YYTF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 4038

YYTF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4038 (29 November 2023)
Division:GENERAL DIVISION
File Number: 2023/6701
Re:YYTF
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member R. West
Date:29 November 2023
Place:Melbourne

The Tribunal affirms the decision under review.
........................[SGD].........................
Member R. West
Catchwords

MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – other considerations – legal consequences of the decision – NZYD decision - Applicant released on Bridging Visa – monitoring conditions – decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Aggregate Sentences)Act 2023 (Cth)
Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth)
Migration Regulations 1994 (Cth)
Cases
CGX20 v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (No 2) [2020] FCA 1842
CKL21 v Minister for Home Affairs [2022] FCAFC 70
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158
DOB18 v Minister for Home Affairs [2019] FCAFC 63
Erradi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 703
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
NHBK and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 364
Pearson v Minister for Home Affairs [2022] FCAFC 203
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 167
YYTF v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 190
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v DOM19 [2022] FCAFC 21
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154
Secondary Materials
Direction No. 99 – Migration Act 1958 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Member R. West
29 November 2023

This matter concerns an application for the review of the decision of a delegate of the Respondent not to revoke the cancellation of the Applicant’s Class BA (Subclass 202) Global Special Humanitarian (Permanent) visa under s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The Applicant was born in January 1975 and is a citizen of Iraq.
He first arrived in Australia in 1995 as the holder of Class BA (Subclass 202) Global Special Humanitarian (Permanent) visa (Visa).
The Applicant has an extensive history of criminal offending in Australia beginning in 1999.
On 9 March 2017 a delegate of the Respondent cancelled the Applicant’s Visa under s 501(3A) of the Act (Cancellation Decision) and the Applicant was notified of the cancellation and invited to make representations about revocation.
On 16 December 2021, the Applicant was again notified of the cancellation of the Visa and invited to make representations about revoking the Cancellation Decision.[1]
[1] G5 59 - The previous notification and invitation was held to not meet with the requirements of the Act identified in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 and Sillars v Minister for Immigration, Citizenship,Migrant Services and Multicultural Affairs [2021] FCAFC 174 and necessitated a renotification.
The Applicant made representations to have the Cancellation Decision revoked on 13 January 2022.[2]
[2] G5 66.
On 7 September 2023 a delegate of the Respondent decided not to revoke the cancellation of the Applicant’s Visa[3] (Reviewable Decision), and the Applicant was notified of the Reviewable Decision on 7 September 2023.[4]
[3] G2 7.
[4] G2.
On 12 September 2023 the Applicant applied to the Tribunal for review of the Reviewable Decision (Application).[5]
[5] G1 1.
HEARING
The Tribunal conducted a hearing of the Application on 16 and 17 November 2023. The Applicant was self-represented. The Respondent was represented by Mr John Papalia, a solicitor with the Australian Government Solicitor.
In conducting the review, the Tribunal had regard to:
(a)the documents produced to the Tribunal by the Respondent pursuant to s 501G of the Act, sequentially numbered G1 to G7 and paginated from pages 1 to 328
(G Documents);
(b)a further bundle of documents lodged by the Respondent in related matters sequentially numbered T1 to T30 and paginated from pages 1 to 647
(T Documents);
(c)further documents lodged by the Respondent as supplementary documents marked as ST1 to ST3 and paginated from pages 648 to 668 (ST Documents);
(d)Notice of Visa Grant and Conditions – Class WR Bridging R (subclass 070) visa, dated 21 November 2023 - Exhibit R1; and
(e)the oral evidence of the Applicant.
On 22 November 2023, following the Hearing’s conclusion on 17 November 2023, the Respondent filed a written supplementary submission regarding the implications for the Applicant’s case of the High Court decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154. In that submission the Respondent confirmed that since the Hearing the Applicant had been released from immigration detention and was to be issued with a Bridging (Removal Pending) (subclass 070) visa[6]. Subsequently the Respondent lodged with the Tribunal a copy of the Notice to the Applicant dated 21 November 2023[7] of the grant of a Class WR Bridging R (subclass 070) visa.
[6] A consideration of the legal effect of the visa is set out at paragraphs [125]-[140] below.
[7] Included in the Tribunal file and marked Exhibit R1.
LEGISLATIVE FRAMEWORK
Section 501CA(4) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation decision if it is satisfied:
(a)that the person passes the character test (as defined by section 501); or
(b)that there is another reason why the original decision should be revoked.
Section 501(6)(a) provides that a person is deemed not to pass the character test if they have a substantial criminal record.
Section 501(7) relevantly provides that for the purpose of the character test, a person has a substantial criminal record if:
(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; a
Section 5AB of the Act provides:
The provisions of this Act and the regulations apply no differently in relation to a single sentence imposed by a court in respect of 2 or more offences to the way in which those provisions apply in relation to a sentence imposed by a court in respect of a single offence.
The Applicant’s criminal record includes a three-year sentence of imprisonment with a non-parole period of 18 months following a conviction for malicious wounding on 10 August 2007.[8] On the basis of that sentence alone the Tribunal is satisfied that the Applicant has a substantial criminal record as defined in s 501(7) and by virtue of s 501(6)(a), the Applicant is deemed not to pass the character test.
[8] G5 32.
Accordingly, the sole issue before the Tribunal is whether, under s 501CA(4)(b)(ii), there is another reason why the mandatory cancellation of the Applicant’s Visa should be revoked.
On 23 January 2023, the Minister issued Direction No. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 99) to commence operation from 3 March 2023. Direction 99 provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s Visa should be revoked.
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the Tribunal must comply with the direction.[9]
[9] See Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 [17].
DIRECTION 99
Clause 6 of Part 2 of Direction 99 provides that decision-makers must take into account the considerations identified in cl 8 and 9, where relevant to the decision.
Clause 8 of Part 2 sets out five primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia
(4) the best interests of minor children in Australia; and
(5) expectations of the Australian community.
Clause 9(1) of Part 2 sets out other considerations. These include, but are not limited to:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims;
(d)impact on Australian business interests.
Clause 6 stipulates that the decision-maker must be informed by the principles stated in paragraph 5.2 in assessing these considerations.
EVIDENCE
Applicant’s Evidence
The Applicant did not avail himself of the opportunity provided by the Tribunal in its directions to lodge further evidence prior to the Hearing and relied on material previously provided to the Respondent in relation to his application for revocation of the cancellation of his Visa, as incorporated in the G Documents.
The Tribunal relies on the earlier findings of the Tribunal recorded in its decision of 28 January 2022 in Matter 2021/1373[10] in relation to the Applicant’s general background:
a.The Applicant was born in Kirkuk in 1975 in north-eastern Iraq. He is an Iraqi citizen and identifies as Turkmen. Both his parents were born in Iraq. His mother is Kurdish and his late father who died in 1989 was Turkmen.
b.The Applicant and his family fled Iraq in 1990 and travelled by foot from Iraqi Kurdistan to Turkey where they stayed for five years. He arrived in Australia with his mother and several of his siblings on 31 August 1995.
c.The Applicant’s mother is living in NSW. The Applicant has nine siblings. Four of his sisters are living in NSW with their families. He has three brothers in Australia, two of whom are married and one who is single. He has two brothers who are living in Germany.
d.Prior to leaving Turkey, the Applicant worked in various jobs including in a café and department store. He was trained as a carpenter in Iraq. He has worked in various jobs, including at food markets, a kebab shop, as a delivery driver and as a carpark attendant since arriving in Australia.
