2003206 (Refugee) [2022] AATA 4 (11 October 2022)

Last Updated: 5 January 2023

2003206 (Refugee) [2022] AATA 4523 (11 October 2022)

DECISION RECORD

DIVISION: Migration & Refugee Division

REPRESENTATIVE: Mr Navid Koushke Baghi (MARN: 1681603)

CASE NUMBER: 2003206; 2003479

COUNTRY OF REFERENCE: Iran

MEMBER: Alison Murphy

DATE: 11 October 2022

PLACE OF DECISION: Melbourne

DECISION IN 2003206: The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 785 (Temporary Protection) visa.

DECISION IN 2003479: The Tribunal does not have jurisdiction in this matter.


Statement made on 11 October 2022 at 3:29pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Iran – applicant convicted of multiple offences – religion – conversion to Christianity – serious mental health issues – drug dependence – non-refoulement obligations – indefinite detention – family and community support – decision under review set aside

LEGISLATION

Migration Act 1958, ss 46, 48, 116, 119, 140, 189, 196-199
Migration Regulations 1994, Schedule 2, cl 050.212; r 2.43

CASES

CSV15 v MIBP [2018] FCA 699
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Jayasinghe v MIEA [1997] FCA 551; (1997) 76 FCR 301
Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589
SZASP v MIAC [2007] FCA 771
SZBWJ v MIAC [2008] FMCA 164

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. Before the Tribunal are two applications for review of a decision dated 4 February 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 785 (Temporary Protection) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
2. The delegate cancelled the visa under s 116(1)(g) on the basis that a prescribed ground for cancelling the visa applies to the applicant. The prescribed ground in this case is that set out in r 2.43(1)(oa), being that the Minister is satisfied the applicant has been convicted of an offence against a law of the Commonwealth, a State or Territory. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
3. The first review (2003206) was lodged with the Tribunal on 19 February 2020 and the second review (2003479) was lodged on 23 February 2020. Both review applications attach copies of the department’s decision record and notification in respect of the decision to cancel the applicant’s protection visa on 4 February 2020. Both matters were constituted to the same Tribunal member and listed jointly for hearing.
4. The applicant appeared before the Tribunal on 21 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father, [Father A].
5. The applicant was represented in relation to the review.
6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside in respect of AAT proceeding 2003206 and the Tribunal has no jurisdiction in respect of AAT proceeding 2003479.

BACKGROUND

7. The applicant is [an age]-year-old male Iranian national who arrived in Australia [in] September 2012 as an irregular maritime arrival aged [age]. On arrival in Australia he was placed in immigration detention. He was granted a subclass 449 (temporary humanitarian) visa on 29 May 2014 and then a series of bridging visas before being granted the temporary protection visa on 24 June 2017 as a member of the family unit of his father, [Father A].
8. On 14 October 2019 the Department sent the applicant a Notice of Intention to Consider Cancellation of the temporary protection visa (the s 119 notice). That notice set out that the Department had received information indicating that the applicant had been convicted of a number of offences with the following results:

Court	Date	Offence	Result
[Court 1] Magistrates Court	[December] 2018	Criminal Damage (Intent damage/destroy) Assault with weapon Contravene Family Violence Final Intervention Order (2 Charges)	Aggregate [period] imprisonment Concurrent Convicted and a Community Correction Order for [period]

[Court 2]

[June] 2019

Intentionally damage property Contravene Family Violence Safety Notice Intentionally harm / fear Threat to destroy property Contravene Family Violence Intervention Order Fail to answer bail (2 charges)

