ZKFQ and Minister for Home Affairs (Migration)

ZKFQ and Minister for Home Affairs (Migration) [2019] AATA 5168 (3 December 2019)
Division:GENERAL DIVISION
File Number(s): 2019/5920
Re:ZKFQ
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member M Griffin QC
Date:3 December 2019
Place:Sydney

The Tribunal sets aside the reviewable decision of the delegate of the Minister not to revoke the mandatory cancellation of the Applicant’s Class XA Subclass 866 Protection visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class XA Subclass 866 Protection visa is revoked.
..............................[SGD]..........................................
Senior Member M Griffin QC
CATCHWORDS
MIGRATION – mandatory cancellation of the Applicant’s Class XA Subclass 866 Protection visa – s 501(3A) – s 501CA – Applicant failed to pass the character test –sentenced to a term of imprisonment of 12 months of more – Applicant supplied a commercial quantity of a prohibited drug – whether there is another reason why the cancellation should be revoked – application of Ministerial Direction No 79 – Applicant’s involvement in offence is ameliorated by circumstances of involvement – Applicant co-operated with law enforcement after arrest – consideration of best interests of minor children in Australia – Applicant may be subject to severe punishment or death penalty should he be removed – reviewable decision set aside and substituted
LEGISLATION
Migration Act 1985 (Cth) ss 48B, 195A, 197C, 198, 499, 500(1)(ba), 501(3A), 501(6)(a), 501(7)(c), 501CA(1), 501CA(4), 501CA(4)(b)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member M Griffin QC

The Applicant seeks review of the decision of a delegate of the Minister for Home Affairs (Respondent) not to revoke a decision to cancel the Applicant’s Class XA Subclass 866 Protection visa.
The Applicant was born in May 1983 and is a national of Iran. At the time of hearing he was 36 years of age.
BACKGROUND
The Applicant came to Australia in 2010. He was 27 years old. The Respondent concedes that the Applicant was granted a Protection visa on 6 June 2011 based upon a positive refugee status assessment. The refugee status assessment considered the Applicant’s fear of being killed by agents of the Basiji or the Seppah. According to material before the Tribunal and in the Respondent’s Statement of Facts, Issues and Contentions, an assessor found that there was more than a remote risk of the Applicant being subject to persecution should he return to Iran and that the Applicant “has a genuine fear of harm and that there is a real chance of persecution occurring”.
The Applicant’s difficulties in this regard arose following a dispute with his brother-in-law after which he made intemperate remarks concerning the supreme leader and Islam contrary to Sharia law.
It is common ground that the Applicant will likely be subject to the death penalty, supported by a translated “summons” document requiring him to present himself before authorities.[1]
[1] G documents, page 195.
ISSUES
The issue in this review is whether the original decision to cancel the Applicant’s visa should be revoked pursuant to section 501CA of the Migration Act 1958 (Cth) (the Act). The Tribunal may revoke the original decision if the Tribunal is satisfied:
(a)That the Applicant passes the character test as defined by section 501 of the Act; or
(b)
There is another reason why the original decision should be revoked

