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

[2022] AATA 71

YCDY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 71 (24 January 2022)

Division:GENERAL DIVISION

File Number(s):      2021/8435

Re:YCDY

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:24 January 2022

Place:Sydney

The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 29 October 2021 not to revoke the mandatory cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa is revoked.

..............................[SGD]..........................................

Senior Member M Griffin QC

CATCHWORDS

MIGRATION – mandatory cancellation of visa – Class XB Subclass 202 Global Special Humanitarian visa – where visa was cancelled under s 501 because applicant did not pass the character test – Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – family violence – special consideration – best interest of minor children in Australian – expectations of the Australian community – other considerations – international non- refoulment obligation – extent of impediments if removed – impact on victims – strength, nature and duration of ties to Australia – reviewable decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth): s 499, 500, 501, 501CA

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166

SECONDARY MATERIALS

Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member M Griffin QC

24 January 2022

1.       The Applicant is a 35-year-old Iraqi national who arrived in Australia on 21 September 2007 when he was 21 years of age. He arrived with his family as a refugee and was granted a Class XB Subclass 202 Global Special Humanitarian visa (‘the visa’).

2.       As a result of various offences having been committed, the Applicant, who it is agreed does not pass the character test, had his visa cancelled which decision, a delegate of the Minister for Immigration (‘the Minister’) refused to revoke on 29 October 2021. The Applicant now seeks review of that decision before this Tribunal. All appropriate timeframes have been complied with.

3. The relevant legislation is the Migration Act 1958 (Cth) (‘the Act’).

4.       The issue before the Tribunal is whether there is another reason why the mandatory cancellation of the Applicant’s visa should be overturned.

RELEVANT LEGISLATION AND POLICY

5. Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).

6. Section 501CA(4) of the Act provides that:

(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.

7.       In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38], North ACJ held that:

The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.

8. Section 501(6)(a) of the Act relevantly provides that a person does not pass the character test if the Applicant has a substantial criminal history. Section 501(7)(c) of the Act states that a person has a substantial criminal history if they have received a sentence of imprisonment of 12 months or more.

9.       The Applicant was sentenced to a term of imprisonment for more than 12 months. The Applicant does not pass the character test.

10. Section 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 s 501CA(4) not to revoke a decision to cancel a visa.

11. The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (‘Direction No. 90’). Section 5 of Direction No. 90 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:

1Australia has a sovereign right to determine whether non-citizens who are of character concern have a right to enter or remain in Australia. Being able to come or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework and will not cause or threaten harm to individuals or the Australian community (paragraph 5.2(1));

2non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia (paragraph 5.2(2));

3the 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 risk of causing physical harm to the Australian community (paragraph  5.2(3));

4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age (paragraph 5.2(4));

5decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non- citizen's conduct or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(5)).

12. Part 2 of Direction No. 90 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises four Primary Considerations and several specified, but non-exhaustive, Other Considerations, which must be taken into account.

13. Pursuant to Part 2 of Direction No. 90, the Tribunal must, to the extent that they are relevant to this case, take the relevant considerations (both primary and other) into account and:

1.    In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight (paragraph 7.1).

2.    Primary considerations should generally be given greater weight than the other considerations (paragraph 7.2).

3.    One or more primary considerations may outweigh other primary considerations (paragraph 7.3).

14.     These principles are of course dependent upon the facts and circumstances of each case.

15.     The primary considerations are:

(a)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);

(b)Whether the conduct engaged in constituted family violence (Primary Consideration 2);

(c)The best interests of minor children in Australia (Primary Consideration 3); and

(d)Expectations of the Australian community (Primary Consideration 4).

16.     The Tribunal must also take into account Other Considerations insofar as they are relevant.

17.     These considerations include (but are not limited to):

(a)International non-refoulement obligations;

(b)Extent of impediments if removed;

(c)Impact on victims;

(d)Links to the Australian community, including:

(i)strength, nature and duration of ties to Australia; and

(ii)impact on Australian business interests.

THE CHARACTER TEST

18. As set out above, s 501(6)(a) of the Act provides that a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act.

19. For the purposes of the character test, a person has a substantial criminal record under s 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more.

20. In circumstances where the Applicant has been sentenced to imprisonment of 12 months or more, the Applicant satisfies the definition in s 501(7)(c) of the Act and therefore fails the character test.