[10] YYTF v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 190 at [20]-[23].
The Applicant was referred to the documents lodged by the Respondent and specifically documents containing information previously provided to the Respondent by the Applicant, namely:
a.a letter from the Applicant to a Case Officer, dated 6 December 2020[11];
b.a Request for revocation of a Mandatory Visa Cancellation Form completed by the Applicant on 13 January 2022[12];
c.a written statement by the Applicant dated 14 November 2022[13]; and
d.a Personal Circumstances Form completed by the Applicant on 13 January 2022.[14]
[11] T25 233.
[12] G5 66-72.
[13] G5 105-106.
[14] G5 73-88.
The Applicant affirmed the content of these documents and provided the following further oral evidence in response to questions from the Tribunal and the Respondent’s representative[15]:
[15] Although s.500(6H) of the Act provides that the Tribunal must not have regard to information presented orally unless the information was set out in a written statement given to the Respondent at least 2 business days prior to the hearing, the Tribunal may have regard to additional oral evidence elicited from questions by the Tribunal and in cross examination - Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v DOM19 [2022] FCAFC 21 at [23]
a.He stated that his immediate family in Australia consisted of his mother, 4 sisters and three brothers and that he also had extended family consisting of 2 cousins on his mother’s side and his mother’s sister and her husband’s 2 nephews.
b.He identified a number of minor children in his family, being the son of his oldest sister (aged 12), two daughters (aged 15 and 11) and one son (aged 17) of another sister, a daughter (aged 10) and a son (aged 15) of one brother, a son (aged 12) of another brother, two daughters (aged 14 and 12) of another sister and two sons (aged 13 and 11) of his youngest sister.
c.He stated that he previously saw these children when they would visit with his mother but he last had any contact with any of the children a few days before he went into prison and then detention in January 2017.
d.When questioned why he had not raised the interests of these children previously in his representations to the Respondent, he said that he had just raised them in response to the Tribunal’s questions regarding his family. He gave non-responsive answers to questions about the effect of not revoking the cancellation of his Visa on the children.
e.He said he had undergone an operation on his knee following a motor accident in 2011 and he found it difficult to walk and hard to sleep because of numbness in his arms. He said he was prescribed oxycontin and had been recommended hydrotherapy for rehabilitation of his knee. He said that hydrotherapy was not available in detention and he had been taken off oxycontin while in prison and had been denied it while in detention. He rejected the claim in IHMS reports[16] that his request for oxycontin while in detention was drug seeking behaviour and that he could manage his pain with Paracetamol.
f.He said that he had suffered severe depression in 1998/99 and 2002/2003 and saw a psychologist, who will be referred to in these reasons as Ms BT, on five occasions in August to September 2005 but he now feels better and knows how to deal with depression. He said he does not need medication or therapy.
g.He said that he completed an anger management course while in Long Bay prison in 2001 which was a program run every day for 7 or 8 months and included sessions on drug and alcohol abuse. He said he learned how to control himself and to not be too aggressive. He confirmed that this was the only course he had ever undertaken.
h.He said that he had never had a problem with excessive alcohol consumption and rarely drank alcohol. He said that he last used cannabis or methamphetamines over ten years ago.
i.He was taken to his criminal record[17] in cross examination and did not dispute the record generally and confirmed that:
i.his conviction for robbery armed with an offensive weapon on 7 February 2000 concerned the robbery of a female victim who was alone on a train in which he held a knife to the victim and stole from her $10, a mobile phone and a gold watch;
ii.his conviction for aggravated stealing on 20 May 2004 concerned the theft of sunglasses from a female victim whom he struck in the face (without injury) when she took his cap; and
iii.his conviction for malicious wounding on 10 August 2007 concerned an incident outside a Centrelink office when he had a confrontation with the victim over an allegation of rape against the Applicant. He was pursued by the victim leading to a fight in which the Applicant stabbed the victim with a knife puncturing his lung cavity.
[16] T30 390, 438 and 422.
[17] G5 30-33.
Other Evidence
Psychologists’ Reports
The Tribunal has had regard to four reports regarding the Applicant’s psychological condition.
Included in the G Documents are three reports of a Cross Cultural Clinical Consultant, Ms BT, from the Transcultural Mental Health Centre dated 17 September 2005[18], 12 December 2005[19] and 24 November 2008[20]. The Applicant was referred to Ms BT by a Parole Officer in June 2005 for psychosocial assessment, short term counselling and referral to appropriate services. Ms BTsaw the Applicant on eleven occasions between 12 August and 9 December 2005 and a further 5 occasions between 2 August and 11 November 2008.
[18] G5 110-116.
[19] Ibid 117-120.
[20] Ibid 121-128.
In her report of 17 September 2005 Ms BT gave the following diagnosis of the Applicant:
[The Applicant] has exhibited a range of symptoms over the consultations which are consistent with Post Traumatic Stress Disorder (PTSD) and Major Depression as outlined by DSM IV (Diagnostic Statistical Manual, copies are attached) as well as cannabis use. The severity and frequency of his symptoms indicated that he is severely depressed. The basis on which I diagnosed PTSD follows the indicator for the condition as specified by DSM IV. [The Applicant] lived in a war zone, experienced threats to his and his relatives’ physical and emotional integrity as well as ethnic discrimination. He has also experienced child abuse as his father and elder brother used severe physical disciplining methods to discipline him.
She concluded that:
It is obvious that [the Applicant] needs further structured therapeutic intervention to reduce the severity and frequency of the symptoms related to his depression, improve his self image as well as to explore his traumatic experiences. It is also very important if not essential to support him to practice safe and healthy ways of managing his anger and stress.
In her report of 12 December 2005 Ms BT reported that the Applicant. attended all his appointments with me and despite his swinging mood, which was predominantly depressed; he tried hard to comply with his treatment plan. He denied any illicit drug use and reported to suffer from withdrawal symptoms.
In her report of 24 November 2008 Ms TB noted:
During my previous course of intervention in 2005 I clearly identified his need for further structured therapeutic intervention to reduce the severity and frequency of the symptoms related to his depression, improve his self image as well as to explore his traumatic experiences. I referred him to STARTTS (NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors) but STARTTS was not able to provide a service then due to high need for the service ; he was placed on the waiting list for counseling [sic].
Also included in the ST Documents is a report of consultant psychiatrist, who will be referred to as Dr GW, dated 19 August 2021[21]. Dr GW interviewed the Applicant by videolink on 9 July 2021 at the request of the Respondent for the purpose of a risk assessment.
[21] ST2 652-665.
Dr GW offered the diagnostic opinion that the Applicant:
..does not suffer from a major mental illness, such as, for example paranoid psychosis. He also does not currently fulfill the criteria for Post-Traumatic Stress Disorder. His behavioural pattern over the years commencing in his childhood suggests the presence of Severe Personality disorder on the antisocial spectrum. He presents with a long history of offending which commenced in his early adulthood. It appears it coincided with the time that he arrived in Australia. However, his aggression was already noted during his childhood. Since his arrival his alcohol intake escalated, and he started using illicit substances including methamphetamine and cannabis. His offending history consists of violent offending, as well as other antisocial behaviours. There is a possibility that he has a genetic predisposition for antisocial personality disorder as evidenced by his father’s characteristic, described by [The Applicant’s] mother. From a diagnostic point of view, he fulfils the criteria for Antisocial Personality Disorder as evidenced by his history of breaking the law, acting impulsively and lacking regard for the safety of others.

