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

YFXS and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 36 (19 January 2023)
Division:GENERAL DIVISION
File Number(s): 2022/9028
Re:YFXS
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

Decision
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:19 January 2023
Place:Sydney

The correct or preferable decision is to set aside the delegate’s decision dated 27 October 2022, and remit the matter to the respondent for further processing with a direction that the discretion to refuse the Protection (Class XA) (subclass 866) visa under s 501(1) not be exercised.
............................[SGD]............................................
The Hon. John Pascoe AC CVO, Deputy President
Catchwords
MIGRATION - protection visa refusal – refusal under s 501(1) of the Migration Act 1958 – where the applicant does not pass the character test – whether the discretion to refuse the visa should be exercised – consideration of Direction No. 90 – protection of the Australian community – expectations of the Australian community – protection obligations - impediments to removal – links to the Australian community – indefinite detention - decision set aside and remitted.
Legislation
Migration Act 1958 (Cth) s 36, 499, 501
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
Pochi and Minister for Immigration (1979) 2 ALD 33
Secondary Materials
Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
19 January 2023

By way of an application filed on 3 November 2022, the applicant seeks review of the decision of a delegate of the respondent dated 27 October 2022, to refuse to grant the applicant a Protection (Class XA) (subclass 866) visa (the visa) pursuant to subsection 501(1) of the Migration Act 1958 (Cth) (Act), on the basis that the applicant did not satisfy the character test under paragraph 501(6)(a) of the Act.
Background
The applicant is a citizen of Iraq, born in late 1977, who first arrived in Australia in March 1993, at the age of 15 as the holder of a Refugee and Humanitarian (Migrant) (Class BA) (subclass 200) visa (humanitarian visa). The applicant's offending spans between 1999 and 2017.
On 4 August 2017, the applicant's humanitarian visa was cancelled under subsection 501(3A) of the Act.
On 9 November 2018, a delegate of the Minister, pursuant to subsection 501CA(4) of the Act, refused to revoke the cancellation of the applicant's humanitarian visa.
In February 2019, the Administrative Appeals Tribunal (Tribunal) affirmed the decision not to revoke the cancellation of the applicant's humanitarian visa.
On 22 February 2019, the applicant applied for a protection visa.
On 18 March 2019, a delegate of the Minister refused to grant the applicant a protection visa.
On 18 July 2019, following review of the delegate's decision to refuse to grant the applicant a protection visa, the Tribunal remitted the applicant's matter for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Act, having been satisfied there was a real chance the applicant would suffer serious harm if returned to Iraq.
On 27 October 2022, a delegate of the Minister refused to grant the applicant a protection visa under subsection 501(1) of the Act.
On 3 November 2022, the applicant applied for review of the delegate's decision with the Tribunal.
THe LAw
Section 501 of the Act provides:
Refusal or cancellation of visa on character grounds
Decision of Minister or delegate--natural justice applies
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
The relevant subsection of the ‘character test’ is defined at s 501(6)(a) of the Act as:
Character test
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7));
Section 501(7) prescribes that:
Substantial criminal record
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)     been found by a court to not be fit to plead, in relation to an offence; and
(ii)    the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)   as a result, the person has been detained in a facility or institution.
The Issues
The issues for the Tribunal to consider in relation to the application for review are:
(a)whether the applicant meets the character test, as defined in subsection 501(6) of the Act; and
(b)if not, whether the discretion in subsection 501(1) of the Act to refuse the applicant's visa should be exercised.
The applicant does not pass the character test on the basis of his 'substantial criminal record', having been sentenced to a term of imprisonment of 12 months or more: paragraphs 501(6)(a) and 501(7)(c) of the Act.
If the Tribunal is not satisfied that the applicant passes the character test, the Tribunal must consider whether to exercise the discretion to refuse the visa.
It was agreed at hearing by the parties that the applicant did not pass the character test. Therefore, the only issue before this Tribunal is whether to exercise the discretion to refuse the visa.
Direction 90
The Tribunal must take into account ‘Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ when determining whether the discretion should be exercised.
On 8 March 2021 the Minister made the Direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501. The Direction came into effect on 15 April 2021.