Aggregate [period] imprisonment Concurrent

9. The notice invited the applicant to comment on that information and give reasons why his visa should not be cancelled.
10. The applicant responded to the notice on 29 October 2019. In that response he stated that he arrived in Australia in 2012 with his family. During the 7 years he had been in Australia he had experienced a difficult time in detention after being separated from his relatives and friends and disconnected from his culture and hometown. He went to English language college in 2013 and then to high school, where he felt isolated and anxious. He started using drugs and was sometimes aggressive towards his parents.
11. The applicant stated that he regretted his bad behaviour and hadn’t used drugs for 4 months and was trying to find a job and get involved in the community. He cannot return to Iran because of his parents’ conversion to Christianity and his own interest in Jesus Christ. He sees a psychologist and psychotherapist for depression and fears being returned to detention where he will become more depressed. He has recorded some songs with the assistance of his youth services caseworker and wants to pursue a career in [specified fields].
12. The applicant attached to his response a number of supporting documents including photographs with family and friends; his educational results and support letters from his parents and a number of persons at the [Church 1]. He also provided a letter from his GP dated 20 October 2019 advising that the applicant suffers from chronic mental health conditions including depression, anxiety, panic attacks and post-traumatic stress disorder for which he was being treating by a psychologist and had been referred to a psychiatrist.
13. On 4 February 2020, the delegate decided to cancel the applicant’s temporary protection visa, finding the ground for cancellation was made out. In concluding that the visa should be cancelled, the delegate noted that he had resided in Australia continuously since September 2012 and that he had travelled to Australia with his family to seek protection.
14. The delegate accepted that the applicant would experience emotional, financial and personal hardship if his visa was cancelled and that it would also impact on his mental health and that of his parents. However the delegate considered that the applicant had multiple convictions for violent offences, including pending charges, and therefore decided to cancel the visa.
15. On 19 February 2020, the applicant sought a review of the decision to cancel his temporary protection visa from this Tribunal.
16. Following the cancellation of the visa, the applicant was placed in immigration detention for a period before being granted a bridging visa on 31 March 2021.

CONSIDERATION OF CLAIMS AND EVIDENCE

17. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

Does the ground for cancellation exist?

s 116(1)(g) - prescribed ground

18. A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994. In the present case, the ground in reg 2.43(1)(oa) is relevant:

    (oa) in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)).

19. The Notice of Intention to Consider Cancellation of the applicant’s visa given to him under s 119 of the Act (and replicated in the delegate’s decision provided to the Tribunal by the applicant) alleges that on [dates in] December 2018 and [June] 2019 the applicant was convicted of the offences specified above. The delegate’s decision also notes that further charges were pending determination by a court, relating to family violence and related offences that occurred on [a day in] July 2019.
20. There is no dispute that the applicant has been convicted of the offences specified in the notice and the Tribunal finds accordingly. As the applicant is the holder of a temporary visa (other than a bridging visa or a special category visa) and he has been convicted of offences against the laws of the State of Victoria, the prescribed ground applies to the applicant.
21. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

Consideration of discretion

22. As the Tribunal has decided that the prescribed ground for cancelling the visa applies to the applicant, it is necessary to consider whether the visa should be cancelled pursuant to
    s 116(1)(g). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 116.
23. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 119 notice about the non-compliance and have regard to any prescribed circumstances. Currently there are no prescribed matters to which a decision maker must have regard in considering whether to cancel a visa under s 116, but the Department’s policy guidelines ‘General Visa Cancellation Powers (s 109, s 116, s 128, s 134B and s 140)’ provides a list of the matters that should be considered.

The purpose of the visa holder’s travel and stay in Australia and whether the visa holder has a compelling need to travel to or remain in Australia

24. As noted above, the applicant travelled to Australia by boat with his family in September 2012. He was granted the temporary protection visa on 24 June 2017 as a member of the family unit of his father, [Father A].
25. While the protection finding in relation to [Father A] does not appear to be subject to a formal written decision record, case notes dated 27 April 2017 indicate that a Departmental delegate assessed him to be a refugee as a Persian Muslim who had converted from Islam to Christianity.
26. The applicant’s immediate family reside in Australia and the department has found his parents have a well-founded fear of persecution if returned to Iran. As detailed below, the applicant is diagnosed with severe mental health conditions that have impacted on his education, employment and social functioning. He is dependent on his family and in particular his father and in these circumstances the Tribunal accepts he has a compelling need to remain in Australia.
27. The Tribunal gives this factor significant weight against the cancellation of the visa.

