cumulative effect of repeat offending.
The Applicant’s criminal history is extensive. His first offence involved the possession of a prohibited drug which was dealt with on 26 February 2014. The Applicant was found guilty of the offence and received the benefit of an order dismissing the prosecution without proceeding to conviction under s.10 of the Crimes Sentencing Procedure Act 1999 (NSW).
In the almost nine years from then until 24 February 2023 the Applicant has collected a criminal record involving more than 40 offences. Those offences include offences for possession of prohibited drugs, possessing or attempting to obtain prescribed substances, forging prescriptions, inducing a pharmacist to dispense false prescriptions, traffic offences including driving under the influence of alcohol and with illicit substance in his blood, possession of knives, shoplifting, having goods in his possession which were suspected of being stolen, receiving or disposing of stolen property, failures to appear, common assault and being armed with intent to commit an indictable offence.
All those offences attracted small fines, bonds, community corrections orders, convictions with no penalty, suspended sentences, including a sentence to 11 months imprisonment that was suspended for several drug related offences that were dealt with at the same time, and two intensive corrections orders for nine and 15 months for stealing and a drug related offence. In more than a dozen instances, bonds and community corrections orders were breached and called up for re-sentencing. The penalties imposed for most of the Applicant’s offences reflect low level offending and, perhaps, leniency being afforded to him.
Before turning to the most serious offences the Applicant also has very many traffic offences involving speeding, disobeying give way signs and traffic lights, driving whilst viewing a visual display unit, and driving with an insecure load. For those offences, the Applicant received fines and had his licence disqualified or suspended. Other than the generality of the offences, I know little about the circumstances of any of them or any of the consequences that flowed from them.
The Applicant’s most serious criminal offence for reckless wounding was the trigger for the cancellation of the visa. The offence was committed on about 14 or 15 April 2021. On 12 July 2022 the Applicant was sentenced to 12 months imprisonment with a non-parole period of six months. By the time the Applicant came to be sentenced, he had already served four months in 2021 and so was to be released in September 2022.
The circumstances of the offence, according to the Applicant, involved an argument between the Applicant and the victim both of whom were affected by heroin. The Applicant said that his actions were in response to the victim striking him over the head with a glass bottle. The Applicant said he too grabbed a glass bottle and struck the victim over the head with the bottle breaking and cutting the victims ears and stomach. The Magistrate found that the cuts to the victim’s ears and stomach were the result of the fact that the Applicant moved the broken bottle in a slashing motion across the victim’s head and body. The Applicant was sentenced on that basis. I proceed on the basis that the Magistrate’s findings reflect the facts because the Applicant’s own evidence was that he was affected by heroin at the time and so his recollection was likely to be affected, and he could not satisfactorily explain the cut to the victim’s stomach. The Applicant defended the charge, but he now says he accepts what he did, that it was wrong and that he is remorseful for it.
The only other offence involving personal violence that the Applicant has been convicted for was his offence of common assault when, on 20 June 2022, whilst his sentencing for reckless wounding offence was yet to be dealt with, he tried to steal from a supermarket and was stopped by an employee of the supermarket. The Applicant slapped the employee before departing. He received an 18 month community corrections order for that offence and the related shoplifting offence which suggest that it was not a very serious offence at least insofar as the Magistrate who sentenced the Applicant saw things, especially given that the maximum penalty for the offence was two years imprisonment.
The offences of reckless wounding and common assault both involve personal violence. The reckless wounding offence is particularly serious given the involvement of a broken bottle. The fact of a 12 month sentence of imprisonment demonstrates that the offence should be viewed as objectively very serious. That is also the view of the Australian Government and the Australian community which the Direction requires me to have regard to.
It is fair to say that the two most recent offences are indicative of an increasing trend of seriousness. The offending is frequent albeit commencing something like seven years after the Applicant’s arrival in Australia. The effect of the less serious offences taken together with the most recent offences demonstrates serious criminal offending. Viewed overall, the Applicant’s record of criminal offending should be regarded as serious and as involving two very serious offences.
