Psychological report prepared by forensic psychologist Bruce Hamilton.

1. In evidence is a forensic risk assessment report prepared on 7 January 2025 by Bruce Hamilton following three sessions with the Applicant.[3] The Applicant was asked about the report at the hearing and he noted that there was not an interpreter present during the sessions and that he was unable to understand some of what was being said to him. However, a translated copy of the report had been provided to the Applicant, who said that he agreed with everything in the report including Mr Hamilton's assessment in relation to his risk of further offending.

Primary Consideration 1: Protection of the Australian Community

1. The Direction requires me to have regard to the protection of the Australia community from criminal or other serious conduct. Relevantly, paragraph 8.1.(1) of the Direction states:
   1. When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
2. Paragraph 8.1.(1) provides that decision-makers should also give consideration to the 'nature and seriousness of the non-citizen's conduct to date' and paragraph 8.1.2. requires consideration of 'the risk to the Australian community, should the non-citizen commit further offending or engage in other serious conduct'.

Nature and seriousness of the Applicant's conduct to date

1. The Applicant's offending is set out in the Respondent's Statement of Facts Issues and Contentions and the criminal history check results report generated in September 2024.[4]

1. On 10 August 2021, the Applicant appeared in the Toowoomba Magistrates Court where he was convicted of three counts of contravention DVO (one of which was an aggravated offence) and breach of a probation order imposed on 22 March 2021. He was sentenced to 118 days of imprisonment and fined $150.
2. The circumstances of the offending are set out in a Queensland Police Court Brief.[5] The Applicant's wife had been granted a temporary protection order in March 2020. The order included conditions prohibiting the Applicant from having contact with her.
3. Between 26 and 29 April 2020, the Applicant sent 34 text messages to NA and called her twice. On 15 July 2020, the Applicant and NA were both present at the Toowoomba Magistrates Court in relation to a domestic violence matter. NA was accompanied by a support person. The Applicant waited for her and approached her while she was being moved from a safety room in an attempt to show her pictures on his phone. NA had been ushered away from the Applicant by her support worker as she was extremely frightened.
4. In April 2021, the Applicant had sent NA an image of a female person being beheaded with a machete. The image appeared very lifelike with blood visible from the injuries on her neck and face.
5. On 10 August 2021, the Applicant was also convicted of using a carriage service to menace, harass or cause offence and required to pay a fine of $400 and placed on a nine-month good behaviour bond. The victim of the offending was an employee with Multicultural Australia who had previously assisted him with interacting with child safety. The victim had contacted police as she felt threatened by the Applicant and concerned for her personal safety after he sent her threatening and menacing messages in November 2020 via WhatsApp.

1. On 11 October 2021, the Applicant appeared in the Toowoomba Magistrates Court where he was convicted of two counts of contravention of DVO (aggravated offence) and sentenced to two months imprisonment, to be suspended for nine months. The offending related to an incident on 26 August 2021 where the Applicant and his wife were in the Toowoomba Court Precinct and the applicant had approached his wife. A security guard had to physically stand in front of the to prevent him getting any closer. The Applicant was also reported to have been pointing in the direction of his wife to intimidate her.[6] On 19 September 2021 the Applicant had sent numerous text messages to his wife on Instagram.

1. On 29 November 2021, the Applicant was convicted at the Toowoomba Magistrates Court of contravention of domestic violence order (aggravated offence) and two counts of breach order and sentenced to six months imprisonment fully suspended. The offending related to conduct on 27 November 2021 where the Applicant had made threats to kill his wife to his cousin.[7]

1. On 29 March 2022, the Applicant was convicted in the Toowoomba Magistrates Court of contravention of DVO (aggravated offence) and sentenced to a term of imprisonment for nine months suspended for 18 months, having served 92 days. The conviction related to an incident on 28 December 2021 where the Applicant had approached NA, who was sitting in a car with their daughter, and told her that he would kill her. In sentencing, Magistrate Lee quoted a victim impact statement made by NA:

The ongoing breaches of domestic violence order have a negative impact on my mental health and independent community participation. I feel scared to leave my house or stay at home due to the fear of my husband. After my husband came to my residence on the 28th of December 2021, I have been having difficulty sleeping, as I have nightmares of my husband coming to my house to kill me. I have a diagnosis of experiencing severe depression. I am prescribed antidepressant and sleeping tablets to help me with my sleeping.[8]

1. On 25 October 2022, the Applicant appeared in the Toowoomba Magistrates Court where he was convicted of contravention of DVO (aggravated offence) and breach of order and sentenced to a term of imprisonment of 137 days. The conviction related to the Applicant sending NA messages on Instagram in June 2022. The Applicant also sent a message to her cousin threatening to kill them both.

August 2024 convictions - the index offending

1. On 3 March 2023, NA was at her cousin's house when the Applicant had let himself through the front door and locked the door. The Applicant then grabbed her by the hair and proceeded to punch her in the back and stomach repeating this for 3 to 4 minutes while smiling but not speaking. The Applicant's wife had managed to dial police from her mobile phone. The Applicant commenced punching her harder and faster and attempted to silence her cries for help. He then dragged NA by the hair to the front yard and continued to violently assault her while she cried out for help. The Applicant told her that he had been following her, and that he had always told her that he was going to kill her outside and not inside. NA's cousin was unable to stop the Applicant, and the offending culminated in the Applicant squeezing NA's neck such that she lost consciousness. The Applicant fled before police arrived.
2. On 2 August 2024, the Applicant was convicted and sentenced for choking suffocation strangulation domestic relationship - Domestic Violence Offence, Assaults occasioning bodily harm - Domestic violence offence, contravention of DVO and enter dwelling with intent - domestic violence offence. The Applicant was sentenced to a head sentence of four years and six months imprisonment. In sentencing the Applicant, Her Honour Judge Richards said:

Mr [KJST], you have pleaded guilty to four offences all committed against your former partner. The offences involved significant violence towards her, particularly the strangulation where she was rendered unconscious and stayed that way until police arrived. That offending occurred in a - the background of significant domestic violence towards her. You have been before the Courts on nine previous occasions since two hundred - 2021 in relation to that domestic violence. The prior offending includes threats to kill the complainant and others as well as sending graphically violent photographs to her. > > You continued to offend against her even though there were domestic violence orders in place and even when you were subject to bail, probation, suspended sentences and parole. This offending was committed whilst you were on parole for domestic violence offences committed against this complainant, and to be honest, it is no way to treat the mother of your child if you love your child at all. > > Domestic violence is very prevalent in our community and, therefore, sentences of imprisonment are almost inevitable where choking and strangulation is involved. In your case, I take into account the fact that you are still a young man - only 27 years of age - 28 years of age now - 29 actually - 29 now, and you have been in custody for 518 days in relation to this offending and the breach of parole. Because you committed these offences whilst you were on parole, a parole eligibility date is the only order that can be made. You have previously been on suspended sentences and not complied with them, so there is no question that that should be imposed today. > > You have pleaded guilty and saved the complainant the trauma of giving evidence, and that is in your favour. I also take into account that your time in custody has been difficult because of your lack of ability to speak the English language, and of course, you are at significant risk of deportation, and that is a factor that I also take into account, but at the end of the day, this must have been a terrifying experience for the complainant, and it occurred in the light of very persistent offending by you against her. So a significant term of imprisonment is the only appropriate sentence in this case, in my view. So in relation to the strangulation offence, you are sentenced to four and a-half years' imprisonment. In relation to the assault occasioning bodily harm and contravention of a domestic violence order, you are sentenced to two years imprisonment. > > In relation to the offences of assault occasioning bodily harm and contravention of domestic violence order, you are sentenced to two years 40 imprisonment. And in relation to the enter dwelling with intent, you are sentenced to 18 months imprisonment. Those terms of imprisonment are all to run concurrently.[9]

