ZTBL and Minister for Immigration and Multicultural Affairs (Migration)

[2024] AATA 3375

ZTBL and Minister for Immigration and Multicultural Affairs (Migration) [2024] AATA 3375 (23 September 2024)

Division:GENERAL DIVISION

File Number:          2022/8717

Re:ZTBL

APPLICANT

AndMinister for Immigration and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Rebecca Bellamy

Date: 23 September 2024

Place:Brisbane

The decision under review is affirmed.

................[SGD]................
Senior Member R Bellamy

CATCHWORDS

MIGRATION – Non-revocation of mandatory cancellation of a Class BF Transitional (Permanent) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 – long history of drug addiction and drug related crime – recent violent offending – non-citizen granted a Bridging (Removal Pending) visa – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

HZCP v Minister for immigration and Border Protection [2019] FCAFC 202.

Minister for Home Affairs v Buadromo [2018] FCAFC 151.
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37.

SECONDARY MATERIAL

Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member R Bellamy

23 September 2024

1. The Applicant is a 45-year-old citizen of Iraq who came to Australia on a Subclass 202 (Class XB) Global Special Humanitarian visa in 1992 when he was 13 years old.[1] In 1994 he was granted a Class BF Transitional (Permanent) visa (“BFT visa”). Unfortunately, he had suffered from a long-standing drug dependency, and this has resulted in many years of drug-related crime. His visa was cancelled in June 2021 due to his criminal offending and he has asked the Tribunal to revoke that cancellation.[2] This is the third time his visa has been cancelled and he has asked for it to be revoked. After both previous revocations, he continued to commit offences. The Minister recently granted him a Bridging R (Removal Pending) (Subclass 070) visa (“BVR”) which allows him to live in the community with conditions rather than in immigration detention. However, he would rather have his BFT visa back.      

   [1] Exhibit RB, page 146.

   [2] Exhibit RB, pages 146 and 167.

2. The cancellation of the Applicant’s visa was mandatory. Section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) relevantly provides that the Minister (“the Respondent”) must cancel a visa that has been granted to a person if:

   ·the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a), on the basis of paragraph (7)(a), (b) or (c); and

   ·the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

3. Under s 501(6)(a) of the Act, a person will not pass the character test if they have “a substantial criminal record”. Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

4. On 31 July 2020, the Applicant was sentenced to 12 months imprisonment, and he was immediately released on parole.[3] His parole was suspended in November 2020 and he was returned to custody to serve his sentence in prison.[4] In June 2021, a delegate of the Minister mandatorily cancelled his visa because he did not pass the character test and he was serving a full-time custodial sentence.

   [3] Exhibit RB, pages 50 to 55.

   [4] Exhibit RB, page 63.

5. A mandatory visa cancellation can be revoked under s 501CA(4) of the Act, which provides:

   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.

6. In July 2021 the Applicant requested revocation of the cancellation of his visa.[5] In October 2022, a delegate of the Respondent decided not to revoke the cancellation because criterion (b) was not met.[6]

   [5] Exhibit RB, pages 73 to 76.

   [6] Exhibit RB, pages 8 to 11.

7. That decision is reviewable by the Tribunal pursuant to s 500(1)(ba) of the Act. At the Applicant’s request, the Tribunal did review the decision, affirming it on 13 January 2023.[7] However, the Federal Court found jurisdictional error in the Tribunal’s decision and remitted it to the Tribunal.[8]

   [7] Exhibit RB, page 747.

   [8] Exhibit RB, page 808.

8. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act and that he does not pass the character test. Thus, the sole issue is whether there is another reason to revoke the mandatory cancellation of his visa. If there is, I should set aside the original decision.[9]  

   [9] Minister for Home Affairs v Buadromo [2018] FCAFC 151.

9. The hearing of this application took place on 6 and 7 August 2024. The Applicant gave evidence via telephone, as did his uncle, sister and brother-in-law. His sister and brother-in-law gave evidence with the assistance of an interpreter. The Tribunal also received the documentary evidence and written submissions that are listed in the attached exhibit list, marked “Annexure A”.

   Determination of Whether There is Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

10. In applying s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.

11. For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several guiding principles. Those principles, as far as they relate to this matter, may be summarised as follows:

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

    ·The safety of the Australian Community is the highest priority of the Australian Government.

    ·Non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia.

    ·The Australian community expects that the Australian Government can and should cancel non-citizens’ visas if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    ·Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    ·Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non­ citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

12. Paragraph 6 of the Direction provides that:

    Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

13. Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account. They are:

    (1)the 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.

14. Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. They are:

    a)legal consequences of the decision;

    b)extent of impediments if removed; and

    c)impact on Australian business interests

15. It was agreed between the parties, and I accept, that Primary Considerations 2 and 4, and Other Consideration (c) are not relevant.[10]  

    [10] Exhibit A1, page 8, paragraph 41; page 9, paragraph 48; Exhibit R1, page 15, paragraph 50; page 16, paragraph 55, page 20, paragraph 75.

16. Paragraph 7(2) of the Direction provides that Primary Consideration 1 (protection of the Australian community) is generally to be given greater weight than other primary considerations, and that otherwise, primary considerations should generally be given greater weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.

    BACKGROUND

17. The Applicant had a difficult, traumatic childhood. He was born in January 1978 into a family of Chaldean Assyrian Christians who were discriminated against in Iraq. When he was approximately 12 years old, they fled, on foot, towards Turkey. During that journey the Applicant became separated from his parents at the mountain border crossing, and he continued alone. A few weeks later, his maternal uncle happened to find him by the roadside in Istanbul. He took the Applicant in. The Applicant lived with his uncle’s family in a refugee camp until October 1992 when the family came to Australia on humanitarian visas.[11]

    [11] Exhibit RB, pages 96 and 142. Exhibit R2, page 44, lines 19 to 45. Exhibit A9, pages 1 to 2.

18. In 1994, at the age of 16, the Applicant moved from Melbourne to the Gold Coast. He worked there as a chef from 1996 to 2001, and from 2005 to 2009,[12] when he moved back to Melbourne. He must have spent some time in New South Wales around 2008, as there are some New South Wales entries in his criminal record in that period.[13]

    [12] Exhibit A9, page 2.