I must next consider the risk that may be posed by the Applicant to the Australian community, having regard to the nature of the harm to the Australian community and members of the community, and the likelihood of the Applicant reoffending.
The harm to the Australian community or members of the community resulting from the offence of reckless wounding is likely to be significant because it involves physical, and potentially psychological, injury to members of the community. The property and drug related offences are less harmful to the Australian community; the property related offences do not generally concern items of high value and the drug related offences all concern personal use. The Minister also points out that some of the various driving offences, particularly those related to driving under the influence, involve all too familiar causes of serious injury to members of the community, because they are associated with speed, alcohol, and drugs. There was no evidence about the actual circumstances or consequences, and I should not speculate about those circumstances or whether it was good fortune or something else that meant the offences did not result in actual harm. There is also the financial and social cost associated with detection and enforcement of all of the offences.
Ultimately, the harm to the community and its members, should the Applicant reoffend, is likely to be serious. This is particularly so in the case of the reckless wounding offence and any resultant harm that would occur should the Applicant commit a similar offence in the future. To a lesser extent, this would also include the driving whilst under the influence offences although that involves some speculation about his past offences. Insofar as most of his other offending is concerned, the harm cannot be described, in totality, as serious, as most of the offences are minor property or drug related offences and the likely harm of re-offending should not necessarily be regarded as being at the high end of seriousness.
I must next consider the likelihood of the Applicant engaging in further criminal conduct in the future, having regard to the evidence and information submitted to me on the risk of re-offending and any rehabilitation to date.
The Applicant relied upon a report dated 3 October 2023 prepared by consultant psychologist Tim Watson-Munro, an expert in the assessment and treatment of criminal offenders. His expertise about the likelihood of re-offending was not called into question. After referring to the Applicant’s history of offending and noting the reckless wounding offence was of ‘particular concern’, Mr Watson-Munro identified ‘a clear nexus between the Applicant’s offending conduct, his unresolved symptoms of trauma and his associated illicit drug use’. The reference to ‘unresolved symptoms of trauma’ was a reference to the Applicant’s Post-Traumatic Stress Disorder resulting from his experience when he returned to Iraq. That diagnosis was first made while the Applicant was in detention.
Mr Watson Munro said it was ‘arguable that if his symptoms of trauma are effectively treated, against a backdrop of remaining illicit drug free, then the likelihood of him reoffending will be significantly reduced’. Further, Mr Watson-Munro identified that the Applicant was in the early phases of treatment, which involved injections of Buvidal once a month, and psychological treatment through the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors. The Applicant has been engaged in counselling with that service for about ten months and has been receiving injections of Buvidal for slightly longer.
Mr Watson Munro identified that the treatment needed to continue for a significant period of time and that it needed to take place in an environment where the Applicant was drug free. Mr Watson-Munro’s conclusion about the Applicant’s risk of re-offending was:
[The Applicant] is now arguably trending in a positive direction in terms of reducing his risk of reoffending. I believe currently, with treatment, his risk of reoffending is trending from High towards Moderate. I believe that with continuing support, supervision and treatment and a sustained period (lifelong) from drug use, this will trend further towards Low. [The Applicant] is currently in a state of Partial Remission referable to his drug use. I note the support he enjoys from his immediate family and attendant to this, his appreciation of the significant impact of his offending conduct in the past upon them. [The Applicant] stated that he is determined to not retraumatise his family by reoffending and hopes to reconcile with his wife, with a view to supporting his children. Inevitably, if he remains in immigration detention or is required to leave Australia, his mood state will be dramatically affected, as will be the case for his family members.
Mr Watson-Munro withdrew the word ‘arguably’ from his report in his oral evidence without any hesitation. That gave his evidence much greater certainty.