Dr GW assessed the Applicant as at risk of future violence in the moderate range.
PRIMARY CONSIDERATIONS – CLAUSE 8 OF PART 2
Protection of the Australian Community
In considering the protection of the Australian community, the Tribunal has had regard to the matters set out in cl 8.1(1) and (2) of Part 2 of Direction 99.
Clause 8.1(2) requires decision-makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and Seriousness of the Applicant’s Conduct to Date
The Applicant’s Offending
A complete statement of the Applicant’s criminal record is set out in a National Criminal History Check produced by the Australian Criminal Intelligence Commission[22], and was summarised by the Tribunal in its decision of 28 January 2022 affirming a decision of a delegate of the Respondent to refuse the Applicant a Class XA subclass 866 Permanent Protection visa under s 65(1)(b) of the Act.[23]
[22] G3 and G429-32.
[23] YYTF v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 190 [24]-[52].
The Applicant was first convicted in a Local Court in 1999. In June 1999 he was fined $100 for the offence of failing to comply with a direction and in December 1999 he was fined a total of $900 for offences of travelling on a train without a valid pass, resisting an officer, intimidating a police officer and using offensive language.
His first conviction in a District Court was in February 2000 when he plead guilty to the offence of robbery armed with offensive weapon and was sentenced to an effective total sentence of three years and eight months imprisonment. The circumstances of the offending were set out in the sentencing remarks of Blanch CJ:
The facts of the case are that on 6 October 1998 he was on a train bound for Cabramatta and as the train reached Sefton railway station he approached the victim who was the only occupant of the carriage. He produced a folding knife with a blade extended; he held that knife out to her and demanded property and as a result of that she was forced to hand over two $5 notes, a Motorola mobile phone and a gold ladies watch.[24]
[24] T23 225.
He was again sentenced in the District Court in May 2004 for aggravated stealing from person and sentenced to two years imprisonment suspended for two years on condition that he enter into a bond with supervision and programme requirements[25]. The facts of the case were summarised in the sentencing remarks of Quirk J. in later proceedings on 10 August 2007 by reference to the sentencing remarks of Charteris J on 20 May 2004:
Briefly the facts of the offence were that in March 2002 the offender stole a pair of sunglasses from the head of a female victim following which she then grabbed his hat or cap. The offender then hit her twice in the face and ran off with her sunglasses but the victim suffered no injury during the commission of the offence[26].
[25] T21 201.
[26] T21 .187-188.
In August 2004, the Applicant was convicted in the Local Court of possess prohibited drug and fined $1,000.
In October 2004, the Applicant was convicted in the Local Court of Carry cutting weapon upon apprehension and possess prohibited drug and fined $250 and $300, respectively.[27]
[27] On 16 December 2005, the District Court decided to take no action in respect of the Applicant’s breach of the suspended imprisonment order imposed in May 2004, on the basis of that re-offending
He was again convicted in the District Court in August 2007 of malicious wounding after a jury trial and sentenced to a term of three years imprisonment and ordered to serve the two years suspended sentence imposed on 20 May 2004 partly cumulatively, resulting in a total effective sentence of three years and six months imprisonment.[28] The circumstances of the offending were set out in the sentencing remarks of Quirk J.[29] and were summarised by the Tribunal in its decision of 28 January 2022 as follows:
The Applicant was outside the Centrelink office in Auburn. There was an angry discussion between the Applicant and a man, A, about an alleged rape of a female by the Applicant some years prior. After the Applicant tried to walk away, A pursued the Applicant. There was a scuffle and A kicked the Applicant. In the fight that ensued between A and the Applicant, A sustained a 2-3 cm wound in the right side of his chest under the armpit and suffered a puncture to his lung cavity. After injuring A, the Applicant ran away.[30]

[28] T21 195.
[29] T21 180-187.
[30] YYTF v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 190 [39].

