YMGL and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 185
•5 March 2025
YMGL and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 185 (5 March 2025)
Applicant:YMGL
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/10563
Tribunal:General Member J Pennell
Place:Melbourne
Date:5 March 2025
Decision:
The Tribunal sets aside the decision under review and in substitution decides that the decision refusing to grant Applicant’s visa is revoked.
.......................................................................
General Member J. Pennell
Statement made on 5 March 2025 at 1:22pm
General Member J. Pennell
CATCHWORDS
MIGRATION – Visa refusal – citizen of Iran – Safe Haven Enterprise Visa (SHEV) (subclass XE-709) – Section 510(6) character test – Direction 110 – Protection of the Australia Community – Risk to the Australian Community – Strength, nature and tires to the Australia community – risk of impediments if returned – Legal consequences of decision.
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
CASES
Ali v Minister for Immigration and Border Protection [2018] FCA 650.
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172.
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2022] FCAFC 124.
FYBR v Minister for Home Affairs [2019] FCAF 185.
KT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2022] FCAFC 124.
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120.
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021 FCAFC 133.
Minister for Immigration and Ethic Affairs v Guo (1997) 191 CLR 559.
Murphy v Minister for Home Affairs [2018] FCA 1924.
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
PQSM v Minister for Home Affairs [2019] FCA 150.
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SZRTN v Minister for Immigration and Border Protection[2014] FCA 303; (2014) 141 ALD 395, 409; [2014] FCA 303
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection(2014) 225 FCR 424; [2014] FCA 673.
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2021] FCAFC 55
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
SECONDARY MATERIALS
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
DFAT Country Information Report Iran (24 July 2023).
Statement of Reasons
1.This is an application to review the decision made by a delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’) to refuse the Applicant’s Safe Haven Enterprise (Class XE) visa (‘the visa’) under s.501(1) of the Migration Act 1958 (the Act).
2.The Applicant arrived in Australia by boat on 24 June 2011 and subsequently entered immigration detention.
3.On 14 April 2015, the Applicant was transferred from immigration detention to criminal custody in Western Australia, having been charged with various drug offences. These offences occurred on at the Yongah Hill Immigration Detention centre.[1]
[1] G Documents, G16 p. 163.
4.In April 2016 the Applicant was sentenced to 9 years and 6 months imprisonment (with a non-parole period of 7 years for the following offences (‘the drug offences’):[2]
(a)Attempted possess an unlawful imported marketable quantity of a border-controlled drug (heroin 27.9 grams pure) (methamphetamine 151.7 grams pure) (two counts)
(b)Possessed a substance, being a controlled drug (methamphetamine) (1 count)
[2] District Court of Western Australia Sentencing remarks dated April 2016, G7 p46.
5.In July 2017, on appeal the Supreme Court of Western Australia reduced the Applicant’s sentence to 7 years and six months with a non-parole period of 5 years.
6.The Minister of the Department of Immigration and Multicultural Affairs (‘the Minister’) refused the Applicant’s visa application on 27 June 2018.
7.On 13 October 2021, the Applicant completed his sentence and was transferred to immigration detention.
8.On 20 March 2024, The Administrative Appeal Tribunal (AAT) remitted the department’s decision to refuse the Applicant’s visa on the basis that the Applicant had engaged protection obligations under s.36(2)(aa) of the Act. It was found that, should he return to Iran, there was a real risk of him being tortured under questioning and interrogation. The Applicant also has documented health issues, placing him at elevated risk of harm.[3]
[3] AAT No 2308078 [2024] AATA (20 March 2024) unreported at [206], [207].
9.On 17 October 2024, the Applicant was notified of the Visa Applicant Character Consideration Unit’s (‘VACCU’s’) intention to consider a refusal of his Safe Haven Enterprise visa application under s.501(1) of the Act.
10.On 17 December 2024, the Applicant was notified that a delegate of the Minister had refused the Applicant’s application for a Safe Haven Enterprise visa. The Applicant applied to the Tribunal to review the decision that same day.
11.The Tribunal hearing was held on 28 February 2025 at the Tribunal’s Melbourne Registry. The Applicant attended the hearing in person to give evidence and make submission in support of his application. The Applicant was not represented at hearing but was otherwise represented by Russell Kennedy Lawyers. The respondent was represented at the hearing by MinterEllison. The hearing was conducted with the assistance of a Persian interpreter.
12.For the following reasons, the Tribunal has concluded that the Minister’s decision should be revoked.
Relevant law
13.Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a visa granted to a non-citizen if the Minister is satisfied the person does not pass the character test. This includes if the non-citizen has been sentenced to a term of imprisonment of 12 months or more. The Minister is required under s 501CA(3) of the Act to provide notice of the cancellation decision as soon as practicable and invite the affected person to respond. Under s 496 of the Act, the Minister may delegate these powers.
14.Section 501CA(4) allows for the revocation of a decision under subsection 501(3A) of the Act. Relevantly s 501CA(4) states:
(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.
15.Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
16.Section 501(6) of the Act defines the ‘character test.’ Relevantly, in part, s 501(6) states:
(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)); or……..
17.Section 501(7) provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
18.If an Applicant fails the character test, the issue to be determined under s 501CA(4)(b)(ii) of the Act is whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ to do so.[4] In Plaintiff M1/2021,[5] the High Court referred to how representations made under s 501CA(4) of the Act should be approached:
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand, and evaluate the representations…the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form, and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity, and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated, or which do not clearly arise on the materials before them. (Citations omitted).