(s 501CA(4)(b)).
RELEVANT LEGISLATION AND POLICY
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).
Subsection 501CA(4) provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation;
and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Subsection 501(6)(a) relevantly provides that a person does not pass the "character test" if the person has "a substantial criminal record". Relevantly, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction 79).[2] The relevant paragraphs of which are set out below and describe the framework within which the Tribunal’s discretion is to be exercised.
[2] Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA dated 20 December 2018.
The Preamble of Direction 79 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly include that:
a)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens;
b)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere;
c)a non-citizen who has committed a serious crime, including of a violent nature, and particularly against vulnerable members of the community such as minors, should generally expect to forfeit the privilege of staying in Australia;
d)in some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa;
e)while Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period time, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age; and
f)the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
Part C of Direction 79 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three "primary considerations" and several specified, but non-exhaustive, "other considerations", which must be taken into account.
Pursuant to paragraph 8 of Direction 79, the Tribunal must, to the extent that they are relevant to this case, take into account the three primary considerations and other considerations. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations. These principles are of course dependent upon the facts and circumstances of each case.
The three primary considerations are:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Primary Consideration 1 – Protection of the Australian community
Paragraph 13.1 of Direction 79 provides:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also 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.
The two limbs of paragraph 13.1(2) that the Tribunal must consider when assessing the protection of the Australian community are set out below.
The nature and seriousness of the conduct
Sub-paragraph 13.1.1 of Direction 79 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes, in summary:
a)the principle that violent and/or sexual crimes are viewed very seriously;
b)the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)the principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)the sentence imposed by the courts for a crime or crimes, subject to (b) above;
e)the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
f)the cumulative effect of repeated offending;
g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status; and
i)where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention is serious.
The risk to the Australian community
Paragraph 13.1.2 of Direction 79 states that decision-makers must have regard, cumulatively, to the following:
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 available information and evidence on the risk of the non-citizen re-offending.
Primary Consideration 2 – Best interests of minor children in Australia affected by the decision
Decision-makers must make a determination in respect of each relevant child under 18 years about whether revocation is in the best interests of that child.
In considering the best interests of the child, the following factors must be considered where relevant:
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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Primary Consideration 3 – Expectations of the Australian community
Paragraph 13.3 of Direction 79 provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.
The principles to be applied, as set out in paragraph 6.3 of Direction 79, state that the ability of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australia community. It is also the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes.
The length of time a non-citizen has been making a positive contribution to the Australian community and the consequences of the visa refusal or cancellation for minor children and other immediate family members in Australia are relevant considerations.
Other Considerations
The Tribunal must also take into account other considerations insofar as they are relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties to Australia;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
International non-refoulement obligations
The considerations at paragraph 14.1 of Direction 79 include (but are not limited to):
a)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations;
b)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa;
c)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled);
d)Where a non-citizen makes claims which may give rise to international nonrefoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked;
e)Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated.
Strength, nature and duration of ties
The considerations at paragraph 14.2 include:
a)How long the non-citizen has resided in Australia, including the age of arrival in Australia, the period of offending and positive contributions to the Australian community;
b)The strength, duration and nature of any family or social links with Australian citizens, including the effect of non-revocation on the non-citizen’s immediate family.
Impact on Australian business interests
Direction 79 notes an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia: see paragraph 14.3(1).
Impact on victims
Paragraph 14.4 of Direction 79 provides:
'Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.'
Extent of impediments if removed
The extent of impediments if removed requires consideration of the extent of any impediments that the non-citizen 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: age and health; whether there are substantial language or cultural barriers; and the availability of any social, medical and/or economic support.
DISCUSSION
The Applicant has been convicted of an offence of supplying a prohibited drug in a commercial quantity (pseudoephedrine), which is a precursor to the production of methylamphetamine.
It is for this conviction that section 501(6)(a) of the Migration Act deems him to have a “substantial criminal record” and therefore not a person of good character. The only issue, therefore, in the hearing is whether there is another reason why the revocation of his visa should be overturned.
The offence referred to was committed in August 2014. The Applicant was sentenced in the District Court in 2016. Set out below are the sentencing remarks of the learned sentencing judge, Judge Sides QC. Those sentencing remarks detail the Applicant’s background and history, the circumstances surrounding the commission of the offence, the role played by the Applicant and various relevant considerations. With the greatest respect to His Honour, those sentencing remarks are comprehensive, deeply analytical and responsive to the many considerations required by sentencing legislation. Those considerations are also highly pertinent to a consideration of the Applicant’s role in the commission of the offence together with his background and highly pertinent subjective factors.
The Tribunal concurs absolutely with the views expressed by the learned sentencing judge in relation to the level of involvement of the Applicant and the various mitigating factors referred to by His Honour and which will be addressed below. Those various factors are pertinent to the considerations required to be undertaken by the Tribunal pursuant to Direction 79.
At G documents page 39 and following, the learned sentencing judge described the role played by the Applicant. His Honour found that he was not the main perpetrator but merely a functionary who was co-opted to purchase a vehicle with the assistance of the other co-offenders and transport the illicit drugs, hidden in tea containers, from customs to a safe warehouse.