    [13] Exhibit RB, page 36.

19. In the mid-1990s the Applicant became addicted to drugs. According to him, he used them to avoid thinking about childhood trauma. He initially used cannabis before moving onto harder drugs, notably heroin.[14] His drug use led him to crime. His first recorded offence, behave in a disorderly manner, was in 1997. The next offence, fraud, was committed in 2000, followed by possessing dangerous drugs later that year.[15] Unfortunately, he remained in the grip of a drug addiction, committing drug related crimes, for some 25 years.

    [14] Exhibit A9, pages 2 to 4.

    [15] Exhibit RB, page 37.

20. The offences he committed between 1997 and 2021 included possession of drugs and drug related utensils, dishonesty offences, theft and burglary and other property offences, driving offences and unlawful use of vehicles, dealing in suspected proceeds of crime, criminal damage, breaching bail, possession of weapons and ammunition without reasonable excuse, and failure to comply with directions. His offending totalled some 350 offences.[16] He committed offences in breach of community-based orders including suspended sentences, and after he had been warned several times that his visa could be cancelled due to criminal offending.   

    [16] Exhibit RB, pages 26 to 37.

21. On 15 August 2002, when the Applicant was 24 years old, he received his first custodial sentence, being imprisonment for three years for several fraud offences and a slightly shorter term for some attempted fraud offences. His offending involved at least 300 transactions of credit card fraud and the fraudulent obtaining of loans between August 1999 and August 2001. The total value of the fraud was $116,331.53. Some of the offending occurred after the Applicant was apprehended by the police and questioned in relation to a separate large-scale mobile phone scam. The learned sentencing Judge noted that, at the time he committed the offences, he had already been dealt with in the Magistrate’s court for similar offences. Her Honour further commented that she thought the Applicant’s expression of remorse related more to the position in which he found himself, than the impact his offending had on the victims of his fraud or others in the community who had to bear the cost of his fraud.[17]

    [17] Exhibit RB, pages 56 to 50.

22. In October 2002, the Applicant was asked to show cause why his visa should not be cancelled. Later that month, in a written reply, he said he had broken the cycle of his offending behaviour, and he asked for a chance to prove himself. He described prison as a very dark and lonely place, and said he had no intentions of ever being returned there.[18]

    [18] Exhibit RB, pages 714 to 716.

23. On 19 November 2002, the Applicant was sentenced to imprisonment for three months for breaching a probation order and a community service order.[19] He was still serving the previous sentences at this time. He was released from gaol in 2003.[20]

    [19] Exhibit RB, page 37.

    [20] Exhibit A6, page 4.

24. In 2007, the Applicant’s parents came to Australia with his help.[21] In 2009, he returned to Melbourne to live with them, and he remained living with them until 2019. In 2010, he bought a truck and began a gardening business, which he conducted on and off until September 2017. His younger sister and her husband came to Australia in 2012.[22] 

    [21] Exhibit A9, page 2.

    [22] Exhibit A9, page 2.

25. On 27 February 2012, the Applicant was convicted in Victoria of possessing a controlled weapon and ammunition, and some other offences including drug possession, unlicenced driving and dealing in stolen property.

26. In May 2012, the Applicant was again warned that his visa could be cancelled on character grounds. In August 2012, the Respondent’s department notified him in writing of a decision not to cancel his visa. That notification included the following acknowledgment that he signed:

    “I, [ZTBL] acknowledge that I have received the Notice of decision not to cancel a visa under subsection 501(2) of the Migration Act 1958. I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered”.[23]

    [23] Exhibit RB, pages 164 to 166.

27. In the early hours of 21 June 2014, an intoxicated person stepped out in front of a car that the Applicant was driving. The police report indicates that the pedestrian was knocked unconscious and suffered life-threatening injuries. It is not suggested that the Applicant was at fault in the collision. He initially got out of his vehicle and ran to the victim who was lying on the road. However, he then returned to his vehicle, drove a short distance away, and waited. Other people who were there attended to the victim. When the police caught up with him, he falsely claimed someone else had been driving. He was unlicensed at the time.[24]

    [24] Exhibit RB, pages 374 to 380.

28. In May 2016, the Applicant was sentenced to imprisonment for five months for failure to give his name and address to police, two charges of unlicensed driving and failure to render assistance after an accident. In the previous hearing, the Applicant said the victim came out of nowhere, and his girlfriend, who was also in the car, told him he had killed someone. He checked the victim’s pulse while his girlfriend called an ambulance and the police. Other people arrived at the scene. He sat in his car in shock, feeling “half dead, half alive…feeling so numb”. He stayed in the car because he was scared. The victim survived the accident.[25]  

    [25] Exhibit R2, pages 26 to 27.

29. In September 2016, the Applicant’s visa was cancelled.[26] He asked for the cancellation to be revoked. In an affidavit in support of that request, he said he was extremely remorseful and was committed to being law-abiding should he be allowed to remain in Australia.[27]

    [26] Exhibit RB, page 159.

    [27] Exhibit RB, pages 718 to 720.

30. There are some clinical notes that were made in October 2016, when the Applicant was in immigration detention, by staff of the International Health and Medical Services (“IHMS”).[28] These record that the Applicant:

    ·said he had been on mirtazapine for two years for depression, but had stopped when he was in prison;

    ·asked for Suboxone, saying he had been on it for many years, but he stopped while still in the community;

    ·said he started to use opiates again while in prison, being heroin or Suboxone that he bought from other prisoners and used daily;

    ·after a positive drug test in detention, he admitted to having last using heroin and Suboxone a week ago (in gaol), but denied having used drugs in detention; and

    ·when told by a nurse that she felt uncomfortable giving him Suboxone given his consistent low blood pressure readings, he “erupted in anger using very inappropriate words” and told the nurse that she was “only a F** nurse” and to carry out the doctor’s order to administer his “F** medication”. 

    [28] Exhibit A6, pages 375, 382 to 383 and 388.

31. According to the IHMS notes, the Applicant’s prison discharged summary stated that he was on Suboxone daily, but that ceased five weeks earlier due to him diverting it. Contrary to what he told the IHMS staff, it said he was also on prescribed mirtazapine.