EXERCISING THE DISCRETION

21. In exercising the discretion in s 501CA(4) of the Act, the Tribunal must comply with Direction No. 90 (see s 499(2A) of the Act) which sets out the relevant considerations.

PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

22. Paragraph 8.1 of Direction No. 90 provides:

When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

23. Paragraph 8.1(2) of Direction No. 90 provides that decision-makers should also give consideration to:

(e)the nature and seriousness of the non-citizen's conduct to date; and

(f)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The nature and seriousness of the Applicant's conduct to date

24. Sub-paragraph 8.1.1 of Direction No. 90 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:

(a)    without limiting the range of offences that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community (sub-paragraph 8.1.1(1)(a)(i)- (iii)):

(i)   violent and/or sexual crimes;

(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

(b)    without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious (sub-paragraph 8.1.1(1)(b)(i)-(iv)):

(i)causing a party to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision- maker's opinion (for example, section 501(6)(c);

(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

(c)    with the exception of the crimes or conduct mentioned in subparagraph a)(ii), a)(iii) or b)(i) above, the sentence imposed by the courts for a crime or crimes;

(d)    the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

(e)    the cumulative effect of repeated offending;

(f)    whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

(g)    whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).

The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

25. Paragraph 8.1.2 of Direction No. 90 provides that decision-makers must have regard to the following:

1In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

2In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

(i)     information and evidence on the risk of the non­ citizen re-offending; and

(ii)    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

Seriousness of offending and future risk

26. Paragraph 8.1.2(2)(b) of Direction No. 90 requires the Tribunal to have regard to the likelihood of the person engaging in further criminal conduct, including evidence of re-offending and rehabilitation.

27.     The Applicant has, at first blush, a lengthy criminal history which involves property offences, including fraud of a quite serious nature, assault offences, which also involve a domestic element, including offences against former partners, his sister and his father. As to the last offence involving his father, the Applicant, on account of his considerable criminal history, received a custodial sentence which brought into play the mandatory cancellation of his visa.

28. The Tribunal is satisfied that the Applicant does indeed possess a lengthy criminal history. However, it is necessary to analyse and review the details of that history for it is misleading merely to consider the length of the history without the details of the offending within that history. According to Direction No. 90, the offences which the Applicant has committed, including offences of family domestic violence including to his sister, father and former female partners are to be regarded by the Tribunal as being very serious.

29.     A proper review of the factual circumstances surrounding all that offending behaviour, however, discloses that it is offending behaviour in relation to the family violence assaults and stalking offences at the lower end of the scale of seriousness. So much can be seen by the manner in which the Courts dealt with the offender in the past by the sentencing of him, in the main, to non-custodial offences, or at least sentences where the ultimate effect of the sentence was not meant to be a period served within a prison.

30.     Apart from the property offences and the particularly serious fraud offending, a majority of the offences have been committed both in relation to people known to the Applicant and to a large extent, the larger part of his offending was offending against family members.

31.     It is relevant to record that some family members not only speak positively of the Applicant but make a powerful plea for him to remain in Australia, although they themselves might be properly considered to be ‘victims’, or family members of victims.

32.     As to the risk to members of the Australian community in the future should the Applicant re-offend, there is some evidence which the Tribunal accepts that the Applicant has undergone some appropriate rehabilitative strategies and on the evidence, particularly evidence which the Tribunal accepts during the course of the hearing from the Applicant and his supporters, that the Tribunal is satisfied that there is some reduction in the likelihood of the Applicant re-offending because of those rehabilitative measures taken.

33.     The Applicant’s family members and supporters, who are numerous and include the local parish priest, all speak in very positive terms of the Applicant, although the Tribunal notes that the terminology of almost all of these testimonials view the Applicant rather uncritically, particularly in terms of the totality of his past criminal behaviour. Nonetheless, the Tribunal accepts that there is a body of acceptable evidence as to the Applicant’s future likely good conduct and the Tribunal is prepared to accept that.

