Ahkeni and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 3573

Ahkeni and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3573 (30 October 2023)

Division:GENERAL DIVISION

File Number:          2023/5864

Re:Raymond Ahkeni

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Justin Owen

Date:30 October 2023

Date of written reasons:         3 November 2023

Place:Sydney

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 3 August 2023 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

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

Deputy President Justin Owen

CATCHWORDS

MIGRATION – mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa under section 501(3A) – where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancellation under section 501CA(4) should be exercised – consideration of Ministerial Direction No. 99 – decision under review affirmed

LEGISLATION

Crimes (Sentencing Procedure) Act 1999 (NSW)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

EPL201 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173

EPU v Minister v Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536

FYBR v Minister for Home Affairs [2019] FCA 500

FYBR v Minister for Home Affairs [2019] FCAFC 185

Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68

Minister for Immigration and Citizenship v Li [2013] HCA 18

PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162

Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Tera Euna and Another v Minister for Immigration and Border Protection [2016] AATA 301

Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 142

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIAL

Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Deputy President Justin Owen

3 November 2023

INTRODUCTION

1. The Applicant seeks a review of the decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“the Respondent”) made under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) on 3 August 2023, not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (“the Applicant’s visa”).

2. The Applicant is a male New Zealand national, born in February 1995. At the time of this decision, he is 28 years old. The Applicant has resided in Australia for 17 years, having arrived in October 2006 as the holder of a Class TY Subclass 444 Special Category (Temporary) visa when he was 11 years of age.

3. The Applicant’s visa was cancelled on 20 May 2020 under section 501(3A) of the Act on the basis that he did not pass the character test. The Applicant was duly notified of the mandatory cancellation decision and was invited to make representations in an effort to revoke that decision. On 15 September 2020, the Applicant made representations through his representative seeking revocation of the cancellation decision. Following judgments delivered in EPL201 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174, the Applicant was renotified of the cancellation decision by way of email on 22 February 2022. On 22 February 2022, the Applicant made representations through his representative seeking revocation of the cancellation decision. On 3 August 2023, a delegate of the Respondent refused to revoke the mandatory cancellation made on 20 May 2020. There followed an application to the Tribunal on 10 August 2023, wherein the Applicant sought review of the delegate’s refusal to revoke the mandatory cancellation made on 3 August 2023.

4. Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of his serving a sentence of imprisonment, on a full-time basis in Shortland Correctional Centre in New South Wales, for an offence against a law of the Commonwealth, a State or a Territory. On 17 April 2019, the Applicant was convicted in the District Court of new South Wales of Use unauthorised pistol – T2, for which he was sentenced to a term of imprisonment of five years and three months.

5. The Applicant does not dispute that he does not satisfy the character test.

6. The issue before the Tribunal is whether there is another reason why the delegate’s decision should be revoked. Paragraph 8 and 9 of Direction 99 sets out the matters which must be considered when deciding this matter.

7. The hearing was held on 18 and 19 October 2023. The Tribunal received oral evidence from the Applicant and from witnesses: Ms Soha Hares, the Applicant’s partner; Ms Fadia Hares, Ms Soha Hares’ Mother; Ms Tania Ahkeni, the Applicant’s mother; the Applicant’s sister; Mr Walid Chemaisse, Managing Director of Precision Fencing and Dr Magedy Hawi, General Practitioner.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the Applicant’s visa should be affirmed.

   BACKGROUND FACTS

   Summary of criminal convictions

9. The Applicant has been convicted of the following offences. On 29 September 2013, he was convicted of Resist or hinder police officer in the execution of duty, for which he was fined $400. On the same date, the charge of Drink alcohol on bus, ferry, train or in public area was dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). On 1 March 2017, the Applicant’s charge of Possess prohibited drug was dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). On 16 October 2018, the Applicant was convicted of the offences of assault police officer in execution of duty without ABH – T2 and resist or hinder police officer in the execution of duty, for which he received a term of eight months imprisonment, commencing on 25 July 2018 and concluding on 24 March 2019, with a non-parole period of three months concluding on 24 October 2018.

10. On 17 April 2019, the Applicant was convicted in the District Court of New South Wales of the offence of Use unauthorised pistol – T2, for which he was sentenced to a term of imprisonment of five years and three months. He was also convicted of Fire firearm in or near public place – T2, for which he was sentenced to a term of imprisonment of three years. Both sentences were to run concurrently, with a non-parole period of three years and 11 months imposed. The Applicant was given a discount on sentencing due to the early plea of guilty he entered (“April 2019 conviction”).

    Background facts related to April 2019 conviction

11. In the early hours of the morning on 22 July 2018, the Applicant and his co-offender had been consuming illicit drugs and alcohol when they decided to play a prank on the victim, a taxi driver. The Applicant and his co-offender booked a taxi on the Applicant’s mobile phone. When the victim arrived at the pick-up address provided, there was no one there and the victim left. He was soon required to return to the address, at which stage the Applicant got into the back of the taxi, and the co-offender got into the front of the taxi. When the victim arrived at the drop-off point, the Applicant produced a pistol from his jumper and racked it in the passenger seat, with a round falling to the floor. The Applicant then placed the barrel of the pistol to the neck of the victim. The victim managed to grab the Applicant’s forearm, a struggle ensued, and the gun went off, because there was at least another round in the pistol. It was fortunate that no one was shot, and only the windscreen of the victim’s taxi was damaged. The Applicant and his co-offender fled the scene, as did the victim. The Applicant was 23 years of age at the time of committing this offence and was on bail for the charges of assault police officer in execution of duty without ABH – T2 and resist or hinder police officer in the execution of duty.

12. The Applicant was arrested three days later when he reported to the police for bail reporting, which was then revoked.

13. In relation to the first offence of use unauthorised pistol – T2, the sentencing Judge noted this offending was in the upper range. In relation to the second offence of fire firearm in or near public place – T2, the sentencing Judge found this to be a mid-range offence. The Judge stated that there were several aggravating factors resulting from the Applicant’s offending, including the severity of the post-traumatic stress disorder (“PTSD”) suffered by the victim; the grave risk of death to another person; that the offence was committed whilst the Applicant was on bail; and that the victim was vulnerable.

14. Whilst in custody, the Applicant was involved in violent physical altercations, requiring fighting gas to be deployed in one case. Records of the NSW Department of Corrective Services show that the Applicant had been discharged from the Intensive Drug and Alcohol Treatment Program for ‘continuing non-compliance’ and ‘continuing breaching program protocol’. The records also show that the Applicant was involved in a number of incidents whilst in custody, including destruction of property, possession of drug implements, possession of drugs, drug use, and assaults. Whilst in custody, the Applicant was also found to be in possession of an offensive weapon, and found to have received an unauthorised article from a visitor.

    History of domestic violence and illicit drug use

15. In a report by clinical psychologist Ms Robby Taouk, Ms Taouk reported that the Applicant informed her that his father was physically and verbally abusive to the family on a regular basis, especially to his mother, had an alcohol dependence issue and was constantly drunk. The Sentencing Judge accepted the Applicant’s father was an alcoholic, and that there was some physical abuse in the household when the Applicant was growing up. The Judge stated that the Applicant had abused alcohol and cannabis since he was 12 years old, and abused ecstasy, cocaine and ice since he was 16 years old. Leading up to his offending behaviour, the Applicant was consuming three to four grams of cocaine a day, as well as consuming 5 to 15 Xanax tablets and Oxycontin. The Applicant was also socialising with people who were a bad influence. The Applicant maintains that prior to his current offending, he was injured in a car accident in 2016 and subsequently began abusing prescription painkillers, whilst also adding that he had a drinking problem, the combination of which led him to make bad and impulsive decisions. He maintains he has unresolved anger issues and loss of direction in his life, and the injuries he sustained in the car accident compounded his unresolved feelings about the injuries that put an end to his football career when he was younger.

16. Ms Taouk submits that the Applicant’s long-standing struggle with his abusive childhood, alcohol and illicit drugs have been the foundation that set the stage for his criminal convictions. Ms Taouk maintains that at the time of the Applicant’s offending behaviour, he was experiencing PTSD symptoms and was self-medicating, which led to the Applicant experiencing drug-induced psychosis, paranoia and hallucinations. Ms Taouk submits the Applicant’s state impacted significantly on the commission of the offences and subsequent incarceration.

17. The Applicant has provided evidence of completing a drug and alcohol rehabilitation program, and states he has completed an online course in spiritual studies. There is evidence that the Applicant has participated in a Buvidal program as a maintenance treatment for his drug addiction. He has also completed an online drug and alcohol abuse course, he has participated in a ‘SMART Recovery’ program operated in immigration detention and has reported completion of other courses including for anger management. He submitted that, due to the COVID-19 restrictions that were in place at the time, he had limited access to rehabilitation and counselling programs whilst incarcerated. However, he maintains that he is determined to maintain his sobriety and continue to seek drug and alcohol rehabilitation once released. He maintains he is now drug free.

    Family, social and professional history 

18. The Applicant arrived in Australia in October 2006 at the age of 11. He has not departed Australia since this time. He completed his schooling to year 12 and then worked in carpentry. Rugby league football played a big part of his life. The Applicant informed the Tribunal that he played junior representative football for the Canterbury-Bankstown Bulldogs. He was training to be a qualified carpenter prior to his incarceration and intends to continue his training and establish his own business. The Applicant maintains he has an immediate full time job to go to, with a company called Precision Fencing and Balustrades, with a wage of about $1,250 per week.

19. The Applicant has a number of close and extended family members and friends who reside in Australia. The Applicant’s long-term partner, Ms Soha Hares, an Australian citizen, his mother Ms Tania Ahkeni, and his younger sister, reside in Australia. The Applicant’s sister is 11 years old and was born in Australia. The Applicant is engaged to Ms Hares. The parties claim to have had a close relationship since 2015 and both state they plan to marry in December 2023 if the visa cancellation is revoked and the Applicant is allowed to remain in Australia. The parties have lodged their notice of intention to marry with their celebrant. They want to open a business together and start a family. Ms Hares, who both runs her own NDIS business and claims ongoing existing family responsibilities in Australia, has declared that she cannot go to live in New Zealand if the Applicant’s visa cancellation is not revoked.

20. The Applicant’s father died in 2021. The Applicant stated his relationship with his father improved since he had turned 18 and his father quit alcohol. Prior to his father’s death in 2021, the Applicant’s father had been sober for 10 years. His father’s death devastated him and he is concerned that if the cancellation of his visa is not revoked, he will never be able to visit his father’s grave. The Applicant submits that his mother has been struggling emotionally with the loss of his father and with him being incarcerated and that she needs him to care for her and his sister, both financially and emotionally. He also submits that he is a father-figure to his younger sister, who is 11 years old. The Applicant resided with his parents and his sister prior to his incarceration in 2018.

21. The Applicant’s brother, Brandon, was previously deported from Australia and resides in New Zealand. The Applicant’s grandmother, uncle and aunt also reside in New Zealand. There is evidence that the Applicant has been in regular contact with his brother in New Zealand whilst incarcerated, and maintains a good relationship with him, though this was disputed by the Applicant in his oral testimony at the Tribunal’s hearing.   

22. The Applicant states that he is a practising Muslim, having converted when he was 18 years old, but that he had not adhered to the religion until he was incarcerated. He maintains that he now abstains from consuming alcohol and plans to practice his religion at a mosque together with his partner if he is permitted to remain in Australia.