32. It is not apparent whether the delegate who considered the Applicant’s request for the visa cancellation to be revoked knew about these records. In November 2016, the Applicant was notified in writing that the cancellation had been revoked. The notice included the following warning:

    “Please note: this decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you.”

33. The Applicant signed an acknowledgement that he understood this warning.[29]

    [29] Exhibit RB, pages 164 to 168.

34. It appears that during a period between mid-November 2016 and April 2018, the Applicant was generally of good behaviour. He recalled that, in that period, he had his family around him, and he was enjoying life. He did not need drugs and was able to live and work without them.[30]

    [30] Exhibit A9, page 4.

35. I am indebted to the Applicant’s lawyer for piecing together from the police evidence what happened around April 2018. It appears that on 12 March 2018, there had been an argument between the Applicant and his mother and sister, and the police had been called. He was served that day with a Family Violence Safety Notice.[31] On 8 April 2018, he went to his sister’s house in breach of the notice.[32] It appears that this contributed to the revocation of a Community Correction Order that had been made in October 2017. On 30 April 2018, he was dealt with for two breaches of a Community Corrections Order and sentenced to two terms of imprisonment for one month.[33]

    [31] Exhibit RB, page 347 to 348.

    [32] Exhibit RB, page 241.

    [33] Exhibit RB, page 31.

36. The records of the incident on 8 April 2018 indicate that the Applicant kicked a door and threw a vacuum cleaner at another door.[34] He was charged with criminal damage. It was not submitted in this proceeding that the Applicant’s actions rose to the level of family violence for the purposes of the Direction, and there is not sufficient evidence to make such a finding. There is no evidence of any offending until the following year. 

    [34] Exhibit RB, page 241.

1. On 4 June 2018, the Applicant’s visa was mandatorily cancelled again.[35] In August 2018, he was transferred to an immigration detention centre.[36] In October 2018, he asked for the cancellation to be revoked, saying he was sorry and that he was a “different man now”.[37]

   [35] Exhibit RB, page 150.

   [36] Exhibit A6, page 353.

   [37] Exhibit RB, page 717.

2. In February 2019, the Applicant was notified in writing that the visa cancellation had been revoked. That notification contained the warning:

   “if you engage in further criminal or other serious conduct, this may again result in your visa being cancelled on character grounds and you should expect to be removed from Australia.”[38]

   [38] Exhibit RB, pages 147 to 149.

3. However, in late April and early May of 2019, the Applicant had some interaction with the police and he was charged with numerous offences arising from allegedly using counterfeit money, having cocaine in his possession and having possession of a stolen motorcycle.[39] Those charges appear to be pending. Soon afterwards, he moved to Queensland. He recalled having an argument with his father and taking off to the Gold Coast where he became homeless, started sleeping in his car, “started meeting the wrong people”, and started taking drugs again.[40] However it is apparent that he was already using drugs, and his mother’s evidence in the previous hearing was that she and her husband “kicked him out” because of his drug use.[41] I am satisfied that the Applicant was already using drugs before moving to Queensland but I accept that his drug use then got worse.

   [39] Exhibit RB, pages 236 to 240.

   [40] Transcript, page 25, line 44 to page 26, line 6.

   [41] Exhibit R2, page 67.

4. On 15 May 2019, the Applicant engaged in an act on the Gold Coast that led to a charge of unlawful use of motor vehicles.[42] More offending followed, including the Applicant being found in possession of knuckledusters and drugs in both November and December 2019.[43]

   [42] Exhibit RB, page 68.

   [43] Exhibit RB, page 362.

5. On 31 July 2020, the Applicant was dealt with for a large number of offences. He was sentenced to eleven concurrent sentences of imprisonment ranging from one month to twelve months in duration, and some lesser penalties. When passing sentence, the learned sentencing Magistrate noted that the Applicant had breached just about every community-based order that had ever been given to him. Her Honour granted immediate parole after he had spent 82 days in custody and warned him that if he came back before the court again, he could not expect to receive such leniency.[44]

   [44] Exhibit RB, pages 50 to 54.

6. The Applicant soon breached his parole. In October 2020, he committed a burglary. In November 2020, he committed a serious assault and an armed robbery.[45]

   [45] Exhibit RB, page 60.

7. According to the sentencing remarks of the District Court, on 1 November 2020, the Applicant shot a gel blaster at his neighbour’s veranda and smashed the front window of the house with a steel bar. After police attended and left, the Applicant lunged at his neighbour and punched him. He also came up behind him and punched him in the back of the head. His neighbour fell and hit his head on the concrete, causing him to lose consciousness. While the neighbour was unconscious, the Applicant hit his head multiple times and kicked his face. He then threw a steel pole at the neighbour, striking him in the back and elbow, causing his elbow to bleed. The Applicant tried to pick up the pole, but the neighbour stood on it. The neighbour was taken to hospital where he remained for two days. He suffered a black eye, bruising to his back, cuts to his nose and head, and a fractured jaw that required surgery.[46]

   [46] Exhibit RB, pages 367 to 369.

8. In the previous Tribunal hearing, the Applicant said he had been sitting in his front yard, shooting his gel blaster at a big tree between his and his neighbour’s property. The police came and asked him not to use his gel blaster on his neighbour. He told them he was shooting at the tree, not his neighbour but he agreed not to use it anymore. The next day, he went next door to borrow some petrol for his new lawnmower, but his neighbour was not there. He went to the garage and took the oil, intending to replace it quickly. While there, he saw items that had been stolen from him while he was in prison. He threw them over the fence into his property. While he was doing that, his neighbour returned and threatened to lock up the Applicant’s dog. He got his phone out to record the Applicant trespassing and robbing him (so he thought). They argued and the neighbour called the police. The police attended and told him not to approach or talk to the neighbour. He asked for his property back, but police did not assist him. Two hours later, he ran into the neighbour at a nearby petrol station. The neighbour started “mouthing off”, so the Applicant punched him. The neighbour got a bat and used it to smash the windows of the Applicant’s house and car. The Applicant called the police and threw the bat at the neighbour. He admitted hitting the neighbour with a metal pole and punching him before that. However, the Applicant denied that his neighbour had lost consciousness.[47] I accept the facts found by the court,[48] and I also accept that the Applicant’s neighbour stole from him while he was in prison.