3. Paragraph 8.1.1 of Direction 110 provides factors that I must have regard to when considering the nature and seriousness of the Applicant's criminal offending or other conduct to date.
4. Violent crimes are viewed very seriously by the Australian government and the Australian community. The Applicant's conduct includes crimes of a violent nature against NA and acts of family violence. These are offences which are viewed very seriously by the Australian government and Australian community.
5. The Applicant and NA married when she was 14 years-old in 2014. The DFAT Country Information Report Iraq states that:

Forced marriage is illegal, and the legal age of marriage is 18 years for both men and women (although with parental consent and judicial permission the age can be lowered to 15 years). Nevertheless, forced, early and child marriages occur in Iraq.[10]

6. Paragraph 4(1) of the direction provides that forced marriage is taken to have occurred where a party to the marriage entered into the marriage without freely and fully consenting because they were under 16 years of age when the marriage was entered into. Based on the evidence of the Applicant and NA's affidavit provided to Queensland police in 2020, I am satisfied that the Applicant's marriage to NA meets the definition of a forced marriage provided in the Direction. Causing a person to be party to a forced marriage, regardless of whether there is a conviction, is considered serious under the Direction.
7. In regard to the impact on the victims, I note the sentencing remarks of Judge Richards who described the index offending as having been a 'terrifying experience' for NA. I also take into account NA's victim impact statement to the court in relation to the March 2022 convictions in which she said she was unable to sleep and fearful of leaving the house.
8. The Applicant's offending commenced shortly after his arrival in Australia and has been frequent. He has committed multiple offences, and the offending has escalated in seriousness - beginning with breaching court orders and escalating to threats of violence and then significant violent acts against NA. I also have regard to the Applicant having entered into a forced marriage.
9. Overall, I consider the nature of the Applicant's criminal activity and other conduct to be very serious.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

1. I am required to consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of the Direction provides in part:

(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers 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.

(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

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

b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i. information and evidence on the risk of the non-citizen re­ offending; and

ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

1. Should the Applicant engage in further violent offending of a similar nature to that which he has engaged in the past, it may result in very serious short-term and long-term physical and psychological harm to members of the Australian community.
2. The Applicant submits that despite his substantial criminal history, the evidence does not support finding that he would be a threat to the Australian community should his visa be reinstated. The Applicant argues it would be 'unfathomable' for him to reoffend given the strong disincentives, which include the risk of persecution should he be removed to Iraq. He would also be permanently separated from his daughter and younger brother. He notes he is classified a 'low security' prisoner, and it has always been his intention to work while incarcerated to obtain the skills he will need to secure employment upon his release from prison.
3. It is submitted on behalf of the Applicant that his offending was caused by the environment in which he was brought up and the traumatic events he witnessed as a child and a young adult.[11] He is aware of his offending and accepts full responsibility for his actions.
4. The Applicant's mother has provided a statement in which she says her son is kind, respectful, caring and has a good heart. She notes that he is loved by all of his family and says that the displacement, persecution, violence and deprivation of his life in Iraq and Turkey affected the Applicant.
5. Should the Applicant be released into the community, he claims a clear path in place. He plans to resume living with his brother. He anticipates he will be able to seek necessary help, reconnect with his loved ones and the community, and eventually return to work.
6. Regarding rehabilitation, the Applicant's submissions state he has scheduled five sessions with a psychologist to understand and address the psychological, emotional and behavioural factors that have led to his criminal and domestic violence offending. Sessions have yet to commence due to complications in organising an interpreter. It was expected that with the assistance of a psychologist, the Applicant would continue to develop coping strategies to assist him and ensure there would be no risk of reoffending. Despite the challenges in obtaining access, the Applicant claims he is committed to seeking counselling and completing rehabilitation programs as they become available to him.
7. The Applicant has joined a waitlist for telephone counselling at a men's referral service and plans to participate in a men's behaviour change program run by Adapt Programs if he is permitted to do so. Psychological treatment is planned through World Wellness Group and Queensland Transcultural Mental Health Centre.[12]
8. Regarding the risk to the community, the Applicant submits that his offending was against NA and as neither he or his family know where she is, and it is unlikely he could reoffend against her. I consider this to be a limited protective factor in circumstances where the Applicant has previously proven resistant to attempts by NA to distance herself from him. It is also the case that while NA was primary victim of his offending, there has also been other victims.
9. Consistent with the Applicant's evidence at the hearing, in his forensic risk assessment Mr Hamilton states that the Applicant expressed a willingness to engage in intervention for his offending behaviour. Mr Hamilton identifies the Applicant's limited English as the reason he has not yet engaged in any rehabilitation. It appears that the Applicant has limited options for rehabilitation available to him while in custody because Queensland correctional services is not currently funded to provide individual interventions to people who have been considered as having high risk domestic and family needs.[13]
10. Mr Hamilton reports the Applicant acknowledged and accepted a history of engaging in domestically violent behaviour. The Applicant said difficulties first emerged in his and NA's relationship when transitioning to Australia. Mr Hamilton reports the Applicant took issue with NA being with other families rather than their family. He took issue with her behaviour and reported questioning her about where she was going and what she was doing. He did not approve of her leaving the house and learning English while their daughter was at home and needed care. Mr Hamilton reports the Applicant expressed that he was accustomed to a 'gendered role home environment', where the role of a woman was as homemaker. He expressed that it could bring shame upon both he and NA if a woman was away from home and working. He also 'maintained that this shame increased' when NA left him, and he was repeatedly questioned in the Yazidi community as to why she had done so.[14]
11. Mr Hamilton notes that the Applicant has some distorted thinking and views of his offending behaviour, which could be further ameliorated through intervention which he is motivated to engage in.
12. Mr Hamilton conducted a Spousal Assault Risk Assessment with the Applicant to comprehensively assess the risk of domestic violence and inform risk reduction and management. The assessment indicated that the Applicant's risk of domestic violence falls within at least the moderate range across the medium term. Mr Hamilton notes that the Applicant has had no recent infringements, which can be largely attributed to his being in custody. He also notes that the Applicant no longer has access to the victim or knowledge of her whereabouts.
13. In considering the risk posed by the Applicant, Mr Hamilton identifies several strengths or protective factors which will support the Applicant's goal of not reoffending. He says that while the Applicant's offending behaviour was entrenched, it is specific and contained to that of a domestically violent nature and he does not present with a 'pervasive antisociality'. He writes that the Applicant presents himself as desiring a simple and respectful lifestyle with employment and the opportunity to establish himself away from conflict. He also notes the absence of criminal associates and antisocial attitudes. While he appears to have had some difficulties with alcohol consumption, the Applicant is reported to have expressed an awareness of this and a desire to manage it in the future.
14. Mr Hamilton notes risk factors including the Applicant's repeated pattern of offending despite being subject to court orders regarding his domestically violent behaviour. He writes that while the Applicant's difficulties speaking English and his cultural background have likely affected his ability to comprehend or fully appreciate requirements and expectations of him, it is evident he has held a consistent disregard to the expectations made of him by the courts.
15. The report observes that the Applicant's domestic violence offending 'is akin to that of a Rejected Stalker (typology)'. Mr Hamilton writes that rejected stalkers typically desist with properly enforced judicial sanctions and notes that in the Applicant's case there has been demonstrated asserted pattern of persistence despite sanction. Mr Hamilton writes that 'once desistance is achieved, which often coincides with a cognitive and attitudinal shift, these offender's risk significantly reduces'.
16. I acknowledge the Applicant's plans to undertake rehabilitation are limited while he is incarcerated. However, there is no evidence of the Applicant having undertaken meaningful measures to address his offending behaviour since the first DVO was issued in March 2020, some years prior to the index offending. As confirmed by Mr Hamilton, the Applicant's problematic attitude towards the role of women, and domestic violence, persist.
17. In addition to his plan to commence rehabilitation, and intention not to reoffend and the strong incentives not to do so, the Applicant intends to live with his brother, who is a stabilising influence, and plans to reunite his family in Australia. While I accept the Applicant intends to reside with his brother, I note they were living together throughout the Applicant's offending.
18. Having regard to the totality of the evidence, I consider there to be at least a moderate risk that the Applicant will reoffend. The Applicant has proven resistant to interventions by the criminal justice system, including terms of imprisonment, with his frequent offending becoming more serious over time. He has identified the causes of his offending including cultural influences and norms, his English language skills, marriage at a young age, adjusting to a new culture and his life experiences. Although he says these are not excuses for his offending, these causes indicate a lack of agency on his part and are inconsistent with the assertion he takes full responsibility for his offending. The Applicant's claims to have been unfamiliar with Australian law is not accepted. Even if this were the case initially, by the time of the index offending, the Applicant had been imprisoned on three occasions and can be expected to have obtained at least a rudimentary understanding of the law.
19. Overall, the evidence is that the protective factors the Applicant has identified are not sufficiently reassuring in the context of his persistent criminal offending. I consider he risk that the Applicant may reoffend is substantial, and weighs heavily against revocation of the visa cancellation.

