GYTW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 792 (8 April 2021)

Last Updated: 9 April 2021

GYTW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 792 (8 April 2021)

Division: GENERAL DIVISION

File Number(s): 2019/4416

Re: GYTW

APPLICANT

And Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal: Deputy President Britten-Jones

Date: 8 April 2021

Place: Melbourne

The Tribunal affirms the decision under review.

........................................................................

Deputy President P Britten-Jones

Catchwords

MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – unacceptable risk of reoffending – other considerations – non-refoulement obligations – risk of harm if returned – no prospect of indefinite detention – decision under review affirmed

Legislation

Migration Act 1958 (Cth)

Cases
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ali v Minister for Home Affairs [2020] FCAFC 109; (2020) 380 ALR 393
DFTD v Minister for Home Affairs [2020] FCAFC 207
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gasper v Minister for Immigration and Border Protection (2016) 153 ALD 338
MLNR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56
SZRTN v Minister for Immigration and Border Protection [2014] FCA 303; (2014) 141 ALD 395
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018

REASONS FOR DECISION

Deputy President Britten-Jones


8 April 2021

INTRODUCTION

1. This hearing arises from orders made by the Federal Court on 17 July 2020 which set aside and remitted the decision of the Tribunal made on 9 October 2019 not to revoke a mandatory cancellation of the applicant’s visa under s 501(3A) of the Migration Act 1958 (the Act).

THE DECISION TO CANCEL THE VISA

2. On 20 October 2017, the applicant’s Protection (Class XA)(Subclass 866) visa (the visa) was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) of the Act on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment.
3. On 23 October 2017, the applicant made representations seeking revocation of the cancellation decision. Refugee Legal provided detailed submissions by letter dated 28 August 2018. These representations, together with more recent representations from the applicant, are considered further below.
4. On 12 July 2019, the delegate of the Minister decided not to revoke the cancellation decision under s 501CA(4) of the Act.

THE OFFENDING

5. The applicant has engaged in regular offending from June 2011 to September 2015. He has convictions for traffic offences including reckless driving in 2011. On 19 June 2012, he was involved in a fight when he was punched in the face and then bit off the victim’s right earlobe. The applicant pleaded guilty to this offending on the second day of his trial and received a community corrections order for a period of two years with special conditions, which he subsequently breached. On 10 December 2013, the applicant was involved in an incident when he caused damage to a vehicle and kicked in his then partner’s front door and grabbed her wrist whilst arguing with her. This incident is particularly concerning because it involved a woman. He was sentenced to a 15 month community corrections order, which he subsequently breached. On 28 August 2014, he was involved in an incident at a café when he threatened numerous people with a baseball bat and caused damage to a vehicle. The most serious offences were on 20 June 2015 and 22 June 2015 when the applicant committed armed robbery at two separate petrol stations threatening the victim with a weapon.
6. The applicant pleaded guilty to the two charges of armed robbery and was sentenced on 4 March 2016 to a total of 4 years and 6 months imprisonment. The judge said in her reasons for sentencing:

Your offending occurred while you were on a two-year Community Corrections Order, that order having been imposed by me on 17 July 2014 in respect of a charge of recklessly cause serious injury, concerning events which occurred on 19 June 2012.
For the sake of completeness, I note that as at June 2015, you were also subject to a Magistrates’ Court Community Corrections Order, which expired on 22 September 2015. You are still to be dealt with for breaches of that order through non-compliance and other summary offending, but that is not a matter for me to be concerned with.
You have also admitted the contraventions of the Community Corrections Order I imposed on 17 July 2014, due to non-compliance with the terms of that order, as well as the further offending for which I am sentencing you today.
According to the Corrections report, dated 27 October 2015, your non-compliance comprises failure to report, nine occasions; failure to perform community work, seven occasions; as well as failure to undergo treatment and rehabilitation. It appears that you only completed two hours of community work I ordered; that you engaged with attendances only a few times before disengagement completely for months at a time. You attended a number of appointments for drug and alcohol treatment and denied engaging in drug use.
...
An aggravating feature of your conduct is that [you] committed the armed robberies while on a Community Corrections Order, in respect of a charge of recklessly cause serious injury.
I also note that the second armed robbery involved more aggression on your part, yelling at the victim, banging the cleaver on the counter, leaning on the counter, waving the cleaver around, and more serious threats to the victim, threatening to hurt his head and later to kill him. That was the case in the first armed robbery.
I consider that your offending is not at the lowest level of seriousness, but somewhere below mid-range.
You committed the offences against soft targets, individuals alone in stores late at night, going about their daily business, being confronted by a person wielding a knife and or a cleaver, who threatens physical harm and makes aggressive demands for money, is a terrifying experience for the victims. And of course you already had committed the offence of recklessly cause serious injury.
...
Specific deterrence is a very real consideration for you as well, given your prior violent offending. And the protection of the community is also relevant consideration. In addition, you failed to engage almost completely with every condition of the Community Corrections Order I imposed upon you.
In re-sentencing you in relation to the offence of recklessly cause serious injury, I note that your plea of guilty was not made at the earliest opportunity, but on the second day of trial, it nonetheless warrants a discount; and I accept that it was a case of excessive self-defence on your part, although I note that the victim suffered some permanent effects, as I said, from having part of his ear bitten off.

LEGISLATIVE FRAMEWORK

7. Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if:

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

(b) 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.

8. The character test referred to in s 501(3A) of the Act is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). For the purposes of s 501(6)(a) of the Act, and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.^[1]
9. Where a visa has been cancelled under s 501(3A) of the Act, the Minister has a power to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked.^[2]
10. Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
11. Further, the applicant’s situation is affected by s 197C and s 198(2B) of the Act. Those provisions state:

197C Australia’s non‑refoulement obligations irrelevant to removal of unlawful non‑citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
...
198 Removal from Australia of unlawful non‑citizens
(2B) An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:
(a) a delegate of the Minister has cancelled a visa of the non‑citizen under subsection 501(3A); and
(b) since the delegate’s decision, the non‑citizen has not made a valid application for a substantive visa that can be granted when the non‑citizen is in the migration zone; and
(c) in a case where the non‑citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate’s decision—either:
(i) the non‑citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii) the non‑citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.
Note: The only visa that the non‑citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).

ISSUES BEFORE THE TRIBUNAL

12. The applicant does not pass the character test prescribed under s 501(6)(a) of the Act as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has ’a substantial criminal record‘ as defined under s 501(7) of the Act. Therefore, the applicant cannot rely on s 501CA(4)(b)(i) of the Act in order to have the mandatory visa cancellation revoked.
13. The issue for the Tribunal to determine is whether having regard to Ministerial Direction No. 79 (Direction 79)^[3] there is another reason why the cancellation decision should be revoked. Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must decide to revoke the decision.^[4]
14. The applicant’s reasons for requesting revocation included as follows:

Iraq is too dangerous for me and if I go back to Iraq I will be killed and this was the reason from the start why I came here and it is still not safe for me to go back to Iraq. Even my family have left Iraq because it is not safe for us.
I’m very sure if I go back to Iraq that I will be killed because I come from a Muslim Suni family and now after I have lived here, I appreciate I have freedoms and opportunity like nowhere else in the world. I have also discovered that I am homosexual and my religious belief has changed where my view is completely different and aligned to Western cultural views. Further to this I have also dropped my birth name... giving me an English identity and opportunity to live my new life.
I am 100% sure that I will get killed if I go back to Iraq.
This is my first time in prison, I believe I have suffered enough whilst incarcerated. I have also been involved in a workplace accident at prison where I almost lost two fingers (I have lost one completely).
All I ask is that I stay here in this country, that I plea for one more opportunity.
My current custody issue stems from a prior drug dependency to ICE. The choice that I made to first use this substance completely changed who I am and what I believe in. I have been clean now for two years and have completed a drug and alcohol program whilst in custody. I have a belief that I can contribute and add value to this country and I ask for one final chance.

IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?

15. When considering whether to revoke the delegate’s decision, the Tribunal must have regard to Direction 79. The objective of Direction 79 is ‘to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’.^[5]
16. The guiding principles in Direction 79 that the Tribunal must apply in determining whether to revoke a visa cancellation include:

(a) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia; bearing in mind that being allowed to remain in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law abiding.