[4] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[5] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (‘Plaintiff M1/2021’), [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ).
Direction 110
19.On 7 June 2024, Direction No.110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 110’) came into effect. Direction 110 sets out the principles that provide a framework within which a decision maker should approach the task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. It is binding on the Tribunal in performing its functions or exercising powers under s.501 of the Act.
20.Paragraph 5.2 of Direction 110 provides a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation.
21.The primary considerations in making a decision under s 501(1), 501(2) or 501CA(4) are detailed in paragraph 8 of Part 2 of Direction 110:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
22.Paragraph 9 of Direction 110 details other considerations where relevant, that must be considered. These are:
a) legal consequences of the decision;
b) extent of impediments, if removed;
c) impact on Australian business interests.
23.A decision maker is required to give greater weight to primary considerations under paragraph 8 than to other considerations pursuant to paragraph 9. In Suleiman v Minister for Immigration and Border Protection,[6] Colvin J when considering an earlier Direction[7] stated:
‘Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.’
[6] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 [23].
[7] Direction 65.
24.The issues before the Tribunal are:
(c)does the Applicant pass the character test, as defined in s 501 of the Act? If not;
(d)is there another reason why the original decision should be revoked?
Documents
25.The following statements were provided to the Tribunal in support of the Applicant’s application for review:
(a)Translated statement of Applicant’s family certified 24 February 2025.
(b)Translated statement of Applicant’s family certified 24 February 2025
(c)Translated statement of Applicant’s family certified 24 February 2025.
(d)Letter by Ms Beazley dated 14 August 2024.[8]
(e)Various Statements of Attainment awarded to the Applicant.[9]
[8] Beazley letter 14 August 2024, G24 p.361
[9] Certificate’s & Statements of Attainment, G16 p 223- 232 & G23.
26.In addition, the Tribunal was provided with:
(a) Applicant’s Statement of facts, issues, and contentions.
(b) Respondents Statement of facts, issues, and contentions
(c) Applicants reply.
(d) G Documents.[10]
[10] G Documents, G1-G39.
Applicant’s background
27.The Applicant was born in Qom, Iran, in 1977. The Applicant’s parents have both passed away. The Applicant’s evidence was that he had six siblings, four brothers and two sisters. One brother had passed away in Iran and a sister died with her family while traveling to Australia by boat.[11] The Applicant’s remaining sister lives in Australia. The remainder of the Applicant’s family continues to live in Tehran, Iran.
[11] Applicant’s Statement of Facts, issues and Contentions dated 14 February 2025.
28.The Applicant attended school in Qom. He did not attend higher education. Nevertheless, he stated to the Tribunal that he has a diploma in electronics. After high school, the Applicant completed his military service in Iran and worked for his brother as a motor mechanic.
29.In or about 2004, the Applicant married his wife. In 2006, his daughter was born. The Applicant’s wife and daughter continue to live in Iran.
30.The Applicant claims that whilst in Iran, he was involved in a road accident in which he sustained head injuries. The Applicant claims that following the accident, he began taking opiate pain killers, and occasionally opium, to manage his pain.[12]
[12] Ibid.
31.In or about June 2011, the Applicant legally departed Iran. The Applicant initially travelled by air, via Dubai, to Indonesia, and then by boat to Australia. The Applicant arrived in Australia on 24 June 2011 and entered immigration detention. On 15 November 2011, the Applicant received a negative Protection Obligation Determination Assessment.
32.The Applicant’s sister and brother-in-law had arrived in Australia from Iran prior to the Applicant seeking asylum. They initially lived in Perth, but subsequently moved to Melbourne. The Applicant’s evidence was that they are now Australia citizens.
33.In or about 2011, while in detention, the Applicant was informed that his other sister and her family had drowned while attempting to travel from Indonesia to Australia by sea.[13]
[13] Refugee Legal 22 November 2024, G16 p 166.
34.On 22 May 2012, the Applicant was transferred from a detention centre to community detention on the recommendation of International Health and Medical Services (‘IHMS’) due to poor health. His concerns included major depression, suicidality, and self-harm.[14]
[14] Refugee Legal Letter dated 22 November 2024; G16 p.164 (refence to IHMS records and letter of Dr McKeough 9 May 2012).
35.While the Applicant was in community detention, he worked at his brother-in-law’s bakery.
36.On 8 June 2012, the Applicant was notified of a negative Independent Protection Assessment and was again transferred from community detention to an immigration detention centre on 28 June 2012.[15]
[15] Refugee Legal Letter dated 22 November 2024, G16 p.164.
37.The Applicant was in immigration detention in 2014 at the time of the Department of Home Affairs (the Department) privacy breach, in which personal details of immigration detainees were inadvertently made public online. On 16 January 2015 the Department initiated an International Treaty Obligations Assessment (IOTA) in relation to the breach. The Applicant was invited to provide any concerns he may have because of the breach if he was returned to Iran. A final submission as provided on 25 August 2015 by the Applicant’s then-representatives.
38.On 14 April 2015, the Applicant was transferred from immigration detention to criminal custody in Western Australia having been charged with various drug offences.[16] The offences surrounded an incident in which the Applicant, whilst in immigration detention, received a package from his brother that contained 27.9 grams of heroin and 151.7 grams of methamphetamine. The Applicant was also charged with possessing 1.6 grams of methamphetamine while in detention.