Although the distance between ‘High towards Moderate’ is great, it is indicative of a likelihood of re-offending that is not at the very highest level. The opinion is, however, problematic because it is conditional or qualified such that it depends upon a range of variables including, among other things, that the Applicant remain drug free for ‘a sustained period (lifelong)’, a variable which it is simply not possible to have any degree of confidence or certainty in it being met. This is not because I do not accept the Applicant’s evidence and stated commitment, which I do accept, but rather because ordinary experience suggests that the road ahead for people in the Applicant’s position is a long and hard one. I do accept Mr Watson-Munro’s evidence that the risk of reoffending is currently, whilst the Applicant is receiving treatment, somewhere in the range of high to moderate — although where it lays in that range is difficult to determine. I also accept his evidence that with continued treatment and abstinence the likelihood of re-offending would in the future decrease.
The Minister referred to the Applicant’s past attempts and failures at rehabilitation as being indicative of the likelihood that he will be unable to successfully rehabilitate himself now. That ignores some of the circumstances that exist now. In particular, the treatment the Applicant is receiving by way of injections of Buvidal once a month, his ongoing psychological treatment, as well as his custodial sentence and subsequent period in detention are all new things that had not been seen in his life before. The Buvidal injections and counselling are both new and the Applicant in his evidence spoke of his experience of both of them in positive terms when compared to shortcomings of his previous attempts as rehabilitation which did not involve counselling at all. His time in prison and detention are likely to make any attempts to remain drug free more imperative as he had not experienced either before. A matter that points against a conclusion that the Applicant might become drug free is his apparent interaction with drugs whilst in detention. This happened prior to him starting his treatment on Buvidal, which may make the circumstances less significant. It nevertheless gives rise to grounds for caution on his overall rehabilitative potential.
The Minister also referred to the Applicant’s reliance on family and employment as being ‘protective factors’. The Minister submitted that because these ‘protective factors’ existed during his period of offending, they are unlikely to be protective from future offending should he be released. I do not accept that mainly on the basis that the difference between then and now is the fact that the Applicant has experienced the loss of his liberty that ordinarily accompanies a prison sentence and has also been brought to the brink of deportation while in immigration detention, such that the influence of his family is now, as a matter of common sense, more likely to serve as a protective factor against future offending. His sister who gave evidence impressed me as a person who meant what she said when said she will be astute to look after her big brother and do her best to ensure he remains free from drugs. I accept that the Applicant’s lack of insight in the past, reflected in his denial of drug addiction and engaging in criminal conduct, as necessarily indicative of a likelihood of reoffending. That lack of insight is more likely to have been, at least to some extent, symptomatic of the Applicant’s very problems in the first place.
In the end, it is the Applicant’s significant history of criminal offending, together with Mr Watson Munro’s opinion, that leads me to conclude that the risk of the Applicant re-offending is at the higher end of likelihoods. Although I do not consider that the risk of the Applicant reoffending is unacceptable, mainly because the Applicant’s long history of offending has only twice involved personal violence and only on one occasion did that violence result in serious injury. The harm that is likely to be caused by the Applicant re-offending, whilst serious, is not so serious that the risk of that harm coming home is unacceptable. It is a risk, albeit at the high end, that the community could bare, but that very much depends on the assessment and weight to be accorded to the other considerations.
There is no doubt that protection of the community is a significant and weighty factor against revocation of the decision cancelling the visa having regard to the very serious nature of the criminal offending, the harm that would be caused if it were repeated, and the high likelihood of reoffending. Its importance is moderated by the likely harm of re-offending not being great and also slightly by the fact that, although the risk of re-offending is high trending to moderate, there is some real prospect that it might reduce because of the Applicant’s treatment, his commitment to it, and the support he is likely to receive from his family.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
I must give weight to the expectations of the Australian community, the expectations that people who are allowed to live and be in Australia will obey Australian laws, and that where someone who has been permitted to stay in Australia ’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’. This means that ‘non revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the non-citizen should not … continue to hold a visa’.
I must decide whether more or less weight is to be given to the community expectation of non-revocation of mandatory cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences’.[5] This involves an evaluation about how strong or important this factor is in the particular circumstances of the case.
[5] FYBR v Minister for Home Affairs [2019] FCAFC 185, [77] (Charlesworth J).