(b) The Australian community expects that the Australian Government can and should cancel a non-citizen’s visa if they commit serious crimes in Australia or elsewhere.

(c) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to have to forfeit the privilege of staying in Australia.

(d) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for a short period of time. However, 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.

(e) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of 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.

17. Keeping those guiding principles in mind, I turn my mind to the primary considerations and other considerations set out in Part C of Direction 79:

Primary considerations:

(i) Protection of the Australian community

(ii) The best interests of minor children in Australia

(iii) Expectations of the Australian community

Other considerations include (but are not limited to):

(i) International non-refoulement obligations

(ii) Strength, nature and duration of ties

(iii) Impact on Australian business interests

(iv) Impact on victims

(v) Extent of impediments if removed

Protection of the Australian community – 13.1 of Direction 79

18. When considering the protection of the Australian community, I have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity. I 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 nature and seriousness of the non-citizen’s conduct –13.1.1 of Direction 79

19. The offending is very serious in that it involved the use of dangerous weapons, threatening life and causing physical and mental harm to the victims. I take into account that violent crimes are viewed very seriously and that crimes committed against persons in the performance of their duties are serious. The seriousness of the offending is reflected in the lengthy prison sentence of a total of 4 years and 6 months. The offending was frequent and there is a trend of increasing seriousness culminating in the armed robberies. I also take into account the cumulative effect of repeated offending, namely a total of 34 convictions over a four-year period.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 13.1.2 of Direction 79

20. In considering whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, I have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I also have regard to, cumulatively:

(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 the applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.

Nature of harm if further criminal conduct

21. If the applicant were to engage in further similar offending, then the nature of the harm would be extremely serious. The consequence of further offending would involve physical, mental and financial harm to victims with long lasting effects. In this regard, the sentencing Judge said at paragraph 19:

I note that after the plea hearing, the prosecution sent in an undated victim impact statement of the victim of the armed robbery committed at Doncaster for tender, this was not objected to. The statement makes it clear that the victim found the event frightening, sought doctors about his concerns, and decided to cease working at that site and moved to another branch. The indication affected him in financial and psychological terms.

22. With respect to the offence of recklessly causing injury, the sentencing Judge said at paragraph 46:

I accept that it was a case of excessive self-defence on your part, although I note that the victim suffered some permanent effects, as I said, from having part of his ear bitten off.

Likelihood of further criminal or other serious conduct

23. The applicant contends that he poses a minimal risk to the Australian community and should be allowed to remain in Australia because he committed his offences in the context of alcohol and drug use whilst suffering from severe anxiety and chronic post-traumatic stress disorder. The applicant claims that he has expressed genuine remorse and engaged in appropriate rehabilitative programs. Whilst in prison the applicant completed a moderate intensity violence intervention program in which he demonstrated a high level of involvement, a highly motivated attitude towards learning and an excellent level of insight. He has also engaged with drug and alcohol courses and has sought help with respect to his mental health issues. Nevertheless, it remains a concern that the applicant was effectively given numerous warnings and chances by way of community corrections orders but that did not deter him from the more serious offending. The applicant relies upon a report from a forensic psychiatrist, Dr Zimmerman dated 11 December 2020, who also gave oral evidence at the hearing. She is both independent and authoritative and there is no contradicting report so I give her report significant weight.^[6] Dr Zimmerman concludes, and I accept, that the applicant presents a low to moderate risk of future violent offending which will be elevated to moderate to high should he resume using drugs.

Risk to the Australian community

24. In considering the risk to the Australian community I must have regard to, cumulatively, the nature of the harm should the applicant reoffend and the likelihood of the applicant engaging in criminal or other serious conduct. In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.^[7] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
25. In this case, there is a low to moderate risk of re-offending which would have very serious consequences. I have reached the view that the nature of the offending and the harm that would be caused if it were to be repeated is so serious that any risk of similar conduct in the future is unacceptable.^[8]

Conclusion as to protection of the Australian community

26. The government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.^[9] The applicant has committed most serious crimes.
27. The protection of the Australian community is a factor that weighs most heavily in favour of not revoking the cancellation decision.