[16] Ibid.
39.On 8 April 2016 the Applicant, was sentenced to 9 years and 6 months imprisonment (with a non-parole period of 7 years) for the drug offences.[17]
[17] District Court of Western Australia Sentencing remarks dated April 2016, G7 p.46.
40.On 17 July 2017, on appeal the Supreme Court of Western Australia reduced the Applicant’s sentence to 7 years and six months with a non-parole period of 5 years.
41.While in prison, from 19 November 2019, the Applicant was placed on methadone to address his drug use.[18] While in immigration detention the Applicant remained on methadone at 100mg per day. The Applicant’s evidence to the Tribunal was that since being released into the community he has continued to receive methadone from a pharmacy near his home.
[18] Medial record, G16 p.219-220.
42.While in prison, the Applicant completed several rehabilitation programs. These included addressing offending behaviour and drug and alcohol courses. The Applicant provided the Tribunal certificates in respect of the courses he has completed.[19]
[19] Certificate’s & Statements of Attainment, G16 p 223- 232 & G23.
43.The Applicant claims that he has several health issues for which he is receiving treatment. These are:[20]
[20] Refugee Legal 22 November 2024, G16 p 167.
·Chronic extensive psoriasis requiring ongoing treatment.
·Type II Diabetes mellitus, which was identified in 2013 and requires daily medication and monitoring.
·Hypertension (high blood pressure), requiring daily medication.
·Hyperlipidaemia (High Cholesterol), requiring medication.
·Gastro- oesophageal reflux disease, requiring mediation.
·Hepatitis C and liver Cirrhosis (sever liver damage), requiring monitoring.
·Liver lesion, requiring monitoring.
·Chest pain, which required investigation at Royal Perth Hospital 2022.
·Heberden’s node (node on toe).
·History of trauma, depression and adjustment disorder with insomnia.
·History of polysubstance abuse.
44.The Applicant received counselling from ASseTTs Western Australia, who specialise in trauma therapy, from 22 February 2022 until December 2024.
45.In December 2024, the Applicant was released into the community upon which he relocated to Victoria. The Applicant currently lives in a motel. The Applicant’s evidence was that he has continued his methadone program and received his daily does from a local pharmacy.
46.Additionally, the Applicant’s evidence was that he has arranged ongoing counselling with:
(a)Foundation House, where he is in the intake process,
(b)Next Door Psychology, and
(c)Brimbank Mental health & Wellbeing, where he has sought alcohol and drug counselling.
47.In addition, the Applicant has requested referrals from Life Without Barriers to appropriate services but is still waiting for a response. The Applicant has received approximately $700.00 from Life Without Barriers since his release, for food and other basic needs. The Applicant applied for Centrelink in January 2025. He stated to the Tribunal that he currently receives Centrelink.
The character test
48.Section 501(6) of the Act provides that a person does not pass the character test if they have a substantial criminal record as defined in s 501(7) of the Act. Relevantly, s 501(7)(c) of the Act provides that a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more or have been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.[21]
[21] Migration Act 1958 (Cth) s501(7).
49.The Tribunal was provided with a copy of the sentencing remarks in the Applicants proceeding in the District Court of Western Australia.[22] In this case the Applicant has accepted that his offending was serious.[23]
[22] Sentencing remarks, G7 p.46.
[23] Applicant’s Statement of Facts, Issues and Contentions at [40].
50.In his submissions, the Applicant’s representative conceded that the Applicant does not pass the character test.[24]
[24] Ibid at [5].
51.The Tribunal finds that the Applicant has a substantial criminal record for the purposes of s 501(6)(a) and s 501(7)(c) of the Act. The Tribunal therefore concurs with the Applicant and finds that the Applicant does not pass the character test. Accordingly finds that the requirements of s 501CA(4)(b)(i) are not met.
Whether there is another reason the visa cancellation decision should be revoked
52.The issue for the Tribunal is, therefore, whether there is another reason the decision to cancel the Applicant’s visa should be revoked. The Tribunal is required to have regard to Direction 110 in deciding whether to revoke the cancellation decision.
Protection of the Australian community
53.Paragraph 8.1 of Direction 110 provides that when considering the protection of the Australian community, the Tribunal is required to keep in mind that the safety of the Australian community is the highest priority of the Australian Government.[25] In addition, it provides that the Tribunal give consideration to the nature and seriousness of the Applicant’s conduct and the risk to the Australian community should the Applicant commit further offences or engage in further serious conduct.[26]
[25] Direction 110, paragraph 8.1(1).
[26] Direction 110, paragraph 8.1(2).
Nature and seriousness of the conduct
54.In considering the nature and seriousness of the Applicant’s offending or other serious conduct, the Tribunal is required to consider those factors detailed in paragraph 8.1.1 of Direction 110.
55.In this case, on 8 April 2016 the Applicant was convicted of three drug offices that arose out of the one incident that occurred on or about 30 April 2013 at Yongah Hill Detention Centre[27] in which the Applicant received a package from his brother that contained commercial quantities of heroin and methamphetamines.[28] In his sentencing remarks the Judge stated:[29]
‘The harm which is dissemination and use of drugs in the community causes is well known to the courts and the community. This offending is, in my view, objectively very serious. It is aggravated by reason of the fact that you were in a custodial setting at the time you attempted to obtain possession of the heroin and methamphetamine.’