There are number of factors that are relevant to the weight that is to be attributed to this consideration. The Applicant’s criminal history and history of other offences is extensive and over a long period of time and his risk of re-offending is high although presently ‘trending to moderate’. These things suggest that significant weight should be given to the expectations of the community. There are also some things that I consider point to the need to give this consideration less weight. First, except for one offence, the offences have not attracted significant sentences that involved custodial sentences that were served in prison and as I indicated many of them seem to have been at the lower end of seriousness or were treated leniently. Second, even though the criminal history is lengthy it has only involved harm of a serious physical nature to one member of the community which was the result of the reckless wounding offence. Thirdly, many of the offences can be attributed to his drug addiction and his previously undiagnosed Post Traumatic Stress Disorder.
It will also be seen that when I come to evaluate the weight as between the various considerations there are other matters, countervailing considerations, that favour revocation of the cancellation of the visa that I consider to be more important and which carry more weight than this consideration, but that is for later.
The expectations of the community are important but, in the circumstances, I consider that they should be afforded less weight in the evaluation of whether there is another reason to revoke the cancellation of the visa. This consideration weighs moderately in favour of non-revocation.
STRENTGH, NATURE AND DURATION OF TIES TO AUSTRALIA
I am required to consider the impact of my decision upon the Applicant’s immediate family members in Australia where they are Australian citizens, Australian permanent residents, or people with a right to lawfully remain in Australia indefinitely. I am required to give more weight to this consideration where the ties involve children in those categories. I am required to consider the strength, duration and nature of family ties or social links generally to people in those categories. Further, I must consider the strength, nature and duration of other ties the Applicant has to the Australian community having regard to the length of time the Applicant has lived in Australia and to give more weight to the time he has spent positively contributing to the Australian community.
The Applicant has immediate family members in Australia who are all Australian citizens. They are his two children who are aged 13 and 15 years of age, his mother and father, three brothers, his sister, two nieces aged 13 years and about two and half, two nephews aged 10 years and almost four years and his wife.
The Applicant’s mother and father are elderly with his mother working in the home and his father being a retired tow truck driver. They suffer from various illnesses: diabetes, high blood pressure and cholesterol in the case of the mother, and prostate problems and diabetes in the case of the father. Both are, understandably, psychologically, and emotionally impacted by separation, and the prospect of further separation, from their son should he be returned to Iraq or placed in indefinite detention. His mother was very emotional when she gave evidence, especially when it touched upon the prospect of her son being excluded from Australia. Before going to prison and detention the Applicant supported his parents by taking them to medical appointments and looking after their various needs. In detention he speaks to his mother on the telephone several times a week and sometimes more than one time on any given day. He is close to both his parents.
The Applicant has known his wife since his childhood. They were married in Iraq before the Applicant came to Australia. His wife joined him in Australia in 2010. They started their family shortly after that. The Applicant is presently estranged from his wife because she left him in 2021 when he went to prison. He wants to try and reconcile with her. His wife did not give evidence. The Applicant’s mother, who continues to have a relationship with the Applicant’s wife, has spoken to her and she has told the Applicant’s mother that she still loves her husband. The Applicant’s mother has some confidence about the prospects of reconciliation but as things stand now it is not known whether that will happen, and I should not speculate about it. I will not give it any significant weight.
The Applicant’s sister, brothers, nieces, and nephews all live in Australia. They are all people the Applicant has known for most of their lives. The Applicant said in his evidence he was close to his brother’s children, the older niece and nephew.
Before going to prison, the Applicant spent most of his time living with his various family members, that is his parents, two of his brothers and sister, and his brother’s son and daughter, in a six bedroom house which also had granny flat. His sister, her husband and children have now moved out to live elsewhere.
A short time before he went to prison the Applicant left the family home to live elsewhere. There were periods of absence when he lived with friends because of his drug related issues but they were for days at a time and not for any extended period. For most of the time the Applicant lived for a week or weeks at a time in the family home. The Applicant and his family attended mosque and religious events together.
The Applicant’s family is very close which is reflected in the letters that were tendered in evidence and their heartfelt pleas not to return their son and brother to Iraq. The family bonds between the Applicant’s parents, brothers and sister are close which probably reflects the fact that they all left Iraq or Iran together, albeit at different times, and settled in Australia together where, for many years, most of them have lived together.