    RELEVANT LAW

23. Pursuant to s 501(1) of the Act, the Tribunal acting as the decision-maker may affirm a decision to refuse the grant of a visa if satisfied that the Applicant does not pass the character test.

24. Subsection 501(3A) of the Act relevantly states:

    The Minister must cancel a visa that has been granted to a person if:

    (a) the Minister is satisfied that the person does not pass the character test because of the operation of:

    (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c)

25. Subsection 501CA(3) provides that as soon as practicable after making a decision under subsection 501(3A), the Minister must, among other things, notify the person of the decision, provide particulars of relevant information and invite the person to make representations to the Respondent, “within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’”.

26. Subsection 501CA(4) allows for a revocation of a decision under subsection 501(3A) and relevantly states as follows:

    (4) The Minister may revoke the original decision if:

    (a) the person makes representations in accordance with the invitation; and

    (b) the Minister is satisfied:

    (i) that the person passes the character test (as defined by section 501); or

    (ii) that there is another reason why the original decision should be revoked.

27. Sub-paragraph 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.

28. The character test is set out at s 501(6) of the Act, and relevantly prescribes at s 501(6)(a) that a person will not pass the character test if a person has a substantial criminal record. That term is defined in subsection (7) of s 501. Relevantly to this case, s 501(7)(c) defines a substantial criminal record if a person has been sentenced to a term of imprisonment of 12 months or more.

29. The exercise of the discretion is governed by the considerations set out in Direction No 99 – Visa Refusal and Cancellation under s 501 and Revocation of Mandatory Cancellation of a Visa under s 501CA (“Direction 99” or “the Direction”). The Direction is binding on decision-makers, including this Tribunal, performing functions or exercising powers under s 501 of the Act.

30. Direction 99 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principle set out at sub-paragraph 5.2(2) of Direction 99 states that:

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

31. In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, the Direction has application. On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90. Direction 90, in turn, was replaced by Direction 99 on 3 March 2023. The Direction is binding on the Tribunal in performing its functions or exercising powers under s 501 of the Act.

32. The Direction sets out the principles that provides a framework on how decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant or revoke mandatory cancellation decisions. For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations where relevant to the decision.

1. The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:

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

   (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

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

   (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

   (5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

   (6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community. 

2. Paragraph 6 of the Direction provides that:

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

3. The primary considerations, which are set out in paragraph 8 of Direction 99, are:

   1.Protection of the Australian community from criminal or other serious conduct;

   2.Whether the conduct engaged in constituted family violence;

   3.The strength, nature and duration of ties to Australia;

   4.Best interests of minor children in Australia;

   5.Expectations of the Australian community.

4. The other considerations, which are set paragraph 9 of Direction 99, are:

   a)Legal consequences of the decision;

   b)Extent of impediments if removed;

   c)Impact on victims;

   d)Impact on Australian business interests.

5. The Tribunal notes the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:

   “…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”

6. Decision-makers should ‘generally’ give greater weight to primary considerations than other considerations. Further, one primary consideration may outweigh other primary considerations: paragraph 7(2) and (3) of Direction 99.

7. In this case, it is not in dispute that the Applicant had made representations about the revocation of the cancellation of his visa. The requirements of subsection 501CA(4)(a) are met. The issues before the Tribunal are:

   (a) does the Applicant pass the character test, as defined by section 501 and, if not;

   (b) is there another reason why the original decision should be revoked?

   DOES THE APPLICANT PASS THE CHARACTER TEST?

8. The character test is defined in s 501(6) of the Act. Relevantly, subsection 501(6)(a) of the Act states that a person does not pass the character test if the person has a substantial criminal record, as defined in section 501(7) of the Act. Subsection 501(7)(c) of the Act provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

9. The Tribunal has been provided with the Applicant’s Australian Criminal Intelligence Commission Check Results Report dated 8 November 2019 setting out the Applicant’s offending and convictions. Information in the Respondent’s Statement of Facts, Issues and Contentions (“SFIC”) at paragraph 24, which the Tribunal accepts as accurate, indicates that the Applicant has been convicted of the following offences:

Date of Conviction	Offence	Sentence
24.09.2013	Resist or hinder police officer in the execution of duty	Fine $400
	Drink alcohol on bus, ferry, train or in public area	Dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
01.03.2017	Possess prohibited drug	Dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
16.10.2018	Assault police officer in execution of duty without ABH – T2	Imprisonment 8 months commencing 25.07.2018, concluding 24.03.2019 (non-parole 3 months, concluding 24.10.2018)
	Resist or hinder police officer in the execution of duty
17.04.2019	Use unauthorised pistol – T2	5 years and 3 months imprisonment, commencing 24.10.2018, concluding 23.01.2014 (non-parole period 3 years and 11 months, concluding 23.09.2022) – to run totally concurrently
	Fire firearm in or near public place – T2	3 years imprisonment commencing 24.10.2018 – to run totally concurrently

1. The Tribunal finds that in 2019, the Applicant was sentenced to a term of imprisonment of 12 months or more. The Tribunal finds that the Applicant has a substantial criminal record as defined in paragraph 501(7)(c) of the Act. As the Applicant has a substantial criminal record, he does not pass the character test.

   EXERCISE OF DISCRETION

2. In his submissions, the Applicant expresses remorse for his offending and asserts that the offending was primarily the result of an alcohol and drug-induced prank with no underlying criminal motive. The Applicant submits that the strength, nature and duration of his ties to Australia are significant, with the most significant being his prospective wife Ms Soha Hares, who is an Australian-born citizen and resident. He claims his planned marriage to Ms Hares in December this year will not go ahead, and their relationship will cease, if he is removed to New Zealand. He also states his mother and younger sister are similarly substantial ties to Australia. He points out he spent some of his formative years in Australia and has lived in Australia for the majority of his life. He claims his relationship with his younger sister is relevant to the primary consideration pertaining to the impact of the cancellation on minor children. 

3. The Applicant asserts that, due to the operation of “Special Return Criteria Clause 5000” (which the Respondent understands to mean the special return criterion in cl 5001 of the Migration Regulations 1994 (Cth) (“the Regulations”)), he will never be allowed to return to Australia should his visa cancellation not be revoked. The Applicant claims his time in gaol and immigration detention has acted as a personal deterrence for any future reoffending. He claims he is of low risk of any reoffending, and the drugs and alcohol he submits were at the core of his offending are not tolerated by his partner and future wife, Ms Hares. The Applicant claims his construction industry skills and experience will be of value to Australia in the midst of a ‘skills crisis’ and highlights he has been offered employment in the construction industry. The Applicant blames the influence of drugs and alcohol for his offending behaviour and claims to have now be rehabilitated. The Applicant submits that the best interests of minor children, as well as the strength, nature and duration of his ties to Australia, ultimately outweigh the other considerations. He also states the impact on Australian business and the impediments if he were removed to New Zealand are considerations in favour of revocation.   

4. The Respondent submits that the primary decision should be affirmed, due to the violent nature and seriousness of the Applicant’s offending conduct. The Respondent notes the sentencing judge’s remarks that the offending was “highly irresponsible and extremely dangerous criminal conduct” (Exhibit 6, 32 [47]). The Respondent notes the vulnerability of the victim, as well as the Applicant’s prior criminal offending that included resisting or hindering a police officer in the course of their duties, as well as assaulting a police officer. The Respondent points out that the offending that resulted in the cancellation of the Applicant’s visa occurred whilst he was on bail in connection with those previous offences of resisting or hindering police, and assaulting police. The Respondent submitted that the risk to the Australian community, should the Applicant reoffend, also weighed heavily against revocation, noting the sentencing Judge in his remarks described the Applicant’s prospects of rehabilitation as “guarded”. The Respondent rejected the submissions made that the Applicant’s risk of reoffending was “low to moderate” and the genuineness of his purported remorse. The Respondent challenged the Applicant’s claim that he had no prior access to firearms until the offending event.

5. At the hearing, the Respondent questioned the credibility of the Applicant’s evidence and challenged the Applicant’s claims that he had successfully completed much of his rehabilitation programs and was subsequently of low risk. The Respondent noted the Corrective Services pre-release report dated 11 July 2022 that noted the Applicant was at a medium risk of reoffending, and also noted the Applicant’s involvement in several offences involving violence whilst in custody where drugs and alcohol were not a factor. The Respondent acknowledges that some of the considerations, including the Applicant’s family and social ties in Australia, and the impediments if removed, weigh in favour of revocation.        

6. The Tribunal’s considerations are set out below with regard to the Direction.   

   PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

7. In considering Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity, or other serious conduct, by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens. However, this privilege is conferred in the expectation that non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

8. The Tribunal notes the submissions of the Applicant’s counsel concerning the word ‘privilege’ in the Direction (Exhibit 1 [62]-[67]). The Tribunal’s role is to apply the Direction as provided by the Commonwealth. The Tribunal has taken the Applicant’s counsel’s representations concerning the word ‘privilege’ in the context of the Direction into account in its decision.

9. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:

   a)The nature and seriousness of the non-citizen’s conduct to date; and

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

   The nature and seriousness of the Applicant’s conduct to Date

10. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors.

11. Sub-paragraph 8.1.1(1)(a) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed), are viewed very seriously by the Australian Government and the Australian community.

12. Sub-paragraph 8.1.1(1)(b) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    (i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    (ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    (iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

    (iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.

13. Sub-paragraph 8.1.1(1)(c) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. As stated above, the Applicant was sentenced to a term of imprisonment of 12 months or more. It is well-established that the imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.

14. In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, the Tribunal has had regard to the sentencing remarks, the NSW Court of Criminal Appeal’s remarks in relation to the Applicant’s appeal, NSW Police reports, NSW Department of Corrective Services documentation, and other relevant documentation where appropriate.   

15. There are before the Tribunal the sentencing remarks of Colefax SC DCJ made on 17 April 2019 in relation to the offences of using an unauthorised pistol; and firing a firearm in a public place. His Honour sets out the facts as follows. In July 2018, the Applicant was on bail in connection with earlier alleged offences of resisting and hindering police as well as assaulting police. In the early hours of 22 July 2019, the Applicant and his friend, whilst on an illicit drug and alcohol ‘bender’, decided to play a prank on a taxi driver by holding a firearm at the head of the driver to frighten him. The Tribunal notes, as was pointed out by the Applicant’s counsel on multiple occasions, that this intention of the Applicant was agreed to by the Crown (“the agreed facts”).   

16. The Applicant booked a taxi on his mobile telephone with his co-offender. The taxi that arrived was driven by the victim, who was working as a driver whilst studying and financially assisting his wife, who was pregnant with their third child. The parties got into the taxi around 5:13am with the Applicant in the back and his co-offender in the front passenger seat. The taxi arrived at a destination where the Applicant pulled the pistol from his jumper, “racked” the pistol, where an unfired round fell onto the floor of the taxi. The barrel of the pistol was then placed on the neck of the victim. Out of fear, the victim grabbed the Applicant’s arm, and in the subsequent struggle, the gun discharged as there was further ammunition still loaded in the weapon. The discharged bullet exited via the windscreen with neither the Applicant, his co-accused, the victim or the public harmed. 

17. His Honour, whilst noting the agreed facts between the Applicant and the Crown were silent on this particular matter, stated that “the only rational inference in the circumstances is that [the Applicant was] aware that the unfired round had fallen from the gun and that [he was] therefore aware of the potential of the gun still being loaded”. The Applicant does not accept this conclusion of the sentencing Judge. 