[27] Incident Report 30 April 2013, G10 p.96.
[28] Delegates statement of reasons, G 5 P.31.
[29] Sentencing remarks, G7 p.47.
56.The Applicant submits that the drug offences do not fall within the conduct considered ‘very serious under by the Australia Government pursuant to Direction 110.’[30] Nevertheless, the Applicant conceded that it can be considered serious because the offence occurred while the Applicant was in immigration detention, and the sentence imposed.[31]
[30] Direction 110 at 8.1.1(1)(a); Applicant’s Statement of Facts, Issues and Contentions at [46].
[31] Direction 110 at 8.1.1(1)(b)(iv) & (c); Applicant’s Statement of Facts, Issues and Contentions at [46].
57.The Applicant contends that drugs were for his own personal use and that there were no victims to his offending.[32] The Applicant submitted that a study of heroin use among police detainees found that the average consumption of heroin by detainees per day was 0.6 grams per day. [33] It was submitted by the Applicant that, given he had been in detention since 2011, and based on the amount found in the package, the amount of heroin found in the package equated to approximately 1.5 months personal use. Nevertheless, in their sentencing remarks, the Judge remarked that while it was not known the extent to which the Applicant would have used the drugs, it was very plain that the Applicant’s possession of the drugs would have placed him in a powerful position in the detention centre as far as other inmates were concerned.[34]
[32] Applicant’s Statement of Facts, Issues and Contentions at [47].
[33] Applicant’s Statement of Facts, Issues and Contentions at [44].
[34] Sentencing remarks, G7 p.47.
58.The Respondent submits that Applicant’s conduct while in immigration detention adds to the seriousness of the Applicant’s offences.[35] Submitted incident reports indicate that the Applicant was in possession of contraband (illegal weapons and illicit drugs) while in detention after his prison sentence. On 10 September 2022, whilst in detention, the Applicant received foods parcels that contained marijuana concealed in chocolates.[36] On 28 November 2023, the Applicant received a package that contained, amongst other items, razor blades and needles.[37] In addition, on 25 January 2024, a makeshift ‘shiv,’ a pair of surgical scissors, a suspected smoking implement, and several razor blades were discovered in the Applicant’s room.[38]
[35] Respondents Statement of Facts, Issues and Contentions at [26].
[36] Incident Report 10 September 2022, G10 p.79- 81.
[37] Incident Report 23 November 2023, G10 p.73.
[38] Incident Report 25 January 2024, G10 p.69.
59.The Tribunal notes that the Applicant has not been charged for any of the incidents reported in detention as referred above, or any other offence since his release from prison. Having considered each incident, the Tribunal is satisfied that they are minor in nature, and occurred at a time when the Applicant was experiencing poor mental health having been returned to detention after serving his prison sentence.
60.The letter of Ms Beazely of ASeTTS dated 18 August 2024[39] notes that the Applicant had reported excessive ruminations, low mood, sleep difficulty and low motivation while in detention. It states that because of depressed mood he often isolated himself and did not engage with others. The Tribunal accepts that the Applicant was experiencing poor mental health as reported.
[39] Beazley letter 14 August 2024, G24 p.361.
61.Each reported incident was minor in nature as the quantity of marijuana found was small and only for personal use. In addition, the so-called weapons as described in the reports appeared to have been fashioned to help the applicant use marijuana rather than for any other purpose. The minor nature of each incident (both individually and cumulatively) is reflected in the fact that the Applicant was not charged for any reported incidents or any other offences. As such the Tribunal does not accept that the Applicant’s conduct in immigration detention adds to the seriousness of the Applicant’s offences.
62.The Respondent submits that the seriousness of the Applicant’s offending is elevated because of the false and misleading information he provided to the Department while applying for his visa.[40] The Respondent’s delegate noted that the Applicant admitted to lying to the Department in 2011 and 2012 about the harm he faced, as an alleged political prisoner charged with opposing the Iranian regime.[41] In addition, he falsely claimed that he had a twin brother who had passed away, and that he had assumed his brother’s identity to undertake political activities.[42] The Applicant contended that he had provided false protection claims due to the sensitivity around disclosing the details of his religion.[43]
[40] Respondents Statement of Facts, Issues and Contentions at [27].
[41] Delegated Decision, G 5 p.32
[42] Ibid.
[43] Ibid.
63.It was submitted on behalf of the Applicant that the ‘provision of false information was in the context of legitimate and now recognized fears of harm if returned to Iran.’[44]
[44] Applicant’s Statement of Facts, Issues and Contentions at [49].
64.Based on the Respondent’s submissions, and the previous AAT decisions in relation to the Applicant’s protection visa application, the Tribunal accepts that the Applicant was an unreliable witness in relation to the information provided to the Department in 2011 and 2012. However, the AAT did not accept the Applicant’s claim for protection based on his claims regarding his political activities.[45] Rather, his claim was accepted as his criminal activity in Australia placed him at risk of mistreatment should he return to Iran. No findings hinged on the Applicant’s unreliable evidence.
[45] Delegated Decision, G 5 p.39.
65.In circumstances where applicants for protection visa often present in desperate and uncertain circumstances (either perceived or real), it is understandable that some applicants find it necessary to make false claims. In this case, the Applicant has been in immigration detention or prison for much of his time in Australia. As such, it is not surprising he exaggerated his claims for protection.
