The strength, nature and duration of ties to Australia

1. I noted above Mr Koohpayeh's education and employment history, as well as making reference to his past long-term relationship and modest circle of friends. There is no dispute in this matter that the Applicant has no immediate family members in Australia.
2. In closing submissions Mr Koohpayeh contended that he had lived life in Australia as a normal person, working and engaging with his friends. The Respondent acknowledged in submissions the Applicant's time in Australia and the links identified and contended that limited weight in support of revocation should be given this primary consideration.
3. The first part of this primary consideration calls for consideration of the impact of the decision on immediate family [8.3(1)]. This evidently attracts no weight. The second part of this primary consideration addresses the strength, nature and duration of 'other ties' non-citizen has to the Australian community [8.3(2)]. Here, I give a good deal of weight to the fact that Mr Koohpayeh, while arriving as an adult, has spent a large part (being 18 years) of his working life here. It is also evident that he did not offend for nearly a decade post arrival from Iran. I consider that undertaking study and participating in a skilled area of work (nursing) equates to making a sound contribution to the community. It appears that only modest weight might be given to Mr Koohpayeh's social links, but he is not to be disadvantaged for having an apparently modest social network.
4. I find that this consideration weighs moderately heavily in favour of revocation.

Best interests of minor children in Australia affected by the decision

1. There are no claims made or evidence evidently relevant to this primary consideration and accordingly it weighs neutrally.

1. This primary consideration effectively restates the principle identified above, being that it is expected that non-citizens obey the law in Australia, and the Direction stresses that this is to be applied normatively (a matter reinforced by relevant authorities), and therefore the Australian community expects the Government not to allow those who have broken this expectation, or that present an unacceptable risk of so doing, to remain [8.5(1)].
2. The Direction goes on to provide that non-revocation may be appropriate because of the particular character concerns arising in a particular case, and identifies matters that raise 'serious character concerns', identifying among other matters acts of family violence [8.5(2)]. The expectation is said to apply in such cases even where there is no measurable risk of physical harm to the Australian community [8.5(3)].
3. The Respondent contends that the expectation not to revoke the mandatory cancellation is engaged here and that this primary consideration weighs heavily against revocation.
4. I consider that this expectation is to be applied in this case, and that - prima facie - Mr Koohpayeh's convictions for conduct that amounts to family violence raises serious character concerns. However, as I have noted above, the Applicant's family violence was found to have been among other low-level offending, and is not of a particularly serious kind. It was also a product, or at least substantially contributed to, by his diagnosed conditions. Mr Koohpayeh's other more frequent and diverse offending does not raise serious character concerns.
5. Overall, therefore, I find that this consideration weighs against revocation.

1. The Direction sets out the provisions of the Act concerning the detention of unlawful non-citizens until their removal as soon as reasonably practicable, noting that it is irrelevant to this process whether Australia has non-refoulement obligations [9.1(1)]. This is the obligation not to forcibly return of a person who is at risk of harm, with reference to the notion of protection obligations established under the Act [9.1(2)].
2. Mr Koohpayeh responded to the question in the personal particulars form asking about problems he might face if returned to his 'country of citizenship': 'yes I will be killed' (G2, 123). In the accompanying letter, he also states: 'I had a few issues in Iran hence why I departed to Aust. in fear of my life through I have no evidence to support this claim, at this time' (G2, 108). He states further here:

... I'm in fear of my life if I were to be deported and returned to Iran, I have no supporting evidence to support my current claim and application, though I'm at fear of Hamas, Hezbollah and the Iranian Government.