   [47] Exhibit R2, pages 35 to 38.

   [48] HZCP v Minister for immigration and Border Protection [2019] FCAFC 202.

9. On 19 November 2020, the Applicant attacked a stranger who had arranged to buy an item from him. They disagreed, and the Applicant produced a Swiss army knife and threatened to “shank” the victim. He moved the knife towards the victim’s stomach and continued to threaten him. The victim told the Applicant that he had children and the Applicant responded that he did not care and that he would shank him. He then kicked the victim in the sternum. The victim managed to get away, and the police later arrested the Applicant at his home.[49]

   [49] Exhibit RB, page 369; Exhibit R2, page 39.

10. While at the Applicant’s home, the police found property that was suspected of being stolen.[50]

    [50] Exhibit RB, pages 683 to 684.

11. On 20 November 2020, the Applicant’s parole was suspended. It was subsequently cancelled because he had committed further offences, tested positive to methylamphetamine, amphetamine, cannabis and benzodiazepine on 5 November 2020, and failed to report to his parole officer.[51]   

    [51] Exhibit RB, page 60.

12. On 16 April 2021, the Applicant was sentenced to three months’ imprisonment, suspended for 12 months, for receiving tainted property.[52] He was given lesser sentences for:

    ·unlawful possession of suspected stolen property;

    ·wilful damage of police property;

    ·possessing dangerous drugs;

    ·contravene direction or requirement; and

    ·trespass – entering or remining in yard or place for business.

    [52] Exhibit RB, page 39.

13. On 11 May 2021, the Applicant tested positive for buprenorphine, which is one of the active ingredients of Suboxone.[53]

    [53] Exhibit RB, page 351.

14. A community-based supervision report, dated 22 November 2021, concluded that the Applicant had a poor response to supervision demonstrated by his ongoing failure to report and lack of motivation to address his persisting needs.[54]

    [54] Exhibit RB, page 373.

15. On 24 November 2021, the Applicant was sentenced for grievous bodily harm, assault occasioning bodily harm, wilful damage, threatening violence and common assault. An agreed statement of facts was provided to the court. The Applicant was sentenced to four years imprisonment, to be suspended after serving 14 months. The learned sentencing Judge noted that the “persistent acts of serious gratuitous violence”, were completely unacceptable in a civilised society. Her Honour described the Applicant kicking the victim in the face whilst he was on the ground unconscious as “particularly disturbing”. She considered it to be an aggravating factor that the Applicant was on parole when he committed these offences.[55]

    [55] Exhibit RB, pages 367 to 372.

16. The Tribunal has been provided with a report from the Queensland Department of Main Roads containing traffic offences committed by the Applicant in Queensland since 1997. It is extensive and includes two instances of disqualified driving, six instances of unlicensed driving, speeding (including three instances of exceeding the speed limit by more than 30km/h), and drink-driving.[56] The Applicant also committed multiple traffic offences in Victoria and New South Wales.[57]

    [56] Exhibit RB, pages 685 to 692.

    [57] Exhibit RB, pages 31 to 36.

17. The Applicant remained in custody, in prison or immigration detention until 5 August 2024 when the BVR was granted. In that time, he engaged with mental health practitioners and he made some efforts at rehabilitation. However, at the date of the hearing, he had not managed to control his drug addiction.

18. In a mental health review on 25 September 2022, the Applicant said he used heroin from 1995 to 2010 before going on an opioid replacement program through his general practitioner. He used Suboxone in prison daily, costing him $10,000 in illegal Suboxone. He was using it daily in detention, and he asked for a referral to commence the Opioid Substitution Treatment Program (“OSTP”) as soon as possible. He also reported having used Diazepam 5mg twice per day for nine years and having stopped in 2019. He said “benzos are the hardest thing to get off’.[58]

    [58] Exhibit A6, pages 271 to 272.

19. The Applicant commenced prescribed Buvidal injections under the OSTP in November 2022.[59] In May 2023, he used amphetamines.[60] In mid-2023, he asked to transfer to Melbourne to be near his family. He had started engaging with the Queensland Program of Assistance to Survivors of Torture and Trauma (QPASTT) at that time.

    [59] Exhibit A6, page 246.

    [60] Transcript, page 15, lines 23 to 25.

20. An IHMS note dated 8 August 2023 recorded that the Applicant was aware of SMART recovery meetings in his compound, but he did not attend them.[61]

    [61] Exhibit A6, page 132.

21. In September 2023, the Applicant was transferred to an immigration detention centre in Melbourne.[62]

    [62] Exhibit A6, page 56.

22. In March 2024, the Applicant used cannabis and “ice”.[63] He was recently referred to Foundation House, the Victorian equivalent of QPASTT, after having requested a referral some months earlier.[64]

    [63] Transcript, page 15, lines 45 to 47.

    [64] Transcript, page 67, lines 6 to 38; Exhibit A6, page 45.

23. In the present hearing, the Applicant said he last used an illicit drug in May 2024. However, an IHMS clinical note dated 28 June 2024, recorded “Reports using marijuana about two weeks ago, once off, half a joint and nil since” and “Also client experiencing craving and withdrawals”.[65] The Applicant recalled that he had been using ice “maybe two months before that”, and he was coming off it, so he was “going up and down” on his dose of Buvidal. He conceded that he was not stable until June 2024.[66] He agreed that this meant that even after he spoke with the Tribunal in a telephone directions hearing in this matter on 31 May 2024, he was still using illicit drugs.[67]

    [65] Exhibit A6, page 13.

    [66] Transcript, page 17, lines 5 to 15.

    [67] Transcript, page 17, lines 37 to 44.

24. Apart from his illicit drug use, there is no evidence of poor custodial behaviour since the Applicant was last taken into custody.   

25. On 5 August 2024, a delegate of the Minister refused to grant the Applicant a protection visa (after he applied for one) because he did not satisfy s 36(1C) of the Act. While he was found to be a person to whom Australia owed protection obligations, he was disqualified from getting a protection visa on the basis that, having been convicted of a particularly serious crime, he was a danger to the community. That same day, he was granted the BVR[68] under reg 2.25AB of the Migration Regulations 1994 (“Regulations”) and released from immigration detention on 5 August 2024. At the commencement of the hearing, he had been living in the wider community for one day.

    PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

    [68] Exhibit R3.

26. Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Given the Applicant’s criminal history, this primary consideration must weigh against him. In determining how much it weighs against him, paragraph 8.1(2) of the Direction requires me to consider:

    a)The nature and seriousness of the Applicant’s conduct to date; and

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

    The Nature and Seriousness of the Applicant’s Conduct to Date

27. When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to the following relevant matters:

    ·that violent crimes are considered to be very serious;

    ·the sentence imposed by the courts for a crime or crimes;

    ·the impact of the offending or other conduct on any victims and their family;

    ·the frequency of the offending and/or whether there is any trend of increasing seriousness;

    ·the cumulative effect of repeated offending; and

    ·that the Applicant continued to offend after having been formally warned, or otherwise made aware, in writing, about the consequences of further offending in terms of his migration status.

28. Between 1997 and 2021, the Applicant committed over 350 offences, which is frequent, persistent offending. It is reasonable to assume that his repeated offending involving property and dishonesty offences caused financial loss and inconvenience to multiple individuals and businesses in the community. His repeated traffic offences undermined the road safety system.

29. The Applicant’s offending includes two episodes of violent offending, including one where he threatened to stab the victim. The category that these offences come within, being violent offences, makes them very serious for the purposes of the Direction. In my view, the first is also very serious because of the level of violence and seriousness of the resulting injuries.  

30. The Applicant has been caught in possession of a firearm, ammunition, and other types of weapons.

31. He has been sentenced to numerous periods of imprisonment. Imprisonment is generally the last resort in the hierarchy of sentencing options.

32. While fraud is not one of the categories of offence that is deemed to be serious or very serious, the scale of the credit card and loan fraud the Applicant committed in 1999 to 2001 makes that offending very serious.

33. There was not a trend of increasing seriousness in the Applicant’s overall offending. Rather, it fluctuated. The relatively recent introduction of violence into the Applicant’s criminal behaviour is concerning.       

34. The only evidence of the impact of the Applicant’s offending on a victim is the evidence of the physical injuries he inflicted on his neighbour, which were numerous and severe.   

35. On four separate occasions, in 2002, 2012, 2016 and 2018, it was brought to the Applicant’s attention, in writing, that criminal offending could lead to his visa being cancelled. On three of these he received a formal warning in writing.

36. The Applicant’s criminal offending attracts heavy weight against revoking the cancellation of his visa.

    The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

37. Here I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[69]

    [69] Paragraph 8.1.2(1) of the Direction.

38. I must have regard to the following relevant factors on a cumulative basis:

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

    (b)the likelihood of that he will engage in further criminal or other serious conduct.

39. The Applicant’s criminal history is varied, encompassing traffic offences, dishonesty and fraud offences, property offences, trespass and entering premises to commit an offence, possession of weapons and ammunition, and violent offences. This means that there is a broad range of harm that he could cause if he were to re-offend. That harm includes serious financial, physical and psychological harm. In particular, the harm from another violent attack like the one on his neighbour includes very serious physical harm and possibly death. It is so serious that a material risk of another attack like that could only be counter-balanced by very compelling factors in the Applicant’s favour.

40. The Applicant has a lengthy criminal history that is closely tied to his long-standing drug dependence. When he was using drugs, and in need of drugs, he was prepared to commit a range of criminal offences that would obviously cause detriment or create a risk of harm to others in the community. The prospect of prison or removal from Australia did not deter him. The last time he was released from custody, he quickly returned to drug use and crime in breach of his parole conditions. He even used drugs while in prison and in immigration detention as recently as June 2024.

41. In a statutory declaration dated 17 July 2024, the Applicant referred to horrors that he witnessed as a child in Iraq. He said he became addicted to drugs in the mid-1990s, using them to avoid thinking about his childhood trauma. I accept that untreated trauma contributed, to some extent, to his drug use. He disclosed a gambling habit that appears to have contributed to the large credit card and loan fraud and claimed he has not gambled since he was imprisoned for that.[70]

    [70] Exhibit A9, page 2.

42. The Applicant claimed to abhor violence and he said he is generally not a violent person. I accept that, given the lack of violent offences in his criminal history, except for the two he committed in November 2020.[71] However, his abhorrence of violence did not stop him from committing a very violent attack, and that is concerning.

    [71] Transcript, page 20, lines 16 to 46.

43. The Applicant expressed embarrassment and shame over his offending. He echoed that in his evidence in the hearing in the present matter, where he accepted full responsibility for his offending and apologised for the harm he had done others, his family and the community.  He said he understood the consequences of his actions and felt remorseful. He acknowledged that he had been given many chances and he had failed to keep promises he had made. He indicated that he is committed to his rehabilitation and said there is no risk of further offending.

44. The Applicant’s evidence in the hearing was that he was currently only taking the drugs on the OSTP program, he was “clean headed”, and he intended to continue on that path. He will stay on the OSTP program until his doctor decides he no longer needs it. [72]

    [72] Transcript, page 24, lines 4 to 33.

45. In the present hearing, the Applicant appeared to seek to justify the attack on his neighbour when he said:

    “I don’t even have a violent bone in my body, in my whole life. That was just wrong place, wrong time, and I took the law in my own hands, which I shouldn’t have.”

46. However, he continued:

    “And I learnt now, after doing a few courses, anger management, and after doing all these things that I’ve done, I could have done it way differently.”[73]

    [73] Transcript, page 20, lines 20 to 25.

47. A couple of months prior to the hearing, the Applicant had started an anger management course and he had completed most of the modules.[74] While this engagement is positive, and the Applicant is learning some helpful coping skills such as walking away, thinking before reacting, shifting his perspective, and using communication techniques to calm a heated situation, it is not apparent whether he has made enough progress to substantially lower the risk of further violent offending in the context of drug use.      

    [74] Exhibit A16; Exhibit A9.