Best interests of minor children – 13.2 of Direction 79

28. In making a determination about the revocation of a visa cancellation, I must take into consideration the best interests of any children in Australia that are under the age of 18 years. Each child’s interests are to be considered individually to the extent that their interests may differ.
29. The following factors that I must consider and are relevant to this application include:

the nature and duration of the relationship between the child and the applicant. 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;

(a) the extent to which the applicant is likely to play a positive parental role in the future;

(b) the impact of the applicant’s prior conduct and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

(c) the likely effect that any separation from the applicant would have on a child, taking into account ability to maintain contact in other ways;

(d) whether there are other persons who already fulfil a parental role in relation to the child; and

(e) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).

30. The applicant has no children of his own but he has three relatives who are minors. The first is his cousin, M, who is 13 years old. The second is E who is a daughter of his cousin. The third is another child of his cousin who is only one year old.
31. The mother of M gave a statutory declaration that the applicant helped her with her children and developed a close relationship with them. She said that M likes the applicant and that ‘I think it will be good for [M] to have [the applicant] around.’ The sister of M gave a statutory declaration and oral evidence. She said that M looks up to the applicant as a big brother. This is a non-parental relationship and there have been periods of absence which means that less weight should be given to this factor.^[10] I consider that revocation would be in the best interests of M but I do not give significant weight to this factor.
32. The father of E gave evidence that his daughter speaks often to the applicant, visits him in prison and calls him uncle. This is a non-parental relationship, but he is her only uncle. There have been periods of absence which means that less weight should be given to this factor.^[11] I consider that revocation would be in the best interests of E but I do not give significant weight to this factor.
33. The third child is still a baby, so no meaningful relationship has developed, and any weight given to this relationship is minimal.
34. In conclusion, the best interests of minor children is a factor that weighs in favour of revocation but I do not give significant weight to it.

Expectations of the Australian community – 13.3 of Direction 79

35. In YNQY v Minister for Immigration and Border Protection,^[12] Mortimer J held that the expectations of the Australian community were inextricably linked to the other primary consideration about the protection of the Australian community, and that the expectations referred to in Direction 79 were those espoused in paragraph 13.3(1) rather than any objective expectations put forward by an applicant. This position has been affirmed by the Full Court of the Federal Court in FYBR v Minister for Home Affairs.^[13]
36. In exercising my discretion, I am also informed by the principle at paragraph 6.3(1) of Direction 79 that:

Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law 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.

37. The Australian community expects non-citizens to obey Australian laws while in Australia. This expectation has not been met with respect to the applicant in the past. The applicant has breached the trust that the Australian community placed in him.
38. The applicant has caused or threatened harm to numerous persons and there is an unacceptable risk of that occurring again in the future. The applicant was not deterred from further offending in the past when community corrections orders were imposed. The Australian community would not expect a person who has repeatedly committed such violent and harmful offences to hold a visa.
39. Taking into account the serious nature of the offending and risk of reoffending, I find that the expectations of the Australian community weigh strongly in favour of non-revocation of the cancellation decision.

Other considerations

40. In deciding whether to revoke the cancellation of the applicant’s visa, I must take into account the other considerations listed in Direction No. 79, but these are not exhaustive.^[14]
41. I take into account that the applicant was granted a protection visa in 2010 and was found to be a refugee who engaged Australia’s protection obligations because of his Sunni Muslim religion and his association with the West, having worked for an American contractor.
42. The applicant raised his fear of being killed if he is returned to Iraq. I accept this is a genuine fear and that he would face the prospect of serious harm, if not death, if returned to Iraq. The risk of harm is exacerbated because he is a person with a mental illness.
43. In addressing these considerations, I must properly understand and consider the legal consequences of the decision being made (in particular detention and removal). The legal consequences are a question of fact.