Paragraph 5.2 of the Direction sets out the following principles relevant to the exercise of the discretion:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-biding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other 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.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be sufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Section 6 of the Direction provides that, informed by the principles in paragraph 5.2 of the Direction, a decision-maker must take into account the considerations identified in section 8 and 9, where relevant to the decision.
Section 8 of the Direction provides that the four 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).
Section 9 of the Direction provides that the four other considerations which must be taken into account where relevant are:
(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;
(ii)impact on Australian business interests.
The evidence
The oral evidence of the Applicant
The applicant affirmed his statement which was unsigned and undated but filed with the Tribunal on 13 December 2022.
The applicant was initially questioned about a video filed with the Tribunal by his sister, which showed him being verbally abused by another detainee in immigration detention. The applicant recorded the indicant on his mobile phone as it happened. He said he had been called a ‘fucking rapist dog’.
This incident occurred after the applicant had been isolated in a separate compound as a protective measure, at his own request following an assault.
The applicant gave evidence that he was born in Iraq in 1977, and that he grew up in Iraq during the Iraq-Iran War, which ran from 1980 – 1988. His family had fled Iraq and went to Turkey as refugees. They lived in Turkiye in a refugee camp for three years before arriving in Australia in 1993, when the applicant was approximately 16 years of age.
The applicant said he found it very difficult to fit in as he had difficulties with the language, and that he also had ‘vision problems’ which made it very difficult for him at school.
The applicant started using drugs and admitted that he had a very serious and lengthy criminal history, starting from 1999, some six years after he moved to Australia.
The applicant said that he had a very limited employment history as a removalist and in other jobs, but that he was not employed for very long. He spent most of his time “just hanging around other people most of the time”. He was primarily supported by welfare payments.
The applicant said that he did work at one stage for 12 months but that he was injured. He received compensation from WorkCover, but did not work again and said that he could not get a job because of his pre-existing injury.
The applicant said that he had an excellent relationship with his parents now, and that the relationship previously had been good until he had started using drugs. He said he did not want his parents to know about his drug use, and there was little to no contact between 2008 – 2012. The applicant said that he has promised his family that he is a changed person, that he has stopped using drugs, and that he is no longer angry. He said that he is a ‘changed man’.
The applicant said that he has not used drugs for nearly five years, and that he has taken up exercise and bible study. He said he has learned to be patient and to take responsibility for his life. The applicant said that at the end of his last jail term, he had a made a commitment to turning his life around, and he needed to be a better person.
If released into the community, the applicant said that he would live with his parents. He also has an opportunity of work with his brother if he is released.
The applicant was questioned about his latest convictions, namely contravening an AVO, for which he was sentenced 12 months imprisonment, and dishonestly obtaining financial advantage. The applicant also further breached the AVO while incarcerated, making some 60 phone calls to the protected person asking for money and saying that he was going to be with her when he got out of prison.
The applicant said that he agreed with the sentencing remarks from Magistrate Bugden in relation to the large number of offences he had committed and the numerous times he had come before the court. The applicant accepted that he had committed a large number of other offences, including stalking and intimidating others.
In relation to the large number of phone calls made to the protected person while he was incarcerated, he said that he was withdrawing from drugs at the time and that he did not really know what he was doing, and that he was deeply sorry.
In relation to the breach for which he received a 12 month sentence, the applicant said that the victim had contacted him as she was cold, frightened and hungry. He had taken her for a meal at his parents’ home, and was apprehended by police whilst taking her back to the station. He agreed that the protected person was a 14 year old girl.
In relation to the dishonesty conviction, the applicant said that he withdrew the money from his account, but that the transfer of the money to him had been made by a third party. He recalled using a bank card that did not belong to him.