Protection of the Australian community - conclusion

1. The nature and seriousness of the Applicant's offending and conduct, and the real and significant risk he may reoffend, weigh heavily against revocation of the cancellation of his visa.

Primary consideration 2: Family Violence committed by the non-citizen

1. Paragraph 4(1) of Direction 110 defines family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful.
2. Paragraph 8.2(1) of Direction 110 provides that the Australian government has 'serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia'.
3. Paragraph 8.2(3) of Direction 110 specifies the following factors must be considered where relevant when considering the seriousness of family violence:

a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness; > > b) the cumulative effect of repeated acts of family violence; > > c) rehabilitation achieved at time of decision since the person's last known act of family violence, including: > > 1. the extent to which the person accepts responsibility for their family violence related conduct; > 2. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children); > 3. efforts to address factors which contributed to their conduct; and > > _d) Whether the non-citizen has re-_offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non­citizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.

4. In written submissions, the Applicant concedes he has been subject to five domestic violence protection orders and convicted of breaching the orders on 12 separate occasions. He has also been convicted of multiple criminal offences against NA, who is a member of his family, and the Applicant acknowledges his conduct constitutes family violence.
5. The Applicant stated that he and NA began to experience marital issues after they arrived in Australia. He said that in his culture there is an expectation that the role of a wife is to remain at home and care for her husband and children. He concedes he felt aggrieved when she did not fulfil this role. He says the combination of feeling as though his cultural values towards his wife not being fulfilled, as well as the pressure and stresses of relocating to a new country, contributed to his family violence conduct.
6. He says he understands the impact of his behaviour, the seriousness of domestic violence and how seriously it is viewed by the Australian government and community. He submits that no other members of the public were subject to abuse but concedes members of NA's family who are at home and witnessed the assault in March 2023 may have been affected.
7. The Applicant maintains no children, including his daughter, were present at the time of his offending or exposed to his family violence conduct. In terms of his efforts to address factors which contributed to his conduct, the Applicant submits that he is actively seeking to learn, rehabilitate and ultimately break the cycle of committing domestically violent offences. He is committed to undergoing sessions with a psychologist in addition to pursuing other rehabilitation opportunities.[15]
8. The Applicant's frequent and increasingly serious family violence conduct was a regular occurrence when he was not in prison. Putting aside the absence of meaningful rehabilitation, there is little evidence he appreciates the impact of his conduct on the victim or accepts responsibility for his actions.
9. Having regard to definition of family violence provided in the Direction, I am satisfied as the Applicant's wife, NA is considered a member of his family. I have detailed the Applicant's family violence offending in paragraphs [31] - [42]. The Applicant's family violence offending began in 2020 and has progressively increased in seriousness. He has repeatedly breached DVOs imposed to protect NA from his behaviour. He has continued to reoffend despite intervention by police and the courts. The cumulative impact of his repeated acts of family violence conduct is serious.
10. The evidence is that NA has spent periods in women's refuge with their infant child as a consequence of the Applicant's family violence conduct. Her relationship with the Applicant has had a serious impact on her mental health, and she has been hospitalised on multiple occasions because of physical assaults by the Applicant.
11. I find that the primary consideration of family violence committed by the Applicant weighs very heavily against exercising the discretion to revoke the cancellation of the visa.