International non-refoulement obligations

44. 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.^[15]
45. The question before the Tribunal in considering any non-refoulement claims is a state of satisfaction as to whether there was “another reason” why the original decision should be revoked.^[16] The applicant submits that he is owed non-refoulement obligations and relies upon country information provided. The respondent does not challenge that country information but denies that the applicant has a ‘well-founded fear’ of being persecuted because there is evidence suggesting that he returned to Iraq in July 2013 and March 2014.
46. The applicant strenuously denies that he returned to Iraq where he claims that he would face a real risk of harm and persecution. That claim is supported by the country information and the historical findings that resulted in his protection visa being granted back in 2010. His denial is supported by evidence from his aunt and his cousin who said that he went to Syria (not Iraq) to meet his parents. Despite saying that he travelled to Syria, the applicant wrote Iraq as his destination on his passenger cards required for travel at the relevant time. He said that he did not think it was important what he wrote on the card. He said that he went to Syria because that is where his family was and that they met in an area unaffected by the civil war. The respondent relies on the passenger cards as evidence in support of the contention that the applicant has returned to Iraq. I consider that the passenger cards are not conclusive with respect to this issue.
47. The hearing of this matter was adjourned to after Christmas to allow for further evidence on this point but the further evidence was not conclusive. Having heard the oral evidence of the applicant I accept that he did not return to Iraq.
48. I accept the country information and I conclude that the applicant has a well-founded fear of being persecuted in Iraq because he is a bisexual; he comes from a Sunni family; he and his family have a historical connection with the United States of America and he now has western cultural views. I conclude that Australia owes him non-refoulement obligations.

Consequences of a decision to not revoke

49. I now have regard to the legal consequences of a decision to not revoke the cancellation of the applicant’s visa,^[17] bearing in mind my determination that the applicant is a person in respect of whom non-refoulement obligations are owed.
50. At the hearing, the applicant submitted that he would either be returned to Iraq or would face indefinite detention. The respondent submitted that the consequences of the applicant engaging Australia’s non-refoulement obligations are not necessarily his removal from Australia in breach of those obligations or prolonged detention because the Minister may use his personal powers available under the Migration Act.
51. After the hearing, the parties provided written submissions with respect to the decision of the Full Court of the Federal Court in MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.^[18] The applicant submitted that the only legal consequence of non-revocation is that he would be removed to Iraq as soon as reasonably practicable, but the applicant still maintained that there was a prospect of indefinite detention. The respondent accepted that the legal consequence was removal as soon as reasonably practicable but denied any prospect of indefinite detention.
52. I find that, pursuant to s 198 of the Act, the applicant will be liable to be removed from Australia as soon as it is reasonably practicable for that to occur. I take into account that if the cancellation decision were not revoked, it would be likely that the applicant would remain in detention whilst options were considered in light of Australia’s non-refoulement policy.^[19] However, there is no evidence that the Minister is considering exercising his personal discretion in favour of the applicant. Further, whilst I am not obliged to speculate on what might happen next,^[20] where the Minister opposes the revocation of the cancellation of the visa on character grounds, it would seem incongruous for the Minister to effectively reverse his position and exercise a discretion in favour of the applicant.^[21] There is no evidence that there is a prospect of resettling the applicant in a third country or that any steps have been taken in that regard. Further, there is no prospect of the applicant applying for another protection visa because of the operation of s 48A of the Act.
53. The applicant contends that if he is not returned to Iraq then he may be indefinitely detained. I reject this contention and find that his detention would not be indefinite^[22] because of the obligation to remove him as soon as reasonably practicable. The consequence of not revoking the cancellation decision is that the applicant will be removed to Iraq as soon as it is reasonably practicable. There was no suggestion that it is not reasonably practicable for him to be removed.
54. Given that the legal consequence is that the applicant would be returned to Iraq, it is my assessment that there is a very real risk that the applicant will suffer significant harm if the cancellation decision is not revoked. There is also a risk of harm from the applicant’s ongoing detention, albeit that his detention will come to an end upon his removal. Dr Zimmerman has said, and I accept, that the applicant is at risk of adverse mental health outcomes the longer he is held in detention. Dr Zimmerman also said that returning to Iraq is likely to trigger a significant deterioration in his mental health.
55. The consideration of non-refoulement obligations and risk of harm weigh heavily in favour of revoking the cancellation.
56. Further, the consequence of non-compliance with Australia’s treaty obligations not only impacts the applicant, it also impacts negatively upon Australia’s reputation and standing in the global community.^[23] I consider that this adds further weight in favour of revoking the cancellation.
57. I accept that regardless of whether the applicant’s claims are such as to engage non-refoulement obligations, the applicant would face significant hardship including violence and a lack of support if he were to return to Iraq.