3. These matters were addressed in evidence, and Mr Koohpayeh specifically denied having told police in the past that he wished to return to Iran, explaining that he was simply angry when reported as saying so. The Applicant raised a number of matters in evidence supporting his fear of returning to Iran. These were that he is in fact an Afghan national, born in Afghanistan but raised from a very young age in Iran. In this respect, Mr Koohpayeh stated that his family had advised him some time ago that Iran was expelling Afghan nationals. He also gave evidence of experiencing discrimination due to his ethnicity.
4. Mr Koohpayeh also gave evidence that he no longer holds current Iranian identity documents. He stated that some time back when his Iranian passport had expired, he made inquiries about renewing it, but was unable to provide a birth certificate. The Applicant stated that not only had his father obtained a false Iranian birth certificate to enable him to attend school, but this was now lost.
5. There was some discussion in evidence about the size and location of Mr Koohpayeh's family group, with the Applicant insisting that he has one brother based in the United States, who he has little to do with. In evidence at the resumed hearing Mr Koohpayeh was asked about documents indicating that he had previously declared in personal particulars forms that he had three brothers and sisters, all located in Iran in 2010 (RB2, 4). The Applicant gave somewhat contradictory evidence about this material, reverting in this passage of evidence to 'no comment' answers to these and related questions.
6. The Applicant also gave evidence during the initial hearing session that he converted from Shia Islam to Christianity 'a few years ago', giving his denomination as Anglican and claiming to have been baptised. Mr Koohpayeh stated that he last attended a service a few weeks ago in immigration detention. He stated that in Iran he would be killed as a Muslim convert.
7. When questioned further about his references to Hamas and Hezbollah, Mr Koohpayeh explained that at university in Australia he had been an atheist and participated in public debates. As part of this, I understood him to say, he had been targeted online by persons with hardline Muslim views.
8. Mr Koohpayeh also stated that this is not why he left Iran, stressing that he came legally as a student. However, he added that he had disagreements with the Government and stated that at university in Iran he had 'organised to support candidates' and distributed political statements.
9. The Applicant stated that he saw no need to apply for a protection visa due to having had a category of permanent resident visa. Ultimately, however, Mr Koohpayeh agreed that were his visa cancellation not revoked, he would apply for a protection visa.
10. I note the DFAT Country Information Report: Iran (dated in 2023) observes that severe penalties, including death, may attach to apostasy from Islam [2.86]. The report also addresses the experience of the Afghan migrant or asylum seeker community at some length [2.158-2.165]. It refers to discrimination, restrictions and deportations of large numbers of undocumented Afghans.
11. The Respondent submitted that the Tribunal may defer assessment of protection obligations, noting that Mr Koohpayeh had not submitted any documentation, presented complex claims, and would most likely apply for a protection visa in the event of a non-revocation decision.
12. In its Supplementary Submissions, the Respondent summarised further information contained in documented lodged in this matter (RB2) indicative of Mr Koohpayeh previously declaring on a number of occasions to having Iranian nationality, as well as having a number of siblings living in Iran (at least in 2010). The Respondent contends that the Applicant has sought to obscure this subject, and that he is an unreliable witness. It is submitted, therefore that the better view of the evidence is that Mr Koohpayeh is of Iranian nationality.
13. There is sound authority for the proposition that the Tribunal may defer assessment of claims to harm in appropriate circumstances, however, the Direction provides that any such claims must be considered, although where it is open for a person to apply for a protection visa, they need not be considered at the same level of detail as occurs in that process [9.1.2(1)-(2)]. A decision-maker may choose to proceed on the basis that in any such application, consideration will be given to protection claims prior to character or security concerns.
14. As noted above, I have accepted that Mr Koohpayeh's evidence embracing new claims, including Afghan nationality, can be considered. Clearly the Applicant's claims based upon ethnicity and religion, on their face have the potential to crystallise into substantive protection claims. The principal issues with all of the Applicant's claims to harm are that they remain unsupported by other evidence. Mr Koohpayeh's claim to Afghan nationality, stands in contrast to the entire suite of material in this matter in which he has consistently maintained Iranian nationality, and adds some complexity to the consideration of his claims.
15. Accordingly, I consider that this is an appropriate matter in which to defer fuller consideration of Mr Koohpayeh's claims to harm if returned. Therefore, I find that this other consideration weighs neutrally.

1. I have set out above the evidence of Mr Koohpayeh's ethnicity and the question arising as to country of origin, and claims of harm if returned to Iran.
2. This other consideration establishes a relatively modest threshold, being that any impediments be in the context of an applicant establishing themselves and maintaining basic living standards in the context of what is generally available to other citizens [9.2(1)].
3. As noted, the Respondent maintains the position in its Supplementary Submissions that the reference country should be Iran. The Respondent contends that this other consideration weighs in Mr Koohpayeh's favour on the basis of the general political situation in Iran. The Respondent refers to country information that indicates mental health services may be limited in the regions and that some drug treatment services are available, and contends that the Applicant's health would not present an impediment to removal.
4. Somewhat in contrast to the Respondent, I read the country information report as proposing that mental health as a phenomenon is not well understood or supported in Iranian society [2.22]. The information also indicates that stigma remains attached to drug use [2.26]. The country report states that Iran does not accept involuntary returnees, but that there appear to be no formal barriers to them receiving shelter and work [2.202].
5. These matters arise for consideration as Mr Koohpayeh's age and health are factors I must take into account. Given the findings I have made about the Applicant's rehabilitation journey, I consider that if returned to Iran he may indeed face some challenges in establishing himself in that he will need to maintain for some indeterminate amount of time both mental health treatment and treatment for his opioid addiction.
6. Otherwise, given that Mr Koohpayeh lived in Iran until adulthood and gained university qualifications and employment in that country, I do not consider he would face any meaningful language or cultural barriers. Given the uncertain state of evidence about the Applicant's family composition it is difficult to be definitive about whether he has any substantive personal social or economic supports in Iran. On balance, country information suggests that Mr Koohpayeh may not face any substantive barriers but I give some weight to the likelihood of him facing some difficulties due to the amount of time he has been out of the country.
7. I cannot determine with certainty that Mr Koohpayeh's claim to having Afghan nationality is true. It goes against the weight of evidence and accordingly, for the purposes of this other consideration, I give it only some very limited weight in his favour. I accept, however, that return to Afghanistan in present circumstances and for an individual who has not lived in that country for the vast majority of their life would be particularly challenging.
8. Overall, I find that this other consideration attracts moderate weight in favour of revocation.