Primary Consideration 3: The strength, nature and duration of ties to Australia

1. I am required to consider the impact of the decision on the Applicant's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. I am also required to consider the strength, nature and duration of any other ties that the Applicant has to the Australian community having regard to:

(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community

(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.

1. The Applicant has resided in Australia since his arrival as an adult in June 2019, and his offending commenced soon after. He has identified his brother, mother, previous neighbour, and friend as individuals who will be affected by the cancellation decision. The Applicant confirmed that he no longer maintains a relationship with NA.
2. M has provided written statements in support of the Applicant and gave evidence at the hearing. The Applicant and M share a close bond. The Applicant, who is older than M, cared for and provided for his brother. Since their arrival in Australia, they have lived together whenever the Applicant has not been in prison. M said that the Applicant is his only family in Australia and that they share a close bond. His removal would affect him 'emotionally and mentally' and he would worry about the Applicant in Iraq.
3. Omer Ma'Jon has known the Applicant since they met in Turkey. He considers the Applicant to be a responsible and hardworking person who made some mistakes which, with help and support of his friends, will not be repeated. Trudy Rogers was the Applicant's neighbour. She said the Applicant was always warm towards she and her daughter, and is confident in his ability to adjust to living in Australia.
4. The Applicant gave evidence of having met a woman in Turkey who has since migrated to Australia while he has been in prison. He indicated they have commenced a relationship. He also notes he is part of a very large Yazidi community in Australia. The Applicant has had periods where he has held paid employment.
5. The Applicant plans to reunite his mother and other siblings in Australia. As there is no evidence they currently have a right to reside in Australia indefinitely, their interests are not relevant to this consideration.
6. I afford this consideration some weight in favour of the Applicant, primarily in recognition of the considerable impact of the visa cancellation on his brother and the presence of his daughter in Australia.

Primary Consideration 4: Best interests of minor children affected by the decision

1. Paragraph 8.4 of the Direction requires the Tribunal to decide whether the cancellation is, or is not, in the best interests of minor children in Australia affected by the decision. This consideration applies only if the child is under 18 years old at the time of the decision. In considering the best interests of each child, the factors that must be considered where relevant include:

(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

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

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

(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

1. The Applicant has one minor daughter who is eight years old. At the hearing he confirmed that he last saw his daughter when she was three years old. In a written submission, he stated his daughter's whereabouts are currently unknown as she is in the care of child protective services.[16] Before he was incarcerated, an arrangement was in place with child protective services which allowed the Applicant to see his daughter every second week. He says they share a strong bond similar to that held by any close father and daughter.
2. Currently, and for the foreseeable future, the Applicant's ability to interact or maintain a relationship with his daughter is limited. He is in prison and unable to contact NA because the DVO, which also includes his daughter, and remains in place until August 2029.[17] Eventually, however, the Applicant plans to live with his daughter and be part of her life. He wishes to be a supportive father who plays a strong parental role in his daughter's life. He believes his daughter is experiencing the negative impact of his offending in so much as he has not been able to see or speak with her. At eight years of age, she has many formative years ahead of her during which she will be disadvantaged if he not physically present.
3. The Applicant expressed concern that should NA remarry, her husband would not accept his daughter or care for her as she would be seen as someone else's child. While the Applicant and his daughter may maintain a relationship by electronic means should he return to Iraq, he says it will not be the same as physical presence. The Applicant says he will not have his daughter travel to Iraq to see him because it would be unsafe for her to do so.
4. Noting that the child had been cared for by social services in the past and the Applicant is unaware of her current circumstances, it is not possible to be certain that the child is currently is cared for by a parental figure or has a permanent carer. The Applicant has expressed his intention to reconnect with his daughter, to be present in her life, and to fulfill his parental responsibilities. However, it is not clear whether the Applicant will have any involvement in playing a positive role in his child's life given the nature of his offending and the extended period over which he has neither performed a parental role nor had meaningful contact with her.
5. Should he return to Iraq, it would be open for the Applicant to maintain contact with his daughter through electronic means, but I accept in-person contact is preferable. Although there is no information that indicates his child was subject to or exposed to the Applicant's family violence conduct, his conduct has affected her mother, who removed the child from the family home as a consequence of his conduct.
6. Having regard for the Direction, I afford this primary consideration limited weight in favour of revoking the cancellation of the Applicant's visa.