In November 2009 the Applicant was convicted in the Local Court of resist or hinder police officer in the execution of duty and behave in offensive manner in/near public place/school and received a good behaviour bond of 24 months’ duration and supervision requirements and a financial penalty of $100.
In January 2013 the Applicant was convicted in the Local Court of common assault and fined $100.
In November and December 2013 the Applicant was convicted and sentenced in the Local Court of: possess prohibited drug ($75 fine), custody of knife in public place – first offence ($100 fine), supply prohibited drug (12 months’ good behaviour bond), goods in personal custody suspected being stolen (not motor vehicle) ($50 fine), fail to appear in accordance with bail undertaking (12 months’ good behaviour bond).
In July 2014 the Applicant was convicted and sentenced in the Local Court for custody of knife in public place – subsequent offence ($400 fine).[31]
[31] The Local Court decided to take no action on the two breaches of the good behaviour bonds imposed in December 2013.
In August 2015 the Applicant was convicted in the Local Court of destroy or damage property $ 2000 to $ 5000 ($500 fine and compensation order of $920.30)
In July 2016 the Applicant was convicted and sentenced in the Local Court of: custody of knife in public place – subsequent offence (good behaviour bond of 12 months’ duration with supervision and programme requirements), fail to appear in accordance with bail undertaking ($200 fine), custody of knife in public place – subsequent offence (7 months’ imprisonment, susp. upon entering a good behaviour bond of 7 months’ duration), fail to appear in accordance with bail undertaking ($200 fine). In separate proceedings in the Local Court, also in July 2016, the Applicant was convicted on two counts of possess prohibited drug and fined $1,500 and $250.
In January 2017, the Applicant was convicted and sentenced in the Local Court for the following offences: custody of knife in public place – subsequent offence (2 months’ imprisonment), custody of knife in public place – subsequent offence (7 months’ imprisonment), possession of equipment for administering prohibited drugs ($300 fine), custody of knife in public place – subsequent offence (call up on breach 7 months’ imprisonment), custody of knife in public place – subsequent offence (call up on breach 1 month imprisonment), with a total effective sentence of 7 months 9 days’ imprisonment.
Nature and Seriousness
The Respondent submits that the Applicant’s criminal history should be viewed in its totality as very serious, demonstrating a concerning trend of increasing seriousness over time and cumulatively having imposed costs and consequences on his victims and the broader community, including through judicial and police intervention. In addition, the Respondent submits that certain of the Applicant’s offences should be viewed individually as very serious, particularly those which involved violence and the use of a knife as a weapon.
In his sentencing remarks in February 2000, Chief Justice Blanch stated in relation to the Applicant’s conviction for the offence of armed robbery with an offensive weapon :
It is obviously a very serious matter and a matter in respect of which a prison sentence must be imposed ...

The question arises as to why a young man without a prior criminal history would commit such a serious offence ...

it is my duty when sentencing someone for a serious offence such as this to give due weight to the principles of general deterrence and in spite of the fact that he has never been to gaol before nor been in trouble before, a gaol sentence is inevitable
Judge Quirk made the following comments about the seriousness of the Applicant’s offence of malicious wounding for which he was convicted in August 2007:
In the circumstances I accept that the objective seriousness is not as high as that propounded by the crown. There was some provocation of the offender and whilst he was carrying a knife as he apparently often did his resort to its use was not premeditated but more of a reaction to the circumstances. There is no excuse for the carrying or use of a knife and the offender had had charges of possession or carrying a knife or an offensive weapon brought against him to which he pleaded guilty on three prior occasions in 2004. It is a matter of great seriousness and significance as the use of knives appears to be becoming more widespread and the community’s attitude is that of abhorrence to this practice. Therefore this offence must be viewed as a most serious offence.
Clause 8.1.1(1) of Part 2 of Direction 99 provides a description of what is considered very serious and serious conduct. Paragraphs 8.1.1(1)(a)(i)-(iii) list certain crimes of violence which are to be regarded as very serious. Paragraphs 8.1.1 (1)(b)(i)-(iv) gives examples of crimes which are to be regarded as serious.
The Applicant’s offending includes crimes of violence involving the use of a weapon and on two occasions it involved crimes of a violent nature against women. Such offending is to be regarded as very serious. In addition, the Applicant’s offending includes offences against government officials in the performance of their duties and in that respect is to be regarded as serious offending.
The descriptions given in cl 8.1.1(1)(a) and (b) are not exhaustive and cl 8.1.1(1)(c)-(h), set out a range of factors decision-makers must consider in assessing the nature and seriousness of the criminal offending or other conduct to date. These include, for relevant purposes in this case:
(a)the sentences imposed by the court;
(b)the frequency of the Applicant’s offending; and
(c)the cumulative effect of any repeated offending.
(d)whether the Applicant re-offended after being formally warned, or otherwise being made aware, in writing, about the consequences of further offending in terms of his migration status
The Applicant’s offending has resulted in three substantial terms of imprisonment and one suspended sentence. The Tribunal has recognised that:
Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.[32]
[32] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 [22].
The Applicant’s offending has been extensive and continuous over the period from 1998 until he was last incarcerated in January 2017. The nature of the offending has involved a broad array of crimes.
The pattern of offending shows that between 2000 and 2007 there was an escalation in the seriousness of the Applicant’s violence. In 2000 he threatened the victim with a knife. In 2004 he was convicted of twice striking the victim to the face. In 2007 his offending involved actual stabbing the victim puncturing his lung cavity.
After 2007, the pattern involved less actual violence and mainly involved possession offences, of which the most notable were the repeated offences involving the possession of a knife. The fact that the Applicant continued to arm himself with a knife, aware that it was unlawful and in the knowledge that it could inflict serious injury is of concern. The Applicant’s explanation for continuing to carry a knife was that he needed it to protect himself from being the victim of robberies by drug addicts who had stolen his money and prescription drugs in the past when he was weakened by the effects of his car accident in 2011. The Tribunal does not accept this as a legitimate excuse for the Applicant to continue to carry a knife. The possession of a knife carries the potential for circumstances to develop in which persons are placed in danger of the infliction of serious injury and even death. This is confirmed by the circumstances which led to the Applicant resorting to the use of his knife in the incident in 2007. The Tribunal finds that the offences related to possession of a knife to be very serious.
The seriousness of the Applicant’s conduct is enhanced by the fact that he failed to respond positively to the consequences of his actions and to the opportunities offered to him to reflect on his conduct including the non-custodial sentences and suspended sentences imposed by the courts and, relevantly for cl 8.1.1(1)(g), the warning he received from the Respondent.
After the Applicant was convicted of maliciously wounding and sentenced to three years in prison with a non-parole period of 18 months in August 2007[33] a delegate of the Respondent notified the Applicant on 19 December 2007 that his Visa may be liable to cancellation on character grounds.[34] On 5 March 2009 a decision was made not to cancel the Visa and a written formal warning was issued to the Applicant stating:
Please note that visa refusal or cancellation may be considered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered.[35]
The Applicant continued to offend notwithstanding the warning.
[33] GD 32.
[34] GD 99.
[35] Ibid.
Having regard to these considerations the Tribunal finds that the nature of the Applicant’s criminal conduct to date has involved very serious offending demonstrating a concerning disregard for Australian law and the safety and welfare of members of the community.
The risk to the Australian community should the Applicant commit further offences or engage in other serious misconduct
Clause 8.1.2(2) of Part 2 of Direction 99 relevantly states that in assessing the risk that may be posed by a non-citizen to the Australian community, the decision-maker must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non- citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(c)…whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and there are strong or compassionate reasons for granting a short stay visa.
Nature of the Harm
Should the Applicant engage in further criminal or other serious conduct of the kind he has committed previously it can be expected that he will expose members of the community to the risk of serious physical and potential psychological injury, and even death. The Applicant has used a knife to threaten a woman on a train and to inflict injury on another victim. He has consistently flouted the law by carrying a knife in public. It is not fanciful to speculate that if that conduct were repeated circumstances may develop in which a person is seriously injured or killed.
The Applicant’s offending has also involved theft and damage to property and the supply of prohibited drugs. The repetition of this conduct threatens the harm of economic loss resulting from property crime and the availability of the harmful effects of prohibited drugs in the community for individuals and for the public health and the justice systems.
Likelihood of Reoffending
In assessing the risk of reoffending, the Tribunal is mindful of the comments of the Full Court in CKL21 v Minister for Home Affairs[36] that:
…while the future is not predictable, it is possible to assess the degree of likelihood of an event occurring in the future based on past and current circumstances. On occasions, the task of predicting future events in curial or administrative decision-making has been described as involving speculation. That is an unfortunate description, as the word speculation is typically used as a synonym for conjecture, which is the formation of an opinion without sufficient evidence for proof. In curial and administrative decision-making, the task of assessing the degree of likelihood of an event occurring in the future requires more than mere speculation. It must be based on a logical process of reasoning based on the known facts. A conclusion that a risk “cannot be ruled out” does not, of itself, logically establish the existence of a risk. Further … a risk may be so low that it must properly be disregarded. In assessing the likelihood of a future event, the key facts will include the regularity with which the event has occurred in the past, the conditions under which the event occurred in the past and the likelihood that those conditions have since changed or other events have intervened to interrupt the cycle of regularity.
[36] (2022) 293 FCR 634 [74], citing the High Court’s decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 599 [574]-[575].
In his final submission to the Tribunal the Applicant expressed his remorse for his offending and for the impact his actions had had on his victims. He stated openly that what happened was his fault and he did not blame anyone else. He expressed a strong desire to make a fresh start in life and a commitment to make amends to his family and the community. Having observed the Applicant give his evidence the Tribunal is satisfied that the Applicant’s expressions of remorse are genuine. His acceptance of responsibility for his actions is an important factor in assessing the risk of him re-offending. However, he has a long history of criminal offending and the Tribunal notes that in 2008 the psychologist Ms BT reported that the Applicant was very remorseful of his wrong doings[37] and yet subsequently he went on to commit multiple offences.
[37] G5 126.
The Applicant claims his experience of incarceration and the threat of deportation or further detention will deter him from further offending. The Tribunal is cautious about accepting this assertion.
The Applicant has not been deterred by the prospect of incarceration or deportation in the past. His criminal record includes offences committed while on parole and bail and multiple instances of re-offending following periods of incarceration. He offended following a formal warning by the Department of Immigration of the possible consequences of re-offending for his immigration status.
In addition, the Applicant’s record while in custody does not suggest that incarceration will act as the deterrence claimed by the Applicant. His prison record[38] includes 30 incidents involving breaches of prison discipline over the period of his incarceration in prisons between 2000 to 2017. The Applicant’s record in detention since 2017 includes numerous incidents involving breaches of discipline and aggressive behaviour[39]. While these incident reports are to be treated with caution as they have not been the subject of criminal charges nor the findings of the prison/detention authorities proven in court, they do suggest that the Applicant has a continuing propensity to engage in non-compliant behaviour and that he is not deterred from doing so by the prospect of internal disciplinary procedures while in custody.
[38] T21177-178.
[39] T29 252.