The Applicant has lived in Australia for 16 years and, other than the six months he spent in prison, and the period in detention, has spent all of that time in the community. His first six or seven years were offence free, and he was employed on a part-time basis. After his offending, he worked sporadically including in his own tip truck business for about two and half years. I should afford his 16 years in Australia some weight given that he has, through work, made some positive contribution to the community.
In the circumstances, his strong familial ties to members of the Australian community and his 16 years in Australia mostly in the community, and contributing, at various times, though not consistently, through his work means that this consideration counts very firmly in favour of revoking the decision cancelling the visa.
BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
I am required to decide whether cancellation of the visa is in the best interests of minor children affected by the decision, and, to the extent that their interests might differ, I must consider them separately. There are several matters that I am required to consider in determining the children’s best interests.
The Applicant has two children, two boys aged 13 and 15 years of age who are likely to be affected by this decision. They presently are cared for by their mother. The Applicant before going into prison lived with them for most of their lives, except for some short periods when he lived with friends. He was active in their lives doing the kinds of things fathers do such as taking them to karate and playing soccer with them and taking them to shops, restaurants, and parks. He spent time with them and that is something that is important especially to young children. His mother said, and I have no reason to doubt her word given that she has lived with the children for so long and continues to see them, that the children ‘adore him’ and that ‘they always ask about him’. According to both the Applicant’s mother and father the children miss him. I do not know whether anyone stands in the position as their father now, although it seems likely on the evidence that their uncles or grandfather may do so given the closeness of the family; but they are not the children’s father. The children, of course, still have their mother in their lives.
The Applicant remained in contact with the children by phone in prison calling them once every month or two. The Applicant has not spoken to them whilst in detention because he says he does not wish to expose them to circumstances he has found himself in and explain to them his shame and wrongdoing. There has been a period of about 13 months where the Applicant has been absent from their lives in recent times which means I should weigh this factor a little less heavily, but I should balance that against the long time they lived with their father, certainly before he went to prison in July 2022. Likewise, I should give it a little less weight because he often left the family home for days at a time when he lived with them, although from his evidence, he was at home more often than he was not.
The Applicant is eager to re-establish his relationship with his children. It is difficult to determine whether the Applicant will play a positive role in the boy’s lives in the future given his drug related issues and the risk that he may relapse into drugs, or worse still, re-offend. The fact that the children miss him and the role he has played in the past in their lives suggest he will play a role in their lives until they are 18 years of age if he remains drug and offence free. They will be 18 years of age in five and three years’ time, which is a not an insignificant period, and for young boys it is important for them to have their father around, but the prospects of the Applicant relapsing are such that I should approach this issue cautiously. The likelihood is apparent but by no means obvious. There cannot be much doubt that future drug taking, offending and incarceration will adversely affect the children. There is no evidence that his past conduct has negatively affected them perhaps other than that they miss their father. The Applicant, if returned to Iraq, will be able to maintain contact with them by phone and other means, although that is a far cry from day to day access to their father.
I should also give some weight to the fact that there are four nieces and nephews whose best interest need to be considered. The relationship with them is not parental but he did live with the older niece and nephew for many years before he went to prison. His mother said that he was well loved by those nieces and nephews. Again, the prospect of him having a positive impact on their lives depends much upon whether his drug related issues can be resolved. It would be in their best interests to have their uncle in their lives especially if he did not relapse into drugs and offend again. They would not be able to have much of a relationship with him if he was in Iraq.
I am satisfied that the best interests of the Applicant’s two young boys are an important matter that I should weigh in the balance but, with the doubts I have regarding the Applicant’s likelihood of being a positive influence on them, I weigh this consideration as being of a little more than moderate importance insofar as revoking the cancellation is concerned. I weigh the importance of the best interests of the Applicant’s nieces and nephews as being of moderate importance because of the lack of any parental relationship and the doubts about him being a positive influence in their lives. This consideration is an important consideration so far as revocation is concerned.