34.     In the event, the Tribunal is of the view that there is at least a low risk of the Applicant re-offending. However, family protective factors which the evidence demonstrates, discloses the Applicant’s genuine determination at reform and the prospect of being returned to his country of origin will, in the Tribunal’s opinion, combine to diminish the prospect of the Applicant’s future offending. The Tribunal takes into account that the Applicant has been in custody and detention and therefore, has had no opportunity to demonstrate rehabilitative conduct in the community.

35.     There is some evidence that the Applicant has suffered some mental health issues that may have impacted upon his decision-making processes and the commission of the offences which are being reviewed. In this Applicant’s case, the Tribunal gives very limited weight to that mental health condition as a basis for diminishing the Applicant’s criminal responsibility, particularly on the basis that that mental health condition has been contributed to, to some extent, by the Applicant’s own drug taking.

36.     Overall, this consideration weighs against the Applicant but as will be seen from the Tribunal’s attitude to various other matters and considerations required to be taken into account, this consideration is not determinative of his visa status.

Special Consideration

37.     The Tribunal considers what is discussed below, albeit necessarily in very general terms, to amount to a separate and special extra consideration.

38.     The information disclosed in the statement of the police officer, dated 8 December 2021, is particularly powerful evidence, in the Tribunal’s opinion, suggestive of quite obvious positive behaviour on behalf of the Applicant, not only including the likelihood of placing himself in real danger and continuing to do so because of his continuing promises to the police officer described in that statement but also because the conduct itself is both highly desirable in the interests of the criminal justice system and displays particularly creditable behaviour on the part of the Applicant.

39.     This conduct, the Tribunal concludes, weighs very powerfully in the Applicant’s favour and in considering the revocation of the mandatory cancellation of the Applicant’s visa.

PRIMARY CONSIDERATION 2 – FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN

40. Paragraph 8.2(1) of Direction No. 90 provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.

41.     Paragraph 4(1) defines family violence to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful’.

42.     Primary Consideration 2 is relevant in circumstances where (paragraph 8.2(2)):

a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.2(2)(a)); and/or

b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.2(2)(b)).

43. Paragraph 8.2(3) of Direction No. 90 provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:

a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.2(3)(a));

b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.2(3)(b));

c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.2(3)(c)):

(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));

(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));

(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); and

d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.2(3)(d)).

44.     This family violence has been referred to before above related to the Applicant’s sister, father and former partners. Such conduct is reprehensible and serious but the conduct itself is not more than at the lower end of the scale of seriousness.

45.     It is not ‘double accounting’ to consider these matters separately. It is required to be carried out according to Direction No. 90, even although the same factual matters have been taken into account in Primary Consideration 1.

46.     It is correct to say that all instances of family violence should be regarded as abhorrent and in this case, that violence was visited upon members of the Applicant’s family at various times and two former partners.

47.     The extent of the family violence is, therefore, wide-ranging, although the Tribunal recognises that the level of violence itself is at the lower end of the scale of inappropriate family violent behaviour.

48.     It is further relevant to note that the Applicant’s father and grandmother have both given statements in support of the Applicant remaining in Australia and this is a relevant factor in assessing this particular consideration.

49.     It is sufficient to say that these factors, independently under this consideration, weigh against the Applicant. The Tribunal considers these factors independently apart from Primary Consideration 1.

PRIMARY CONSIDERATION 3 – BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

50. Paragraph 8.3(1) of Direction No. 90 provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision.

51.     This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made (sub-paragraph 8.3(2)).

52.     Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.

53.     Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:

a)the nature and duration of the relationship between the child and Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));

b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));

c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));

d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways  (sub-paragraph 8.3(4)(d));

e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));

f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));

g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and

h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).

54.     There are a number of minor children who are nieces and nephews of the Applicant. Not only is there insufficient evidence to treat each niece and nephew separately and consider their position in relation to the Applicant separately, the case for the Applicant was presented in a collective manner in relation to these children and it is appropriate therefore to deal with the matter on that basis.

55.     The Tribunal accepts that the children have a relationship with the Applicant and on the evidence, each one would be distressed should the Applicant be returned to Iraq. In understanding these attitudes, it is necessary to appreciate the cultural fabric of the Applicant’s family and social background to understand those strong family ties, particularly with the children. It is of course not impossible to imagine that there could be electronic communication between the Applicant and those nieces and nephews should the Applicant be removed from Australia, however, physical contact between the children and the Applicant is far more appropriate and satisfactory.