The circumstances in which the ground for cancellation arose

28. It is acknowledged by the applicant and his representative that the applicant has been convicted of a number of offences, including in the period following the cancellation of his visa. All of those offences relate to, or arise out of, family violence incidents between 2016 and 2021. They commenced in 2016 when the applicant was [age] years old and continued until September 2021. For the most part they relate to the applicant’s conduct towards his father, but on occasion his mother and brother. Information provided by Victoria Police indicates that as well as the offending referred to in the s 119 notice, the applicant has been convicted of the following offences:

Court	Date	Offence	Result
[Court 1]	[November] 2021	Contravene Family Violence Safety Notice x 2 Intentionally Damage Property ([in September] 2021) Make Threat to Kill ([in September] 2021) Contravene Community Correction Order ([in December] 2020) Criminal Damage (Intent Damage/Destroy) Assault with a weapon	Aggregate [period] imprisonment Concurrent. Time spent in custody ([period]) reckoned as period already served under sentence. Original Family Violence order confirmed. Convicted, community correction order for [period] (order commencing [in December] 2020) Undergo treatment and rehabilitation: Assessment and treatment for drug abuse or dependency as directed Mental health assessment and treatment as directed Offending behaviour program/s as directed
[Court 1]	[December] 2020	Persist Contra Family Violence NTC/Order Commit Indictable Offence Whilst on Bail ([in June] 2019) Criminal damage (intent damage/destroy) Contra-Fam Violence Safety Notice – Intent Harm/Fear Assault with weapon Contravene Community Correction Order - ([in December] 2018) Criminal Damage (Intent Damage/Destroy) Assault with weapon Contra-Fam violence final intervention order x2	Aggregate [period] imprisonment. Concurrent Time held in custody ([period]) reckoned as period already served. Aggregate [period] imprisonment. Concurrent. Time held in custody ([period]) reckoned as period already served. Convicted and a Community Correction Order for [period] (order commencing [in December] 2020) Undergo treatment and rehabilitation: Assessment and treatment (including testing) for drug abuse or dependency as directed Mental health assessment and treatment as directed Offending behaviour program as directed Judicial monitoring – return to [Court 1] for Judicial Monitoring hearing [in February] 2021