Strength, nature and duration of ties

58. In making my decision, Direction 79 requires that I consider the following factors:

(a) how long the applicant has resided in Australia, including whether the applicant arrived as a young child (noting that less weight should be given where the applicant began offending soon after arriving in Australia, and more weight should be given to time the applicant has spent contributing positively to the Australian community); and

(b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

59. The applicant arrived in Australia as a refugee in 2010 aged 17 years old and he has now lived in Australia for more than 10 years. He obtained a security licence and worked in security from 2011 to 2013. In 2012, he obtained a weekend security job at nightclubs where he was introduced to methamphetamine and he began to consume drugs as a means to cope. His life deteriorated significantly, and he lost his driver’s licence and his job. He began receiving Centrelink benefits.
60. I give less weight to the length of time he has resided in Australia because he commenced offending soon after his arrival. He offended regularly from 2011 to 2015 and he has been in prison or detention from September 2015. I do not consider that he has made a significant positive contribution to the Australian community, but I take into account the remarks of the sentencing judge who said at paragraph 47:

I am mindful , however, that as a young man from a disadvantaged background you arrived here alone as a refugee at the age of 17 with no English and almost no social supports, apart from your cousin, you made a good start here. You learned English, obtained your drivers and security licenses, and obtained solid employment in the security industry in a number of states. Sadly you fell into the grips of ice addiction when you worked in nightclub security in Melbourne and this addiction has been your downfall.

61. I take into account the ties established by the applicant as a result of his employment and note that he has been offered a job as a tow truck driver if he is released. The owner of the towing business gave a positive reference about the applicant and said that he would support him.
62. The applicant asserts that he has strong family ties particularly with his aunt and her five children. His cousin gave oral and written evidence about her strong relationship with the applicant and about the negative impact on her and the family if he is not released. Another cousin, the father of E, also provided a statutory declaration about their strong relationship and the negative impact of non-revocation. I note that this relationship has not always been strong and there was a period in 2014 and 2015 when the applicant had very little contact with his relatives.
63. This is a factor in favour of revocation and I give it moderate weight.

Impact on Australian business interests

64. There was no evidence or argument advanced in relation to the impact on Australian business interests. Consequently, this consideration neither weighs for nor against revocation of the cancellation decision.

Impact on victims

65. There was no evidence or argument advanced in relation to the impact on the victim of a decision to not revoke. Consequently, this consideration neither weighs for nor against revocation of the cancellation decision.

Extent of impediments if removed to home country

66. Direction 79 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to his home country of Iraq in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

(a) The applicant’s age and health;

(b) Whether there are substantial language or cultural barriers; and

(c) Any social, medical and/or economic support available to them in that country.

67. The applicant is 27 years old and is in good physical health, but he does have some mental health issues which would not be well treated in Iraq. He has been diagnosed with severe anxiety and chronic post-traumatic stress disorder, stemming from his experiences of violence against him and his family in Iraq, as well as his dangerous journey to Australia as an unaccompanied minor. Dr Zimmerman said that returning to Iraq is likely to trigger a significant deterioration in his mental health.
68. The applicant would be at risk of persecution and significant harm in Iraq because he had connections with the United States of America. Those difficulties would now be exacerbated because he has western cultural views and is bisexual. He would face significant challenges in establishing himself and finding work and accommodation, and his situation would be made worse because he has no family or social network to support him in Iraq.
69. This is a factor which supports revocation.