The applicant said that he was now totally drug free, and was opposed to any drug use. He has abstained from use of them despite having access in both prison and detention. He said that if he were to return to the community, he would never use drugs again. The applicant said that drug use had played a very large part in his offending.
When questioned about his mental health, the applicant said that he was not currently using any medications, and that he was able to manage his own mental health. He said that exercising ‘a lot’, reading scripture and talking to his family were supportive factors.
He said that engaging in counselling over a 12-month period while in detention had helped him focus, let go of negativity, and set goals for his future.
He speaks with the mental health nurse in detention approximately every three months, and was confident that he would not relapse if released into the community. He had completed courses in life skills and anger management online, and had also completed drug and alcohol counselling online while in detention.
The applicant attended a Christian study program whilst in mainstream detention.
When questioned about his former associates, the applicant said he had not been in contact with any of them since being in prison and detention, and that he only speaks to his family.
Oral evidence of TMW, consultant psychologist
Mr TMW, who is a consultant psychologist, confirmed his report of 13 December 2022. Mr TMW said that the applicant had struggled with depression, anxiety and low self-esteem. He said that the applicant was still anxious due to his current situation – namely being in detention, and concerns about his parents’ health.
The applicant’s low self-esteem was said to be due to his circumstances as a child, which had also led to him suffering from PTSD, which Mr TMW said was no longer present, but had been replaced by anxiety.
Mr TMW said that the applicant would benefit from ongoing support in the community, and referred to the protective factors in his report, namely:
… there are a number of protective factors in place, including his expressions of remorse, his drug free status, his maturation, the support he enjoys from his immediate family, his desire to re-enter the workforce and to be a pro-social member of the Australian community. He also has insight to the benefits which will accrue by undertaking regular supportive and motivational psychotherapy. Arising from these protective factors, I believe that [the Applicant’s] risk of reoffending is now trending from Moderate to Low.
The applicant was said to be in remission from substance abuse disorder. On re-examination, Mr TMW said that the applicant met the international standard of two years’ free of drugs of full remission of drug abuse, although in Mr TMW’s opinion three years was a better guide. The applicant has been free of drugs for five years. Mr TMW felt that his risk of reverting to drug abuse was low.
The applicant did not need medication for his mental health at this time, although Mr TMW felt that he would benefit from discussion with a psychologist which could assist his reintegration into the community.
Mr TMW thought that the applicant’s anxiety would be much greater if he were to face the prospect of indefinite detention.
Oral evidence of the applicant’s mother
The applicant’s mother affirmed her statement of 24 November 2022. A signed version of the statement was filed with the Tribunal on 13 December 2022. She is currently a full-time carer for her husband. She confirmed that if the applicant were allowed to return to the community, he would live at home with her and her husband, and said that he had lived with them on and off.
She said she had seen positive changes in her son, and that he had helped and encouraged her, especially after her car accident and during the pandemic. He had apologised to his family for his past mistakes, and the family will offer him full support.
She said it was important to have the applicant back, as they need him to help especially as his father is old and in ill health.
The applicant’s mother was confident that the applicant would not reoffend if released into the community. She was aware of his criminal record.
When questioned in relation to the AVO taken out by family members in regard to the applicant, the applicant’s mother said this was the result of a misunderstanding and that she was surprised at the time when the applicant could not come home.
Oral evidence of Sister A
Sister A affirmed her statutory declaration of 24 November 2022. A signed version of the statement was filed with the Tribunal on 13 December 2022. She said that she works as an employment consultant. She also gave evidence that she received the video filmed by the applicant in the detention centre, and had provided a copy of it to the Tribunal. She said that she now has a much closer relationship with the applicant, and that they speak two or three times per week. She said she and the applicant bring meaning to each other’s lives, and that the applicant had missed out on a lot of happiness with his sister and her children.
She said she was aware of the applicant’s offending and his drug use. She did not believe that applicant would go back to using drugs, and said that she would support him in every single way.
She said that the applicant was a completely different person now, and that she had no concern about any future reoffending.
Evidence of Sister B