18. After the discharge of the weapon, the Applicant and his co-offender, as did the victim, ran from the scene. Three days later, on 25 July 2018, the Applicant was arrested when he reported to the NSW Police in relation to his bail that was subsequently revoked. 

19. In relation to the offence of using an unauthorised pistol, His Honour assessed the offence to be above and into the upper range of seriousness. In relation to the offence of firing a firearm in a public place, His Honour assessed the offence to be in the mid-range of seriousness. 

20. His Honour noted the victim impact statement of the taxi driver as well as a report from the victim’s treating psychologist. His Honour noted the severity of the PTSD suffered by the victim, stating “what [the Applicant] did to that man, that night, has been to profoundly shatter his life – not only his life, but the life of his wife and his three children”. Given the extent of the victim’s PTSD, His Honour considered this one of a number of additional aggravating factors in the Applicant’s offending.

21. His Honour assessed other aggravating factors in the offending were the grave risk of death to another person; the fact the offending occurred whilst the Applicant was on conditional liberty; and the vulnerability of the victim. 

22. With the Applicant not giving evidence at his sentencing hearing, His Honour noted that the Applicant’s subjective circumstances came through his consultant psychologist, Dr Chew.  He noted that it appeared the Applicant’s now deceased father was an alcoholic and that there was some physical abuse growing up. 

1. His Honour noted the Applicant’s illicit drug use, with the Applicant using alcohol and cannabis since the age of 12 and ecstasy, cocaine and ice since the age of 16. In the period leading to his offending, His Honour noted the Applicant was using 3 to 4 grams of cocaine a day as well as Zanax and Oxycontin. His Honour noted however that there was no causal connection between his drug taking, his mental health issues, his previous motor vehicle accident and his offending behaviour. 

2. His Honour considered the Applicant’s two offences to be “in effect, one continuous act of criminality” and sentenced the Applicant concurrently. His Honour specifically declined to make a finding of special circumstances in relation to the offending. His Honour noted he would have imposed a greater term of imprisonment for each offence if the Applicant had not pleaded guilty. 

3. The Applicant sought leave to appeal the sentences imposed on him by the His Honour in the NSW Court of Criminal Appeal. Whilst leave was granted to appeal, the appeal was dismissed. The Tribunal notes the Full Bench agreed that the characterisation of the objective seriousness of the first offence being above and into the upper range, and the second offence being midrange “well open to him” (Exhibit 5, 344 [58]).

4. The Full Bench dismissed the submissions that the offending was somehow lesser due to the events potentially being a “prank”, as it was in many ways irrelevant as “the risk and potential consequences were the same”. His Honour Hoeben CJ stated that the Applicant had created “extreme danger” and “not only could one of the occupants in the taxi have been killed or seriously injured but persons in neighbouring houses were also put at risk by this reckless and dangerous behaviour” (Exhibit 5, 345 [60]-[61]).

5. His Honour Harrison J furthermore stated:

   “I found the characterisation of what occurred as some kind of practical joke or prank very difficult to accept having regard to the fact the weapon was actually loaded.  The fact that the Crown was prepared to agree with that characterisation is as fortunate for the applicant as the fact that no one in the vehicle or the street was killed or injured”.  

6. The Tribunal notes that the Applicant, whilst accepting his offending behaviour was unacceptable and professing a desire to apologise to the victim of his offending, has asserted that his offending was the result of his state of mind at the time, a time when he was also affected by excessive consumption of illicit drugs as well as alcohol.  The Tribunal has noted the report the Applicant submitted from his psychologist Dr Chew where he submitted the Applicant’s mental state and purported depression was a potential contributing factor to his offending. The Tribunal has noted the report of Dr Chew and concurs that it does not explain how the Applicant’s offending was due to his depression rather than the use of illicit drugs. The Full Bench dismissed the contention that the Applicant’s offending behaviour could be explained by his mental health, noting “to the extent that the Applicant was experiencing some kind of psychotic episode (which was not verified or corroborated) it was due entirely to his abuse of drugs, not to any mental illness affecting him” (Exhibit 5, 345 [63]).

7. The Full Bench also rejected contentions that the Applicant’s father’s past alcoholism and the Applicant’s age were relevant to his offending. His Honour stated that “the danger and recklessness inherent in the circumstances of the offending was so overwhelmingly obvious that even a child would have appreciated that there was high potential for death or serious injury inherent in the Applicant’s conduct” (Exhibit 5, 346 [66]).    

8. The Tribunal agrees with the Respondent that the utility of the various medical reports previously submitted by the Applicant is limited, given they are based upon the self-reporting of the Applicant and were obtained years after the offending events. As was demonstrated in the Applicant’s oral evidence, the Applicant’s claim that that he was clean from drugs and alcohol since he went to gaol in 2018, which appears in the report of psychologist Ms Robby Taouk dated 2 January 2023, is demonstrably false. The Applicant in oral evidence to the Tribunal conceded he went on taking illicit drugs for years after this date.     

9. The Tribunal finds that the Applicant’s conduct in relation to the events from the April 2019 conviction is very serious. The recklessness of the Applicant’s actions is not in dispute. The Tribunal is not satisfied that the Applicant’s state of mind somehow mitigates or explains his behaviour. Whatever the motivation of the Applicant, to hold a loaded gun at the head of an innocent citizen going about their day is not only reprehensible but monstrous behaviour absolutely unacceptable in Australian society. It would be reasonable to assume that the victim will be permanently adversely affected by the Applicant’s despicable and dangerous criminal behaviour. It is well-established that imposition of a custodial term upon an offender is seen as the last resort in the sentencing hierarchy. A judicial sentencing officer’s deployment of a custodial sentencing option must be viewed as a reflection of the objective seriousness of the offending sought to be punished: PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [20]-[22]. The Tribunal acknowledges paragraph 8.1.1(1)(c) and notes that an imposition of a custodial sentence reflects the objective seriousness of an Applicant’s offending. The Tribunal would again note that the NSW Court of Appeal has agreed that the sentencing Judge’s finding that the objective seriousness of the first offence being above midrange and in fact into upper range – and the second offence was midrange – was well open to him.

10. The Applicant’s offending was clearly violent and is relevant for the purposes of sub-paragraph 8.1.1(1)(a) as ‘very serious’. The offending was committed against a taxi driver going about his business and is arguably relevant for the purposes of sub-paragraph 8.1.1(1)(b) as a vulnerable member of the community.

11. The Tribunal notes that His Honour in his sentencing remarks stated “at the time you committed these offences you had a minimal criminal history – that is, apart from your long-term illegal consumption of drugs”. The Tribunal accepts the Applicant’s previous criminal record is limited but takes into account the fact that on the date of his arrest, the Applicant was already on bail and facing charges for the offences of assault police office in execution of duty and resist or hinder police in execution of duty. The Applicant was subsequently convicted of these offences in the Bankstown Local Court and sentenced to eight months imprisonment with a three month non-parole period. His offending here is entirely relevant to sub-paragraph 8.1.1(1)(b) being crimes committed against government representatives or officials, being NSW Police officers, in the performance of their duties.

12. The Tribunal furthermore notes that the Applicant whilst incarcerated has committed multiple transgressions (at least 35) according to Department Corrective Services records between October 2018 and August 2022 (Exhibit 5, 72-74). These included assaults, possession of drugs, failing drugs tests, intimidation, receiving an unauthorised article from a visitor, possession of an offensive weapon, and damaging or destroying of property. The records also demonstrate that the Applicant was discharged from the Intensive Drug and Alcohol Treatment Program for non-compliance and breaching program protocol. At the Tribunal’s hearing and in his written submissions, the Applicant pointed out that he did not receive extra time added to his custodial sentence for this behaviour, submitting that “the misconduct within the prison system is about disciplinary matters rather than criminality” (Exhibit 1, 6 [45]).

13. The Tribunal does not accept that the fact that the Applicant did not receive an additional custodial sentence should mitigate the seriousness of his behaviour. The evidence suggests rather the Applicant has a significant issue in respecting authority and has a blatant and ongoing disregard for the law. The Applicant’s counsel suggested at the Tribunal’s hearing that that these transgressions are the result of the need for the Applicant to stand up for himself in gaol. The Applicant has suggested the transgressions such as fighting are generally the result of self-defence. There is nothing, beyond the inference drawn by the lack of further time added to the Applicant’s sentence before the Tribunal to confirm this claim. The evidence suggests the Applicant has demonstrated a disregard for the law and authority whilst incarcerated.               

14. The Tribunal also acknowledges the Applicant’s other offences against Australian laws since his arrival in Australia:

    ·On 24 September 2013, the Applicant was convicted of resist or hinder police officer in the execution of duty and fined $400. On this date, he was also charged with drink alcohol on bus, ferry, train or in public area. The charge was dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

    ·On 1 March 2017, the Applicant was charged of possess prohibited drug. The charge was dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

15. For the purposes of s 501 of the Act, the Applicant concedes his past offending and states that his behaviour from the April 2019 conviction was dangerous. However, it is the Tribunal’s opinion that he still appears to lack an understanding as to the magnitude of the seriousness of his past behaviour and his own personal responsibility for his behaviour.

16. The Applicant submits that his past offending has been linked to his previous use of illicit drugs and alcohol, as well as his mental state. He claims he has rehabilitated himself through a range of measures, including the completion of a number of improvement courses whilst incarcerated and has engaged in various professional assistance.

17. The Respondent submits that the nature and seriousness of the Applicant’s offending weighs very heavily in favour of non-revocation. The Respondent submits that the Applicant’s offending has become more serious over time. 

18. The Respondent notes that the imprisonment sentences imposed by the Courts is indicative of the seriousness of the Applicant’s offending. The Respondent further notes sub-paragraph (c) of paragraph 8.1.1(1) of the Direction, which requires a decision-maker to consider that the imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. The Tribunal finds that the significant custodial term imposed by the sentencing Judge, and upheld by the NSW Court of Criminal Appeal, is indicative that the Applicant’s offending was very serious. 

19. The Tribunal finds that the Applicant has demonstrated a disregard for Australian laws and limited regard for the effect of his repeat offending.    

20. Sub-paragraph 8.1.1(1)(d) of the Direction requires a decision-maker to have regard to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.

21. The Tribunal notes the Applicant has been convicted of multiple offences since his arrival in Australia and is of the opinion, based upon all the evidence before it, that the seriousness of his offences has escalated during this time. The Applicant’s offending from the April 2019 conviction that led to his imprisonment for over five years, offending that was potentially catastrophic, is far more serious than his earlier offending. The Tribunal finds that there is a trend of increasing seriousness in the Applicant’s offending.    

22. Sub-paragraph 8.1.1(1)(e) of the Direction requires a decision-maker to have regard to the cumulative effect of the Applicant’s repeated offending.

23. The Tribunal notes that the Applicant’s most serious offending occurred whilst he was on bail for the assault of a police officer. The Applicant’s recidivism is a concern to the Tribunal.  Whilst the Tribunal accepts the list of past offending is not extensive, the Tribunal has nevertheless considered the cumulative effect of the Applicant’s repeated offending. 

24. Sub-paragraph 8.1.1(1)(f) of the Direction requires a decision-maker to have regard to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.