29. It is apparent that the applicant’s criminal offending has occurred against a backdrop of emerging mental illness and substance abuse that commenced when the applicant was a teenager and in relation to which there is a great deal of medical evidence before the Tribunal. It is important to note that the majority of that medical evidence was not available to the delegate at the time the decision to cancel the visa was made.
30. As noted above, the applicant’s criminal offending relates almost entirely to family violence offences committed against towards his father, but also on occasion his mother and brother. It is apparent from the material before the Tribunal that the offences occurred at the family home. To the extent that the charges relate to intentionally damaging property, they appear to relate to damage caused by the applicant while attempting to enter that property when locked out. To the extent they relate to assault with weapons, the materials before the Tribunal indicate those weapons were on one occasion a pair of scissors and on another occasion a broomstick. An incident report dated [in] June 2016 refers to two earlier incidents in which the applicant threatened his brother and father with a knife, although it appears the police were not called on those occasions and no charges were laid.
31. The applicant’s father gave evidence that he involved the police out of fear for himself and his family and in the hope that the applicant could be compelled by the police or the courts to attend drug rehabilitation. However in his view the involvement of the police, and subsequent issue of intervention orders, only worsened the situation. This is because the applicant was excluded from the family home by the terms of the intervention orders resulting in homelessness, which in turn led to further criminal charges for breaches of those orders each time he returned home. This in turn led to further charges for committing indictable offences while on bail and contravening the community correction order.
32. Each of the offences occurred in the context of the applicant’s emerging mental health conditions and being under the influence of methamphetamines or in a state of withdrawal and seeking money to buy drugs. The family were not in a financial position to obtain specialist psychiatric help for him at that time and the applicant’s conduct led to a high level of conflict between the applicant and his father. His parents were extremely worried about his mental state but were unable at the time to afford specialist psychiatric care. A letter from the applicant’s GP dated 20 October 2019 states that the applicant had been suffering from chronic mental health problems including depression, anxiety, panic attacks and post-traumatic stress disorder and he was awaiting referral to a psychiatrist. At the time of the delegate’s decision on 4 February 2020, the applicant had been unable to access specialist psychiatric treatment.
33. It appears the first time the applicant saw a psychiatrist was in May 2021 when he was referred to [Psychiatrist A], consultant psychiatrist, in the context of the cancellation of his visa. [Psychiatrist A’s] report dated 15 June 2021 sets out the applicant’s history of substance use and mental health issues at length, as well as details of significant past trauma that I will not recount here. [Psychiatrist A] noted that the applicant had been diagnosed with a number of mental health conditions including anxiety, depression, panic attacks and post-traumatic stress disorder.
34. [Psychiatrist A] sets out the applicant’s medical, social and psychiatric history at great length in her report, noting evidence that he was psychotic over the period of offending in the form of auditory hallucinations, possible hallucinations in other modalities and bizarre and persecutory delusions. She noted that his substance use likely precipitated his psychotic illness.
35. However [Psychiatrist A] was concerned about other features of the applicant’s mental health examination which she considered might be associated with an enduring psychotic illness. In particular she assessed that he was psychotic over the period of offending in the form of hallucinations and bizarre and persecutory delusions. She noted that it was possible that he was experiencing a drug-induced psychosis but it was also possible that he was experiencing an enduring psychotic illness such as schizophrenia and that his earlier symptoms of anxiety, depression, social withdrawal, suspiciousness, irritability were prodromal symptoms of an enduring psychotic illness such as schizophrenia.
36. Diagnosis and treatment for the applicant’s emerging mental health conditions has been complicated by the fact that he lost any entitlement to medicare following the cancellation of his visa, with the result that his options for medical care have been limited to refugee health services which are themselves under significant pressure. However since [Psychiatrist A’s] report the applicant has been accepted for treatment by [Health Service 1], where he is being treated by a GP and a psychiatrist. His GP, [named], has provided a report stating he has since been diagnosed with schizophrenia, for which he is prescribed antipsychotic medication. He is being regularly reviewed by a psychiatrist from [Health Service 2].
37. Following the hearing the Tribunal received a letter from [Psychiatrist B], lead psychiatrist at [Health Service 2]. [Psychiatrist B’s] letter advises that the applicant was diagnosed with schizophrenia on 28 July 2022 by a psychiatrist at that service. The current diagnosis is of schizophrenia with predominantly negative symptoms along with positive symptoms manifesting as delusional misinterpretations. It is noted that the applicant experiences continuing symptoms despite abstinence from cannabis, firmly supporting the diagnosis of schizophrenia, for which he is being treated with anti-psychotic medication. [Psychiatrist B] notes the applicant’s care is being transferred to [Health Service 3] because of a change in the family’s area of residence.
38. I accept the medical evidence before the Tribunal. In particular I accept that the applicant was psychotic over the period of offending in the form of hallucinations and persecutory delusions. I note that he has since been diagnosed with schizophrenia and recently commenced on treatment with anti-psychotic medication. While it has been only a few months since he commenced treatment, there has been no further offending. I accept that the offending which grounds the cancellation of the visa occurred in the context of his substance use and emerging schizophrenia.

The degree of hardship that may be caused; the mandatory legal consequences to the cancellation decision and Australia’s international obligations