IMPEDIMENTS IF RETURNED
I must consider the extent of any impediments that the Applicant may face in establishing and maintaining basic living standards considering his age, health, any language barriers and any social medical and economic support available to him if he is returned to Iraq.
Although the Applicant is 39 years of age, speaks Arabic, and has a history of employment in Australia, it is significant that he has, by and large, been away from Iraq since he was seven years of age with a short return for a few years in his early adulthood. It is difficult to conclude that he would be familiar in any way with life in Iraq. The social support available to him as a person with a drug addiction and mental health issues due to his Post Traumatic Stress Disorder means that they are more likely than not significant obstacles to him establishing himself in Iraq. The Minister conceded that the Applicant would have difficulty re-establishing himself in Iraq, especially having regard to his medical conditions such as the physical injury to his leg, his Post Traumatic Stress Disorder and, naturally enough, his drug dependence. The Minister accepted the Applicant was likely to have difficulties obtaining treatment for his mental health condition.
The Department of Foreign Affairs Country Information Report Iraq published on 16 January 2023 (DFAT) confirms that mental health services in Iraq are inadequate, recording that the ‘absence of community based mental health care means that often the only care available is family-based or in psychiatric institutions, which have been linked to inhuman treatment and degrading conditions’. So far as treatment for drug abuse and rehabilitation is concerned, DFAT said ‘[s]ince 2017, drug treatment and rehabilitation centres have opened in Basra, Baghdad and Erbil, but a shortage of available places means many drug users are jailed’. DFAT described the ‘overall quality and availability of healthcare in Iraq [as] low’ with a nationwide shortage of doctors and nurses which has been worsened by ongoing conflict.

The Applicant’s evidence was that he had no family who could support him in Iraq. This was in the face of the evidence that he had about twenty aunts and uncles in Iraq. The nature of the Applicant’s condition is a serious one. I should not make assumptions about the capacity or even the willingness of those extended family members to support the Applicant especially in a country where mental health services are described as ‘inadequate’ or which in some cases are linked to ‘inhuman and degrading considerations’. There was no suggestion that any aunt or uncle or combination of them was able to or would in fact provide support to the Applicant or was able, willing or competent to provide mental health care to the Applicant, in the absence of community based treatment. I should not speculate about that given the importance of the matter.
All of this is all against the backdrop of a country where the security situation was described by DFAT in the following terms:
Security incidents occur often and without warning, including rocket attacks, mortar attacks, attacks with improvised explosive devices (IEDs), grenade attacks, small arms fire and assassinations. Targets have included security forces, government offices, diplomatic missions, US-led coalition forces, Iraqi and Turkish military facilities, checkpoints, police stations, recruiting centres, airports and public transport centres, places of worship and religious gatherings, markets, non-government organisations, schools and universities, and civilian infrastructure. Violent crime is common, including kidnapping, murder and robbery. Other serious crime includes drug and people trafficking, prostitution and illegal organ harvesting. Organised criminal gangs, militias and armed tribal groups are significant threats.
Although the Applicant would not have any language or cultural barriers, in my assessment, his mental health problems, his Post Traumatic Stress Disorder, and his drug addiction necessarily mean that in a country where health, mental health and drug treatment are either of poor quality or limited, the Applicant will have significant impediments in establishing and maintaining a basic living standard if he is removed to Iraq even though he has so many aunts and uncles in Iraq. This is because he needs appropriate care, much like what would be available to him in Australia, to get on his feet again and it is fair to say there is nothing like that available to him in Iraq. This consideration is important and weighs firmly in favour of revocation.
THE LEGAL CONSEQUENCES OF THE DECISION
I am required to keep in mind the fact that a person who is an unlawful non-citizen is, in accordance with section 198 of the Act, liable to removal from Australia as soon as is reasonably practicable and in the meantime is to be detained.
The Applicant is not a person in respect of whom a protection finding within the meaning of section 197C of the Act applies.
The Applicant has made a claim that raises Australia’s international non-refoulment obligation, so I am required to consider that claim.