1. The Applicant has undertaken some drug rehabilitation. He has had sessions with mental health staff in the Brisbane immigration detention centre, and more recently he has attended weekly SMART Recovery sessions both online and in person. He engaged in trauma counselling with QPASTT, which is relevant as the untreated trauma which contributed to his drug use could still be a factor. More recently, he engaged in Beyond Addiction courses on 4 July, 26 July and 2 August 2024.[75] He intends to continue to engage with SMART Recovery, where he will engage in a weekly group online session with other people who are recovering addicts, with a focus on overcoming what they have done in the past.[76] He will also attend Foundation House for trauma counselling, and continue Buvidal injections every three weeks under the OSTP, for as long as his doctor recommends.[77] Since 2020, he has tried to be fit and healthy. He is exercising daily in detention.[78] While he has always been Christian, he has leaned into his faith lately, taking it more seriously, and he sees that as a protective factor.  

   [75] Transcript, page 65, lines 13 to 45.

   [76] Transcript, page 27, lines 1 to 13.

   [77] Transcript, page 67, lines 7 to 37.

   [78] Transcript, page 36, lines 6 to 27.

2. I accept that the Applicant wants to live a drug-free life. However, even with the work he has done to rehabilitate, his faith, his physical exercise and his participation in the OSTP, he is still prone to relapse. He explained his relapses in “late 2023 and early 2024” as having resulted from his transfer to Melbourne where he was shocked by the easy availability of drugs, and where he asked to move compounds to no avail.[79] He said he had been drug-free since March 2024 and he intended to remain that way.[80] However, there is evidence of drug use in May and June 2024. I accept that relapsing is a normal part of the recovery process, however, the recent multiple relapses indicate that the Applicant has not come far enough in his recovery. When I asked him what he would do if he relapsed in the community, he did not have a specific plan, but he said he would stay away from people who use drugs, and train five or six times per week, or even twice per day.[81]   

   [79] Exhibit A9, page 3.

   [80] Ibid.

   [81] Transcript, page 26, lines 15 to 28; page 36, lines 15 to 27.

3. The Applicant plans to live with his parents, who live near his sister and her husband. He will continue to exercise regularly and practice his faith. He wants to look after his parents who are elderly and in poor health, do not speak good English, and cannot drive. Among other conditions, his father has leukemia and his mother has anxiety, depression and arthritis.[82] He also wants to share his life experiences to help other people turn away from drugs and crime and to show them that rehabilitation is possible.[83] I accept that the Applicant will have positive things to occupy his mind and motivation to stay out of trouble.

   [82] Transcript, page 30, lines 1 to 14.

   [83] Exhibit A9, page 7.

4. The Applicant’s family, which includes the uncle who took him in as a child, do not condone drug use or criminal activity. In the previous hearing, his mother said she and her husband will encourage the Applicant to attend rehabilitation and “dob him in” if he uses drugs.[84] In this hearing, his uncle said there was a three or four year period where he was not in contact with the Applicant because he did not approve of his lifestyle. His uncle did not know much about the Applicant’s offending, but he was aware of his drug use. He was in contact with him in detention and he was sure the Applicant had changed. He thought the Applicant looked like he had not used drugs in a long time.[85] He has told the Applicant that he will give him support, but this is the last time. If the Applicant does wrong in the future, he would cut off contact with him, and the Applicant knows that and has promised to do the right thing.[86]

   [84] Exhibit R2, page 67.

   [85] Transcript, page 41 lines 24 to 46.

   [86] Transcript, page 43, lines 1 to 37.

5. The Applicant’s parents have previously thrown him out because of his drug use. It was contended that, before that happened, he had been drug-free and of good behaviour for a period, so living with them, as he plans to do, would be a protective factor. I accept that the Applicant parents are a good influence, and he has better rehabilitation prospects if he is living with them than somewhere else. However, he lived with them from 2009 to 2019 and in that period, he did use drugs and offend, so living with them has not been, in itself, enough to keep him from drugs and crime.       

6. The Applicant’s parents live near his sister. Her husband has arranged a job for the Applicant in the restaurant he manages. He is friends with the owners, who know the Applicant had problems with drugs and committed crimes.[87] I accept that living near his sister and working in a stable job in a supportive environment will assist the Applicant’s rehabilitation. So will connection to his Christian community.

   [87] Transcript, page 7, lines 11 to 24.

7. I note that a friend of the Applicant’s has offered him a job in his goods delivery business in Canberra.[88] However, I am proceeding on the basis that the Applicant prefers to live in Melbourne and work at his brother-in-law’s restaurant because he will have more support in Melbourne.  

   [88] Exhibit A15.

8. The Applicant has previously been faced with visa cancellation, and he has promised not to re-offend. He has previously put forward his faith and family as protective factors. In fact, many of the protective factors that he has put forward in this proceeding have previously been put forward in one way or another. He may well have been sincere on previous occasions, as I think he is now. However, he did re-offend. I am concerned that, even with all the factors motivating him to stay drug-free and abide by the law, and all the supports he has in place, there is a moderate risk that he will relapse and not recover, and this will lead to crime, which could realistically include very violent crime.    

9. The Direction contemplates that a decision to cancel a visa, or not to revoke the cancellation of a visa, will result in the non-citizen being removed from, or kept out of, the wider Australian community. The relevance of the risk of re-offending is obvious: allowing the non-citizen to have the visa means potentially allowing a risk of harm into the wider Australian community. However, since NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (“NZYQ”) there are some non-citizens who the government will allow to live in the wider Australian community on a BVR even if their substantive visa is cancelled. The Direction does not lend itself well to this situation.

10. The question arises, in a case like this: should the Tribunal allocate weight solely on the basis of the risk of harm posed by the Applicant in the wider community, or should the Tribunal allocate weight based on the difference between the risk of harm he poses under the BFT visa versus the BVR. It was contended on behalf of the Applicant that there is no difference between the risk of harm under each visa. The Respondent accepted that the Tribunal should consider this contention but rejects it on the facts.[89] As considering it favours the Applicant, and the Respondent conceded that I should, that is what I have done.

    [89] Transcript, page 104, lines 1 to 7.

11. The Respondent helpfully provided written submissions about the BVR conditions,[90] which were not challenged by the Applicant. The following paragraphs draw heavily on those submissions.    

    [90] Exhibit R4.