Conclusion as to whether there is another reason to revoke the original decision

70. I have considered the specific circumstances relating to the applicant as part of my consideration whether to revoke the cancellation decision. I am now required to weigh up those considerations to determine whether there is another reason to revoke the cancellation decision.
71. The primary considerations relating to the protection of the Australian community and the expectations of the Australian community weigh heavily in favour of not revoking the cancellation decision. The primary consideration of the interests of minor children weighs in the applicant’s favour but he has no children of his own and, as set out above, I would not give this consideration significant weight. The other considerations of non-refoulement obligations, strength, nature and duration of ties to Australia and the extent of impediments if removed weigh in favour of revocation.
72. The most significant, in terms of weight, of the other considerations, are the international non-refoulement obligations and the extent of impediments if removed. These considerations favour revocation of the cancellation decision.
73. In terms of weighing up the considerations both for and against revocation, I place very significant weight on the primary considerations of the protection and expectations of the Australian community. The other countervailing considerations do not outweigh the very real risk of harm to the Australian community if the applicant is not removed. The applicant has committed very serious crimes regularly since he arrived in Australia. He has struck fear in his victims by biting off an earlobe, causing damage to property and threatening them with a baseball bat, knife and meat cleaver. Between his arrival in Australia and his incarceration he has behaved violently and his stated remorse and good intentions have not been tested in the community. For this reason, I have found that there is an unacceptable risk that he will re-offend. The nature of the offending is such that the risk of further offending is unacceptable to the Australian community who, in these circumstances, would expect the applicant to forfeit the privilege of staying in Australia.
74. By cancelling the applicant’s visa, the government is exercising its commitment to protect the Australian community from harm. The primary considerations should generally be given greater weight than the other considerations^[24] and I see no reason not to apply that approach in this case.
75. This conclusion is reached by applying the principles in paragraph 6.3 of Direction 79 to the specific circumstances of the applicant who has committed serious crimes of a violent nature:

(a) Being able to remain in Australia is a privilege Australia conferred on the applicant in the expectation that he is 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. By committing the acts of violence and breaching numerous court orders, the applicant has not been law-abiding, he has shown disregard for Australia’s law enforcement network and he has threatened and caused harm to his victims.^[25]

(b) The Australian community expects that the Australian government should cancel the visas of non-citizens who commit such serious crimes in Australia.^[26]

(c) In this circumstance, the cumulative effect of the violent and persistent criminal offending, and the harm that would be caused if it were repeated, is so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations are insufficient to justify not cancelling the visa.^[27]

76. It follows from the application of these guiding principles that I am not satisfied that there is another reason why the cancellation decision should be revoked.

DECISION OF THE TRIBUNAL

77. The decision of the Tribunal is to affirm the decision under review.

I certify that the preceding 77 paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

........................................................................
Associate

Dated: 8 April 2021

Date(s) of hearing:	21, 22 December 2020 and 22 January 2021
Counsel for the Applicant:	Mr David Carolan
Counsel for the Respondent:	Mr Jonathan Barrington

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^[1] Migration Act 1958 (Cth) s 501(7)(c).

^[2] Ibid s 501CA(4).

^[3] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018).

^[4] Gasper v Minister for Immigration and Border Protection (2016) 153 ALD 338, 345 [38].

^[5] Direction 79 at 6.1.

^[6] Direction 79 at 8(2).

^[7] [2014] FCA 673; (2014) 225 FCR 424.

^[8] Direction 79 at 6.3(4).

^[9] Direction 79 at 13.1(1).

^[10] Direction 79 at 13.2(4)(a).

^[11] Ibid.

^[12] [2017] FCA 1466.

^[13] (2019) 272 FCR 454.

^[14] SZRTN v Minister for Immigration and Border Protection [2014] FCA 303; (2014) 141 ALD 395, 409 [86].

^[15] Direction 79 at 14.1(1).

^[16] Ali v Minister for Immigration and Border Protection [2018] FCA 650, [28].

^[17] See Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56, 70-71 [61].

^[18] [2021] FCAFC 35.

^[19] See DFTD v Minister for Home Affairs [2020] FCAFC 207, [23].

^[20] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35, [150].

^[21] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35, [56].

^[22] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35, [86] – [98].

^[23] See Ali v Minister for Home Affairs [2020] FCAFC 109; (2020) 380 ALR 393, 423-424 [91].

^[24] Direction 79 at 8(4).

^[25] Ibid at 6.3(1).

^[26] Ibid at 6.3(2).

^[27] Ibid at 6.3(4).