56.     The Tribunal recognises that the Applicant does not have any role with any of the children in any parental dimension, however, the relationships amongst the children with their uncle are such that collectively, this consideration weighs somewhat in the Applicant’s favour. This ultimate position is the position accepted by the Respondent in submissions.

PRIMARY CONSIDERATION 4 – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

57. Paragraph 8.4(1) of Direction No. 90 provides as follows:

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 not to allow such a non- citizen to enter or remain in Australia.

58.     Paragraph 8.4(2) also provides that it 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)   causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

(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, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;

(d)   commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

(e)   involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

(f)    worker exploitation.

59.     The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).

60.     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 (sub-paragraph 8.4(4)).

61.     This consideration has been the subject of extensive judicial discussion and ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185). Although these principles are discussed in relation to the former Direction No. 79, those principles are not relevantly different in principle with respect to Direction No. 90.

62.     It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the ‘norm’ stipulated in Direction No. 90 at 13.3(1). per Stewart J and Charlesworth J (93); (100 to 104); (68).

63.     In this case, the expectations of the Australian community deem that in all the circumstances and based upon all the evidence, the community’s expectations are that the Applicant’s visa should remain cancelled and this consideration weighs against the Applicant.

OTHER CONSIDERATIONS

64. A decision-maker must also take into account Other Considerations where relevant. These considerations include (but are not limited to) (paragraph 9(1) Direction No. 90):

a)international non-refoulement obligations;

b)extent of impediments if removed;

c)impact on victims;

d)links to the Australian community, including:

(i)strength, nature and duration of ties to Australia; and

(ii)impact on Australian business interests.

International non-refoulement obligations

65. The considerations at paragraph 9.1 of Direction No. 90 include (but are not limited to):

(1)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 Convention and Protocol non-refoulement obligations.

(2)In making a decision under s 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct.

(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa.

(4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa in a request to revoke the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

(5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.

(6)It may not be possible at the section 501/section 501CA stage to consider non­refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non­refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

(7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non­citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.

(8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the 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 of the 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 of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non­refoulement obligations.

66.     The Respondent accepts that international non-refoulement obligations are relevant to this application, particularly in circumstances where the Applicant was granted entry to Australia on the basis of being a refugee from Iraq.

67.     Although that status was determined 14 years ago, the Respondent accepts that the country information indicates that there is a real risk, based on the Applicant’s identification as an Assyrian Christian, that he may be harmed should he be returned to Iraq.

68.     On the evidence, the Tribunal is of the view that should the Applicant be returned to his country of origin, there is the real likelihood of serious harm, including death, to the Applicant.

69.     The Applicant may, should a decision be made to return him to his country of origin, apply for a Protection visa which requires an assessment of whether the Applicant is, in fact, owed protection and this must occur prior to any consideration of relevant exclusion provisions.

70. Furthermore, the Minister may exercise a personal discretion pursuant to section 195A of the Act to grant the Applicant a visa or make a decision pursuant to section 197AB of the Act to make a Residence Determination in respect of the Applicant.

71.     The Respondent submits that there are a variety of ways in which the Applicant may cease to be detained and contrary to the Applicant’s submissions, he will not be detained indefinitely.

72.     It is abundantly clear to the Tribunal that there is the real likelihood of serious harm suffered by the Applicant should he be returned to his country of origin. The submissions made by the Respondent in relation to other alternate paths that may be taken either by the Applicant or the Minister, in the Tribunal’s view, carry little, if any weight in an evaluation of this particular consideration.

73.     The Tribunal views as extremely significant the likelihood of harm to the Applicant should he be returned to his country of origin. On that basis, the Tribunal considers that this consideration carries significant weight in the Applicant’s favour.

Extent of impediments if removed

74. Paragraph 9.2(1) of Direction No. 90 provides:

(1)Decision-makers must consider the extent of any impediments that the non­citizen 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;

b)     whether there are substantial language or cultural barriers; and

c)     any social, medical and/or economic support available to them in that country.

75.     The Tribunal, like the Respondent, accepts the Applicant will return to Iraq without family and therefore, this presents certain barriers including emotional, economic and social difficulties that will, no doubt, cause distress to the Applicant. Furthermore, the Tribunal accepts that there are language barriers that the Applicant is likely to experience should he be returned to Iraq.