39. In this case the degree of hardship that may be caused by the visa cancellation is directly related to the mandatory legal consequences that will follow.
40. As well, various statutory bars effectively prevent the applicant from applying for other visa types. Section 48 prevents persons who have had a visa cancelled from making a further application onshore, except for a select few prescribed visas including partner, protection and medical treatment visas. However as the applicant has previously been granted a protection visa, he is prevented from lodging a further valid application for that visa by s 48A. While he may be eligible for a partner visa by reason of his marriage to an Australian citizen, there is no evidence indicating he is in a spousal relationship and as an unauthorised maritime arrival he is in any case prevented from lodging any visa application by s 46A. The Minister’s powers to intervene pursuant to s 48A and s 46A are only exercisable by the Minister personally and are not compellable or reviewable.
41. If the applicant is not granted a further visa, s 196 provides that he must be kept detained in immigration detention until he is removed from Australia under s 198 or 199. The applicant was granted the temporary protection visa on the basis that he is a member of his father’s family unit. The material before the Tribunal does not suggest that any protection claims were made or assessed in respect of the applicant himself. In these circumstances there would not appear to be a protection finding in respect of the applicant for the purposes of s 197C. While the applicant has claims for protection in relation to his own religious beliefs and mental health conditions, he is unable to apply for a further protection visa to allow these claims to be assessed without the Minister’s intervention.^[1]
42. The delegate’s decision indicates that the applicant is awaiting the outcome of an application for Safe Haven Enterprise visa lodged by his father on 23 December 2019. The delegate notes that if his visa is cancelled, the applicant may be eligible to apply for a bridging visa to allow him to remain lawfully in the community to await the outcome of that visa application. As at the time of the Tribunal’s decision, the applicant holds a bridging visa and the SHEV application remains undetermined some three years after application.
43. While the applicant currently holds a bridging visa, he meets the criteria for the grant of that visa because of the current review proceedings. If his visa remains cancelled at the conclusion of these proceedings, he will need to meet one of the other grounds for being granted that visa contained in cl 050.212. Broadly speaking, those grounds require the applicant to have made acceptable arrangements to depart Australia; or to have made an application for a visa of a kind that can be granted to him; or to have outstanding judicial review proceedings relating to an earlier visa refusal or to have applied for Ministerial Intervention. The applicant has the right to seek judicial review of the Tribunal’s decision and the intervention of the Minister if his visa remains cancelled, but he will only be eligible for a bridging visa on that basis while those proceedings remain to be determined.
44. In the absence of the grant of another substantive visa, the applicant will eventually become an unlawful non-citizen liable subject to detention under s 189 of the Act. Section 196 provides that an unlawful non-citizen must be kept detained in immigration detention until removal and s 198(5) requires that an unlawful non-citizen who is a detainee must be removed as soon as reasonably practicable. Section 197C(1) provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations to an unlawful non-citizen.
45. However DFAT reports that Iran has a global and longstanding policy of not accepting the involuntary return of it’s citizens, refusing to issue them temporary travel documents. While Iran and Australia signed a Memorandum of Understanding in March 2018 in which Iran agreed to facilitate the involuntary return of its citizens abroad, it applies only to those arriving in Australia after that date and does not apply to the applicant.^[2] As s 196 provides that unlawful non-citizens must be kept detained in immigration detention until removal, I accept that the potential impact of cancellation is that the applicant may be liable to prolonged detention unless he decides to return to Iran voluntarily.
46. It is possible the applicant may voluntarily return to Iran to avoid detention in Australia. However the applicant’s parents and brother reside in Australia and the department has found his parents have a well-founded fear of persecution if returned to Iran. The applicant’s mental health conditions are severe and impact on all areas of his life, making him dependent on his family. The only place to which the applicant has a right of return is Iran and his parents cannot return there to care for him. These matters, combined with the applicant’s expressed fears of returning, cause the Tribunal to consider it is unlikely he will voluntarily return even if he faces indefinite detention in Australia.
47. For these reasons the Tribunal concludes that cancelling the visa may result in the applicant being indefinitely detained with no apparent avenue to regularise his immigration status or depart Australia.
48. Ongoing detention will cause significant hardship to the applicant, who lives with a serious and chronic mental illness. [Psychiatrist A] reports that indefinite detention has consistently been linked with high rates of depression, anxiety and PTSD with the harm increasing the longer the detention. She notes that the indefinite nature of detention is particularly damaging and that given the applicant’s predisposition to psychosis he is at risk of relapse and a worsening of his illness.
49. There is also a significant amount of psychiatric research on the impact of immigration detention on mental health which concludes that asylum seekers and refugees detained in immigration detention consistently demonstrate severe mental health consequences and detention related harm. In particular the Royal Australian and New Zealand College of Psychiatrists identifies people with mental illnesses as a group that should not be detained in immigration detention, noting that harm to well-being accumulates during detention with the risk of worsening mental health increasing the longer the person is held in detention.^[3] The serious hardship to the applicant is exacerbated because he will be separated from his parents who are identified by [Psychiatrist A] as the greatest protective factor in terms of his mental illness.
50. I consider this factor weighs strongly against the cancellation of the visa.