Primary Consideration 5: Expectations of the Australian community

1. Paragraph 8.5 of the Direction relevantly provides:

(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

1. Paragraph 8.5(3) of Direction 110 states that these expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
2. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant's circumstances or evidence about those expectations. Rather the Tribunal must give effect to the 'norm' stipulated in the Direction.[18]
3. This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated in the Direction, without independently assessing the community's expectations in the particular case.
4. The Applicant has failed to meet the Australian community's expectation that visa holders obey its laws. In accordance with the principles set out in paragraph 5.2 of the Direction, the nature of the Applicant's offending - which includes acts of family violence and the commission of crimes against women - is such that the Australian community would expect the Applicant should not continue to hold a visa.
5. Having regard to the Direction and taking into account the serious nature of the Applicant's offending and the sentences imposed, this consideration is afforded significant weight in favour of not revoking the mandatory cancellation of the Applicant's visa.

Legal consequence of decision under section 501 or 501CA

1. Paragraph 9.1 of Direction 110 requires decision makers to be mindful that the legal consequences of a decision to cancel a non-citizen's visa is that they are liable to removal from Australia as soon as practicable, and in the meantime, detention. The Direction provides different guidance depending on whether an applicant is covered by a protection finding.
2. The Applicant arrived in Australia as the holder of a Refugee (Class XB) (Subclass 200) (permanent) visa, which is not a 'protection visa' as defined by the Act. It is therefore open for the Applicant to apply for a protection visa. The Applicant would not be liable for removal whilst a valid protection visa application was being determined.[19]
3. The Applicant indicated at the hearing that should his visa remain cancelled, he intends to apply for a protection visa. He is of Yazidi ethnicity and should he return to Iraq, he fears he will be the target of religiously motivated attacks by Islamic radical groups including ISIS. He says his home in Iraq has been destroyed and family members residing in that country are attempting to flee as it is not safe.
4. There is limited specific information regarding the Applicant's protection claims before the Tribunal. However, consistent with the Applicant's submissions, the DFAT Country Information Report on Iraq states that Yazidis have suffered marginalisation, displacement and periods of violence including being targeted by religious extremists.[20] I accept that the Applicant's claims regarding facing harm if returned to Iraq based on his Yazidi ethnicity indicates a potential for Australia's international non-refoulement obligations to be engaged. That said, I consider that the question of whether the Applicant engages Australia's non-refoulement obligations is best determined by making an application for a protection visa.
5. The Applicant is confident he would meet the criteria for a protection finding. However, he is concerned that should he be found to be owed protection, he may be refused a protection visa on the basis of his criminal record or being considered a danger to the Australian community. The Applicant submits that the difficulty he may face in obtaining a protection visa is an important consideration that weighs in favour of revoking the cancellation of his existing visa.
6. The Direction provides that decision-makers may proceed on the basis that should an applicant apply for a protection visa, any protection claims will be assessed, as required by s36A of the Act, before consideration is given to any character concerns. This leaves open the possibility of refusal on character grounds, and the Applicant's fears he may be refused a protection visa on this basis is not without merit.
7. However, the concerns he has raised are speculative and would not arise unless he is found to be owed protection. Should they arise, they would be considered as part of the application process, as indicated by the Direction. It is not for the Tribunal to speculate about future visa applications. If the issues identified by the Applicant arise, they will be dealt with by future decision makers with reference to the circumstances that exist at that time.[21]
8. Should the cancellation decision not be revoked, the immediate legal consequences are that the Applicant would remain in prison. Upon his release, unless the Applicant were to be granted a protection visa, as an unlawful non-citizen he would be liable to be detained, removed from Australia, returned to Iraq where he fears persecution and prohibited from applying for another visa or subject to periods of exclusion and special return criteria.[22]
9. Having regard to these consequences, I afforded this consideration moderate weight in favour of revoking the cancellation decision.