The Applicant gave evidence that if released into the community he would live with his mother, find a job and ultimately open a carpentry business with his older brother and settle down to family life.
The Tribunal is not satisfied that the Applicant has adequate support in the community to enable him to avoid resorting to his past criminal conduct. He has some employment history. He has worked in various jobs, including at food markets, a kebab shop, as a delivery driver and as a carpark attendant since arriving in Australia, but he has not been in a position to work for almost 6 years due to his incarceration. He has health problems related to the injuries he suffered in the car accident in 2011. The Applicant did not call any evidence to corroborate his plan to set up a carpentry business with his older brother. The Tribunal is sceptical that this plan has any realistic prospect of coming to fruition. The Applicant’s older brother is currently resident in Germany and the Applicant lacks any formal qualifications in carpentry. He said he trained in Iraq but that would have been before the family fled to Turkey in 1990 over 30 years ago.
While the Applicant claimed to have the support of his large family, he did not call evidence from any members of the family. In this regard the Tribunal notes the observation of the psychologist Ms BT in her report of 12 December 2005 that the Applicant:
..is still very reluctant to talk about his family affairs as he considers them as his family secrets. But he was obviously having a lot of problems at home as he appeared very frustrated when I initiate to talk about his family to mainly explore if any social support is available for him during this critical period in his life. He was teary and briefly stated that there is a bed for him in the garage where he spends most of his time over there while he is at home. He also said that he could count on one hand the number of times he had dinner with his family in the last 5 years. He also believes that his family including his mother does not care about what happens to him.[40]
[40] G5 nice119.
Dr GW also commented in her report that the Applicant:
..has limited protective factors. He reported that he was notified of possible visa cancellation in 2006, however he continued to offend in a similar manner and associate with antisocial peers.
His mother is the only identified protective factor as she is likely to provide him with support and accommodation.[41]
[41] G5 211.
As to the prospect of rehabilitation, the evidence does not paint a clear picture of the Applicant’s current mental health.
Ms BT diagnosed the Applicant as suffering from severe depression when she saw him in 2005-2008. She also observed that he was exhibiting symptoms consistent with a diagnosis of post- traumatic distress disorder (PTSD) and was self-medicating with cannabis. In 2021, Dr GW noted that the Applicant had a history of depression and cannabis and amphetamine use but she did not offer a diagnosis of any major mental illness and ruled out PTSD. She noted that the Applicant had a history of impulsivity, propensity to use substances as a coping mechanism and violence. She said he had no insight into his triggers and that he minimised his offending. She opined that his behavioural pattern was consistent with the presence of a severe personality disorder on the anti-social spectrum although during her interview he did not demonstrate strong anti-social attitudes. She said he did not present as someone who is highly motivated to live a pro-social life.
Senior Member Kirk summarised the psychiatric assessments of the Applicant presented to the criminal courts in the Tribunal’s decision of 28 January 2022,[42] and noted:
a.in sentencing the Applicant for aggravated stealing in May 2004, Charteris J took into consideration a psychiatrist’s assessment that the Applicant suffered from a possible diagnosis of severe personality disorders, chronic post-traumatic stress disorder, paranoid psychosis and cognitive intellectually deficits;
b.in sentencing the Applicant for robbery armed with offensive weapon on 7 February 2000, Blanch CJ concluded from the pre-sentencing report and psychologists’ reports that there was nothing which would suggest a substantial psychiatric or psychological cause for the commission of the offence; and
c.in sentencing the Applicant for malicious wounding in August 2007, Quirk J, had regard to a psychologist’s report which said the Applicant was immature, in desperate need of psychological supervision and treatment, unable to manage his emotions, suffering from disorganisation in thought processes, disturbed emotionally and having beliefs of persecution.
[42] YYTF v Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 190 [67]-[70].
The Tribunal is unable to draw any firm conclusion as to the nature of the Applicant’s current psychological condition based on this conflicting evidence. However, it is clear from the Applicant’s criminal history, his documented history of substance abuse, the difficult life he led before coming to Australia and the various psychological assessments reported since 2004 that the Applicant has untreated mental health issues which have been a significant contributing factor to his offending.
It was the opinion of Ms BT in 2008 that the Applicant needed further structured therapeutic intervention and in 2021 Dr GW noted that the Applicant had no programmatic intervention whilst in prison and recommended that the Applicant undertake drug and alcohol counselling. Neither of these recommendations had been followed.
The Applicant’s evidence was that he had taken only two principal measures to address his anti-social behaviour. First, he had received counselling from Ms BT in 2005 and again in 2008. Secondly, he had undertaken an anger management course while in Long Bay prison in 2001. He confirmed that he had not sought or received counselling subsequent to seeing Ms BT and had not undertaken any other courses.
The Tribunal is concerned that the Applicant has not taken adequate steps to address the psychological and personality issues giving rise to his offending and as a result remains a risk of re-offending if released into the community.
While the Court expressed some optimism about the Applicant’s prospects of rehabilitation in handing down sentence for the offence of maliciously wound in 2007, the Tribunal, in affirming a decision to refuse the Applicant a protection visa on 28 January 2022, was not satisfied that the Applicant had made adequate progress towards rehabilitation and addressing the issues giving rise to his offending and found that the Applicant presented a moderate risk of re-offending, which given the nature of his crimes, supported a finding that he was a danger to the Australian community.[43]
[43] YYTF v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 190 [133]-[137].
Dr GW’s assessment of the Applicant’s risk of re-offending was:
I base my opinion of [the Applicant’s] risk of future reoffending on the outcome of HCR- 20v3 assessment, application of PCL-R, collateral history and my clinical assessment including findings on mental state examination. The risk and protective factors have been outlined in HCR-20 v3 assessment. [The Applicant] did not demonstrate strong antisocial attitudes during my interview with him, however at the same time he did not present as someone who is highly motivated to live a pro-social life.
His history of impulsivity, propensity to use substances as a coping mechanism and becoming violent, were taken into consideration when forming my opinion that his risk of future violence is in the moderate range. [The Applicant] is also at risk of engaging in antisocial behaviour’s which may not always be serious but have the potential to escalate.[44]
[44] ST2.665 [83]-[84].
A further consideration in assessing the risk of reoffending arises from the recent release of the Applicant from immigration detention and the proposed issue of a Bridging (Removal Pending) (subclass 070) visa. Under the amendments to the Act and the Regulations introduced by the Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth) the Applicant will be subject to the mandatory monitoring conditions of the visa for which there are offences for failing to comply with specific conditions. The conditions contemplated by the Act which may be imposed include measures such as mandatory reporting, requirements that the visa-holder remain at a particular place at certain times and the wearing of monitoring devices. The Tribunal accepts that these measures will act as a further disincentive for the Applicant to re-offend.
Conclusion
The Applicant is almost 49 years old. He has not offended since 2017 and presents as genuinely remorseful for his actions. He has now been released into the community subject to mandatory monitoring conditions which will allow some degree of supervision and provide a disincentive to further offending. However, he has a long history of antisocial behaviour including serious incidents of violence which Dr GW described as a history of impulsivity, propensity to use substances as a coping mechanism and becoming violent. The Tribunal is not satisfied that the Applicant has done enough to address the psychological and personality issues which have influenced his offending nor that he has adequate support in the community to enable him to avoid resorting to further criminal conduct. Having regard to these factors and the professional opinion of Dr GW the Tribunal assesses the risk of the Applicant re-offending as moderate.
The Tribunal notes cl 8.1.2(1) and the view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases and that some conduct, and the harm that would be caused if it were repeated, is so serious that any risk that it may be repeated may be unacceptable. The Applicant’s prior offending was very serious. Even a moderate risk that it will be repeated is unacceptable.
The protection of the Australian community is a primary consideration under Direction 99 and weighs heavily in favour of not revoking the cancellation of the Applicant’s Visa.
Family Violence committed by the Applicant
Clause 8.2(1) of Direction 99 states:
The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
There is no evidence that the Applicant has engaged in family violence and this consideration is not relevant to him.
The Strength, Nature and Duration of Ties to Australia
Clause 8.3 of Direction 99 requires that decision-makers:
(1)…must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
The Applicant has no partner or children of his own. The Applicant’s immediate family in Australia comprises his mother, four sisters and three brothers and eight nephews and eight nieces who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. He has two brothers who are living in Germany. He also claimed to have extended family in Australia consisting of 2 cousins on his mother’s side and his mother’s sister and her husband’s 2 nephews
The Applicant stated that his mother is aged and needs him to help look after her and that he will move in with his mother to care for her with his younger brother if he is released. He described the impact on his family if he were to be deported or to remain in detention as:
My mother, sister, brother, nephews and nieces all will be heartbroken and sad for me and would worry about my safety and my mother might not even be able to take it because she went into hospital when I lost my appeal in the AAT.[45]
[45] G5 83.
There is no evidence before the Tribunal from any member of the Applicant’s family. The statements of both Ms BTand Dr GW cited at paragraphs [75] and [76] above suggest that the Applicant’s relationship with his family may not be as he claims. There is no evidence of any financial or other material dependence on the Applicant by any family member and there has been little opportunity for direct personal contact given that the Applicant has been in custody continuously since January 2017, at least some of the time in Western Australia.
The fact that the Applicant has now been released into the community and has the legal right to remain in Australia under his bridging visa removes any concerns his family may have had about him being deported or held in further detention.
The Applicant has not identified any non-family members with whom he has ties in Australia and he gave no evidence of his involvement in community organisations. He did work irregularly prior to his detention including in kebab shops, cafes and a car wash and so he has some connection to the community through that employment.
Under cl 8.3(4) the length of time the Applicant has resided in Australia is a relevant consideration. The Applicant has lived in Australia for over 28 years. However, he was 20 years of age when he arrived in Australia and spent his formative years outside Australia. He was first convicted of an offence within 4 years of his arrival in Australia. Clause 8.3(4)(a)(iii) states that less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
The Applicant identifies with Australia but the Tribunal is not satisfied that the evidence demonstrates that he has strong ties with the Australian community, except through his family, and there is considerable doubt as to the strength of his family relationships.
Under Direction 99, the strength, nature and duration of ties to Australia is a primary consideration and weighs in favour of revocation. However, in the Applicant’s case the Tribunal’s decision will not prevent the Applicant continuing to live in the community and a decision not to revoke the cancellation of his Visa will not adversely affect the strength, nature and duration of those ties. Accordingly, the Tribunal affords this consideration little weight even though it is a primary consideration.
Best Interests of Minor Children affected by the Decision
Clause 8.4(1) requires that decision-makers must make a determination about whether non-revocation under s 501CA is, or is not, in the best interests of a child affected by the decision.[46]
[46] This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made: cl 8.4(2) of Direction 99.
The Applicant has no children of his own but has identified a number of minor children in his family, being the son of his oldest sister (aged 12), two daughters (aged 15 and 11) and one son (aged 17) of another sister, a daughter (aged 10) and a son (aged 15) of one brother, a son (aged 12) of another brother, two daughters (aged 14 and 12) of another sister and two sons (aged 13 and 11) of his youngest sister.
The best interests of each child must be given individual consideration to the extent that their interests differ.[47] However, there is insufficient evidence before the Tribunal to support a conclusion that there are differing interests between the children nominated to justify giving them separate consideration.
[47] Clause 8.4(3) of Direction 99.
The Applicant did not raise the interests of these children when he presented evidence to the Respondent in support of his application for revocation. In his Personal Circumstances Form in response to a question prompting him to identify minor children, the Applicant wrote ‘N/A’.[48] The interests of the children first arose from the Applicant’s answers to questions about his family during the Hearing. When questioned why he had not raised their interests previously he stated that he had only identified the children because he was asked to do so by the Tribunal. He stated that he had not seen or had any contact with any of the children since being taken into custody in January 2017 and then detention. He said that he saw the children prior to his incarceration when they visited his mother’s house. When asked to explain how the children would be affected by a decision not to revoke the cancellation of his Visa he was vague and non-committal. In his written statement[49] he referred to them only in the context of his wider family whom he claimed would be heart broken if he were not released into the community.
[48] G5 79.
[49] G5 83.
In considering the best interests of the child, cl 8.4(4) requires that the following factors be considered:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