The extent of compliance with visa conditions; the visa holder’s past and present behaviour towards the Department and whether there are persons in Australia whose visas would, or may, be cancelled under s 140

51. The delegate’s decision indicates there is no information to suggest that the applicant has not complied with his visa conditions other than instances of failing to update his address within 28 days. The Tribunal presumes the delegate is referring to periods in which the applicant was in criminal or immigration detention. While there were other periods in which the applicant was homeless because of the operation of the family violence orders, there is no suggestion the applicant has ever had an address other than that of his parents.
52. The delegate notes that there is no record of any adverse behaviour by the visa holder towards the department or its officers.
53. It is not in dispute that there are no persons in Australia whose visas would be cancelled under s 140.
54. I weigh these factors as neutral to my consideration.

Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation, including whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations

55. It is submitted that the applicant must be treated as a person in respect of Australia has non-refoulement obligations because he is part of the family unit who have been assessed as being owed protection. As noted above, the applicant’s parents have been assessed as persons to whom Australia has protection obligations under the Refugees Convention on the basis of their Christian conversion, however the applicant was granted the temporary protection visa as a member of his father’s family unit. The consequence for the applicant is that he is not the subject of a protection finding for the purpose of s 197C(3), but he is prevented by ss 46 and 48A from lodging any further application for protection which would allow his own claims to be assessed. As he is not the subject of a protection finding, in the absence of the grant of another visa he must be removed from Australia as soon as reasonably practicable (s 198), regardless of whether Australia has non-refoulement obligations to an unlawful non-citizen.
56. There is relatively little information before the Tribunal as to the applicant’s own religious beliefs. He has the support of [Church 1], where his parents are long term and committed members. A letter from [Leader A] in 2019 states that the applicant has expressed interest in becoming a Christian and attends worship from time to time. She notes the difficulties he experienced in adolescence including leaving his life in Iran, travelling to Australia by boat and being placed in detention, together with his complex mental health issues have caused him to struggle with integrating into his new life. Other members of that church write in similar terms.
57. In a statement to the department dated 29 October 2019, the applicant states he cannot return to Iran because of his parents’ conversion to Christianity and his own interest in Jesus Christ and intention to become a Christian. The applicant has provided no further written statement to the Tribunal and at hearing had limited ability to verbally express himself in response to the Tribunal’s questions. He said that his parents had accepted Christianity, that he liked Christianity and attended church every now and then but hadn’t been baptised yet. He was unable to remember when he last attended church but said he might be baptised in the future.
58. The applicant’s father gave evidence that his son was interested in Christianity and comes to church with him and has a Persian bible in his room. He stated that the applicant was not officially baptised yet, but still considers himself to be a Christian and has a good relationship with [Leader A].
59. It is apparent that the applicant’s life has been extremely tumultuous over the past several years and he has only very recently been diagnosed with and treated for his serious mental health condition. At hearing the applicant presented in a manner consistent with the medical evidence before the Tribunal. In particular there were extremely long pauses between the Tribunal’s questions and the applicant’s answers and the applicant appeared unable to understand or respond to some questions at all. While cooperative, he was unable to make eye contact and provided minimal responses to the Tribunal’s questions. He told the Tribunal that he was taking prescription medication for his medical condition but had delayed taking it on the day of the hearing because it made him drowsy.
60. I accept the applicant has an interest in Christianity and that he has attended church with family from time to time. It is unclear whether he views himself as a Christian, although he has expressed an interest in being baptised in the future. I accept that his exploration of that faith has been curtailed by his severe mental health condition and the difficult circumstances he has experienced in recent years. It may be that as his life circumstances stabilise he takes his faith exploration further, but it may also be that he does not.
61. At hearing the applicant’s representative submitted that the severity of the applicant’s mental health condition combined with the lack of family and community support systems available to him in Iran could lead to a real chance or risk of harm, including by exposure to the Iranian judicial system. I accept the applicant requires ongoing medical treatment for his mental health condition and that without it, his mental health may significantly deteriorate as it has in the past.
62. As discussed with the applicant and his representative at hearing, not all kinds of harm constitute persecution or significant harm for the purposes of the Act. ‘Persecution’ must involve not only ‘serious harm’ but also ‘systematic and discriminatory conduct’ as set out in s.5J(4)(c). Similarly the definition of ‘significant harm’ is directed towards harm suffered because of the acts of other persons.^[4]
63. No country information has been placed before the Tribunal, but DFAT reports that the need for mental health services in Iran is significant and that while availability of mental health services has improved, ongoing social stigma attached to mental illness discourages people from seeking, or persisting with, professional treatment. Private mental health services are available, but they are reported to be prohibitive financially for the average person.^[5]
64. The Tribunal is mindful that the applicant is currently hindered by his serious mental health condition in his ability to make or advance non-refoulement claims and he will not be able to make a further application for a protection visa in the future without the Minister’s intervention. At hearing the applicant was mostly silent, allowing his father and representative to speak on his behalf.
65. In this case the Tribunal considers that the other factors to which the Tribunal must have regard are sufficient to establish that the visa should not be cancelled. In this context and in light of the applicant’s lack of capacity to meaningfully participate in the hearing, the Tribunal makes no findings about his religious beliefs or the risk of harm to him on return to Iran.