The Applicant relied upon Article 33 of the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol, which provides that no country will return a refugee ‘where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’. The Applicant’s claim is founded upon his fear of persecution in Iraq on account of him being a Shia Muslim, or his membership of the social group comprising of people suffering from mental illness.
The evidence about the Applicant’s fear of persecution based on his religion as a Shia Muslim relied upon DFAT where it was said that: ‘[i]n 2021, Da’esh [more popularly known as Islamic State] carried out more than 1,000 attacks in Iraq, killing or injuring over 2,000 people. These included a suicide bombing in Teyeran Square that killed 32 people in January 2021 and an IED attack in Madinat al-Sadr that killed 35 people in July 2021. Both attacks targeted Shi’a populations. According to the US Department of State, Da’esh also attacked electricity and water infrastructure, and abducted and killed civilians and security personnel, throughout 2021’. (The words in brackets are my own).
The evidence concerning the social class of people suffering from mental illness relied upon what I have referred to earlier, namely that, in the absence of family care, the Applicant would only have available to him ‘psychiatric institutions, which have been linked to inhuman treatment and degrading conditions’. In relation to mental illness, DFAT also reported that ‘[t]here is significant societal stigma against people with mental illness. People with mental illness are often perceived as dangerous and unable to work, and some Iraqis blame mental illness on personal weakness or divine retribution’.
The UNHCR International Protection Considerations With Regard to People Fleeing the Republic of Iraq published in May 2019 does not identify, in its non-exhaustive list of risk profiles, that international protection needs arise for Shia Muslims or persons in the class of mentally ill people in Iraq. Although that publication is non exhaustive, and cautions that individual claims may have to be assessed on their merits, it is unlikely, given the fact that Shia Muslims represent the majority of the population, that it would have omitted them from the risk profile of persons in need of international protection if that were the case.
The only other evidence about the Applicant’s fear was his own evidence which was that he fears for his safety amongst other reasons because of his Shia Muslim religion. That evidence is self-serving and some of it so far as concerns what happened to others he has heard of in Iraq, is hearsay, so that I should be slow to rely upon it. In saying that I should not be thought to be being critical of the Applicant as it would no doubt be difficult for him to establish the veracity of his fears as a person living in Australia and not in Iraq. The Applicant did not say in his evidence that he had any fear of harm based upon his status as a member of the social group of people suffering from mental illness.
I am not satisfied that on the evidence available to me the Applicant is a person to whom non-refoulment obligations are owed, mainly because the evidence about any risk of harm to him is so general. There is nothing to suggest, for example, that the place in Iraq in which he intends to return is one where Da’esh has or will in future target Shia Muslims or how he will be able to be identified as a Shia Muslim. The DFAT material does not identify Najaf, or the wider governance surrounding it, as located anywhere near where Da’esh is located, or whether it has in the past been subject to any attack. So far as harm to the class of people who are mentally ill is concerned, there is nothing that would suggest that the Applicant would be institutionalised which is where any real risk of harm or inhumane treatment arises. Mere social stigmatisation as a mentally ill person is not sufficient, in the view I take, to satisfy the very real harm that arises from non-refoulement obligations.
As I am not satisfied that the Applicant is owed any non-refoulment obligations it is unnecessary to do more than to find that the consequence of my decision would be if I affirmed the decision that the Applicant would return to Iraq and if I set it aside the Applicant would remain in the community in Australia. This consideration is completely neutral so far as the evaluation of whether there is a valid reason to revoke the cancellation of the visa.
THERE IS ANOTHER REASON
It is next necessary to weigh the considerations that are relevant against each other remembering that I should have regard to the general proposition that primary considerations should be given more weight than other considerations.
I have found that the protection of the Australian community weighs heavily in favour of non-revocation of the decision cancelling the visa especially because of the Applicant’s very serious offending in relation to the offence that led to him having his visa cancelled, the offence of reckless wounding, which involved personal violence, and because of the high likelihood that he will offend in some way again in future. I have found that the likelihood of any harm to the community should the Applicant reoffend is, whilst serious, unlikely to have consequences like that which occurred with the reckless wounding, because almost all of his offending did not result in personal injury or serious personal injury. Some of his offending, his traffic offences, may have done so, but beyond the general proposition, it is not possible to say more in the absence of knowing the circumstances of those offences. I consider protection of the Australian community to be a particularly significant consideration, but it is in my evaluation not as important as the Applicant’s ties to the Australian community.