The Applicant’s relationship with each of the nominated children is non-parental. The Applicant accepted that his siblings each fulfilled the parental role for each of their respective children and he confirmed that he was not expecting to play a parental role in the future. The Applicant has had long periods of absence having been in prison and immigration detention for almost six years. In his evidence he did not claim to have had any significant contact with any particular child prior to his incarceration. There was no evidence before the Tribunal of the views of the children or their parents as to the impact of a decision whether or not to revoke the cancellation of the Applicant’s Visa.
There is no evidence that the Applicant’s prior conduct has had a negative effect on any of the nominated children nor that the considerations in paragraphs 8.4(4)(g) and (h) are relevant.
The Applicant has not presented any evidence that he has played or is likely to play any material or substantial personal role in the lives of any of the children. However, the Applicant is the uncle of each of the children and he provides a familial and cultural link for them. The Tribunal accepts that for this reason it is in the best interests of the children to have the opportunity to develop a relationship with the Applicant. The release of the Applicant from detention has now provided that opportunity.
While the best interests of minor children affected by the decision is a primary consideration under Direction 99 the interests of the minor children identified by the Applicant in this case will not be materially affected whatever the outcome of this appeal. The release of the Applicant from detention and the granting of a bridging visa ensures that whatever the outcome of this appeal, the Applicant will remain in Australia. This consideration is therefore a neutral factor.
Expectations of the Australian Community
Clause 8.5(1) of Part 2 of Direction 99 provides:
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.
Clause 8.5(4) makes it clear that the Tribunal is not to independently assess the community’s expectation in an individual case. The majority of the Full Court of the Federal Court has explained that cl 11.3 of the former Direction 65 which mirrors the wording of cl 8.5(1) and (2):
…should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasizes that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[50]
[50] FYBR v Minister for Home Affairs (2019) 272 FCR 454, [75]-[76].
For reasons discussed above, the Tribunal is satisfied that the Applicant has engaged in very serious conduct in breach of Australian laws and this gives rise to a community expectation that the cancellation of his Visa not be revoked. The Tribunal’s assessment is that there is a moderate risk that the Applicant will re-offend and expose the community to significant harm. Clause 8.5(3) makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Clause 8.5(2) of the Direction provides further that refusal of a Visa may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular cl 8.5(2) identifies specific kinds of offences for which the Australian community expects the cancellation of a visa if serious character concerns about the non-citizen are raised through that conduct. Clause 8.5(2) relevantly identifies the commission of
a.serious crimes against women[51], which includes crimes of violence; and
b.crimes against government representatives or officials due to the position they hold, or in the performance of their duties.[52]
[51] Cl.8.5(2)(c)
[52] Cl.8.5(2)(d)
The Applicant’s offences include two serious crimes against women.
a.In February 2000 he was convicted of robbery armed with offensive weapon in relation to the robbery at knife point of a female victim who was alone on a train and sentenced to an effective total sentence of three years and eight months imprisonment.
b.In May 2004 he was convicted of aggravated stealing from person in relation to the theft from, and assault of a female victim and sentenced to two years imprisonment suspended for two years.
In addition, the Applicant’s offences include offences against public officials, notably the police. In December 1999 he was convicted of intimidate police officer in execution of duty and resist officer in execution of duty. In April 2004 he was convicted of escape police custody. In November 2009 he was convicted of resist or hinder police in execution of duty. The Tribunal notes that each of these offences did not result in a custodial sentence, attracting only a fine or good behaviour bond. However, cl.8.5(2)(d) does not refer only to serious crimes against government officials.
The specific crimes identified as falling within cl 8.5(2)(c) and (d) raise serious character concerns. The Applicant’s preparedness to confront a women alone in a vulnerable position on a train and to threaten her with a knife in order to force her to give over her property displays a lack of moral integrity and respect for the welfare of other members of the community. A similar character concern is raised by his offence on the second occasion where he actually struck his victim to the face twice, albeit without inflicting physical injury. Although his offences involving the police are not in themselves serious offences they demonstrate a lack of respect for the law and the good order of the community and raise concerns about the character of the Applicant and his preparedness to moderate his own behaviour and to respect the interests of other members of the community.
The Applicant’s release from detention raises a further issue relevant to this consideration, the issue of utility. Irrespective of the Tribunal’s decision, the Applicant will have the right to live in the Australian community and so a decision not to revoke the cancellation of the Applicant’s Visa will not fulfill the community expectation of not allowing the Applicant to remain in Australia. However, there is some utility from the perspective of protecting the community. If the decision is not to revoke the cancellation of the Visa the Applicant will remain in Australia on the conditions of his bridging visa which offers some measure of protection from further offending.
Having regard to these circumstances the Tribunal is satisfied that the expectation of the Australian community, a primary consideration, weights in favour of not revoking the cancellation of the Applicant’s Visa.
As to the weight to be given to this consideration, considerable care is required in determining the proper weight and the Tribunal must carefully consider the facts and circumstances of the case to determine whether it is appropriate.[53]
[53] FYBR v Minister for Home Affairs (2019) 272 FCR 454at [71]-[72] (Charlesworth J), [97]-[98] (Stewart J).
In assessing the weight to give to this consideration, the Tribunal notes that there are factors which confirm the expectation expressed in cl 8.5(1). The Applicant has an extensive criminal history and has spent a significant proportion of his time in Australia either in prison or immigration detention. His record in prison and in detention has been marked by many instances of breaches of discipline. He has been involved in the possession and supply of drugs and the theft of property among other offending. He has committed crimes of violence involving the use of a weapon and has persisted in arming himself with a knife in public despite being repeatedly prosecuted for doing so. He has breached bail and offended while on parole and demonstrated a disregard for the laws of the country. He continued to offend despite warnings and was not deterred by periods of imprisonment. There is a moderate risk he will re-offend and this represents a threat to the community. He has made at best only a modest contribution to the community over the 28 years he has been in Australia.
On the other hand, some matters tend to mitigate against giving the community expectation full weight. The Applicant had a troubled life before arriving in Australia as a 20 year-old man. He experienced war and violence in Iraq during his childhood and suffered the loss of his father. His family was forced to escape Iraq and seek refuge in Turkey until they were able to enter Australia. He was then required to adjust to a new culture and to learn a new language. He has clearly suffered from mental health issues including depression and he has resorted to substance abuse to cope with it. He has not received adequate treatment for his mental health condition. He was injured in a motor vehicle accident in 2011 which caused him on-going medical problems. In one sense the seriousness of his offending declined after 2007 when he was convicted of maliciously wound, and his most serious violent offences were committed over ten years ago. He has not offended since 2017 and has served his time for his crimes and has been in prison and immigration detention for almost 6 years. He has a large family in Australia and has been here for most of his adult life. He is remorseful for his past offending and aspires to live a productive and responsible life if released.
The Tribunal is satisfied, having regard to all the circumstances, that the Applicant’s past violent offending, particularly against women, and his long history of criminal conduct warrant the Tribunal giving the expectations of the Australian community as expressed in cl 8.5(1) substantial weight in the overall assessment of all the considerations.
OTHER CONSIDERATIONS – CLAUSE 9 OF PART 2
Legal Consequences of the Decision
Clause 9.1(1) requires decision-makers to be:
…mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
If the Tribunal were to affirm the Reviewable Decision it does not mean that the Applicant will be deported to his country of citizenship, Iraq.
Protection finding
On 9 January 2018 the Applicant applied for a protection visa.[54] On 14 March 2019 a delegate of the Respondent refused the application having found that the Applicant was not a person in respect of whom Australia owed protection obligations.[55] The Applicant applied to the Migration and Refugee Division of the Tribunal for a review of the delegate’s decision. On review the Tribunal concluded:
Based on the evidence before it, the Tribunal finds that the applicant’s claims that there is a real chance that, if he is returned to Iraq, he would be persecuted because of his Sunni Turkmen ethnicity were credible. Further, the Tribunal finds that the applicant’s claimed fears that he would be persecuted because of his Sunni Turkmen ethnicity were well-founded. Further the Tribunal finds that the applicant has a well-founded fear of persecution due to his membership of a particular social group being “Sunni Turkmen single men of fighting age who originate from formally ISIS-held areas of Iraq”.
The Tribunal therefore finds that considered individually and cumulatively, there is a substantial risk that the applicant would face persecution now, or in the reasonably foreseeable future, as a result of his Sunni Turkmen ethnicity and his membership of a particular social group being “Sunni Turkmen single men of fighting age who originate from formally ISIS-held areas of Iraq”.
Further the Tribunal finds that the cumulative adverse aspects of the applicant’s profile, as listed above, each bring the applicant within membership of a particular social group as defined by the Act. They each have a particular characteristic shared by members of the group which is either innate or immutable, and which is not the fear of persecution.
The Tribunal, therefore, finds that there is a real chance the applicant will suffer serious harm for the purposes of s.36(2)(a) of the Act on return to Iraq now or in the reasonably future.[56]
[54] GD 154.
[55] T7 55.
[56] G5 149, [134]-[137].
On 5 February 2020 the Tribunal – MRD Division remitted the matter to the Respondent for re-consideration with a direction that the Applicant was owed protection obligations under s.36(2)(a) of the Act (MRD Decision).[57]
[57] G5 128.
On 11 February 2021 a delegate of the Respondent again refused the Applicant a protection visa on grounds that the Applicant was a danger to the Australian community under s36(1C) of the Act.[58] The refusal was affirmed by the Tribunal on review on 28 January 2022.[59] As a result, the Applicant is prevented by s 48A of the Act from making a further application for a protection visa while he is in the migration zone unless the Minister determines personally under s 48B that s 48A does not apply to him.
[58] G5 154.
[59] G5 186.
Notwithstanding the refusal of the protection visa on 11 February 2021, the Applicant is the subject of a protection finding within the meaning of s.197C(5)(b) of the Act by reason of the MRD Decision. This means that if the cancellation of the Applicant’s Visa is not revoked s 197C(3) of the Act will neither require nor authorise his removal to Iraq under s 198.
The Respondent concedes that as a result the Applicant cannot be removed to Iraq and as he is not a citizen of a country other than Iraq, there is no real prospect that the Applicant’s removal from Australia will be practicable in the reasonably foreseeable future.
In these circumstances the recent decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154 (NZYQ) and the enactment of the Migration Amendment (Bridging Visa Conditions) Act 2023 commencing from 18 November 2023 (Bridging Visa Conditions Act) are relevant.
On 8 November 2023, the High Court gave judgment in NZYQ by pronouncing orders.[60] Those orders relevantly included:
a.It is declared that, by reason of there having been and continuing to be no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future:
i.the plaintiff’s detention was unlawful as at 30 May 2023; and
ii.the plaintiff’s continued detention is unlawful and has been since 30 May 2023.
b.A writ of habeas corpus issue requiring the defendants to release the plaintiff forthwith.
[60] At the time of this decision the High Court had not published reasons for its decision.
The Bridging Visa Conditions Act provides for bridging visa for persons released from detention in circumstances considered in NZYQ (BVR visas) which include mandatory monitoring conditions and prescribes offences for failing to comply with specific conditions attracting penalties of 5 years imprisonment.
Following the Hearing in this matter the Respondent provided the Tribunal with written submissions regarding the relevance of NZYQ for the Applicant’s case. The Respondent stated:
Following NZYQ, the Applicant has been released from immigration detention and is to be issued with a BVR visa.[61] As a result, if the Tribunal sets aside the non-revocation decision and substitutes a decision that there is another reason why the cancellation of the Applicant’s visa should be revoked, the Applicant’s visa Global Special Humanitarian visa will be reinstated. The grant of such a visa will have practical consequences for the Applicant to the extent there are differences between the conditions able (or required) to be imposed on a Global Special Humanitarian visa, as compared to those imposed on a BVR visa. In the event the Tribunal affirms the refusal decision, the Applicant will remain in the community on a BVR visa and his visa status will not change as a result of the Tribunal’s decision.
135.
[61]Bridging (Removal Pending) (subclass 070) visa.
Subsequent to the provision of the Respondent’s submissions the Respondent lodged with the Tribunal a copy of the Respondent’s letter to the Applicant dated 21 November 2023[62] notifying the Applicant of the grant of a BVR visa and the conditions upon which it was issued. The BVR visa does not permit the Applicant to travel and re-enter Australia and is to cease at the earliest of:
(i) when the Minister gives a written notice to the holder, by one of the methods specified in section 494B of the Act, stating that the Minister is satisfied that the holder’s removal from Australia is reasonably practicable;
(ii) when the Minister gives a written notice to the holder, by one of the methods specified in section 494B of the Act, stating that the holder has breached a condition to which the visa is subject;
(iii) when the Minister grants the holder another Bridging R (Class WR) visa under regulation 2.25AB.
[62] Exhibit R1.
The conditions listed in an Attachment to the notice are:
8303 - No violent or disruptive activities
The holder must not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community.
8401 – Report as Directed
The holder must report:
(a) Daily, between the hours of 09:30 and 14:00
(b) by telephone to (02) 8862 6914.
8513 – Notify residential address
The holder must notify Immigration of his or her residential address within 5 working days of grant.
8514 – No change in circumstances
During the visa period of the visa, there must be no material change in the circumstances on the basis of which it was granted.
8541 - Must Assist with Removal
The holder:
(a) must do everything possible to facilitate his or her removal from Australia; and
(b) must not attempt to obstruct efforts to arrange and effect his or her removal from Australia.
8542 – Report for removal from Australia
The holder must report in person for removal from Australia in accordance with instructions given, orally or in writing, by the Minister.
8543 - Facilitate removal from Australia
The holder must attend at a place, date and time specified, orally or in writing, by the Minister in order to facilitate efforts to arrange and effect his or her removal from Australia.
8550 - Notify changes in personal details
The holder must notify the Minister of any changes in the holder’s personal details, including a change to any of the following contact information:
(a) the holder’s name;
(b) an address of the holder;
(c) a phone number of the holder;
(d) an email address of the holder;
(e) an online profile used by the holder;
(f) a user name of the holder;
not less than 2 working days before the change is to occur.
8551 – Obtain approval for certain occupations
(1) The holder must obtain the Minister’s approval before taking up employment in the following occupations, or occupations of a similar kind:
(a) occupations that involve the use of, or access to, chemicals of security concern;
(b) occupations in the aviation or maritime industries;
(c) occupations at facilities that handle security-sensitive biological agents.
(2) In this clause:
Chemicals of security concern means chemicals specified by the Minister in an instrument in writing for this definition.
Note: The Minister’s instrument will refer to chemicals that have been identified, by the Council of Australian Governments, as chemicals of security concern. Without limiting what the Council might identify the chemicals may include: (a) Industrial chemicals, including chemicals used in the retail, pharmaceutical or pool and spa sectors, that could be diverted from their lawful use to other purposes such as terrorist-related activities; and (b) Agricultural and veterinary chemicals that could be diverted from their lawful use to other purposes, including terrorist-related activities.
8552 - Notify change in employment details
The holder must notify the Minister of any changes in the holder’s employment details, not less than 2 working days before the change is to occur.
8553 – Must not be involved in activities prejudicial to security
The holder must not become involved in activities that are prejudicial to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
8554 – Must not acquire specified goods
(1) The holder must not acquire any of the following goods:
(a) weapons;
(b) explosives;
(c) material or documentation that provides instruction on the use of weapons or explosives.
(2) In this clause:
weapon means a thing made or adapted for use for inflicting bodily injury.
8555 – Obtain approval before undertaking specified activities
The holder must obtain the Minister’s approval before undertaking the following activities, or activities of a similar kind:
(a) flight training;
(b) flying aircraft.
8556 – Must not communicate with specified entities or organisations
The holder must not communicate or associate with:
(a) an entity listed under Part 4 of the Charter of the United Nations Act 1945; or
(b) an organisation prescribed by the regulations made under the Criminal Code Act 1995 for the purposes of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code.
8560 – Obtain approval to acquire chemicals of security concern
(1) The holder must obtain the Minister’s approval before acquiring chemicals of security concern.
(2) In this clause:
chemicals of security concern means chemicals specified by the Minister in an instrument in writing for this definition.
Note: The Minister’s instrument will refer to chemicals that have been identified, by the Council of Australian Governments, as chemicals of security concern. Without limiting what the Council might identify, the chemicals may include:
(a) industrial chemicals, including chemicals used in the retail, pharmaceutical or pool and spa sectors, that could be diverted from their lawful use to other purposes such as terrorist-related activities; and
(b) agricultural and veterinary chemicals that could be diverted from their lawful use to other purposes, including terrorist-related activities.
8561 – Must attend interview if directed
If the holder is directed, orally or in writing, by the Minister to attend, at a specified place, on a specified day and at a specified time, an interview that relates to the holder’s visa (including an interview with the Australian Security Intelligence Organisation), the holder must comply with the direction.
8562 – Must not take up specified employment
(1) The holder must not take up employment in:
(a) occupations that involve the use of, or access to, weapons or explosives; or
(b) occupations of a similar kind.
(2) In this clause: weapon means a thing made or adapted for use for inflicting bodily injury.
8563 – Must not undertake specified activities
(1) The holder must not undertake the following activities, or activities of a similar kind:
(a) using or accessing weapons or explosives;
(b) participating in training in the use of weapons or explosives;
(c) possessing or accessing material or documentation that provides instruction on the use of weapons or explosives.
(2) In this clause:
weapon means a thing made or adapted for use for inflicting bodily injury.
8612 – Notify details of persons who reside with the holder
The holder:
(a) must, within 5 working days of the grant, notify Immigration of the full name, and date of birth, of each person who ordinarily resides with the holder at the holder’s residential address; and
(b) must notify Immigration of any change in the persons who ordinarily reside with the holder at the holder’s residential address within 2 working days after the change occurs.
8613 – Obtain approval before commencing activities with vulnerable persons
(1) The holder must obtain the Minister’s approval before commencing to perform work, or a regular organised activity, involving more than incidental contact with a minor or any other vulnerable person.
(2) Subclause (1) applies:
(a) whether the work or activity is for reward or otherwise; and
(b) whether or not a working with children or vulnerable people check (however described) is required in relation to the work.
8614 – Notify travel
(1) The holder must notify Immigration of any travel interstate or overseas by the holder at least 7 working days before undertaking the travel.
(2) If the holder does not comply with subclause (1), the holder must notify Immigration of the travel within 2 days after departing on the travel.
8615 – Notify associations and memberships
The holder:
(a) must, within 5 working days of the grant, notify Immigration of the details of the holder’s association with, or membership of, any organisation (other than an organisation formed for a purpose of engaging in communications on governmental or political matters); and
(b) must notify Immigration of any change in those details (including the beginning or end of any association or membership) within 2 working days after the change occurs.
8616 – Notify contact with certain individuals or organisations
(1) The holder must notify Immigration of the details of any contact with the following within 2 working days after the contact occurs:
(a) any individual, group or organisation that is alleged, or is known by the holder, to be engaging in criminal or other illegal activities;
(b) any individual, group or organisation that has previously engaged in, or has expressed an intention to engage in, criminal or other illegal activities.
(2) Subclause (1) does not apply to:
(a) contact in the course of attending a therapeutic or rehabilitative service; or
(b) contact in connection with legal proceedings or legal advice.
8617 – Notify change in financial circumstances
The holder must notify Immigration of each of the following matters within 5 working days after the matter occurs:
(a) the holder receives, within any period of 30 days, an amount or amounts totally AUD 10 000 or more from one or more other persons;
(b) the holder transfers, within any period of 30 days, an amount or amounts totalling AUD 10 000 or more to one or more other persons;
(c) the holder’s banking arrangement change.
8618 – Notify debt or financial hardship(1) If the holder incurs a debt or debts totally AUD10 000 or more, the holder must notify Immigration within 5 working days after the holder incurs the debt or debts.
(2) If the holder is declared bankrupt or otherwise experiences significant financial hardship, the holder must notify Immigration within 5 working days after the holder is so declared or the financial hardship begins, as the case may be.
(3) The holder must notify Immigration of any significant change in relation to the holder’s debts, bankruptcy or financial hardship within 5 working days after the change occurs.
8619 – Provide evidence of financial circumstances upon request
The holder must, within 7 days after receiving an oral or written request from the Minister, provide evidence of the holder’s current financial circumstances.
8620 – Abide by specified curfew
(1) The holder must, between 10pm on one day and 6am the next day or between such other times as are specified in writing by the Minister, remain at a notified address for the holder for those days.
(2) If the Minister specified other times for the purposes of subclause (1), the times must not be more than 8 hours apart.
(3) in this clause:
Notified address for a holder for a particular day or days means any of the following:
(a) the address notified by the holder under condition 8513 or 8550;
(b) an address at which the holder stays regularly because of a close personal relationship with a person at that address, and which the holder has notified to Immigration for the purposes of this paragraph;
(c) if, for the purposes of this paragraph, the holder notified Immigration of an address for that day or those days no later than 12 pm on the day before that day or the earliest day of those days (as the case may be) – that address.
8621 – Monitoring device
(1) The holder must wear a monitoring device at all times.
(2) The holder must allow an authorised officer to fit, install, repair or remove the following:
(a) the holder’s monitoring device;
(b) any related monitoring equipment for the holder’s monitoring device.
(3) The holder must take any steps specified in writing by the Minister and any other reasonable steps, to ensure that the following remain in good working order:
(a) the holder’s monitoring device;
(b) any related monitoring equipment for the holder’s monitoring device.
(4) if the holder becomes aware that either of the following is not in good working order;
(a) the holder’s monitoring device;
(b) any related monitoring equipment for the holder’s monitoring device;
The holder must notify an authorised officer of that as soon as practicable.
8622 – Must not perform work with minors
(1) If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the holder must not perform any work, or participate in any regular organised activity, involving more than incidental contact with a minor or any other vulnerable person.
(2) Subclause (1) applies:
(a) whether the work or activity is for reward or otherwise; and
(b) whether or not a working with children or vulnerable people check (however described) is required in relation to the work.
8623 – Must not approach school or childcare centre
If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the holder must not go within 200 metres of a school, childcare centre or day care centre.
8624 – Must not contact victim or victim family member
If the holder has been convicted of an offence involving violence or sexual assault, the holder must not contact, or attempt to contact, the victim of the offence or a member of the victim’s family.