Any other relevant matters

66. It is submitted that there is no history of dishonesty offending or malicious behaviour towards others, nor any instances of aggression against members of the public. All of the applicant’s offending occurred in the family home, overwhelmingly against his father, in the context of the applicant’s mental health conditions and substance use. Even so, it is apparent that the applicant’s father remains committed to supporting and caring for the applicant.
67. At hearing the applicant’s father gave evidence that he has a very good relationship with his son and they go to the gym together everyday. He started to see the difference in his son’s behaviour within a week of him commencing medication a few months ago and he can control himself and no longer gets angry. At one point he and his family didn’t feel safe, but now they all feel safe. The applicant has asked him to help him find work but he has asked his son to wait until his mental health improves. He supervises his son’s medication and here are never any problems getting him to take it.
68. As at the time of the Tribunal hearing, the applicant was facing one outstanding charge of failing to comply with the terms of his community correct order. The applicant’s father gave evidence at hearing that this charge related to a failure to report after the applicant became temporarily homeless as a consequence of the terms of a family violence order which did not allow him to enter or reside in the family home. The current family violence intervention order does not prevent the applicant from residing in the family home so long as he is not affected by alcohol or drugs and is in effect until [May] 2023.
69. The applicant now has a number of supports in the community that he did not have at the time the visa was cancelled. He has a community corrections caseworker who is in contact with his GP and has also suggested programs for him. He has been reviewed regularly by a psychiatrist at [Health Service 2] and his care is in the process of being transferred to [Health Service 4].