The Applicant’s ties to the Australian community are strong ones which are familial in nature. All of his family except one of his sisters live in Australia, and until he went into prison, most of them, his father, mother, wife, children, two of his brothers, his sister and his niece and nephew, lived with him in the same house. He also has another niece and nephew who are his sisters children and Australian citizens, and although he has had little to do with them, they are the children of his sister who he is close to. His parents left Iraq with him, when he was young, for Iran, and all his siblings and his mother later came to Australia following his father’s arrival a few years before. The closeness of the family, who are all Australian citizens, is an important consideration so far as private interests are concerned. So far as his ties to the community are concerned, I should weigh in to the equation that the Applicant has been in Australia for 16 years and has, during that time through work, made some contribution to the Australian community.
I consider the best interests of the Applicant’s own children to be important, although it is diminished a little by the fact that the Applicant has not engaged with them for a long time since entering detention and, before then, for a few months here and there, he only spoke to them occasionally. It is also of slightly less importance given the concerns about whether the Applicant will play a positive role in their lives in the future. Nonetheless, the best interests of the children should be afforded meaningful weight because a decision that effectively involves a father being unlikely to see, spend time with and grow up with his children is a drastic one that has big consequences for the children.
I have found that the expectations of the Australian community weigh only moderately against revocation having regard to the circumstances I have identified. That is, although he has a long criminal history, his offending has not for the most part been regarded by the criminal courts as significant enough to attract more serious sentences such as terms of imprisonment to be served rather than being suspended, or served in the community, and only two offences have involved personal violence. I also consider that the other primary considerations I have already dealt with are of much more importance than this one because of the significant personal consequences each of them has for members of the community, the Applicant’s family members in Australia who are Australian citizens and the Applicant’s two young children and his nieces and nephews.
In my evaluation the importance of the Applicant’s ties to his family members and the best interests of the children are more significant than the need to protect the Australian community, and far more important than the expectations of the community. In the end this is because the harm flowing from the offences if repeated in the future is unlikely to be significant and there is some likelihood that the Applicant, with the assistance of the people he has strong ties to, will moderate his risk of re-offending. The two primary considerations that involve the Applicant’s ties to his family in Australia and the best interests of his children outweigh the protection, and expectations, of the community.
The other consideration that I consider important in the evaluation is the impediments to the Applicant establishing a life and maintaining it in Iraq. I have found that, as someone suffering from Post-Traumatic Stress Disorder and who has an addiction to drugs, the Applicant will confront significant obstacles to setting himself up in Iraq, a country beset by civil unrest, without any family support and given the limited community health and drug rehabilitation support that will be available to him. It may well be that the Applicant has aunts and uncles in Iraq but there is no evidence that they have any bonds with the Applicant, or capacity to give the Applicant any support, let alone the kind of support that he will obtain from his family and the facilities available to him to obtain the treatment he so obviously needs in Australia. This consideration together with the ties the Applicant has to the community, and the best interests of children, provides a sound foundation for finding the existence of another reason to revoke the cancellation of the visa.
I am satisfied the Applicant’s strong ties to the Australian community, namely his mother, father, his children, three brothers, sister, his two nieces and two nephews, the best interest of his two children and the significant impediments his mental illness and drug addiction will present to him in establishing and maintaining a basic living standard in Iraq compared to other Iraqi’s, provides another reason for revoking the cancellation of the visa.
DECISION
I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

...........................[SGD].............................................
Associate
Dated: 24 October 2023

Date(s) of hearing: 16 October 2023

Counsel for the Applicant:

Solicitors for the Applicant:

Ms T Baw

Ms T Imrie, Legal Aid New South Wales

Solicitors for the Respondent:

Mr K Eskerie, Sparkle Helmore Lawyers

[2023] AATA 3423

24 October 2023

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