There were a number of other co-offenders, some of whom have been dealt with and released. One co-offender fled Australia to Iran. Contrary to the Respondent’s submissions, the Tribunal is of the view that the Applicant is well-justified in his fear of his returning to Iran because amongst other things, those co-offenders will, by means of “grapevine” knowledge or otherwise, come to know not only of his presence in Iran but of signal importance is the fact that he provided a statement to the prosecuting authorities against the interests of his co-offenders. This aspect of his co-operation with law-enforcing authorities, the Tribunal concludes, is an important consideration when assessing Primary Considerations 1 and 3 of Direction 79.
At G documents page 47 to 51, His Honour said:
Whilst the Offender did not give evidence, his brother did. During his evidence, the brother confirmed the background history contained in the report of Dr (C) (exhibit 1) and the Offender's statement dated 3 February 2015.
Aged 31 at the time of the offence, the Offender is now 33 years old. One of seven children, all of his family, with the exception of one brother, live in Iran where the Offender was born. One brother lives in Melbourne. The Offender speaks Parsee and has not undertaken any formal study of the English language.
When the Offender was seven, his father had a stroke and this left him paralysed on one side.
One of his brothers was executed in Iran on 14 April 2015. According to exhibit 11, it was for a drug related offence. It is possible that that was a trumped-up card. The Court notes the Offender was not told of his brother's execution until May of this year. It had a significant impact on him.
The Offender only attended primary school and then helped his father in this father's welding and plumbing shop.
The Offender married in 2008. He had a disagreement with his brother-in-law over joining the army. He claims that her brother would not let him see his wife and, after consuming some liquor, he confronted his brother-in-law and the Offender ended up bad-mouthing the brother-in-law who claimed he should be executed. However, the Offender took his brother-in-law's gun and threatened to shoot him. He then escaped with his own brother and hid at a friend's place. His brother-in-law and members of the army raided the Offender's home looking for him. He and one of his older brothers fled to Jakarta. After about 20 days, they joined about 60 others on a boat bound for Australia. It was the boat that was smashed on rocks at Christmas Island on 15 December 2010, resulting in a significant loss of life.
The Offender and his brother were amongst those who survived. The Offender was injured and a baby he was holding drowned. He saw many other bodies of individuals who had drowned. The Offender claims that he spent time in hospital at Christmas Island. He was transferred to Royal Perth Hospital where he was an inpatient between 18 and 21 December 2010 because of an infection in his leg. For some time consideration was given to amputating his leg.
He claims that he lived in a caravan in Perth for about three months, receiving medical treatment for mental and physical health issues. He and his brother then ended up in a detention centre in Darwin. After a month they were transferred to Melbourne and placed in community detention. He had six sessions with a psychologist over several months in Melbourne. Five months later he was granted permanent residency.
After staying in Melbourne for some time, he moved to [Queensland country city] where he worked in an abattoir. He worked there for about six months, but left because of pain in his leg due to the cold air in the workplace. He then worked as a car detailer. In April 2014 he lost that job following a disagreement with a co-worker. He then moved to Melbourne looking for work.
Whilst in [Queensland country city], he met his girlfriend in October 2011. They started to live together in November of that year She has [children] aged 9 and 12. She remains supportive of the Offender.
Whilst living in [Queensland country city], he met the co-offender (H) who he used as an interpreter. In time they became friends.
The Court extended the Offender the benefit of prior good character. The Offender has been in custody since…August 2014. He has only breached prison discipline on one occasion.
The Offender experienced mental health issues following the boat crash and had nightmares, during which he relived the baby dying in his hands. At one stage he engaged in self-harm.
At some stage he was prescribed olanzapine, a tranquilizer, but it made him drowsy during the day. He also took antidepressant medication. He claims that he is still moody and has suicidal thoughts. The Court accepts the Offender has Post-Traumatic Stress Disorder and it has made his time in custody more burdensome and will make any future time in custody more burdensome.
The Offender takes medication for hypertension.