(1) Decision-makers must consider the extent of any impediments that the non­ citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a) the non-citizen's age and health;

b) whether there are substantial language or cultural barriers; and

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

1. The Applicant speaks Arabic and Kurdish. He lived in Iraq until he was 19 years old, and would not be expected to face any language or cultural barriers upon his return.
2. In terms of his age and health, the Applicant is 30 years old. He had kidney stones removed while in prison and he continues to experience discomfort and shortness of breath due to this condition. In his request for revocation, he stated that he had been diagnosed with insomnia, depression and anxiety, for which he is not receiving any treatment.[23] He has expressed concerns that Iraq will have insufficient mental healthcare services available. The DFAT Country Information Report on Iraq indicates that the quality of healthcare in Iraq is poor, and particularly in Sinjar where public services are extremely limited.
3. Although the medical care that the Applicant can expect to receive in Iraq will be of a similar standard as that available to other citizens, it is not expected to be of the standard he has access to in Australia.[24]
4. The Applicant has expressed fears for his safety in Iraq owing to his Yazidi ethnicity and not having anywhere to live. While his mother and sisters reside in Iraq, they are trying to permanently migrate to Australia, and he has indicated it may not be safe for him to live with his family.
5. The extent of the economic and social supports that the Applicant may have access to is unclear on the evidence. He will be without his brother who he is very close to, and he may find obtaining employment challenging, at least initially. I accept he may experience social isolation, which would be detrimental to his mental health conditions.
6. Overall, the impediments the Applicant can expect to face should he return to Iraq are afforded moderate weight in favour of revocation.

1. There is not evidence of any impact on Australian business interests should the Applicant no be permitted to remain in Australia. This consideration is afforded neutral weight.

1. I have considered the specific circumstances of the Applicant against the considerations identified in the Direction. In balancing the primary and other considerations, the protection of the Australian community weighs heavily against revoking the cancellation of the Applicant's visa. The primary consideration of family violence committed by the Applicant weighs very heavily against revocation. The Applicant's offending has proven resistant to court orders and sanctions, including terms of imprisonment, and there is a real risk he will reoffend should he return to the community. The expectations of the Australian community are afforded significant weight against revocation on account of the serious nature of his offending.
2. The Applicant's ties to the Australian community are limited but this primary consideration is afforded some weight in favour of revoking the cancellation of his visa. The best interests of the Applicant's daughter are that he remains in Australia and this consideration is afforded limited weight in favour of revocation. The legal consequences of the decision weigh moderately in favour of revoking the cancellation decision. The impediments he will be expected to face should he return to Iraq are not insignificant, and the consideration of the impediments if removed are given moderate weight in favour of revocation.
3. On balance, I find that there is not another reason to revoke the cancellation of the Applicant's visa. As such, the reviewable decision will be affirmed.

1. For the reasons outlined above, the reviewable decision is affirmed.

[18] See FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 at [75] (Charlsworth J).

[19] Respondent's SOFIC [60] - [61]

[21] See Ali v Minister for Immigration & Border Protection [2018] FCA 650; BC201803540.

[22] Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143 [45]