25. There is no record or suggestion that the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending.  

26. Sub-paragraph 8.1.1(1)(g) of the Direction requires a decision-maker to have regard to whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

27. There is no record or suggestion that the Applicant has re-offended since being formally warned about the consequences of further offending in terms of his migration status.

28. Sub-paragraph 8.1.1(1)(h) of the Direction requires a decision-maker to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.

29. The Applicant’s offences were committed in Australia.  There is no record or suggestion the Applicant has committed an offence in another country.

    Conclusion about the nature and seriousness of the Applicant’s conduct

30. The Tribunal has sought to apply each of the relevant sub-paragraphs in paragraph 8.1.1(1) of the Direction. With reference to the relevant and applicable paragraphs of the Direction, the Tribunal finds that the Applicant’s conduct can be characterised as extremely serious.       

    Risk to the Australian community should the Applicant commit further offences or engage in serious conduct

31. The Tribunal has considered the risk to the community should the Applicant reoffend. 

32. Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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 of it being repeated may be unacceptable.

33. Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the following factors on a cumulative basis:

    (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 the most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).  

    The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct

34. Sub-Paragraph 8.1.2(2)(a) compels the Tribunal to make an assessment of the nature of the harm to individuals or the Australian community in the event of the Applicant engaging in further criminal or other serious conduct.

35. To make such an assessment, it requires the Tribunal to consider what harm would be caused to individuals or the Australian community if the Applicant were to engage in further criminal or other serious conduct, which is informed by the nature of his offending to date, including any escalation in his offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it could be repeated may be unacceptable. 

36. The Tribunal considers that the nature of the harm, should the Applicant engage in further criminal conduct of a similar nature, is that the Applicant could potentially cause catastrophic injury and/or death to members of the public. If repeated, the Applicant’s offending with the pistol, and the discharge of the pistol, could cause significant psychological and mental health consequences to members of the public, notwithstanding any obvious physical injuries or death that a discharged firearm in similar circumstances could cause. The evidence suggests that it was good fortune that the results of the events from the April 2019 conviction did not lead to serious injury or death, whether or not the Applicant was involved in a prank has been purported. The nature of the harm of any repeat behaviour, therefore, is potentially catastrophic and fatal. 

37. The Tribunal furthermore notes the Applicant’s anti-social past offending towards the NSW Police Force in the past that has led to the Applicant being convicted of assault police officer in execution of duty without ABH – T2 and resist or hinder police officer in the execution of duty. The Tribunal has considered that the Applicant has engaged in such violent behaviour against the NSW constabulary, who are entrusted with the safety of the Australian community. The Tribunal considers that the harm that could be caused to the NSW Police carrying out their duties, is significant.

38. The Tribunal therefore finds, that if the Applicant were to reoffend, the nature of harm would be very serious.    

    The likelihood of the non-citizen engaging in further criminal or other serious conduct

    Applicant’s Submissions

39. The Tribunal has considered the risk to the community, should the Applicant reoffend. In making this assessment, the Tribunal has considered the information and evidence before it on the risk of the Applicant reoffending, and the evidence of rehabilitation achieved. 

40. The Applicant has submitted that there are multiple factors that affect the risk of his reoffending. He submits that any risk of reoffending is minimal. He asserts that today he is not the man he was at the time of his offending or whilst in gaol.   

41. The Applicant has drawn on a number of issues from the offending event itself as speaking to the risk of his future reoffending. The Applicant has at the very least indicated that these lessen the magnitude of his offending and speak to his motivations at the time of the offending. He claims his offending was a single, isolated incident whilst he was on a ‘bender’ of illicit drugs and alcohol. In his Statement of Facts, Issues and Contentions, the Applicant states:

    ·He was committing a prank, not attempting armed robbery or intending to commit grievous bodily harm;

    ·There was no underlying criminal motive, such as robbery or a desire to cause deliberate harm;

    ·No one was physically injured (although he concedes the psychological suffering of the victim);

    ·He did not attempt to disguise his identity throughout the events leading up to the offending;

    ·There is no evidence he is involved in criminal gangs or organised crime; and

    ·He has never owned a gun, did not own the gun that was discharged in the offending, has no weapons training and neither knew how to use the gun, nor was aware it was loaded.

42. The Applicant has emphasised to the Tribunal that the Crown agreed that he had essentially committed a prank with the pistol and was unfamiliar with the gun. The agreed facts were that the Applicant “racked” the pistol. The sentencing judge asserted in his remarks that the “only rational inference” was that the Applicant had some familiarity with the operation of a pistol to be able to rack it. The Applicant submits that this was only an inference from the sentencing judge, rather than a finding of fact. The Tribunal accepts the Applicant’s submission that His Honour accepted the agreed facts and it was open to the judge to call for additional evidence if he saw fit.   

1. The Applicant stated in his evidence that he is very remorseful for his offending and wished to apologise to his victim. The Applicant submitted evidence of a letter that was sent to the victim’s employer Legion Cabs, seeking to apologise. The letter was sent a week prior to the Tribunal’s hearing. 

2. The Applicant holds out that his other previous offending, assault police officer in execution of duty without ABH – T2 and resist or hinder police officer in the execution of duty, are not indicative of future risk of reoffending as they were not a ‘substantial criminal record’ for the purposes of s501(7) of the Act, given the imprisonment term was under 12 months. As with the offending involving the firearm, the Applicant asserts that the offending should be “seen in the context of a life infused with drugs and alcohol”, and this offending was part of a continuum of events in the Applicant’s life that led to his offending on 22 July 2018 (Exhibit 1, 6 [48]).

3. The Applicant has also asserted that his time in gaol for over five years has acted as a strong deterrence in relation to future offending.  He claims to have learned his lesson whilst incarcerated, and the experience of life in gaol means he will not reoffend in the future.  He claims to have severed all links with his past, including his co-offender.

4. The Applicant asserts that his multiple transgressions whilst in gaol, discussed earlier in this decision record, as far as they related to violent behaviour, were all generated by self-defence. 

5. The Applicant submits that his partner Ms Soha Hares, who he has stated he will marry in December, is another reason the risk of reoffending is remote. He states his desire to be with her, his desire to raise a family, and the stability she brings to his life, means he is a low risk of reoffending. Ms Hares had stated, both in her declaration and in her oral testimony to the Tribunal, that she would not travel to New Zealand to be with the Applicant. The risk of losing her is submitted as a strong deterrence against the Applicant reoffending. 

6. He states furthermore his own family in Australia – such as his mother and younger sister – and Ms Hares’ family are also creating him a stable and supportive environment. The Applicant has stated he is mindful of his responsibilities to support his mother and younger sister financially and emotionally, especially after the death of his father in 2021. These responsibilities – combined with the operation of Clause 5001, the Special Return Criteria in the Regulations that would essentially preclude him from returning to Australia – are all factors that individually and collectively are mitigating the risk of the Applicant reoffending.

7. The Applicant discussed, as did Ms Hares, his problems previously with alcohol and his dependency on illicit drugs and their impact on his past behaviour that led to his offending.  Both the Applicant and Ms Hares discussed their Islamic faith and stated that the Applicant was not consuming alcohol. It was submitted that Ms Hares does not and will not tolerate either alcohol or drugs in the home due to her faith. This opposition of Ms Hares, as well as the Applicant’s faith, are submitted as factors that are mitigating the risk of reoffending.

8. The Applicant also claims his illicit drug dependency, which he holds as a key factor in his past offending, is now under some control with his prescription of Buvidal whilst in immigration detention. He states he will continue taking Buvidal under the supervision of Dr Magedy Hawi, who gave evidence at the Tribunal’s hearing.

9. Employment is also submitted as a factor in providing the stability that will mitigate against any reoffending. The Applicant states he has employment available should the cancellation of his visa be revoked and he be permitted to remain in the Australian community. Mr Walid Chemaisse, Managing Director of Precision Fencing, provided evidence that he would provide the Applicant with employment as a fencer.   

10. The Tribunal has considered the reports the Applicant presented to the delegate. The Tribunal notes the Applicant’s clinical psychologist, Ms Robby Taouk, who prepared a psychological report dated 2 January 2023. Ms Taouk stated that the Applicant was suffering from PTSD at the time of his offending. The Applicant increased his consumption of both illicit drugs and prescription drugs as a result of injuries sustained in a motor vehicle accident, which led to the Applicant to experience paranoia, psychosis and hallucinations. Ms Taouk claims the conditions would “appear” to have impacted “significantly” on the Applicant’s offending. Ms Taouk furthermore considered the Applicant’s childhood and his poor relationship with his alcoholic and abusive father. 

11. The Applicant also submitted a report from Mr Jason Alcorn, General Manager of Risk 2 Solution, dated 3 March 2023. The report states the Applicant is a low/moderate risk of reoffending and he would be a low risk to the community if the cancellation of his visa was revoked. Mr Alcorn concedes that such an outcome is also reliant upon the Applicant continuing to receive strong support from his family and partner, as well as rehabilitation treatment for anger management and drug and alcohol use. 

12. A report from Dr Gerald Chew, psychiatrist, dated 15 April 2019 was also submitted to the delegate. Dr Chew believed the Applicant had a very severe substance use disorder. Dr Chew concluded that the Applicant’s risk of future reoffending would be reduced in likelihood if he were to abstain from alcohol and illicit drugs. In a range of recommendations, Dr Chew stated the Applicant needed treatment, including anti-depressants to treat his PTSD. He also contended that the Applicant ought to undertake cognitive behavioural therapy, attend a residential rehabilitation facility, and abstain from both drugs and alcohol.

13. The Applicant states his time in immigration detention has been uneventful and indicative of his low risk of reoffending. The Applicant detailed an incident where he was restrained by the authorities at Villawood after trying to enter a cell, after finding out about the suicide of his good friend, who was also in detention. The Tribunal has noted the International Health and Medical Service (“IHMS”) reports and places no adverse weight on this incident in relation to the Applicant’s risk profile.   

14. The Applicant has also submitted that undertaking the SMART Recovery Program conducted by IHMS has been a positive experience. The Applicant states the IHMS records reveals positive reports from the psychiatrist and other mental health professionals, and assert the Applicant is of low risk to others. The Applicant claims the absence of adverse assessments whilst in immigration detention from IHMS infers these professional witnesses had nothing adverse to report on his behaviour. The Applicant has been critical of the fact that the IHMS representatives were not made available by the Respondent, and his contact with professional witnesses has been “stymied” by the Minister. This categorisation is flatly denied by the Respondent. The Tribunal will address the matter of the Applicant’s access to IHMS material at the end of this decision. 

    Respondent’s Submissions

15. In relation to the risk to the Australian community, the Respondent noted in their submissions the sentencing Judge’s remarks, where the sentencing Judge regarded the Applicant’s prospect of rehabilitation as “guarded”. Additionally, the sentencing Judge noted that there was a lack of sworn evidence of remorse; and that the Applicant fled from the scene of the crime. The Respondent noted that the sentencing Judge believed the Applicant had familiarity with the operation of a pistol, and found that there was no causal connection between the Applicant’s illicit drug taking, his past motor vehicle accident, his purported mental health issues and his offending. 