The Offender did not instigate this offence and did not provide any finance for the illicit venture. Whilst he may not have actively planned the offence, he did participate in discussions concerning it in the months leading up to the arrival of the drug in Australia. The Court is satisfied beyond a reasonable doubt that his involvement in the offence was pre-meditated and he must have appreciated that he was enmeshing himself in organised criminal activity.
The Offender was not involved in the importation of the drug, but his role included transporting the drugs and facilitating the storage of it after it had been imported and released. He agreed to his name being used in relation to the storage facility. He was present when the van used to transport the drug was purchased in his name. He claims that he was pressured into agreeing to have his name used for that purpose. He also had a hands-on role in separating the jars of tea laced with pseudoephedrine from the other jars of tea that contained only tea.
The Offender was involved in connection with a wholesale quantity of drug and, had the police not seized it, he would not have known who would ultimately consume it or the methylamphetamine produced from it. As the drug was seized no harm was done.
It appears that this Offender was recruited because the importers appreciated that they would have difficulty in connection with taking delivery of the drug after it had been imported. The evidence does not permit the Court to conclude that, but for his involvement in the offence, the drug would not have (sic)
Whilst the Offender may not have had full knowledge of what he was involved in when he first agreed to become connected with the matter, he had ample opportunity to withdraw before his active involvement got to the point of his transporting the drug to Unit 65. Clearly, the amount of money he was to receive, as well as his travel to Sydney being funded by others would have led to a realisation on his part that what he had agreed to would mean enmeshing himself in illegal activity.
As indicated, no harm was done because the police seized the drug. However, the potential for harm was substantial, to say the least. The commercial quantity of pseudoephedrine is five kilograms, the weight of the tea laced with pseudoephedrine exceeded that by approximately 12 times and the amount of pure pseudoephedrine exceeded that by more than five times. There is no upper limit to the large commercial quantity. It is clear that the drug had considerable value, especially in terms of potential value of methylamphetamine that could be produced using it.
Taking into account only the objective factors affecting the relative seriousness of the offence the Court is of the view that this offence is somewhat below the middle of the range of seriousness as connoted by the standard non-parole period of 15 years prescribed for offences within this provision.
The Court accepts that the Offender became involved in the offence in response to a promise to be paid $20,000 that he thought would assist his brother who he believed was on death row. There is no evidence he received any of that money. As he has no prior offences, the Court is satisfied that his involvement in this offence was an isolated aberration. The Court is also satisfied that, but for his desire to assist his brother, it is likely that the Offender would not have been involved in the offence.
Post-Traumatic Stress Disorder causes serious and substantial impairment in social and personal functioning. The Court accepts it was present at the time of the offence and affected his reasoning at that time. Whilst there is no credible evidence that, at the time of his involvement in the offence, the Offender did not appreciate what he was doing or the consequences of his conduct, the Court is satisfied that it is appropriate to make a finding of reduced moral culpability because his mental health adversely affected his capacity to reason when he became involved in the offence.
Protection of the Australian community (past conduct and future risk)
It is undoubted that the offence of supplying a commercial quantity of a prohibited drug is a particularly serious offence. There are, however, a number of subjective features that lessen the consideration of the Applicant’s involvement in that offence.
The learned sentencing judge found that the post-traumatic stress disorder (PTSD) from which the Applicant suffered at the time had an impact on his criminal responsibility. The Tribunal is satisfied that that is the correct finding. Furthermore, the purpose for which the Applicant became involved as a participant was to obtain money for the purpose of providing payment to authorities in Iran in the expectation that his brother would not be executed. In fact, the evidence discloses that the Applicant’s brother was ultimately executed by hanging. The Applicant was clearly under enormous pressure to assist his brother and his family in this regard and his ability to consider rationally in his involvement was affected by his PTSD, although the supplying of a dangerous drug is a particularly serious offence. The Tribunal finds that the Applicant’s involvement in this offence was considerably ameliorated by those circumstances referred to above.