Sister B affirmed her statutory declaration of 24 November 2022. A signed version of the statement was filed with the Tribunal on 13 December 2022. She is currently employed at the New South Wales Department of Communities and Justice. She said she now had a solid relationship with her brother, and was aware of his criminal offending and his drug use.
Sister B currently lives at home with her parents, she is strongly supportive of the applicant returning to the family home.
She was asked in cross-examination about the AVO that had been taken out on her behalf against the applicant, and about the circumstances leading to it. She said that she had not wanted to be any part of the AVO, and that she had been ‘protected’ at the time from much of the detail of the circumstances due to her young age.
When asked whether she had been afraid of her brother, she said she had never been afraid of her brother, but rather she had been afraid of who the drugs made her brother be.
Evidence of Brother A
Brother A affirmed his statutory declaration of 24 November 2022. A signed version of the statement was filed with the Tribunal on 13 December 2022. He said he was a cabinet maker who had his own business, and that he could offer employment to the applicant.
Brother A said that he had always been close to the applicant, that they had grown up together, and that he had been aware of the applicant’s day-to-day activities. He said that the applicant had looked down upon by others as he was unable to read or write. He had low self esteem, but he said that the family had always been there for each other.
Brother A had been aware of the applicant’s drug use, and of his criminal history although not in detail.
Brother A believed that the applicant had dramatically changed, and had no concerns about the applicant reoffending.
Brother A said that his children truly love the applicant.
Evidence of Brother B
Brother B affirmed his statutory declaration of 24 November 2022. A signed version of the statement was filed with the Tribunal on 13 December 2022. He said that the family had always kept an eye on each other, and that his parents had done their best. In his opinion, the applicant had disciplined himself while in prison and in detention and was no longer any threat to society.
He had never seen the applicant take drugs, but he was aware of his drug use and his criminal history. He said that his brother had discussed his convictions with him, and said that his brother did not understand why he had been in detention so long as he had not ‘killed anyone’.
He would offer his brother work if necessary.
Primary considerations
Primary Consideration 1: Protection of the Australian community
In relation to this consideration, I have regard for paragraphs 8.1.1 and 8.1.2 of Direction 90.
Nature and seriousness of the conduct
The applicant has been convicted of a very long list of criminal offences, from driving offences through to property offences and offences against third parties.
It is not the Tribunal’s role to look behind the convictions nor the sentences imposed by the criminal courts, although it is appropriate for the Tribunal to have regard to the remarks of the sentencing judge.
Whilst it is also open to the Tribunal to make findings of fact in relation to other alleged conduct, this must be done with a very high degree of caution and be properly founded having regard to the evidence in question, the rules of evidence, and the proper weighting of such evidence. At the very least, allegations must be put to the applicant and the applicant must have an opportunity to defend themself. These principles are well established and clearly enunciated by Brennan J in Pochi and Minister for Immigration (1979) 2 ALD 33 where his Honour said as follows at [39]:
The conduct which may be considered by the Minister and by this Tribunal is not confined to the case made against him at the trial. It is inherent in the grant of a discretion to the Minister under s 12 of the Migration Act that a conviction by itself does not necessarily lead to the making of a deportation order, so that it is open to the Minister to consider other conduct in exercising his discretionary power conferred by s 12. Likewise, it is right for this Tribunal to consider the whole of the alien's conduct and circumstances. The inquiry into an alien offender's conduct calls for an approach similar to that required by the European Court of Justice when, in R v Bouchereau [1978] 1 QB 732 , it interpreted a Council directive binding on member countries of the European Economic Community and affecting measures taken by them in deporting alien offenders. The Community's directive was said to require “the national authorities to carry out a specific appraisal from the point of view of the interests inherent in protecting the requirements of public policy, which does not necessarily coincide with the appraisals which form the basis of the criminal conviction”: ibid, at 759.