66.As a result, the Tribunal does not accept that the provision of false information by the Applicant in relation to his protection visa application elevates the overall seriousness of the Applicant’s conduct as claimed by the respondent.
67.The nature of the Applicant’s offending should be considered in the context of violent and/or sexual crimes and acts of family violence.[46] In this case the Applicant’s evidence was that the drugs were for his personal use and submits there was no evidence of harm to the general community.[47] Nevertheless, the Applicant concedes that with substance offending there are risks to the community of indirect financial harm including cost of healthcare and cost of policing.[48]
[46] Direction 110, 8.1.1(1) (a).
[47] Applicant’s Statement of Facts, Issues and Contentions at [55].
[48] Applicant’s Statement of Facts, Issues and Contentions at [57].
68.In addition, the Applicant concedes that there are physical or psychological harm to drug users in the event of trafficking in unlawful substances but denies having engaged in such activity. [49]
[49] Ibid
69.Given the nature of the drug offences and the sentence given to the Applicant the Tribunal finds that the Applicant conduct is serious. The Tribunal places some weight therefore on the consideration in favour of affirming the cancellation decision.
Risks to the Australian community
70.Paragraph 8.1.2 of the Direction 110 provides that in assessing whether the Applicant represents an unacceptable risk of harm to the Australian community, the Tribunal 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 information and evidence on the risk of the noncitizen re-offending and any evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence.
71.In measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[50] Her Honour stated that, to determine an unacceptable risk, one must evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[50] Tanielu v Minister for Immigration and Border Protection(2014) 225 FCR 424; [2014] FCA 673.
72.The Tribunal is required to assess the risk posed to the Australian community if the Applicant reoffends, taking into consideration the nature of any harm and its probability. The courts have held that past actions are legitimate predictors of future behavior.[51] In Murphy v Minister for Home Affairs [2018] FCA1924 Mortimer J, (as her Honour then was) considered the notion of risk and its nexus to future possibility. Her Honour noted:[52]
‘That is, part of the Tribunal’s task was to decide not only whether the Applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be tolerated.’
[51] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 578-579; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133, [81]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, [63].
[52] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
73.In Minister for Immigration and Ethnic Affairs v Guo[53] the High court considered the extent to which past events can be a guide to the future. The Court stated:
‘Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence.’
[53] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, [574].
74.As such, in the process of determining the chance of something occurring in the future a conclusion will need to be formed concerning past events.[54] Assessing what is likely to happen in the future based on past events involves questions of degree. In Minister for Immigration and Ethnic Affairs v Guo the court held that[55]
‘The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity….’
[54] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, [575].
[55] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, [574] – [575].
75.In this case, the Applicant’s offending occurred over 10 years ago, and he has not been charged with any subsequent offences.
76.Its appears that the Applicant has made attempts to seek help and support of his addition to drugs. In or about November 2019the Applicant commenced methadone treatment on his own initiative.[56] The Applicant has also completed the following rehabilitative programs:
(a)The Keeping Off It program, a 12-session drug and alcohol relapse preventative program completed in 2019.[57]
(b)The Green Light Program, a 6-week voluntary drug and alcohol mentoring program completed in 2020.[58]
(c)An intensive 53-week medium Intensity program complete in 2021.[59]
[56] Applicant’s Statement of Facts, Issues and Contentions at [69].
[57] Keeping It Off, G16 p 223.
[58] Green Light Program, G16 p.224.
[59] Medium Intensity Program, G16 p.225.
77.In addition to the above the Applicant has completed the following vocational and other training:[60]
(a)Introduction to Workplace Health & Safety (Certificate I in Entry to General Education), September 2015.
(b)Entry to Mathematics 1 & 2 (Certificate I in Entry to General Education), 3 October 2015 and 2 October 2016.
(c)Work with Numbers and Money (Certificate I in General Education for Adults), October 2015.
(d)Perform tasks to support production (Certificate I in Textiles Clothing & Footwear), April 201.
(e)Work in a Team Environment, April 2016.
(f)Food Hygiene and Safety Training.
[60] Various Statements of attainment G16, G Documents, pp 226-233.
78.In addition, the Applicant has self-referred himself for support and claims to have found the session helpful in being able to manage his situation.[61] In addition the Applicant has actively sought assistance in detention in receiving his methadone treatment and ensuring he would be able to receive the medication in the event he was released for detention.[62]
[61] IHMS Report 25 February 2022, G16 p.207.
[62] Detainee medial request form, G16 p.213.
79.In 2022, the Applicant commenced counselling services while he was in detention through ASeTTS. Ms Beazley’s letter dated 14 August 2024[63] notes that to support the Applicant’s transition from detention back into the community he will need to have access to post release community services and case management to address common transition issues such as risk of homelessness, mental health challenges, drug and alcohol use and social isolation. The letter notes that the Applicant was referred to Foundation House for the purposes of seeking further support upon his release into the community. Ms Beazley notes that upon his release into the community his symptoms would be alleviated, and his physical and mental health would vastly improve. [64]
[63] Beazley letter 14 August 2024, G24 p.361.
[64] Beazley letter 14 August 2024, G24 p.361,
80.On 26 January 2012 IHMS psychiatrist Dr Silva Balarantasingam stated that the Applicant’s mental health issues were being exacerbated by his current environment. Prolonged detention would lead to a predicable harm and as a result recommended an alternative place of detention. [65]
[65] IHMS Report, G16 p.199.