The legal consequences of a decision not to revoke the cancellation of the Applicant’s Visa would therefore be:
a.the Applicant will remain in Australia in the community on a BVR visa, subject to the extensive conditions it imposes; and
b.he will not be subject to forceable removal from Australia.
If the Tribunal decides that there is another reason to revoke the cancellation of the Visa, the Visa will be reinstated and the Applicant will remain in the community subject to such conditions as are imposed by the Visa.
In practical terms the only difference in outcome for the Applicant between a decision to affirm or set aside the Reviewable Decision is the extent to which there are differences between the conditions able (or required) to be imposed on the Visa as compared to those imposed on a BVR visa.
The Tribunal accepts that a decision to not revoke the cancellation of the Applicant’s Visa would be less advantageous to the Applicant to the extent that the Applicant may be subject to more onerous monitoring conditions under a BVR visa and subject to the risk of imprisonment for breach of those conditions. This consideration weighs in favour of revocation, but the legal consequences of the decision is not a primary consideration under Direction 99 and the Tribunal gives it limited weight on the basis that the monitoring conditions limit but do not prevent the Applicant from participating in the Australian community and provide a means of addressing the risk of re-offending identified earlier in the Tribunal’s decision.
Extent of impediments if removed
Clause 9.2(1) of Part 2 requires that:
Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Tribunal accepts that, as the Applicant cannot be removed to Iraq because he is subject to a protection finding and he is able to live in the Australian community under the conditions of a BVR visa, this consideration is not engaged.
Impact on Victims
Clause 9.3(1) of Part 2 requires:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The relevant impact under cl 9.3 is the adverse impact likely to result from the non-citizen being granted a visa.[63]
[63] CGX20 v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (No 2) [2020] FCA 1842 [17]-[21], which considers the analogue consideration at 14.4 of Direction No 79.
The Tribunal does not have any evidence of the possible impact of its decision on the victims of the Applicant’s criminal behaviour, their families or other members of the Australian community who may be adversely impacted.
Accordingly, the Tribunal gives this consideration no weight.
Impact on Australian business interests
Clause 9.4(1) requires:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant has an irregular work history punctuated by periods of imprisonment. He has not worked since 2017 due to his detention. He received some training to be a carpenter in Iraq before leaving that country when he was 15 years old. He has worked in various jobs since arriving in Australia, including at food markets, a kebab shop, as a delivery driver and as a carpark attendant. There is no evidence that the Applicant possesses any special skills which could not be readily sourced in the general labour market.
The Applicant gave evidence of his plan to start a carpentry business with his older brother but the Tribunal is sceptical about the prospect of this plan coming to fruition. The Applicant produced no evidence of any concrete plan and his brother, who lives in Germany, did not give evidence. In any event, the scope of the business described by the Applicant did not suggest that a decision not to grant the Applicant a Visa would compromise the delivery of a major project or important service in Australia, or that the removal of the Applicant from Australia would have any significant impact on Australian business interests otherwise.
In any event, a decision not to revoke the cancellation of the Applicant’s visa would not prevent him from working or starting a business under the conditions of the BVR visa.
Accordingly, the Tribunal gives this consideration no weight.
CONCLUSION
In Gaspar v Minister for Immigration and Border Protection,[64] North ACJ elaborated on how to approach the exercise of the discretion under s 501CA(4)(b)(ii) of the Act:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.
[64] [2016] FCA 1166 [38].
A summary of the factors for and against revocation is set out below:
Factors against
There are two considerations under Direction 99 which weigh against revoking the cancellation of the Applicant’s Visa:
(a)The protection of the Australian community is a primary consideration. The Applicant’s prior offending was very serious. A repetition of that conduct would involve harm to the Australian community in the form of a risk of physical and psychological injury and possibly death. The risk of that occurring is moderate. Having regard to the seriousness of the conduct and the magnitude of the risk the Tribunal gives this consideration substantial weight.
(b)The expectation of the Australian community is that the Applicant, as a non-citizen, will obey Australian laws while in Australia. He has engaged in serious conduct in breach of this expectation and as a norm the Australian community’s expectation is that his Visa not be restored. The Applicant’s past violent offending, particularly against women, and his long history of criminal conduct warrant the Tribunal giving the expectations of the Australian community as expressed in cl.8.5(1) substantial weight in the overall assessment of all the considerations.
Factors in favour
There are two considerations which weigh in favour of revoking the cancellation of the Applicant’s Visa:
(a)The strength, nature and duration of ties to Australia is a primary consideration. The Applicant identifies with Australia and has ties to his large immediate family who are Australian citizens. This demonstrates that he has a connection with Australia but those ties are limited in their strength, nature and duration. Because the Tribunal’s decision will not prevent the Applicant continuing to live in the community the Tribunal affords this consideration little weight even though it is a primary consideration.
(b)The Tribunal is satisfied that the legal consequences of a decision not to revoke the cancellation of the Visa, will be that the Applicant will remain in the community on a BVR visa subject to monitoring conditions. The fact that monitoring conditions impose restrictions on the Applicant weighs in favour of revocation, but it is not a primary consideration and the Tribunal gives it limited weight.
Conclusion
Clause 7 of Part 2 of Direction 99 provides guidance on how relevant considerations are to be assessed.
Weighing the factors for and against revocation requires the Tribunal to give both primary and other considerations appropriate weight. This 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.[65]
[65] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 [23].
In assessing the relative weight to attribute to factors for and against revocation, the Tribunal has had regard to the principles set out in cl 5.2 of Direction 99 which provide the framework for decision making under s 501CA of the Act. The Tribunal accepts that these principles reinforce the importance of the factors weighing in favour of not revoking the cancellation of the Applicant’s Visa.
The release of the Applicant from immigration detention and the granting to him of a bridging visa has to a large extent negated the adverse consequences which usually befall an applicant whose visa is cancelled. He will remain in Australia whatever the Tribunal’s decision. The only factor of any significance is the fact that the Applicant will be subject to mandatory monitoring conditions if he remains in the country under the bridging visa. The Tribunal accepts that this weighs in favour of revocation but gives it limited weight.
The balance strongly favours not revoking the cancellation of the Visa and the Tribunal is not satisfied that under s 501CA(4)(b)(ii), there is another reason why the cancellation of the Applicant’s Visa should be revoked. The correct and preferrable decision is to affirm the decision under review.
DECISION
The decision under review is affirmed.

I certify that the preceding 162 (one hundred and sixty-two) paragraphs are a true copy of the reasons for the decision herein of

.......................[SGD]..........................
Associate
Dated: 29 November 2023

Date(s) of hearing: 16 & 17 November 2023

Date final submissions received: 22 November 2023

Applicant: Self-represented

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	16 & 17 November 2023
Date final submissions received:	22 November 2023
Applicant:	Self-represented
Solicitors for the Respondent:	Australian Government Solicitor