When the Minister, or this Tribunal on review, goes beyond the conduct which founded the conviction in order to make an appraisal as to where the best interests of Australia lie, questions necessarily arise as to the manner in which the facts of the particular case are to be found. It is clear that this Tribunal must determine the facts upon the material before it, not upon the material before the Minister: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 . But what degree of proof is required before facts will be found adversely to an applicant? These are facts which, if found against an applicant, may carry adverse consequences of the most serious kind. Although deportation is not itself a criminal punishment, the consequences of deportation may often be more destructive of the lives of the deportee and his family than the period of imprisonment to which he is sentenced. Before the Tribunal, the burden of proving the circumstances which warrant his deportation should be borne by the Minister who, in order to advance the best interests of Australia, would subject the applicant to deportation — a liability additional to the imprisonment which his conviction entailed.
I have taken the liberty of quoting his Honour at length because of the importance of this issue. These remarks were further supported by the Full Court of the Federal Court on appeal in Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139.
It is not necessary for me to go into details of the allegations against the applicant in relation to the protected person, protected by an AVO which the applicant was found to have breached, other than to state clearly that there was no evidence before this Tribunal to support those allegations in respect of which the applicant was neither prosecuted nor convicted. There are three relevant sets of sentencing remarks, the first dated 31 May 2017 in the Fairfield Local Court in relation to the initial breach of the AVO, the second dated 27 July 207 before the District Court of New South Wales regarding an appeal for the breach of the AVO, and the third, again in the Fairfield Local Court, on 22 January 2018 in relation to the second breach of the AVO and the dishonesty offence. I have had regard to those sentencing remarks.
I note the applicant accepted the accuracy of the police fact sheet dated 13 September 2017 in regard to the charge of dishonestly obtaining financial advantage, and also accepts the evidence in regard to the 60 phone calls to the protected person.
Absent any finding outside of the applicant’s conviction in relation to breach of the AVO in relation to the protected person, most of the applicant’s criminal offending relates to his drug use. This offending must be regarded as very serious because of the number of convictions, the lengthy period of criminal offending, and the fact that some of the offending involved threatening behaviour towards other people, including a young person.
It is relevant to the conviction for the breach of the AVO that the applicant’s version of events seems to have been accepted by the sentencing judge at the time, and that he was apparently attempting to assist the young person who had asked for help, even though the applicant knew that his conduct would result in a breach of the AVO.
I accept the applicant’s evidence that the phone calls made to the protected person while the applicant was in prison happened at a time when he was withdrawing from drugs, and he was clearly lacking judgment.
I also take into account a report of Mr SB, a clinical psychologist, dated 17 January 2018, which states as follows
[The applicant’s] criminal history is defined by those periods of time when he was using 'ice'.
…
[The applicant] has had no contact with drug and alcohol services in the past, and chronic 'ice' usage impacted on judgement, decision making and the offences for which he is charged.
Having regard to all of the elements outlined in Direction 90, and the evidence before the Tribunal, the applicant’s offending must be regarded as extremely serious even though some of it can be explained either by a desire to assist another person, drug addiction, or psychological difficulty at a particular time.
Risk to the community should the applicant reoffend
As stated earlier, much of the applicant’s offending can be explained by his drug use.
The evidence before the Tribunal is that the applicant has been drug free for approximately five years, and that he has not taken prohibited drugs, even though they may have been available to him both in prison and in immigration detention. The report of Mr TMW states as follows:
There is a clear nexus between his unresolved emotional problems at that time, him self-medicating with illicit drugs and his criminal conduct. On a more positive note he detoxified when entering detention and he has now been drug free for about five years. Significantly, he went “cold turkey” and has maintained his drug free status, notwithstanding his claim that there are drugs readily available in immigration detention centres. Certainly, when assessed, there was no indication of drug toxicity and equally so, I note from the relevant material I have been provided, that there has been no claim of him under the influence of illicit drugs.
Mr TMW in his oral evidence said that in his view, the applicant having been abstinent from drugs for such a long time, was unlikely to return to substance abuse.
The applicant expressed remorse in relation to his offending and expressed regret in relation to the time he had lost whilst addicted to drugs, and the harm he had caused to his family and to the community. I accept the evidence that the applicant is determined to change his life, and that he has made very significant efforts to rehabilitate himself.
There are a number of supportive factors that should assist the applicant if he is returned to the community, including very strong family support, involvement with his church, following a vigorous exercise program, and ongoing Bible study.
I note the letter of support from the Archbishop of St. Thomas the Apostle Chaldean & Assyrian Catholic Diocese of Australia and New Zealand, which states:
I do not wish to deny [the applicant]’s previous behaviour and utterly apprehend the weight of his past actions on the Australian community. However, in support of [the applicant], I wish to make reference to my recent conversations with him as he has greatly confided in me and presented to me in a very remorseful manner, pleading to be forgiven.
From my perspective, [the applicant] undeniably regrets his past actions and any harm he has caused the Australian community.
I take into account also the letter from DS, Team Leader in the Detention Centre Ministry WA, as to the applicant’s attendance and contribution to the Christian Study Programme while in detention.
Overall, having considered all of the evidence before the Tribunal in light of the relevant principles outlined in Direction 90, I am of the opinion that the applicant is at a low to moderate risk of reoffending, given the fact that the applicant’s abstinence from drugs has not yet been tested in the community. Further, there was conflicting evidence as to whether he would receive the psychological support recommended by Mr TMW if released into the community.
Taken as a whole, I give this consideration heavy weight in favour of exercising the discretion to refuse the visa.
Primary Consideration 2: Family Violence
In relation to this consideration, I have regard for paragraph 8.2 of Direction 90.
There is no evidence before the Tribunal of any serious violence towards a member of the applicant’s family.
The respondent submits that the applicant has received convictions for contravening an AVO in relation to an ex-partner and his parents. The Tribunal has received oral evidence from the applicant’s sisters and his mother, who all said that the AVO taken out against him was a mistake and that they did not want it.
There is no evidence before the Tribunal regarding the relationship between the applicant and his ex-partner, namely whether it meets the level of a ‘de facto’ relationship as is submitted by the respondent, other than the police fact sheet, dated 16 March 2010, in the matter. The police fact sheet states the applicant and his ex-partner were dating for three years prior to the event, that they had no children together, and that they had lived together ‘on and off’ over the three year period. I give this conviction, and the associated conviction for common assault, minimal weight in relation to this particular consideration because of the lack of specific evidence before the Tribunal.
Similarly, I do not accept the respondent’s submission that the contravention of the AVO that was in place in relation to the protected person, which is discussed at length previously, should be given weight with regard to this consideration. There is no evidence of any relationship meeting the requirements of familial relationship between the applicant and the protected person.
I give this consideration low to moderate weight in favour of the exercising the discretion to refuse of the protection visa.
Primary Consideration 3: Best Interests of Minor Children
In relation to this consideration, I have regard for paragraph 8.3 of Direction 90.
The applicant has a number of nieces and nephews who are minors in Australia.
There was limited evidence as to his relationship with them, although I accept that there is some relationship and that such a relationship is likely to be of importance to the children as they grow up.
In particular, the written statement dated 24 November 2022 of Brother A notes:
My 8-year-old son…and my 4-year-old daughter… have also spoken with [the applicant] on numerous occasions…They love speaking with their uncle about their favourite superheros and showing him their toy collections. Just over a year ago, we have since welcomed another daughter…who [the applicant] is getting to know.
The written statement of Sister A, dated 24 November 2022, states:
We video call each other with my kids, to help my kids know and remember their uncle and keep in contact strengthens their relationship. [My son] was only 3 years old when he used to come with me to visit [the applicant] at Villawood Detention Centre in Now, [my son] is 6 years old, and I show him photos of them together and he always asks "mummy, when is uncle [the applicant] coming over our house". This breaks my heart, and I can't tell my child in detail what is happening with his uncle. But [my son] is a creative person, and he will often write cards for his uncle.
The applicant has no minor children of his own.
Overall, I give this consideration low to moderate weight in favour of not exercising the discretion to refuse the visa.
Primary Consideration 4: Expectations of the Australian Community
Direction 90 sets out the expectations of the Australian Community. Broadly, these encapsulate the findings of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185, where the Full Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4.
There is clear authority that it is not the Tribunal’s role to determine for itself the expectations of the Australian community. The Tribunal’s role is to determine the weight to be given to this consideration.
In apportioning weight to this consideration, I take account of the fact that the applicant arrived in Australia as a young person, most likely suffering from PTSD, and that he had considerable difficulty integrating into the Australian community. His difficulties were exacerbated by problems with his sight, which made learning difficult. He was teased at school and suffered from low self esteem.
On the other hand, his offending is very serious, and includes stalking/intimidation, and offences against a minor. I also note that the applicant has a long history of offending, starting around six years after his arrival in Australia.
Overall, I give this consideration moderate to heavy weight in favour of exercising the discretion to refuse the visa.
Other Considerations
International non-refoulement obligations
I have had regard for paragraph 9.1 of Direction 90 in relation to this consideration.
It was accepted by both parties that Australia has protection obligations in relation to the applicant, and that he attracts non-refoulement obligations.
I note that the legal consequence of a protection finding is that the operation of ss 197C(3) of the Act neither requires nor authorises the applicant's removal to Iraq under s 198 of the Act so long as the protection finding remains in force and the applicant does not request removal to Iraq. I will discuss this further later.
I give this consideration neutral weight, given that the applicant cannot be forcibly returned to Iraq.
Impediments to removal
I have had regard for paragraph 9.2 of Direction 90 in relation to this consideration.
The Respondent’s representative made reference to the fact that the applicant is unlikely to be removed to Iraq due to the operation of s 197C, with the exception of possibly choosing to leave Australia. There was no evidence that he would choose to do so, however, I will consider the impediments if for any reason he were to be removed from Australia, accepting that this is unlikely but not impossible.
All of the applicant’s family are in Australia. He left Iraq at approximately 13 years of age and lived in a refugee camp in Turkiye before coming to Australia.
He has no relatives in Iraq and no support networks of any kind in that country.
I accept that he may be entitled to similar social and economic support as other Iraqi citizens, however, his ability to access them may be somewhat impacted due to fleeing the country at a young age and his unfamiliarity with the system.
The applicant has ongoing mental health concerns and substance abuse issues, which he has successfully managed in Australia. He may have limited access to the same supports and resources for managing these afflictions in Iraq. I note in this regard the report of the clinical psychologist SB, dated 11 June 2019, which states:
[The applicant]’s psychiatric and psychological health would, in my opinion, be severely compromised if he was forcibly return/deported to Iraq.
[The applicant] has no family ties or connections in Iraq.
If returned to Iraq, [the applicant] would be subjected to religious persecution.
There is no adequate treatment for chronic PTSD in Iraq, and his psychological health would be significantly compromised if forcibly returned to Iraq having lived almost thirty years as an Australian.
There is also a risk of harm to the applicant if he were to return, and it is accepted that Australia has protection obligations towards him.