81.The Applicant was released into the community in or about December 2024 and relocated to Melbourne in January 2025. The Applicant has experienced some difficult news whilst in the community. He has not received any help for family or friends and recently received news of the death of his mother and brother in Iran.[66] He currently lives in a motel, close to others who are suffering from drug and alcohol abuse and mental health issues.[67] The Applicant does not have any means of transport making visits to the doctor and other services more difficult. Nevertheless, the Applicant has continued to seek out help for his issues including:
(a)He has continued his methadone program. The Applicant attended a Pharmacy in Sunshine daily to receive his methadone dose.
(b)Has sought out the following counselling services:
(i) Foundation House- he is currently in the intake process
(ii) Next Door Psychology- to continue his mental health care plan
(iii) Brimbank Mental Health & Wellbeing for the purpose of continuing his alcohol and drug counselling
(c)The Applicant has also sought referral from Life Without Barriers (LWB) to appropriate services, including employment, community-based and other support returning to the community through VACRO. The Applicant has experienced some delay but is informed by LWB that it is currently determining its obligations to him.[68]
(d)The Applicant applied for Centrelink support in early January 2025.
[66] Applicant’s Statement of Facts, Issues and Contentions at [81].
[67] Ibid.
[68] Applicant’s Statement of Facts, Issues and Contentions at [80].
82.The Applicant submits that the assessments of experts and authorities is relevant to any risk the Applicant may pose to the Australia community.[69] The Applicant notes that neither the courts nor the Prisoners Review Board imposed any post-sentence supervision on the Applicant. The Applicant submits that this indicates a view that additional supervision was unnecessary for the community’s protection.[70]
[69] Applicant’s Statement of Facts, Issues and Contentions at [83].
[70] Sentence Administration Act 2003 (WA) Part 5A.
83.However, the Respondent notes that the Applicant has the following conditions imposed on his bridging visa:
(a) Condition 8303 – must not be involved in violent or disruptive activities.
(b) Condition 8552 - must not be involved in activities prejudicial to security.
(c) Condition 8554 - must not acquire specific good such as weapons.
84.The Respondent concedes that breaching these conditions may result in the Applicant breaking State or Commonwealth laws. However, it is submitted that a breach of these conditions is a criminal offence in of itself, and as such has the effect of being a further disincentive to the Applicant reoffending and as a result the safety of the Australia community is best served by the Applicant remain on a Bridging visa until such time his removal for the country can be lawfully affected.
85.However, in this case, if the applicant remains on a Bridging visa he will not be entitled to the same services and benefits as a person who is on a substantial visa. In circumstances where the applicant has sought help for his drug addiction and mental health issues, by leaving him on a bridging visa would potentially be denied the help sought and thereby increasing his risk of offending. As such the Tribunal does not accept that by leaving the applicant on a Bridging visa best serve the safety of the Australia community as submitted. This is particularly the case in circumstances where the Applicant’s offence did not involve any crime of a violent and/or sexual nature nor was he charged with any crime of a violent or sexual nature against women or children or any form of family violence.
86.The Applicant’s offending occurred more than 10 years ago. While the Applicant’s offences involved the possession of drugs in a trafficable quantity, the Applicant’s evidence was that they were to be used for personal use while in detention. While there was speculation that the drugs would have placed the Applicant in a powerful position in the detention centre, there was no evidence that the Applicant had engaged in dealing drugs in detention or elsewhere. In addition, the Applicant has not been charged with any offences since that time.
87.The Applicant evidence to the Tribunal was the last time he used marijuana was approximately three years ago in detention. The Applicant stated that he is now on the methadone program and no longer uses drugs. There was no evidence to suggest that the Applicant was not on the methadone program as claimed or had resumed using illicit drugs.
88.Based on the above considerations, the Tribunal finds that there is a low risk to the Australian community that the Applicant will reoffend in the future. Accordingly, for the reason above, the Tribunal is satisfied that this consideration, being the risk to the Australian community, weighs heavily in favour of revoking the cancellation decision.
Family violence committed by the non-citizen
89.Paragraph 8.2 of Direction 110 provides that the Australian Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. In this case, there is no allegation of family violence, and this is therefore considered neutrally for the purposes of this decision.
The strength, nature and duration of ties to Australia
90.Paragraph 8.3(1) of Direction 110 provides that the Tribunal must consider any impact of the decision on the non-citizen's immediate family members in Australia. In this case, the Applicant’s immediate family are his sister and her husband (the Applicant brother-in-law) and their children (the Applicant’s niece and nephew). The Applicant’s evidence was that his sister and her family had resided in Perth but had recently relocated to Melbourne. The Applicant claims that his sister recently travelled to Iran to attend the funeral of the Applicant mother and brother.[71] However, his evidence to the Tribunal was that he has since returned but had remained in Perth. As a result, of his sister visiting Iran and his relocation to Melbourne, his evidence was that he had not seen his sister since his release into the community in December 2024. As a result, she did not attend the hearing on the Applicant’s behalf and has not provided any witness statement in support of the Applicant.
[71] Applicant’s Statement of Facts, Issues and Contention at [90].
91.The Applicant conceded that since his arrival in Australia he had only spent approximately one year and three months in the community. While in community detention in Perth the Applicant worked in his brothers-in-law bakery. Upon his return to detention and during his term of imprisonment his evidence was that his sister and brother would visit him on a regular basis.