1. No claims were raised in respect of this other consideration. I consider that given the nature of Mr Koohpayeh's employment history, as set out above, that this is a matter in which the general situation applies, and that weight not be given as the threshold of compromise set out in the Direction has not been met [9.3]. It does not appear to me that there would be any impact upon Australian business interests were the decision affirmed.
2. Accordingly, this other consideration weighs neutrally.

1. Of the primary considerations I have found that protection of the Australian community weighs moderately heavily against revocation, and family violence committed by the non-citizen and expectations of the Australian community both weigh against revocation. I have also found that the strength, nature and duration of ties to Australia weighs moderately heavily in favour of revocation. The best interest of minor children affected by the decisions weighs neutrally.
2. Of the other considerations I have found that the extent of impediments if returned weighs moderately heavily in favour of revocation. The legal consequences of the decision and impact on Australian business interests weigh neutrally.
3. The Direction provides guidance as to the manner in which the specified considerations should be taken into account when coming to a decision with respect to the statutory question (being whether there is another reason the mandatory cancellation should be revoked) [7]. Accordingly, the first primary consideration should generally be given greater weight than other primary considerations, primary considerations should generally be given greater weight than other considerations, and one or more primary considerations may outweigh others.
4. In CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, the court warned against a focus upon individual weighted considerations, and held that addressing the statutory question requires a wholistic assessment of their relative significance.
5. I have found that the risk of Mr Koohpayeh reoffending is acceptable, albeit his record includes conduct which must be understood as raising serious character concerns, being his family violence offending. I also noted above the relative leniency with which the Applicant's conduct was treated in the justice system, and observe that Mr Koohpayeh has been imprisoned for relatively short periods of one month and, more recently, six months. I understand his more serious offending to have arisen from and/or during a period of his life in which he was suffering from both mental health and drug misuse conditions, and sentencing was supported by what appears to be a range of relevant reports (not available to me).
6. I have addressed in these reasons aspects of Mr Koohpayeh's evidence that could be considered unsatisfactory, but about which I have largely declined to make definitive findings. These aspects of evidence include apparent ongoing drug use during immigration detention, and his nationality and family composition. I have already taken these into account under individual considerations and therefore do not consider it necessary to make any blanket assessment of credibility. That said, in representing himself, Mr Koohpayeh appears to have sought to cast himself in as positive a light as possible at the expense of appearing unreliable.
7. The principles provide that some degree of tolerance might be afforded individuals who have lived in Australia for most of their life, and this does not wholly apply to Mr Koohpayeh. He has, nonetheless made a contribution in his time here, albeit with modest connections otherwise to Australia and the community. I also note the time in the community during which he did not offend, and that his more serious conduct occurred in a relatively short period marked by personal instability.
8. The critical principal in the Direction is that emphasising the safety of the Australian community. This is coupled to an extent with the terms of the first primary consideration, which stresses the protection of the Australian community, and notes that remaining in Australia is a privilege extended conferred in the expectation a person will not cause or threaten harm to individuals or the community.
9. The Direction is not solely forward-looking, as due account must be taken of prior offending or other relevant conduct, but protection from future risk is generally the predominant focus. I consider that this matter is relatively finely balanced when considering individual factors that weigh for and against revocation. Nonetheless, I do not consider the risk posed by Mr Koohpayeh of relapsing in either of his forms of treatment and thereby engaging in serious misconduct to be so high as to require the first primary consideration to be given determinative weight.
10. That is, on balance, I consider there is sufficient evidence that Mr Koohpayeh has the capacity and intention to return to a stable and productive life in Australia, and that removal from Australia carries some potential for interruption to his present comparative stability. Accordingly, I find that there is another reason why the mandatory cancellation decision should be revoked.

1. For the reasons given above, the Tribunal decides to set aside the decision under review and substitutes it with the decision that there is another reason why the mandatory cancellation of the Applicant's Class VB Subclass 885 Skilled - Independent should be revoked.