16. The Respondent noted the reports that the Applicant provided to the delegate in support of his assertion that he is of low risk of recidivism, which included reports from Ms Taouk, Dr Chew and Mr Alcorn. The Respondent noted the Mr Alcorn’s report assessed the Applicant’s risk of reoffending as “low/moderate” rather than low. The Respondent furthermore highlighted that the assessment in Mr Alcorn’s report was in fact contingent upon the Applicant successfully completing alcohol rehabilitation programs and avoiding the at-risk behaviour that contributed to his offending. The Respondent conceded that the Applicant has participated in a Buvidal program since mid-2021 in relation to his drug addiction. The Respondent also noted that the Applicant has completed an online drug and alcohol abuse program, participated in the SMART Recovery program and completed courses for anger management. However, the Respondent submitted that the Applicant was still of significant risk to the Australian community, and this risk weighed strongly against revocation of the cancellation of his visa. 

17. The Respondent noted that the Applicant had in fact been discharged from his Intensive Drug and Alcohol Treatment Program for “continuing non-compliance” and “breaching program protocol”. The Respondent submitted that the Applicant had failed to successfully complete any of the offence-related programs he was enrolled in whilst in custody, including the EQUIPS aggression modules, which he had enrolled in in 2019. 

18. The Respondent noted the Applicant’s record of transgressions whilst in gaol, which included violent conduct, as well as drug use. 

19. The assessments of the Applicant’s risk profile whilst incarcerated were also submitted by the Respondent as relevant. The Respondent noted that Dr Tamara Sweller, Senior Psychologist, prepared a report dated 18 May 2020, where the Applicant was assessed as having a medium risk of reoffending and of being at moderate risk of violence (Exhibit 5, 160-162). NSW Corrective Services prepared a pre-release report dated 11 July 2022 that assessed the Applicant as being at “medium risk of reoffending”, whilst noting he had also been involved in several offences whilst in custody, whereby drug and alcohol use was not a factor (Exhibit 5, 170-174).

20. The Respondent also asserted that the Applicant’s failure to complete and/or participate in a range of rehabilitation programs indicated he “still has unmet therapeutic needs” (Exhibit 4, 9 [34]).

21. The Respondent, as was adduced at the Tribunal’s hearing, noted that there was evidence that the Applicant had access to firearms and had engaged in drug-related conduct prior to his offending that led to his visa cancellation. This evidence was from the Applicant’s own volunteered statements to medical and health providers and counsellors whilst in gaol.   This, the Respondent noted, was contrary to the Applicant’s claims in his own SOFIC, where he denies any familiarity whatsoever with firearms and asserts he has no history with firearms.   

    Consideration

22. The Tribunal does not accept the Applicant’s claim that the offending from the April 2019 conviction is a single isolated incident and not representative of his behaviour. The Applicant was in fact already on bail at the time of the offending on 22 July 2018 in relation to two particularly serious charges. Both charges resulted in the Applicant being sentenced to a further term of incarceration. The Tribunal considers the evidence is more suggestive of a wider disdain and contempt for the law, and a propensity to engage in criminal behaviour with little regard for consequences. The Tribunal has considered the evidence and claims the Applicant was on a ‘bender’ of illicit drugs and alcohol at the time. That may be the case, but that is a choice the Applicant made whilst fully aware of the fact he had already been granted bail and was facing criminal charges for two serious offences, which included committing an act of violence towards members of the NSW constabulary. 

23. The Tribunal would furthermore note with concern the Applicant’s oral testimony at its hearing where, after receiving warnings concerning incrimination, the Applicant admitted he was dealing in illicit drugs prior to his offending. As he had previously stated to Dr Tamara Sweller, a senior psychologist, he commenced drug dealing because it was easier to make money through such illicit and unlawful means, rather than legitimate employment. The Applicant conceded this at the Tribunal’s hearing.  The Applicant conceded his drug dealing was serious conduct and if repeated would cause harm to the community:

    Ms MORRIS: You deny drug dealing?  
    APPLICANT: No, I was. I was drug dealing.
    Ms MORRIS: You were drug dealing?  
    APPLICANT: Yes.
    Ms MORRIS: In what period were you drug dealing?  
    APPLICANT: In that period.
    Ms MORRIS: The period January 2018 to July 2019?  
    APPLICANT: Yes.  Yes.
    Ms MORRIS: And that’s the reason you weren’t doing formwork?  
    APPLICANT: Yes, ma’am.
    Ms MORRIS: Because you preferred to have the income through the drug dealing?  
    APPLICANT: Yes, ma’am.

    …

    Ms MORRIS: You agree that drug dealing is a serious – is serious conduct?
    APPLICANT: Yes, ma’am.
    Ms MORRIS: Do you agree that that is not a positive contribution to Australian society?  
    APPLICANT: 100 per cent, ma’am.
    Ms MORRIS: Do you agree that that is serious conduct that if it was repeated would be of harm to the Australian community?  
    APPLICANT: Yes, ma’am.

24. The Tribunal considers that the Applicant’s illicit drug dealing during the time of his offending suggests the offending was not just a simple isolated incident, but indicative of a much wider and ongoing disregard for the law. 

25. The Tribunal furthermore notes the claims made by the Applicant previously to Dr Sweller that he had in fact had previous experience with firearms, contrary to what was submitted by the Applicant in this review. The Tribunal notes in the Applicant’s psychological assessment report dated 18 May 2020 that the Applicant reported that:

    “…for the six to 12 months prior to his index offences, he had carried a gun with him in order to feel safe, as a result about his paranoia about others’ attempts to harm him. He indicated that he cannot remember how he got the gun. However he subsequently reported that he had access to a gun as a result of his drug dealing”.

26. The Applicant at the Tribunal’s hearing, however, denied the truth of his multiple statements to medical professionals and personnel whilst incarcerated. Initially, he claimed he was ‘intoxicated’ on illicit drugs when making these statements he now claimed were false:

    Ms MORRIS: So you were lying to your psychologist whilst in jail?  
    APPLICANT: Like, I used to just say things cause I was so heavily intoxicated, and I’m sorry.

27. The Tribunal notes however that the Applicant continued to make statements that he was familiar with guns after the time he claims he was affected by illicit drugs. He claimed at the Tribunal’s hearing he had ceased taking drugs in 2021. In a case note from the NSW Department of Corrective Services dated 4 March 2022, it states that the Applicant:

    “…says that he is at a loss why he took the gun with him but thinks it was about the “image” regarding the drug lifestyle he was in.  He said that the gun had been “easily accessible”.  He further stated that his MH included high levels of paranoia due to his drug use so thinks in addition to the “image” of carrying a gun, he brought it with for “protection due to his paranoia””.

28. The Respondent noted the discrepancy and inconsistency in the Applicant’s evidence pertaining to his familiarity with firearms. The Tribunal is of the opinion that the Applicant essentially changed his evidence when presented by the Respondent with the contradiction:

    Ms MORRIS: So when you’ve then said it in March 2022, that’s the truth that you’ve told the caseworker, yes?  
    APPLICANT: No, ma’am.
    Ms MORRIS: So you were lying to the caseworker in this?  
    APPLICANT: No, I was intoxicated and…     
    Ms MORRIS: You’ve just said you weren’t intoxicated at the end of March 2022?  
    APPLICANT: Yes.
    Ms MORRIS: So it wasn’t because you were intoxicated.  You were lying to the caseworker?  
    APPLICANT: Yes.
    Ms MORRIS: So if you were lying to the caseworker then, did you lie to the caseworker on multiple times?  
    APPLICANT: Yes, ma’am.

29. The Tribunal notes the Applicant repeated his claims that he carried the pistol due to a combination of paranoia along with the “image” of carrying a weapon to the Community Corrections Office in July 2022 (Exhibit 5, 169).  Again, the Respondent explored the matter with the Applicant:

    Ms MORRIS: You wouldn’t have been on drugs at the time this was prepared?  
    APPLICANT: Yes, ma’am.

    …

    Ms MORRIS: So this is another example where you’ve lied to a correction officer?  
    APPLICANT: Yes, ma’am.

    …

    Ms MORRIS: On your evidence, the only truths you have told to the tribunal are those in your statutory declarations?  
    APPLICANT: Yes, ma’am.
    Ms MORRIS: And everything else you’ve told everyone else for five-and-a-half years is a lie?  
    APPLICANT: Yes, ma’am.

30. The Tribunal has considered this evidence concerning the Applicant’s knowledge and experience with firearms with concern. Notwithstanding the agreed facts from his sentencing, the Applicant has demonstrated in his dealings with various medical professionals and Corrective Services officials that he is familiar with firearms. The Applicant has denied he has a familiarity – which requires the Tribunal to accept his claims that the statements were made when he was either intoxicated on illicit drugs (up until 2021) or simply ‘bragging’ and talking big. The Tribunal does not accept the assertion that the Applicant has essentially lied and deceived all these professionals and officers over five and a half years. The Tribunal considers the claims disingenuous and, in its opinion, speaks to the broader credibility of the Applicant’s evidence. The Tribunal prefers the proposition that the Respondent put to the Applicant: that his claim, which appears in his statutory declaration to the Tribunal, that he does not have any familiarity with a firearm, is entirely false, and his statements made over five and a half years to various medical professionals and Corrective Services authorities is closer to the truth.

31. The Tribunal has taken into account the Applicant’s claims concerning the sentencing Judge and his inferences as to whether the Applicant had any familiarity with a firearm, and what should be drawn from such a statement when there are agreed facts before the court.  The Tribunal has considered all the evidence before it and quite simply does not accept the Applicant’s statutory declaration to the Tribunal pertaining to his knowledge and familiarity with firearms. His disingenuous, contradictory and shifting oral testimony only confirms the Tribunal’s concerns. The Tribunal subsequently does not accept the Applicant was unfamiliar with the operation of a firearm, or that the events from the April 2019 conviction were an aberration. The Tribunal considers that the more likely scenario is the Applicant was in fact familiar with firearms, and this is relevant to its assessment of the risk of the Applicant re-offending. This naturally follows on to whether the offending from the April 2019 conviction was a prank as the Applicant claimed (and intimated in the agreed facts), or something more sinister. Whatever the situation, the Tribunal considers the evidence before it relevant to its assessment of the risk of the Applicant reoffending. The Tribunal has concerns, based upon the evidence and information before it concerning the Applicant, that there remains a real risk of the Applicant re-offending. The contradictory, evasive and disingenuous evidence that has been put before the Tribunal on the matter of the Applicant’s knowledge of firearms, leads the Tribunal to hold doubts as to the genuineness of the Applicant’s remorse for his past offending behaviour. The Tribunal also holds concerns as to the Applicant’s unwillingness to approach the background to his offending both honestly and openly. 

1. The Tribunal also notes the Applicant’s oral testimony that he was telling Corrective Services officials and medical professionals the truth when he told them that he had been dealing in illicit drugs. However, the Applicant also stated that he lied to them when he told the same individuals that he was familiar with firearms. The Tribunal finds such testimony disingenuous and suggestive of a tendency to simply change his evidence to suit his circumstances.    

2. The Applicant’s evidence pertaining to his knowledge of firearms is also relevant to the Tribunal’s consideration of evidence of rehabilitation achieved by the time of the decision.  The Tribunal notes the Applicant has submitted that he lied to various counsellors and medical professionals for years in relation to his knowledge of and familiarity with firearms. Whilst the Tribunal does not accept this was the case, the Tribunal considers that the Applicant’s dishonesty to professionals, who were entrusted with the role in assisting the Applicant, is demonstrative of someone with a limited genuine commitment to rehabilitation.    