92.The Tribunal accepts and finds that a non-revocation decision would have an adverse emotional impact on the Applicant’s sister and her family. However, in circumstances where the Applicant sister was not involved in the Applicant’s proceeding, the Tribunal has some concern about the strength and nature of the Applicant’s relationship with his sister and her family. Nevertheless, the Tribunal accepts that the Applicant’s sister and her family would be adversely affected by the cancellation of the Applicant’s visa.
93.Paragraph 8.3(1) of Direction 110 states that the Tribunal must consider the strength, nature and duration of any other ties that the Applicant may have to the Australian community. In this case, the Applicant has resided in Australia for approximately 13 years. However, as referred to above, most of his time in Australia has been spent in immigration detention or prison. As such, the Applicant’s involvement and engagement in the Australian community has been limited. There is no evidence of the Applicant having a network of friends and he does not appear to have been engaged in any community activities. The Applicant has limited education although he has worked as a motor mechanic in Iran. His employment in Australia has been limited to working in his brother-in-law’s bakery while he was in community dentation, approximately 10 years ago. Accordingly, the Tribunal finds that any contribution that the Applicant has made to the community is substantially outweighed by the harm he has caused because of his offending and the public cost of addressing his offending and encouraging his rehabilitation.
94.Nevertheless, the Tribunal accepts that has been in Australia for approximately 13 years. The Applicant has consistently maintained that he cannot return to Iran and has undertaken courses and sought rehabilitation services while in detention and in goal in preparation for his release into the Australian community. Accordingly, the Tribunal has given this consideration little weight in favour of revocation of the cancellation decision.
Best interests of minor children in Australia
95.Paragraph 8.4 of Direction 110 requires decision-makers to determine, where relevant, whether revocation is in the best interests of any minor children in Australia. This provision applies only if the child is, or would be, under 18 years old at the time of the application. In this case, the Applicant contends that this consideration weighs moderately in favour of setting aside the original decision as his sister’s children, his niece and nephew, are minors and will be negatively impacted by a refusal decision. [72] No evidence was presented to the Tribunal by or behalf of the children in relation to their relationship with the Applicant and the effect of the cancellation of the Applicant’s visa has upon them.
[72] Applicant’s Statement of Facts, Issues and Contention at [97].
96.The Tribunal notes that the Applicant has spent little time in the Australian community. The Applicant’s evidence was that he has not had any recent contact with his sister’s children and that the last time he had any contact with them was during a brief visit while he was in prison. The Applicant does not parent the children, and he has no responsibility for their care and safety. Based on the Applicant’s own evidence the Tribunal finds that the Applicant plays a very minor role in the lives of his niece and nephew.
97.The Tribunal notes that if the decision is affirmed, he could still maintain a relationship with his niece and nephew in the immediate term in circumstances where he cannot be detained under s.189 of the Act and is likely to remain on a bridging visa.[73]
[73] Respondents Statement of Facts, Issues and Contention at [48].
98.In any event, based on the current evidence, the Tribunal places little weight on the best interests of the children in favour of revocation of the cancellation decision.
Expectations of the Australian community
105.Paragraph 8.5 (1) of Direction 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
106.Further, paragraph 8.5(2) of Direction 110 provides that visa cancellation, refusal or non-revocation 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. Finally, paragraph 8.5(3) states that this expectation applies regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.
107.Critically, 8.5(4) states:
This consideration is about the expectation of the Australian Community as a whole, and in this respect, decision makers should proceed on the basis of the Government views as above, without independently assessing the community’s expectations in the particular case.
108.In FYBR v Minister for Home Affairs [2019] FCAF 185, the Federal Court stated that the paragraph imputed or ascribed to the whole of the Australian community is an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[74] Nevertheless, it remains an issue for the Tribunal as to the weight that should be given to this consideration in making its decision.[75] In doing so the Tribunal is required to consider the specific circumstances of the Applicants case.[76]
[74] FYBR v Minister for Home Affairs [2019] FCAF 185; 272 FCR 454, [66]-[67], [91], 101] and [104].
[75] Ibid.
[76] Kelly [2022] FCA 396, [98]-[109] (Beach J).
109.The Respondent submits that the primary consideration outweighs in favour of non-revocation.[77] It is submitted that the Applicant committed a serious breach of the law, and the Australian community expects the Government not to allow the Applicant to enter or remain in the country. However, the Applicant submits that only minimal weight should be attributed to this consideration, given the Australian Government’s commitment to the international treaties enshrining our non-refoulement obligations, the passage of time, and the circumstances of the Applicant’s offending (the connection to his personal use) and his clear efforts to rehabilitate himself.
[77] Respondents Statement of Facts, Issues and Contention at [51].
110.The Tribunal accepts that these aspects of the Applicant’s circumstances should be considered in determining the weight to be given in relation to this consideration. As such, the Tribunal has given little weight to the expectations of the Australian community in this case, in favour of revoking the cancellation decision.