12. One of the criteria for the grant of a BVR is cl 070.612A in schedule 2 of the Regulations. This clause requires the Minister to consider whether it is reasonably necessary to impose conditions 8621 (monitoring device) and 8620 (curfew), among others, for the protection of any part of the Australian community.

13. The Minister is assisted in making decisions under cl 070.612A by advice from the Community Protection Board (“the Board”). The Board consists of members with relevant experience from the fields of law enforcement, corrections, academia, mental health, and the community and multicultural sector, as well as senior public servants from the Department of Home Affairs and Australian Border Force who are responsible for law enforcement, compliance and status resolution. The Board is obliged to provide informed, impartial, evidence-based recommendations to visa decision makers about conditions of individuals’ visas. The recommendations support the management of non-citizens who may pose risks to the safety of the Australian community. BVR decision-makers consider the Board’s recommendations, and any other relevant information, to determine the visa conditions to be imposed on a visa.[91]

    [91] Exhibit R4, attachments A and B.

14. It would be reasonable to infer that, as conditions 8620 and 8621 were imposed on the Applicant’s BVR,[92] they were considered reasonably necessary for the protection of the Australian community. Failure to comply with either of these two conditions would have serious consequences for the Applicant, including conviction of a criminal offence under the Crimes Act 1914 (Cth) (“Crimes Act”), which attracts a minimum sentence of 1 year imprisonment.[93]

    [92] Exhibit R3, attachment A.

    [93] Exhibit R3, attachment A, pages 9 to 12.

15. Another condition of the Applicant’s BVR is condition 8303, which provides that the Applicant must not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community. This is relevant, given his somewhat recent violent offending. While breaching this condition does not attract a criminal penalty under the Crimes Act, it could result in the visa being cancelled.   

16. The Applicant contended that the threat of criminal sanctions that would apply to the Applicant, as they apply to any member of the Australian community, would be just as effective as the BVR conditions. There is some merit to this argument, although in the Applicant’s case, with his long history of offending, it could be put the other way around: the threat of criminal sanctions would be as ineffective as the BVR conditions. The Applicant has not previously been deterred by the threat of criminal sanctions or by the threat of deportation. His risk of re-offending depends largely on his attitude and somewhat on the supports around him.

17. However, the nigh-time curfew adds a level of structure and consistency that the Applicant did not previously have in the wider community. The monitoring device will be a constant reminder to the Applicant that he is being monitored, which could prompt him to think twice if he is tempted to do the wrong thing. The curfew and monitoring device are potential supports for him. Accordingly, I am satisfied that there is likely to be a lower risk of re-offending if the Applicant has a BVR than if he has his visa back, although I cannot speculate about what the differential is. On this basis, I allocate only marginal weight to this factor.  

18. Overall, Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa.

19. I am concerned that where a non-citizen poses a high risk of harm to the Australian community, and has shown disregard for laws and regulations, then allocating weight based on a comparison of the risk of harm under one visa versus another could work against the central purpose of the legislation, Direction and, more specifically, Primary Consideration 1. That is because low or no weight would be allocated against the non-citizen with respect to risk of harm, which would increase their prospects of getting their visa back despite the danger they pose to the community. This works against the protection of the Australian community.        

    PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

20. The Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia, and where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.[94] As I have noted, the Applicant will remain in Australia regardless of the decision. The Direction goes on to say that non-revocation of the mandatory cancellation of a visa, 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 be granted or continue to hold a visa. These expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[95]

    [94] Paragraph 8.4(1) of the Direction.

    [95] Paragraph 8.4(3) of the Direction.

21. However, the reference to entering or remaining in Australia is based on an assumption that these things can only occur if a person has a visa. I do not think it should be given any more meaning than that. I will apply this Primary Consideration on the basis that the expectations of the Australian community concern whether or not the Applicant should have the BFT visa.   

22. The Applicant has a lengthy criminal history and numerous traffic infringements. He has committed violent offences which are, according to the Direction, of particular concern to the Australian community. His offending shows disregard for the laws that govern the community in which he wishes to live. While I accept that his traumatic childhood was an early contributor to his drug use, which led to his offending, he has had many opportunities to address it, and he did not make a serious effort to do that until relatively recently.  

23. Primary Consideration 5 weighs heavily against revocation of the cancellation of the Applicant’s visa.  

24. It is helpful to address the legal consequences of the decision (Other Consideration (a)) before addressing the remaining applicable mandatory consideration.

    OTHER CONSIDERATION (a) - LEGAL CONSEQUENCES OF THE DECISION

25. If the visa cancellation is not revoked, the Applicant would be precluded from applying for another visa while he is in the migration zone.[96]

    [96] Section 501E of the Act.

26. Given the protection finding that has been made by the Minister, his removal to Iraq is not required or authorised. Any removal would have to be to a third country, and the Respondent conceded that there is no real prospect that it will be practicable to remove the Applicant in the reasonably foreseeable future.[97] In light of the High Court’s judgment in NZYQ, the Applicant was granted the BVR.

    [97] Exhibit R4, page 2, paragraph 5.

27. If the Tribunal does not revoke the cancellation of the Class BF Transitional (Permanent) visa, he would remain in the community subject to the conditions attached to the BVR. If the Tribunal revokes the visa cancellation, he will get his Class BF Transitional (Permanent) visa back and the BVR would cease. Either way, he would remain in the wider community.

28. The Applicant can live a relatively normal life on the BVR, and he has access to Centrelink and Medicare. However, the BVR conditions are more onerous than those attached to a Class BF Transitional (Permanent) visa. For example, the Applicant’s BVR:

    ·requires him to report changes in his residential address, personal details, employment details and circumstances;

    ·contains restrictions on certain kinds of employment such as occupations involving the use of chemicals of security concern, weapons or explosives;

    ·contains restrictions on becoming involved in activities disruptive to, or violence threatening harm to, the Australian community;

    ·requires him to be at his residence between 10pm and 6am; and

    ·requires him to wear a monitoring device.

29. The Applicant said he would have no trouble complying with the conditions of his BVR. I accept that he gave that evidence in the context of just having been released from immigration detention, so he was feeling very positive. It is likely that he will start to find some conditions irritating or onerous after a while. For example, he plans to hide the monitoring device under trousers when he is at work, and presumably elsewhere, however this may be problematic in hot weather. The monitoring device requires charging for an hour each morning and night. The Applicant will only be able to work a day shift at the restaurant, as the later shift finishes at around 2.00am. He can make representations to the Minster about removing the curfew and monitoring device conditions, although he does not have any plans to do that, and I have found that these conditions are likely to assist in his rehabilitation.