3. The Tribunal would also note that the Applicant has also admitted to the Tribunal that he dealt in illicit drugs prior to his offending from the April 2019 conviction. He has stated that he did so in preference to conventional and lawful employment. Whatever the circumstances that led to this decision (the Tribunal notes the claims he had a back injury), the Tribunal considers that illicit drugs have been a scourge on society and have caused considerable damage on multiple levels. The evidence suggests that there remains the potential for reoffending, depending on the Applicant’s circumstances and motivation towards gainful employment.  When this behaviour is considered in conjunction with the Applicant’s poor attitude towards his rehabilitation whilst in gaol – where he states he lied continually to staff – the Tribunal considers he remains a risk of reoffending. The Tribunal is not satisfied the Applicant has demonstrated a genuine commitment to rehabilitation. Rather, he has demonstrated in the Tribunal’s opinion that he is not a witness of truth.    

4. The Tribunal has considered the Applicant’s claim there was no criminal motive in the context of future risk. Whatever the Applicant’s motivation, the fact that the Applicant engaged in such behaviour, and his reticence, in the Tribunal’s opinion, to take full responsibility for his behaviour and fully and honestly engage in rehabilitation, leaves the Tribunal with continuing concerns as to future risk. The Tribunal notes again that the Applicant’s offending behaviour occurred whilst he was on bail for violent behaviour towards a police officer and resisting arrest. He has admitted to the Tribunal that he was a seller of illicit drugs at the time of his offending. The Tribunal is not satisfied that any potential questions pertaining to the Applicant’s state of mind at the time of his offending lessen the risk of the Applicant’s future reoffending. Furthermore, even if the behaviour was a prank with no criminal intent, it does not in any way lessen the risk that a repeat of such actions could have catastrophic consequences, nor does it provide satisfactory comfort that the Applicant would not engage in similar behaviour in the future if he is not rehabilitated and gained some genuine insight into his offending.

5. As for the Applicant’s claim there was no physical injury to the victim, the Tribunal notes that this was only the result of sheer fortune. The firearm discharged and a round shattered the windscreen. Not only the taxi driver, but any peaceable citizen going about their own business could have been a victim of the discharge. The Tribunal does not consider the lack of any physical injury speaks to the lessening of the risk of future offending in any discernible way. The Tribunal would again note the evidence before it of the significant psychological impact the Applicant’s actions have caused the taxi driver. 

6. The Tribunal does not accept the Applicant’s claim that the Applicant providing his identity by booking the taxi on his personal mobile telephone is indicative of a lessened risk factor in reoffending in any way, nor is, in any way, relevant to the issue of risk.

7. The Applicant’s expressed remorse for his behaviour, and its impact on his victim, is noted by the Tribunal, across many forums and in multiple situations. The Tribunal has taken into account his expressed remorse, but again notes the Applicant’s unwillingness to be honest and transparent with medical professionals and the authorities (by his own oral testimony) whilst receiving counselling and treatment in gaol. The Tribunal discussed with the Applicant a hand-written letter of apology to the victim. The Applicant claims this is “better late than never”. With respect, the Tribunal considers that the letter, written over five years since the offending, was produced solely for the purposes of bolstering the Applicant’s case in these proceedings. The Applicant had ample opportunity to reach out to his victim over half a decade previously if he saw fit. The Tribunal considers that the letter has been produced based on personal interest, rather than a genuine interest in the welfare of his victim.  The Tribunal gives the correspondence no positive weight and does not consider it indicative of genuine remorse on the part of the Applicant.

8. The Applicant has submitted that his extensive time in gaol has acted as a deterrence to him with future reoffending. Whilst the Tribunal accepts that gaol may have been a confronting situation for the Applicant to deal with as a young man, the Tribunal notes that he continued to have adverse interactions with the law on a regular frequency whilst incarcerated. The Applicant claims these interactions were the result of self-defence. Whilst the Applicant’s head sentence was not increased as a result of his behaviour, the evidence suggests that the Applicant was certainly punished within the prisons system for these transgressions. Between October 2018 and August 2022, the Applicant committed a wide range of transgressions, including assaults, possession of drugs, failing drugs tests, intimidation, receiving an unauthorised article from a visitor, possession of an offensive weapon, and damaging or destroying property. The records also demonstrate that the Applicant was discharged from the Intensive Drug and Alcohol Treatment Program for non-compliance and breaching program protocol. As discussed previously in this decision, the Applicant has also claimed he gave the medical authorities false and misleading information pertaining to his past behaviour when it came to discussing his familiarity with firearms. If the Applicant were telling the truth with this claim, then it is reasonable to question on how many other times and on how many other issues was the Applicant economical with the truth when it came to dealing with authority in gaol. 

9. The Tribunal is not satisfied that the Applicant’s time in gaol has acted as an effective deterrent as to future reoffending. His poor behaviour whilst in gaol would instead suggest he continues to have limited respect for the law. In fact, the Applicant asserted himself that he did not take initially at least take his time in gaol seriously. The Tribunal quite frankly does not furthermore accept the sweeping and unsupported statement that every adverse interaction he had in gaol was the result of his own self-defence. The Tribunal, whilst acknowledging the Applicant was paroled, nevertheless is not itself satisfied gaol time has acted as the effective deterrence to future reoffending, as he has claimed. 

10. The Applicant states that his relationship with his partner is a factor that mitigates against the risk of future reoffending. The Tribunal notes her firm oral testimony that if his visa cancellation is not revoked, she will not live in New Zealand to remain with the Applicant.  The Applicant asserts his relationship with his partner and his desire to protect it and allow it to prosper will deter him from future reoffending. The Tribunal accepts the Applicant is committed to his relationship and Ms Hares visited multiple times in gaol. The Tribunal also accepts the relationship is supported by both his and Ms Hares’ respective families. The Tribunal, however, is not satisfied that the relationship is acting as a particular anchor against reoffending. The Applicant offended violently whilst he was in a relationship with Ms Hares. He offended against the NSW constabulary whilst in the relationship. He engaged in multiple transgressions whilst in gaol, and despite Ms Hares visiting him on a regular basis. The Applicant misled (by his own account) prison and medical authorities whilst in gaol and whilst he was in a relationship with Ms Hares. The Tribunal does not accept the relationship is acting as a significant mitigating factor against the risk of further offending.      

11. The Tribunal has noted the various statements of the Applicant’s mother, his younger sister and his prospective future mother-in-law, concerning the Applicant. The Tribunal accepts that his mother, who gave heartfelt evidence at the Tribunal’s hearing, wants the best for her son and has suffered after the loss of her husband in 2021. The Applicant’s partner, Ms Hares, and his mother both stated they will assist in ensuring the Applicant remains out of trouble in the future. The Tribunal notes however that the evidence at the hearing suggests his family have a limited understanding of the extent of his offending. The Tribunal furthermore notes that the Applicant’s past offending occurred, despite the presence in his life of his family and partner. The Tribunal subsequently places limited weight on the claim his family in Australia – and his ongoing responsibilities to them and love for them – will mitigate the risk of future reoffending. 

12. The Tribunal would note that the Applicant, who converted to Islam the year prior to his offending, has submitted that his faith will also act as a deterrent to future offending. His partner stated to the Tribunal that she and the Applicant will attend Lakemba Mosque together if he is released into the community. The Tribunal is not satisfied the Applicant’s faith will mitigate the risk of reoffending. The Applicant committed the crimes relating to the April 2019 conviction whilst a member of that faith. He was dealing in illicit drugs, despite the teachings of Islam pertaining to drugs. He engaged in violent behaviour towards the NSW constabulary after becoming a Muslim. The Tribunal rejects the submission his faith will deter the risk of future offending. 

13. The role of employment has been submitted as another factor that will essentially ground the Applicant and mitigate against a return to criminal activity. Testimony was provided by Mr Walid Chemaisse, who stated he would employ the Applicant in his fencing business, a decade or so after the Applicant had first briefly worked there. The Tribunal accepts that gainful employment can operate as a significant protective barrier against the risk of criminal reoffending. The Tribunal recognises the Applicant has some experience in this area.  The Tribunal would note however the Applicant stated at the hearing that he had taken up illicit drug dealing previously as an alternative to gainful and lawful employment. Given the Tribunal’s broader concerns at the Applicant’s past offending and noting in Mr Chemaisse’s oral evidence that he did not appear to be fully conversant with the detail of the Applicant’s previous offending, the Tribunal only gives the potential of future employment limited weight as mitigating against the risk of reoffending. 

14. The Tribunal has considered the evidence before it pertaining to the Applicant’s claims that his illicit drug dependency, an issue that was certainly a strong factor in his offending, is now under control with his use since 2021 of Buvidal whilst in immigration detention. The Applicant noted the testimony of Dr Magedy Hawi, who the Applicant submits will oversee his treatment program whilst in the Australian community. The Tribunal notes that the evidence suggests that Dr Hawi has had little to do with the Applicant over the last decade.  His evidence was that he was approached by a member of the Applicant’s family to take on the role of oversighting the Applicant’s health and rehabilitation in the community from drug use. He however stated in his own testimony that he had managed the Applicant’s back pain and asthma previously, rather than the Applicant’s mental health and appears to have no experience in drug rehabilitation. He also in his evidence demonstrated he was not familiar with managing a patient utilisiing Buvidal:

    “I would probably have to seek guidance with the drug and alcohol team. But I don’t have dispensing experience with the particular medication. But I’d be happy to support him with their guidance”.

15. The Tribunal is of the opinion the support structure the Applicant has around him to support his continued treatment for his illicit drug addiction through Budival is limited. The Tribunal considers this lack of support and qualified and experienced rehabilitation support is germane to the question of risk of the Applicant reoffending.  Whilst the Tribunal notes the Applicant’s claims that he has not utilised illicit drugs since 2021 and has engaged in the Buvidal program, the Tribunal is not confident that the relatively sparse evidence of rehabilitation and treatment means the Applicant will not relapse into the drug use, which the Applicant asserts is a key factor in his offending. The Tribunal gives the Applicant’s claim that he has not engaged in further illicit drug use whilst in immigration detention some weight, but notes the opportunities for possession of and supply of drugs in detention are not as readily available as they may be in the community. Such temptations would be more obvious, should the Applicant be in the community. In the Tribunal’s opinion, a period of abstinence from drugs whilst in immigration detention may potentially suggest an individual will not return to drug use, but it does not provide any sort of a guarantee that the party will not return to drug use. The Applicant’s improved conduct in immigration detention may potentially suggest a lower risk of reoffending, but it does not indicate the absence of risk.

16. The Tribunal makes this finding based upon the Applicant’s relatively poor record in engaging with treatment. The discharge report of the Cessnock Community Corrections Office dated July 2022 makes concerning reading. The Tribunal notes the evidence before it that the Applicant was allocated to the Intensive Drug and Alcohol Treatment Program on 1 July 2021 and attended one session. The Applicant was then discharged from the program on 15 November 2021 for breaching his ongoing support contract, which emanated from a positive urinalysis result for amphetamines and methyl amphetamines on 13 November 2021. The Tribunal furthermore notes the Applicant, despite commencing the Buvidal program in July 2021, had supplied two positive urinalysis test results in the following four to five months (Exhibit 5, 172-173).

17. Whilst illicit drug use is clearly a factor in the Applicant’s previous offending, the Tribunal would also note, as highlighted by the Respondent, that the Applicant’s pre-release report notes that the Applicant “has been involved in several offences involving violence while in custody and that drug and alcohol use was not a factor in those incidents.” This is obviously of concern to the Tribunal when assessing the risk of future offending, a risk that Corrective Services concluded in July 2022 was “medium” (Exhibit 5, 174). In Dr Sweller’s report dated 18 May 2020, Dr Sweller assessed the Applicant as being at both a medium risk of reoffending and a moderate risk of violence. 