Other considerations
111.In deciding whether there is ‘another reason’ to revoke the cancellation of the Applicant’s visa, the Tribunal must consider the ‘other considerations’ listed in Direction 110. These considerations are not exhaustive.[78]
[78] SZRTN v Minister for Immigration and Border Protection[2014] FCA 303; (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
Legal consequences of the decision
112.Paragraph 9.1 states:
9.1 Legal consequences of decision under section 501 or 501CA
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
113.On 20 March 2024, the AAT found that the Applicant is owed protection obligations by Australia pursuant to s 36(2)(aa) of the Act. As a result, by operation of s.197C(3) of the Act, the Applicant cannot be removed from Australia to Iran pursuant to s.198 of the Act. Further, there is no other country to which there is a real prospect that Applicant could be practicably removed to in the reasonably foreseeable future.
114.As a result of the High Court's decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (NZYQ), where the statutory duty to remove a non-citizen has arisen (pursuant to s 198 of the Act), detention of a non-citizen is not supported by ss 189 and 196 of the Act where there is no real prospect that it will be practicable to remove the non-citizen in the reasonably foreseeable future. As such, a non-citizen, if in immigration detention, must be released.
115.In circumstances where the duty to remove the Applicant arose under s.198 of the Act and because of the decision in NZYQ, the Applicant could not be detained under s 189 of the Migration Act for the purposes of removal.
116.The Applicant was granted a Bridging Visa and released from immigration detention following the refusal of his visa. Accordingly, the direct legal consequence of a decision to refuse the Applicant's visa is that he will remain a lawful non-citizen as the holder of Bridging Visa.
117.The Respondent accepted that the conditions on the Applicant’s bridging visa are restrictive of his liberty and will affect his ability to participate in society.[79] Nevertheless, it was submitted by the Respondent that the Applicant had not been subjected to more onerous conditions that may have been imposed, such as a monitoring condition.[80] However, as referred to above, a decision not to revoke the delegates decision would result in the applicant remaining on a Bridging visa and being denied access to services that he would or may be entitled to on a substantive visa. A denial of such services to assist with his addiction and mental health will cause him to be at a greater risk of re offending and therefore a greater risk to the community.
[79] Respondents Statement of Facts, Issues and Contention at [53]-[57].
[80] Ibid.
118.It was submitted that if the Tribunal decided not to revoke the cancelation decision the Applicant would be able to live and work in the community until such time as he is either granted a substantive visa or removed to a third country.[81] That is, the Applicant would be able to enjoy similar privileges as provided by a substantive visa - save that he would be subject to being returned to immigration detention in the event he was found to have breached a visa condition, or being removed to either Iran or to a third country at any time.
[81] Ibid.
119.As such, a decision to affirm the cancellation decision places the Applicant in an unacceptable risk of being removed from the country or being returned to detention in circumstances where the AAT has determined that he is owed protection obligation by Australia. Additionally, the Tribunal as part of this decision, has found he is not a risk to the Australia community. The Tribunal places great weight on this consideration in favour of revoking the cancellation decision.
Extent of impediments if removed.
123.Paragraph 9.2 of Direction 110 requires the Tribunal to consider any impediments that the Applicant may face if removed from Australia to Iran in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country).
126.In this case, the Applicant cannot be removed to Iran under s.198 of the Act and there is no obvious evidence that the Applicant intends to voluntary return. In fact, the Applicant’s evidence was that he will never return to Iran. Accordingly, this consideration is given neutral weight.
Impact on Australian business interests
127.Paragraph 9.3 of Direction 110 provides that a decision maker must have regard to any impact on Australian business interests if the non-citizen is not allowed to remain in Australia. There is no evidence that Australian business interests are enlivened, as the Applicant has not been employed since before his prison term. This consideration is not enlivened and carries neutral weight.
CONCLUSION
128. The Tribunal has considered the specific circumstances in relation to the Applicant. Given the Applicant does not pass the character test, the Tribunal is required to weigh the relevant factors to determine whether it is satisfied that there is another reason to revoke the cancellation decision.
129.The primary consideration is the protection of the Australian community. While the Applicant’s offending was serious, the Tribunal has found, for the reasons above, that the low risk he poses to the Australian community is acceptable. Though, as the sentencing judge stated, his offences may have given the Applicant some power whilst in detention, the evidence was that his drug offending was for personal purposes and there is no evidence that he acted upon any such power in detention. In addition, the Applicant was not violent and did not involve any violent or sexual offending, nor any family violence. He has not been convicted of any subsequent offences.
130.Having considered the expectations of the Australian community, the strength, nature and duration of the Applicant’s ties to Australia, the best interests of minor children, together with the other considerations of the legal consequences of the decision and the extent of impediments if removed, the Tribunal is satisfied that the decision to cancel the Applicant’s visa should be revoked.
131.Whilst in the community, the Applicant has sought help on his own initiative to address his drug addiction and mental health issues. This includes the Applicant voluntarily requesting that he be placed on the methadone program and seeking counselling. Accordingly, the Tribunal has found that the Applicant is an acceptable risk to the Australian community. As such, the Tribunal is satisfied that countervailing considerations outweigh the protection and expectations of the Australian community such that the cancellation decision should be revoked.
DECISION
132.The Tribunal is satisfied that there is another reason to revoke the cancellation decision. The decision of the Tribunal revokes the decision under review.
I certify that the preceding 132 (One Hundred and Thirty-two) paragraphs are a true copy of the reasons for the decision herein of General Member J Pennell.
…………[sgd]……………………….
Dated: 5 March 2025
Date of hearing:
28 February 2025
Solicitors for the Applicant:
Advocate for the Respondent:
Ms Hannah Dickinson, Russel Kennedy Lawyers
Mr James Fyfe, MinterEllison
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