CONCLUSIONS

70. I consider the applicant’s criminal offending to be serious and long standing, although it appears to have ceased since commencing treatment in July 2022. However I consider that the other factors to which the Tribunal must have regard weigh against cancelling the visa. In particular the Tribunal must also have regard to the very serious consequences to the applicant of the decision to cancel the visa.^[6]
71. Firstly, the Department has assessed the applicant’s parents as refugees with a well-founded fear of persecution if returned to their home country of Iran for reasons of their Christian religion. The applicant was granted the protection visa as a member of his father’s family unit and is not himself the subject of a protection finding for the purposes of s 197C(3). This means that in the absence of the grant of another visa he must be detained and removed from Australia as soon as reasonably practicable.
72. The applicant suffers from a serious mental illness and is currently dependent on family in all facets of his life. The only place to which the applicant has a right of return is Iran and his parents cannot return there to care for him as they have a well-founded fear of persecution in that country. As a consequence the Tribunal considers it is unlikely he will voluntarily return even if he faces indefinite detention in Australia. Nor will Iran accept any attempts to involuntarily return the applicant to that country.^[7] As the Act provides that unlawful non-citizens must be kept detained in immigration detention until removal, the potential impact of cancellation is that the applicant may be liable to prolonged or indefinite detention.
73. Secondly, ongoing detention will cause significant hardship to the applicant, who lives with a serious and chronic mental illness. [Psychiatrist A] reports that indefinite detention has consistently been linked with high rates of depression, anxiety and PTSD with the harm increasing the longer the detention. She notes that the indefinite nature of detention is particularly damaging and that given the applicant’s predisposition to psychosis he is at risk of relapse and a worsening of his illness. Similarly the Royal Australian and New Zealand College of Psychiatrists identifies people with mental illnesses as a group that should not be detained in immigration detention, noting that harm to well-being accumulates during detention with the risk of worsening mental health increasing the longer the person is held in detention.^[8] The serious hardship to the applicant is exacerbated because he will be separated from his parents who are identified by [Psychiatrist A] as the greatest protective factor in terms of his mental illness.
74. Thirdly, the applicant’s criminal offending occurred in the context of emerging and untreated mental illness and homelessness. Since his diagnosis in 2022 and the commencement of treatment, there has been no further criminal offending, he has generally been compliant with his treatment and is agreeable to taking the anti-psychotic medication.
75. Finally, the applicant is now connected with community-based services which assist him to manage his illness and reduce the risk of a relapse and a return to criminal offending. These services include his GP and psychiatrist who are in contact with his community corrections officer. He lives with his parents who supervise his medication and who are identified as significant protective factors. I consider these services mitigate the risk of further criminal offending by allowing an earlier response to any future relapses.
76. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled. As there are two applications for review before the Tribunal, I make that decision in respect of the first in time of those applications being AAT proceeding 2003206.

The second review application 2003479

77. The second review application was lodged with the Tribunal on 23 February 2020, four days after the related review application 2003206 in relation to the same delegate’s decision dated 4 February 2020. On 27 February 2020 the Tribunal wrote to the applicant advising that this was the second review application the Tribunal had received in respect of the same delegate’s decision. The Tribunal’s letter advised that the second review application would not progress until the first application had been determined by the Tribunal. This Tribunal has now determined AAT proceeding 2003206 in the terms set out above.
78. Where the Tribunal has received a valid application for review of a reviewable decision and carried out its statutory duty to review the decision under the Act, the decision is no longer a reviewable decision: SZBWJ v MIAC [2008] FMCA 164 at [41] and the cases cited therein. The Tribunal has no jurisdiction to review a delegate’s decision twice: Jayasinghe v MIEA [1997] FCA 551; (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771. For these reasons the Tribunal finds it has no jurisdiction in AAT proceeding 2003479.

DECISION IN 2003206:

79. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 785 (Temporary Protection) visa.

DECISION IN 2003479:

80. The Tribunal does not have jurisdiction in this matter.

Alison Murphy
Member

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^[1] Sections 48A and 48B of the Act
^[2] DFAT DFAT Country Information Report: Iran 14 April 2020 at 5.27
^[3] M. von Werthern, K. Robjant, Z. Chui, R. Schon, L. Ottisova, C. Mason and C. Katona, The impact of immigration detention on mental health: a systematic review BMC Psychiatry (2018) 18:382; Aamer Sultan and Kevin O’Sullivan Psychological disturbances in asylum seekers held in long term detention: a participant-observer account; The Royal Australian and New Zealand College of Psychiatrists Position Statement 46: The provision of mental health services for asylum seekers and refugees September 2017
^[4] CSV15 v MIBP [2018] FCA 699
^[5] DFAT DFAT Country Information Report: Iran
^[6] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 (17 December 2018) (Allsop CJ, Markovic and Steward JJ); [2018] FCAFC 225; 267 FCR 628; Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589
^[7] DFAT DFAT Country Information Report: Iran 14 April 2020 at 5.27
^[8] M. von Werthern, K. Robjant, Z. Chui, R. Schon, L. Ottisova, C. Mason and C. Katona, The impact of immigration detention on mental health: a systematic review BMC Psychiatry (2018) 18:382; Aamer Sultan and Kevin O’Sullivan Psychological disturbances in asylum seekers held in long term detention: a participant-observer account; The Royal Australian and New Zealand College of Psychiatrists Position Statement 46: The provision of mental health services for asylum seekers and refugees September 2017