76.     The Tribunal is prepared to accept the opinion of the mental health expert, Dr Mohammad that the Applicant's mood will be significantly affected if he would leave Australia to go back to Iraq due to lack of social and medical support system in Iraq and this might put him at a risk of relapse.

77.     Other issues relating to the Applicant’s return are dealt with elsewhere in this decision under the international non-refoulement obligations.

78.     Overall, this consideration weighs somewhat in the Applicant’s favour.

Impact on victims

79. Paragraph 9.3(1) of Direction No. 90 provides:

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…

80. Direction No. 90 requires that the Tribunal must consider the impact of a section 501 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.

81.     In this case, a relevant victim, the father, and family members including the grandmother, siblings, and family friends have provided positive support for the Applicant, influentially disregarding any negative impact the Applicant’s past behaviour may have caused.

82.     It is important to understand and appreciate the support given to an applicant by family members who are also victims or family relations of a victim. That support may well be thought to be an attitude which focuses on the desirability of the applicant remaining in Australia whilst ignoring the initial negative impacts of the applicant’s behaviour towards their victim or victims.

83.     It is not possible to tease out those different and competing strands if they do exist in this case. However, not all the Applicant’s victims have written in support of him or given statements for the purposes of these proceedings. It should also be remembered that there are those who have been impacted by the Applicant’s fraudulent behaviour which is in an obviously quite different category of conduct.

84.     A result of analysis of these matters leads to a conclusion that there is some modest weight only in the Applicant’s favour to be given to this consideration.

Links to the Australian community

85. Reflecting the principles of Direction No. 90 at paragraph 5.2, decision-makers must have regard to Direction No. 90, paragraphs 9.4.1 to 9.4.2 provided below.

The strength, nature and duration of ties to Australia (Paragraph 9.4.1)

(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non­ citizen has to the Australian community. In doing so, decision-makers must have regard to:

a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

86.     The Applicant’s family which includes his parents who are Australian citizens, his grandmother, and siblings, all reside in Australia and have declared that the impact upon them if the Applicant’s visa is cancelled would be profound. There is no reason, the Tribunal considers, not to accept these expressions of support for the Applicant and the family’s attitude to the Applicant’s likely removal. The support, particularly which the Applicant has given to his grandmother and that he will in some form, the Tribunal accepts, continue to provide, is a particularly important factor which weighs in the Applicant’s favour.

87.     The Applicant has volunteered with his local church and has been employed for most of the time he has resided in Australia and has, therefore, contributed positively to the community.

88.     The relevant relationship with the witness who is a police officer has been discussed elsewhere in this decision but under this consideration, should it have been necessary to do so, the relevance of that relationship and assistance is regarded as powerful by the Tribunal.

89.     The Respondent submits that the weight to be given to this consideration is diluted because of the early and continued offending by the Applicant. The Tribunal recognises the power of this submission but also takes into account the fact that, to some extent, there should be some consideration given positively to the Applicant because of his mental health state, not all of which is attributable to his own drug taking but is rather, more related to his early history and the emotional and psychological impacts of his earlier life in Iraq.

90.     In the event, this consideration weighs strongly in the Applicant’s favour.

Impact on Australian business interest (Paragraph 9.4.2)

91. Direction No. 90 at paragraphs 9.4.2 provides:

(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

92.     There is no evidence to indicate that this consideration is relevant to this review.

CONCLUSION

93.     There are a number of considerations, including the issue relating to the likelihood of the Applicant offending in the future, which together, strongly weigh against the Applicant.

94.     The Special Consideration referred to in this decision, together with the matters referred to in the Applicant’s favour under the consideration of international non-refoulement obligations weighs so strongly in the Applicant’s favour that these matters, taken together with those other considerations that have some positive weight in the overall assessment of this matter, combine, in the Tribunal’s opinion, to overturn the cancellation of the Applicant’s visa.

95.     The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 29 October 2021 not to revoke the mandatory cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa is revoked.

I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

.............................[SGD]...........................................

Associate

Dated: 24 January 2022

Date of hearing:	13 January 2022
Solicitors for the Applicant:	Mr N Dobbie
Solicitors for the Respondent:	Ms G Ng