Furthermore, of considerable significance is the fact that the Applicant co-operated after arrest with law enforcement authorities to provide credible information about his other co- offenders. That type of co-operation is regarded as particularly ameliorating of the criminal behaviour and the Tribunal finds that the co-operation referred to ameliorates the Applicant’s involvement in the criminal offence.
As to the risk of future offending and the likelihood of Australian citizens being affected by any future offending, the Tribunal is of the view that because the Applicant has committed one offence, which it views as aberrant behaviour, as did the learned sentencing judge, the Tribunal concludes that as far as it is possible ever to project future offending, in this case, the Applicant, in the Tribunal’s view, is unlikely ever to offend again, acknowledging that the offending was peculiarly situational.
There is no reason not to accept in the Applicant’s material, positive views expressed of the Applicant by those who know him and support him.
Although the offence committed is particularly serious, consideration of all the circumstances leads to a conclusion that this consideration carries no weight against the Applicant.
Best interests of minor children in Australia
There are two relevant children. The Applicant refers to them as his step-children. They are the children of KW whom the Applicant describes as his partner since 2011, having met her in Queensland in that year when he was working there.
The Applicant, prior to his incarceration and in immigration detention, moved from where he was working in a Queensland country city to Melbourne to live with his brother. Although the Respondent questioned whether the relationship was ongoing and presently viable because of the separation both by distance and by the Applicant’s period in custody since 2014, the Tribunal is satisfied that the contact that the parties have had electronically since the Applicant’s incarceration is credible evidence of an ongoing commitment between the two parties to continue their relationship. Furthermore, the Applicant offered a credible explanation as to why the Applicant’s partner did not immediately follow him to Melbourne. The Tribunal finds that the Applicant’s evidence as to his view of the relationship is credible, acceptable and the relationship is, in fact, a genuine relationship.
In the Applicant’s statement to the Department of Home Affairs in 2017 he said, “I have made a life for myself (in Australia). I have a supporting (sic) partner, my stepchildren really like me & they would be upset if I was to be deported”.
On the evidence, the only person who fulfils a parental, nurturing role apart from the Applicant, is the children’s mother.
Having heard the Applicant’s evidence, which was to similar effect, the Tribunal was satisfied that the two minor children, although they have not visited him either in prison or detention custody, nonetheless have established a relationship with the Applicant. He has not been, however, physically present in their lives since at least 2014; before that he lived with the children and they, together with their mother, lived as a family. The Applicant was working at the time and there is no evidence to suggest any untoward or inappropriate behaviour between the Applicant and the children. The Tribunal is also satisfied that plans have been put in place for the mother and children to be reunited with the Applicant should his visa not be revoked.
The Tribunal is of the view that the best interests of those children would be served by the Applicant remaining in Australia. In that regard, this consideration weighs in favour of the Applicant.
Expectations of the Australian Community
In accordance with the decision of FYBR v Minister for Home Affairs [2019] FCAFC 185, in the Tribunal‘s view, despite the subjective considerations as to the commission of the offence, nonetheless this consideration must weigh against the Applicant.
In this matter, however, as will become apparent from the later discussions of various other considerations, the Tribunal is of the view ultimately, that this consideration overall, must carry very little weight.
Other considerations
International non-refoulement obligations
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
The Applicant was born in Iran. The Respondent acknowledges that non-refoulement obligations are owed to the Applicant. The Applicant was granted a Protection visa on 6 June 2011 based upon the fact of his fear of being executed as a result of anti-Islamist statements. A summons has been issued against the Applicant in Iran. Should the decision be made not to revoke the original cancellation decision, the Applicant would become an unlawful non-citizen liable to removal from Australia pursuant to section 198 of the Act. Section 197C provides that it is irrelevant whether, in the circumstances, Australia has non-refoulement obligations in respect of an unlawful non-citizen. The Minister has power pursuant to section 195A of the Act to grant a visa nonetheless if the Minister considers it is in the public interest to do so. Should that power not be exercised by the Minister in his discretion, the Applicant would be liable for removal from Australia as soon as reasonably practicable in accordance with section 198 of the Act. The Minister also has power to grant a visa pursuant to section 48B of the Act.