I give this consideration heavy weight in favour of not exercising the discretion to refuse the visa.
Impact on victims
I have had regard for paragraph 9.3 of Direction 90 in relation to this consideration.
There was little evidence before the Tribunal of the impact of the applicant’s offending on his victims, except for his sisters and mother who said that they did not support the AVO taken out on their behalf and that they had no fear of their brother.
All of the applicant’s family were strongly in favour of his remaining in Australia.
I give this minimal weight in favour of not exercising the discretion to refuse the visa.
Links to the Australian community
I have had regard for paragraph 9.4 of Direction 90 in relation to this consideration.
Strength, nature and duration of ties
The evidence indicates that the applicant has very strong ties to the community. He has a very supportive family, all of whom gave clear evidence to the Tribunal of ongoing commitment and support of the applicant. I note that all of his immediately family have provided written statements to the Tribunal, and that there are various written statements and letters of support contained within the G-documents from the applicant’s family members and other links to the community.
He will have employment with Brother A.
The applicant will also have support from his local church, and in this regard I note the letter from the Archbishop.
He has lived in Australia since 1993, and does not appear to have left the country at any time.
In summary, all of the applicant’s ties are to Australia.
Impact on Australian business interests
This part of the consideration is not relevant in this matter.
I give this consideration, overall, heavy weight in favour of revocation.
Other consideration – indefinite detention
The Respondent’s representative conceded that the applicant could face the prospect of indefinite detention due to the legal consequence of his protection finding and the operation of s 197C of the Act, although it was said that the applicant could voluntarily choose to return to Iraq. Such an event is highly unlikely, especially due to the fact that all of the applicant’s family live in Australia.
Mr TMW gave evidence that the applicant’s mental health is likely to be seriously adversely affected by the prospect of indefinite detention.
The applicant’s situation is further exacerbated by the fact that he has been subject to abuse from other detainees as a result of the publication of material relating to earlier proceedings. In this regard, I note that the applicant has never been criminally prosecuted or convicted in relation to the relevant allegations.
The applicant has served his sentence and has spent approximately another five years in detention. Long term detention would clearly have very deleterious effects on both the applicant and his family.
In all of the circumstances, it would be difficult to justify indefinite detention of this applicant. I give this consideration very heavy weight in favour of not exercising the discretion to refuse the visa.
Consideration
This has been a very difficult case, partly because of its history which it is not necessary for me to further enunciate for the purposes of this judgment. There is no doubt that the applicant’s crimes, objectively considered, are very serious, have occurred over a long period of time, and have involved considerable court and policing resources. Breach of an AVO against a minor female person, must be taken very seriously, whatever the explanation.
The primary considerations, taken as a whole, weigh heavily against the applicant. However, the other considerations weigh heavily in his favour. The applicant has no ties to any country other than Australia, and all of his family and all of his supports are in this country. I accept that he has made significant efforts to reform, that he has been drug free since around 2017 - 2018, and that his expressions of remorse are true and genuine. Australia’s non-refoulement obligations in relation to the applicant mean that he that he faces the prospect of unlimited time in detention in circumstances where he may be subjected to physical and or psychological abuse which may require him to be isolated from others. There was clear evidence that long-term detention, even without the need for isolation, would be extremely deleterious to his mental health.
Having carefully weighed all of the evidence before the Tribunal and in light of Direction 90, I am of the opinion that the weight ultimately is in favour of not exercising the discretion to refuse the applicant’s visa.
Decision
The correct or preferable decision is to set aside the delegate’s decision dated 27 October 2022, and remit the matter to the respondent for further processing with a direction that the discretion to refuse the
Protection (Class XA) (subclass 866) visa under s 501(1) not be exercised.

I certify that the preceding 143 (one hundred and forty three) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

............................[SGD]............................................
Associate
Dated: 19 January 2023

Date(s) of hearing: 10 & 11 January 2023

Counsel for the Applicant: Mr N. Poynder

Solicitors for the Applicant: David Legal

Solicitors for the Respondent: Ms S. Frankel, MinterEllison

[2023] AATA 36

19 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Remedies

Date(s) of hearing:	10 & 11 January 2023
Counsel for the Applicant:	Mr N. Poynder
Solicitors for the Applicant:	David Legal
Solicitors for the Respondent:	Ms S. Frankel, MinterEllison