30. I accept that the Applicant will not always be able to hide the monitoring device and that it is likely that people who see it will think he is a criminal. I also accept that it is an indignity to have to continually report changes in one’s personal circumstances. There is some uncertainty about the BVRs in that it is not a permanent visa, it is not known how long the BVR will last, and it is not known what would happen to the Applicant if he were to engage in a non-criminal breach of a condition. I accept that uncertainty can be psychologically corrosive, and that the uncertainty is likely to impact those who care about the Applicant, as well as the Applicant. I further accept that the uncertainty will make it hard for the Applicant to make long term plans, such as entering a committed relationship.    

31. This Other Consideration weighs moderately in favour of revocation of the mandatory cancellation.

32. No weight applies, one way or the other, to Other Consideration (b) as there is no prospect of the Applicant being removed to Iraq in the foreseeable future as a result of this decision.

    PRIMARY CONSIDERATION 3: STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA

33. The Applicant has lived in Australia for 31 years, having arrived when he was a 14-year-old child. He has worked and paid income tax, although there were some gaps in his employment. He loves Australia and considers Australia to be his home.[98] He started offending around five years after arriving here, which I do not consider to be soon after arrival.

    [98] Exhibit A9.

34. The Applicant’s parents, sister and brother-in-law, and uncle live in Australia. He also has some other uncles, and aunts and cousins in Australia. They are all Australian citizens.

35. The Applicant’s immediate family, in which I include his uncle, are clearly fed up with his drug use and offending behaviour, and they have expressed that he is on his last chance. However, I do not take this to mean that they do not love him. He has been offending for over 20 years and they are still in his life, expressing their love and concerns for him, wanting to help him. That tells me his familial bonds are very strong. The Applicant claimed to have very close relationships with his other relatives, and although there was not much evidence of that, I accept that there is love and concern in these relationships.

36. I accept that the Applicant has friends in the community and that he has links to a Christian community.[99]

    [99] Exhibit A5.

37. The Applicant’s parents would like the Applicant to live with them and help them as a carer. His sister and her husband currently help them, but they do not live with them. The Applicant’s brother-in-law also suffers from leukemia, in fact, he stopped to give telephone evidence in this hearing while being driven to the hospital for chemotherapy by the Applicant’s sister. I accept that it is better for the entire family if the Applicant lives with his parents and helps them. He is currently doing that under the BVR. There is no suggestion that his ability to do that would change, although I acknowledge that there is inherent uncertainty with the BVR and the risk of a year in prison, away from his parents, if he were to break certain conditions. There would not be this uncertainty or risk if the Applicant got his visa back. 

1. I allocate moderate to heavy weight in the Applicant’s favour under this Primary Consideration.

   CONCLUSION

2. I am now required to weigh all the Considerations in accordance with the Direction. Primary Considerations 1 and 5 weigh heavily against revocation of the cancellation of the visa. Primary Consideration 3 attracts moderate to heavy weighs in favour of revocation, and Other Consideration (a) weighs moderately in favour of revocation. Therefore, there is more weight in favour of not revoking the cancellation of the Applicant’s visa. There is not another reason to revoke the cancellation of the Applicant’s visa.  

   DECISION

3. The decision under review is affirmed.

I certify that the preceding 123 (one hundred and twenty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

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

Associate

Dated: 23 September 2024

Date of hearing:	6 and 7 August 2024
Applicant’s Counsel: Applicant’s solicitor:	Mr Ben Zipser Ms Shira Sebban Lionheart Migration
Respondent’s Solicitor:	Mr Jake Kyranis Sparke Helmore.

Annexure A: Exhibit List

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
RB	Remittal Bundle (RB1 to RB6, 840 pages)	R	Various	11 June 2024
A1	Applicant’s Statement of Facts, Issues and Contentions (10 pages)	A	19 July 2024	19 July 2024
A2	Applicant’s Chronology (5 pages)	A	Undated	1 August 2024
A3	Applicant’s Baptism Certificate #1 (1 page)	A	Undated	16 July 2024
A4	Applicant’s Baptism Certificate #2 (1 page)	A	22 January 2011	16 July 2024
A5	Chaldean Community President’s support letter (1 page)	A	15 November 2022	16 July 2024
A6	Applicant’s Medical Records (442 pages)	A	Various	16 July 2024
A7	Applicant’s Protection Visa Application (45 pages)	A	4 May 2023	17 July 2024
A8	Applicant’s Country Information (11 pages)	A	Undated	17 July 2024
A9	Statutory Declaration of Applicant (9 pages)	A	17 July 2024	17 July 2024
A10	Support Statement from Applicant’s Sister (2 pages)	A	16 July 2024	17 July 2024
A11	Support Statement and Employment Offer from Applicant’s Brother In-law (2 pages)	A	16 July 2024	17 July 2024
A12	Applicant’s Parents Evidence from Previous AAT Hearing (5 pages)	A	16 July 2024	17 July 2024
A13	Partial transcript from previous AAT Hearing (8 pages)	A	4 January 2024	1 August 2024
A14	Support Statement from Applicant’s Uncle (2 pages)	A	17 July 2024	18 July 2024
A15	Support Statement and Job Offer from Litesh Sharma (1 page)	A	17 July 2024	18 July 2024
A16	Applicant’s Anger Management Plan (5 pages)	A	Various	6 August 2024
R1	Respondent’s Statement of Facts, Issues and Contentions (20 pages)	R	30 July 2024	30 July 2024
R2	Full transcript from previous AAT Hearing (117 pages)	R	Various	2 August 2024
R3	Respondent’s email to Tribunal, including attachments entitled: (a)  BVR Notice of Conditions and Acknowledgment (12 pages) (b)  IMMI Refusal Notification (4 pages) (c)   Protection visa decision Record (70 pages)	R	Various	6 August 2024
R4	Respondent’s closing submissions with attachments (13 pages)	R	Various	28 August 2024