18. The Tribunal also places weight on the Corrective Services pre-release report dated July 2022. The report states that the Applicant failed to complete any offence-related programs whilst in custody, and that the Applicant withdrew from the EQUIPS Foundation, Aggression and Addiction Program after a couple of modules being successfully completed due to sickness and failed to enrol. The Tribunal has concerns for the Applicant’s rehabilitation as well as risk mitigation in relation to his future behaviour, given the failure to complete the treatment made available in this area.  On the basis of this evidence, the Tribunal is not confident the Applicant will effectively and adequately continue any drug rehabilitation treatment whilst in the community, treatment which, in the Tribunal’s opinion, is critical to mitigating the risk of further offending. The Tribunal furthermore notes that the Applicant did not complete any other offence-targeted programs whilst in custody, despite commencing studies in 2019. 

19. The Applicant previously provided the delegate with several reports that individually and collectively assert the Applicant is an essentially low risk of reoffending. The Tribunal has considered those reports. In relation to the report of Ms Taouk dated 2 January 2023, the Tribunal notes that it is based upon a two-hour assessment that Ms Taouk conducted on 2 December 2022 via teleconference between Ms Taouk and the Applicant, as well as a joint interview with the Applicant and his partner. The Tribunal has considered the report and notes it is essentially based upon the self-reporting of the Applicant over the four years since his offending. It provides the Applicant’s personal background and history; his drug addiction; his relationship with his partner and his family; as well as a DASS 21 Inventory. 

20. The Tribunal gives Ms Taouk’s report little weight. The report is, in the Tribunal’s opinion, focused on the Applicant’s own evidence, rather than an objective and thorough assessment of the Applicant’s state of mind and his likelihood of reoffending. The Tribunal would note it contains some significant errors, such as the Applicant noted he has been “clean from drugs and alcohol since he went to jail in 2018”. The Applicant himself in his oral evidence to the Tribunal has stated he continued taking illicit drugs in gaol until 2021. He was reprimanded by Corrective Services authorities for taking illicit drugs in jail during this period. Given the structure of the report and the presence of such obvious errors, the Tribunal does not consider it an objective report as evidence of the Applicant being of low risk of recidivism. 

21. The Tribunal has considered the report of Mr Jason Alcorn, General Manager of Risk 2 Solution, dated 3 March 2023 (Exhibit 6, 196-205). Risk 2 Solution was engaged by the Applicant to complete an assessment of the likelihood that he would reoffend, if released from custody and permitted to remain in Australia. The Tribunal notes the report of Mr Alcorn is particularly qualified when it comes to concluding the Applicant’s risk of reoffending is low/moderate. The report states the conclusion is based upon the Applicant continuing to avoid and manage the at-risk behaviour that led to his offending. It also concludes that it is contingent on the successful completion of alcohol rehabilitation programs. There is no evidence before the Tribunal to suggest that the successful completion of such programs has occurred beyond a 7 contact-hour course on Drug and Alcohol Abuse 101 on 25 November 2022 (Exhibit 6, 195).    

22. The Tribunal notes the report by Mr Alcorn concludes the Applicant “has not shown a disregard of Australian laws” and the Applicant “has made tangible, significant efforts to rehabilitate himself to further minimise the risk of reoffending”.  The Tribunal does not accept, on all the evidence before it, these conclusions. The Tribunal notes the Applicant was on bail for serious violent offending when he committed the offences that led to the cancellation of his visa. Whilst in gaol, he continued to disregard authority. For reasons previously explained in this decision, the Tribunal does not consider the Applicant to be a witness of truth and considers that he is prepared to change his facts to suit his circumstances, suggesting a lack of genuine awareness of his offending. The Tribunal subsequently does not give the conclusions of Mr Alcorn any significant weight in the Applicant’s favour as evidence that he is of low risk of reoffending.       

1. The Tribunal has formed the view that the Primary Consideration 5, Expectations of the Australian community, weighs very heavily against of the revocation of the cancellation of the Applicant’s visa. 

   OTHER CONSIDERATIONS

2. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.

   (a) Legal consequence of the decision

3. Paragraph 9.1 of the Direction directs a decision-maker to take into account the following:

   (1)    Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.

   (2)    A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.

   (3)    International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.

4. There is no claim by the Applicant, or evidence before the Tribunal, in relation to Australia’s international non-refoulment obligations. 

5. No assessment by the Tribunal is necessary in this review.

6. The Applicant has raised the matter of Clause 5001, the Special Return Criteria in the Regulations. The Applicant states that cl 5001 will apply should the cancellation of his visa not be revoked. This will mean the Applicant, notwithstanding an application for Ministerial intervention, will be ineligible from being granted a further Class TY Subclass 444 Special Category (Temporary) visa again. This will mean, it is submitted, that the Applicant will face a lifetime ban from coming to Australia. The Applicant’s counsel outlined the concerns at the Tribunal’s hearing:

   “…5001 applies to every possible visa you can apply for; I think, protection visa, but he’s not a refugee obviously. So yes – even a visitor visa has that provision. And of course, he’s no longer eligible for the subclass 444 visa because he is a behaviour concern person, therefore he’s not eligible for that. So this – it has been raised in some hearings that there’s a possibility that he could apply for something later.  There isn’t.” 

7. The Respondent does not disagree that this is a consequence of non-revocation:

   “…we accept that there will be consequences for his ability to return to Australia if removed. But, indeed, that is the entire statutory scheme’s purpose. It is not something unique to this applicant. It is designed that where someone is removed because of this scheme, that there will be consequences for their return.”

8. The Tribunal accepts that the operation of cl 5001(c) of the Regulations and s 32 of the Act will mean that once the Applicant departs Australia after the cancellation of his visa, he will face considerable challenges in lawfully returning to Australia. He will not be eligible to be granted a Class TY Subclass 444 Special Category (Temporary) visa as he has suggested, nor would he be able to be granted a Subclass 309/Subclass 100 Partner visa (that may have been an option given his long-term partner relationship with Ms Hares). The Tribunal appreciates the personal hardship of the Applicant given he would be unable to travel to Australia to see his family in Australia and appreciates he considers this matter to be excessive and onerous. The Tribunal nevertheless considers this is an intended and obvious consequence of the Act and the Regulations. The Tribunal subsequently does not give any weight either in favour or against the Applicant in relation to this issue.

9. The Tribunal notes the Applicant has stated that the likelihood of Ministerial intervention, which may allow the Applicant to return to Australia at any time in the future, is so unlikely as to be implausible. It is impossible for either the Tribunal, the Applicant or the Respondent to speculate on any possibility of this in the indeterminate future with any assured view or opinion.    

10. The Tribunal has formed the view that the Other Consideration (a), legal consequence of the decision, is of neutral weight, and weighs neither in favour or against exercising the discretion to not revoke the mandatory cancellation of the Applicant’s visa. 

    (b) Extent of impediments if removed

11. Paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and

    (c)any social, medical and/or economic support available to that non-citizen in that country.

12. The Applicant states he has had no real contact with New Zealand since he was eleven years of age. He states he has distant relatives but submits it cannot be expected that they would now play an important role in his life if he were to relocate his life there now. He submits if his relationship with Ms Hares ends, he will have to start his life afresh. The Applicant states he has started building industry training but would have no contacts in New Zealand to help utilise that skill for employment.

13. The Tribunal does not accept the Applicant has only distant relatives in New Zealand. As the Applicant himself stated in his signed statement dated 3 January 2023, he has his younger brother living in New Zealand, having returned there around five and a half years ago after he was deported from Australia. The Tribunal notes the Applicant has claimed he had a good relationship with his brother prior to his departure to New Zealand in 2018 (Exhibit 6, 177). The Applicant stated to Corrective Services in December 2021 that he is in daily contact with his brother (Exhibit 5, 110). The Tribunal is of the belief the Applicant maintains a cordial relationship with his brother and will be able to utilise this relationship for support if he returns to New Zealand. The Tribunal furthermore notes the evidence before it that the Applicant had previously made plans to live with his aunt and uncle, and otherwise his grandmother if he returned to New Zealand (Exhibit 5, 122, 135, 140, 143-144). The Tribunal is satisfied the Applicant does retain some significant family relationships, including an immediate family relationship with his brother, that will assist him to integrate into life in New Zealand. 

14. The Tribunal notes the evidence of Ms Hares that she will not travel to New Zealand to remain with the Applicant should the cancellation of his visa not be revoked. The Tribunal notes there is earlier evidence (from the Applicant to Corrective Services officials) before it that Ms Hares stated she had intended to emigrate to New Zealand with the Applicant if he was deported. Other evidence suggests Ms Hares stated she was at least open to the consideration of moving in January 2023. Ms Hares has however subsequently provided oral testimony that she will not move to New Zealand for the reasons of her own immediate family and her business. The Tribunal accepts her statement, and subsequently accepts there will likely be a loss of her support if the Applicant returns to New Zealand and she does indeed cease the relationship. The Tribunal gives this matter some limited weight to the Applicant when considering impediments he will face, if removed from Australia.     

15. The Tribunal notes the evidence before it pertaining to the Applicant’s past health challenges he has faced with his use of illicit drugs. He has been using Buvidal since entering immigration detention to assist breaking his illicit drug use. There is also evidence before the Tribunal in the reports from the Ms Taouk, and from Dr Chew as to the Applicant’s previous mental health issues. The Tribunal has considered the extent of any impediments the Applicant may face in treatment if he returns to New Zealand. The Tribunal notes that if the Applicant is facing mental and psychological health issues, the Applicant would have access to the same medical and social services generally available to all citizens of New Zealand. The Tribunal furthermore, noting the Applicant’s illicit drug challenges, considers that the Applicant, as a New Zealand citizen, will be able to access equivalent health services to assist him to address any issues he has in this area. The Tribunal also considers that the Applicant, as a New Zealand citizen, will be able to access essentially equivalent social support and housing as needed if he returns to New Zealand. The Tribunal subsequently considers there will be very few impediments in the areas of treatment for any health or substance challenges of the Applicant if he returns to New Zealand.

16. The Tribunal notes the Applicant is 28 years of age at the time of decision. Whilst the Tribunal notes the Applicant’s evidence concerning his previous back injury and notes the evidence of his treatment for illicit drug abuse and his past mental health challenges, the Tribunal notes the Applicant is fit and claims he is ready to commence labouring work in fencing should he be released. The Tribunal does not consider the Applicant has any particular impediments in relation to his age and health should he return to New Zealand. 

17. The Tribunal has considered whether there are any substantial language or cultural barriers to the Applicant should he be removed. The Applicant states that he departed New Zealand when he was eleven years of age. The Tribunal acknowledges the Applicant has not returned to New Zealand since this time. The Tribunal notes the Applicant’s claim that he has few links in New Zealand, but places greater weight on the fact that his brother he is in contact with resides there, as does his grandmother, uncle and aunt. The Tribunal furthermore notes the vast language and cultural similarities between Australia and New Zealand. Given the Applicant is a fluent English speaker and has resided in English-speaking countries his entire life, the Tribunal does not consider there are any linguistic barriers preventing the Applicant re-establishing himself there. The Tribunal recognises the Applicant’s statements concerning his lack of family members in New Zealand and his lack of personal and family connection to New Zealand. The Tribunal nevertheless notes that New Zealand and Australia share significant cultural and social similarities. Whilst recognising that the Applicant’s other immediate family members are in Australia, the Tribunal is not satisfied there are cultural, social or linguistic barriers that will prevent the Applicant re-establishing himself there.