Removal of the Applicant to Iran despite Australia’s obligations would, in the Tribunal’s view, lead to the possibility of the Applicant being dealt with under Sharia law with the consequence of severe punishment, even perhaps of the death penalty being imposed.
A relevant consideration which is separate to this but nonetheless of equal importance, the Tribunal considers, is the likelihood that those against whom the Applicant informed who now live in Iran, may extract punishment because of the information he provided to police. This independent consideration, the Tribunal considers, is of great significance to the overall considerations in this matter.
Strength, nature and duration of ties
The Applicant came to Australia in 2010 and was granted a visa in 2011. He has been in immigration detention since August 2014. During the relatively short period prior to his incarceration, the Applicant worked in abattoirs in Queensland and also as a car detailer. Although he has contributed to some extent during the relatively short period during which he was free to work, it is of very limited duration.
The Applicant has a brother who lives in Australia. The rest of his family, including his parents and siblings, remain in Iran. The Tribunal accepts that the Applicant has a relationship with a female partner, which continues to endure, and which the Applicant believes will continue should he be free to resume that relationship. The Applicant says that he has a satisfactory relationship with the two children of his partner.
This consideration therefore weighs somewhat in the Applicant’s favour.
Extent of impediments if removed
The Applicant grew up in Iran and is no doubt familiar with the language and culture. He suffers from a mental illness, PTSD, (evidence in support of which is to be found in the material from various health professionals who have had contact with the Applicant). Although there are undoubtably health professionals who could assist him in that regard and generally in resettling into Iran, the fact that the Tribunal accepts he is in fear of his life should he return, means that he is unlikely to have the ready access or be willing to access the sorts of services, including health services, that another citizen would most likely avail themselves.
A substantial amount of material was placed before the Tribunal about US sanctions against Iran and that material suggests potential difficulties now and in the future for Iranians and their society in general. Even excluding this consideration, nonetheless, it is impossible to accept other than the Applicant would have enormous difficulties at many levels in trying to establish himself should he be returned to Iran. This consideration weighs strongly in favour of the Applicant.
Other considerations
Both the matters to which the Tribunal now refers have been mentioned previously.
The Applicant’s co-operation with law enforcement authorities and the consequent danger to him from co-offenders should he return to Iran, the Tribunal considers, carries substantial weight in the Applicant’s favour. The Tribunal is in no doubt that his co-offenders who live in Iran would undoubtedly learn of his return.
The Tribunal is satisfied, on the evidence, that the Applicant is likely to suffer serious consequences, including the likelihood of the death penalty, should he be returned to Iran. Although these matters are mentioned separately and independently, they have also formed some basis in other relevant considerations referred to above.
CONCLUSION
The Tribunal is satisfied that the Applicant poses no risk whatsoever of committing offences in the future in Australia which may affect Australian citizens. Furthermore, there are a number of weighty mitigating factors to the Applicant’s commission of the offence. These have been referred to above. In the Tribunal’s opinion, the weight of factors in the Applicant’s favour far outweigh those considerations emphasised by the Respondent. The Tribunal is satisfied that the original decision should be reversed.
The Tribunal sets aside the reviewable decision of the delegate of the Minister not to revoke the mandatory cancellation of the Applicant’s Class XA Subclass 866 Protection visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class XA Subclass 866 Protection visa is revoked.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC.

...............................[SGD].........................................
Associate
Dated: 3 December 2019

Date(s) of hearing: 14 November 2019

Date final submissions received: 17 November 2019

Solicitors for the Applicant: Mr F Nikjoo, Nikjoo Lawyers

Solicitors for the Respondent: Mr J Hutton, Australian Government Solicitor

[2019] AATA 5168

3 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Natural Justice

Jurisdiction

Date(s) of hearing:	14 November 2019
Date final submissions received:	17 November 2019
Solicitors for the Applicant:	Mr F Nikjoo, Nikjoo Lawyers
Solicitors for the Respondent:	Mr J Hutton, Australian Government Solicitor