18. The Tribunal has taken into account the extent of any impediments the Applicant may face in relation to the social, medical and/or economic support available to the Applicant in New Zealand. As stated previously, the Tribunal considers the Applicant will be able to access generally equivalent health services to address any psychological health issues he may have, as well as ongoing treatment to extricate him from the use of illicit drugs. Whilst the Tribunal recognises the Applicant has training in carpentry, the Tribunal has considered the Applicant’s financial circumstances if he were out of work in the community. The Tribunal notes that the New Zealand government has a similar social welfare net in place to Australia.  Ultimately, the Tribunal considers Australia and New Zealand have comparable systems in place in relation to medical care, social support and housing. The Tribunal notes the decision of Senior Member Kelly in Tera Euna and Another v Minister for Immigration and Border Protection [2016] AATA 301 at [101]. Based on these findings, the Tribunal does not consider the Applicant will face any significant impediments if he were removed to New Zealand in relation to social, medical and/or economic support available in New Zealand.

19. Whilst accepting the Applicant arrived in Australia in 2006, and there may be some  general challenge in reintegrating into everyday New Zealand life given his limited time spent on the country, the Tribunal accepts the Applicant’s submissions that the Applicant would face limited impediments upon returning to New Zealand.

20. The Tribunal has formed the view that the Other Consideration (b), extent of impediments if removed, weighs slightly, but not determinately, in favour of revocation of the cancellation of the Applicant’s visa. The Tribunal has given the consideration limited weight.

    (c) Impact on victims

21. Paragraph 9.3 of the Direction directs a decision-maker to take into account the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

22. There is no information before the Tribunal about any victims of the Applicant’s offending, beyond limited information concerning the victim of the Applicant’s offending on 22 July 2018.

23. The Applicant stated he has regrets over his offending on 22 July 2018 and would like to personally apologise to the victim of his behaviour. The Applicant did write to his victim through Legion Cabs a few weeks prior to the Tribunal’s hearing. There has been no response to the correspondence as far as the Tribunal is aware. The Applicant states he is remorseful and did not intend to harm the taxi driver deliberately. 

24. The Tribunal has formed the view that the Other Consideration (c), impact on victims, weighs neither in favour or against the revocation of the cancellation of the Applicant’s visa. 

    (d) Impact on Australian business interests

25. Paragraph 9.4 of the Direction directs a decision-maker to take into account the following:

    Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

26. The Applicant submits, based upon various pronouncements by the Commonwealth Government, that Australia has a skills crisis. The Applicant has carpentry skills that is asserted are in demand. It has been submitted that having the Applicant employed in Australia may assist alleviate this crisis, at least in the micro sense. 

27. In support of the Applicant, Mr Walid Chemaisse, the Managing Director of Precision Fencing, provided oral testimony. He stated he had first worked with the Applicant around a decade ago and was now prepared to give the Applicant a role as a labourer in his fencing business should the Applicant return to the Australian community. Based on Mr Chemaisse’s testimony, the Tribunal accepts the Applicant has a job offer. The Tribunal does not however consider that the role, as articulated by Mr Chemaisse, is a skilled position, but something more of a general labouring role. In such circumstances, the Tribunal has some doubts that the role, which appears to be offered based upon the good nature of Mr Chemaisse, would address Australia’s skills crisis. 

28. The Tribunal finds the removal of the Applicant from Australia will not have any impact on Australia’s business interests. The removal of the Applicant will not significantly compromise the delivery of a major project or delivery of an important service in Australia. 

29. The Tribunal has formed the view that the Other Consideration (d), impact on Australian business interests, weighs neither in favour or against the revocation of the cancellation of the Applicant’s visa. 

    Findings: Other Considerations

30. The application of the Other Considerations in the present matter can be summarised as follows:

    (a)legal consequence of decision: weighs neither in favour or against the revocation of the cancellation of the Applicant’s visa.  

    (b)extent of impediments if removed: weighs slightly in favour of the revocation of the cancellation of the Applicant’s visa. 

    (c)impact on victims: weighs neither in favour or against the revocation of the cancellation of the Applicant’s visa. 

    (d)the impact on Australian business interests: weighs neither in favour or against the revocation of the cancellation of the Applicant’s visa. 

    CONCLUSION

31. The Tribunal has found that the Applicant has a substantial criminal record and that he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked. In considering how to exercise its discretion, the Tribunal has considered the totality of the Applicant’s circumstances, noting that the considerations set out in Direction 99 are not exhaustive. 

32. A factor that weighs very heavily against revocation is the Primary Consideration 1, the protection of the Australian community. The Applicant has committed serious offences.  His recidivism, his willingness to commit serious crimes whilst already being released on bail, and his lack of regard for the Australian community are matters of significant concern. The Applicant’s discipline and behaviour whilst in gaol was poor, notwithstanding his sentence was not increased. The nature of the Applicant’s past offending is such that the Applicant’s conduct is against the expectations of the Australian community. The Applicant has given evidence furthermore that prior to his offending in July 2018, he dealt in illicit drugs rather than take on a conventional job. The Tribunal retains concerns that the Applicant is not rehabilitated from illicit drug use and remains a risk of reoffending. It has been submitted that the Applicant’s experience in Australia’s corrections system and his gaoling will act as a deterrent. The Tribunal notes the claim but retains its concerns. 

33. The Tribunal considers that there is a very serious risk to the Australian community should the Applicant commit further offences or engage in serious conduct. His offending involving the use of an unauthorised pistol and firing a firearm in or near a public place could have been catastrophic with fatal consequences. The Tribunal also finds that the Applicant has little genuine insight into his offending conduct whereby he still attempts to obfuscate and change his evidence to suit his circumstances. The Tribunal has particular concerns as to the Applicant’s testimony that he essentially misled his counsellors and support workers whilst in gaol as to his true background and knowledge pertaining to firearms. The Tribunal’s responses and his explanation to those responses lead the Tribunal to doubt the credibility of his evidence. The Tribunal has also found, for the reasons set out above, that the expectations of the Australian community would similarly weigh very heavily against the revocation of the cancellation of the Applicant’s visa.

1. A significant factor that weighs in favour of the revocation is the strength, nature and duration of the Applicant’s ties to Australia. The Tribunal accepts that the bulk of the Applicant’s immediate family (his mother, younger sister and partner) live in Australia.  He has spent the majority of his life in Australia. The Tribunal nevertheless notes he does have immediate family support through his brother, who has previously been deported from Australia. The Tribunal accepts the Applicant has formed social, family and occasionally employment ties in Australia. 

2. The Tribunal has considered Primary Consideration 4, pertaining to the best interests of the child. The Tribunal accepts the Applicant enjoys a good relationship with his eleven-year-old sister. The Tribunal accepts the relationship is more important, given the death of his father in 2021, as well as the deportation of the Applicant’s younger brother. The Tribunal accepts the Applicant’s sister will miss the Applicant if he departs Australia, but notes she can remain in close and ongoing contact with her brother, similar to how she has maintained a relationship with her other brother. Given all the evidence before the Tribunal on this matter, the Tribunal has weighed this primary consideration concerning the best interests of the child slightly in favour of revoking the cancellation of the Applicant’s visa. The Tribunal has also considered the Applicant is not fulfilling a parental role in relation to his sister.  

3. In relation to Other Considerations, only Other Consideration (b), extent of impediments to removal, is of any significant relevance. This Other Consideration weighs slightly in favour of revoking the cancellation of the Applicant’s visa. The Tribunal considers the Applicant would face limited impediments were he to return to New Zealand, beyond his family members in Australia. His age, access to health care and support, family members in New Zealand, potential employment skills, and familiarity with New Zealand culture and language, would all mitigate against any challenges he might have.

4. It is necessary to weigh up all of the primary and other considerations:

   ·Primary consideration 1 weighs very heavily against the revocation of the cancellation of the Applicant’s visa. 

   ·Primary consideration 2 is neutral.

   ·Primary consideration 3 weighs in favour of the revocation of the cancellation of the Applicant’s visa.

   ·Primary consideration 4 weighs slightly in favour of the revocation of the cancellation of the Applicant’s visa.

   ·Primary consideration 5 weighs very heavily against the revocation of the cancellation of the Applicant’s visa. 

   ·Other considerations (a), (c) and (d) are neutral.

   ·Other consideration (b) weighs slightly in favour of the revocation of the cancellation of the Applicant’s visa.

5. Having carefully considered all the relevant circumstances, the Tribunal has decided to give greater weight to the primary considerations of the protection of the Australian community and the expectations of the Australian community. In the particular circumstances of this case, the Tribunal has decided that these considerations outweigh other considerations that weigh in favour of the revocation.

6. The Tribunal finds that the proper application of the Direction favours the Tribunal affirming the decision made by the delegate of the Respondent dated 3 August 2023 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

   DECISION

7. Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 3 August 2023 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding two hundred and eighty-five (285) paragraphs are a true copy of the reasons for the decision herein of Deputy President Justin Owen.

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

Associate

Dated: 3 November 2023  

Date of hearing:	18-19 October 2023
Counsel for the Applicant:	Mr L Boccabella
Solicitor for the Applicant:	Mr P Pahalawela, Parish Patience Immigration Lawyers
Counsel for the Respondent:	Ms K Morris
Solicitor for the Respondent:	Ms H-J Kim, Australian Government Solicitors

Annexure A – Applicant’s Offending History

Court	Court Date	Offence	Court Result
Kogarah Local Court	24 September 2013	Resist or hinder police officer in the execution of duty	Fine – $400.00
		Drink alcohol on bus, ferry, train or in public area	Dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
Bankstown Local Court	1 March 2017	Possess Prohibited Drug	Dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
Bankstown Local Court	16 October 2018	Assault police officer in execution of duty w/o abh – T2	Imprisonment – 8 months concurrent
		Resist or hinder police officer in the execution of duty
Parramatta District Court	17 April 2019	Fire firearm in or near public place – T2	Imprisonment – 3 years concurrent
		Use unauthorised pistol – T2	Imprisonment – 5 years and 3 months concurrent

Annexure B – Exhibit List

Applicant’s Material
Exhibit No.	Description	Date of Material	Date Lodged
1	Statement of Facts, Issues and Contentions	18 Sep 2023	18 Sep 2023
2	Applicant’s Reply	13 Oct 2023	13 Oct 2023
3	Applicant’s Tender Bundle Statutory Declaration from Raymond Ahkeni Statutory Declaration and Passport from Soha Hares Statutory Declaration from Fadia Hares and passport Statutory Declaration from Tania Marie Ahkeni Letter from Applicant’s Sister Birth Certificate from Applicant’s Sister SMART Recovery Attendance Sheet and letter to AGS re access Notice of Intended Marriage Letter from Dr Magedy Hawi, Greenoaks Medical Centre Certificate of course completion on Drug and Alcohol Abuse Certificate of course completion on Anger Management Certificate of course completion on Business Ethics Comfort Airflow work offer letter Letter of apology to the victim and letter to Legion Cabs Letter to AGS re citizenship of Applicant’s Sister PBS schedule search for “buvidal monthly” Statutory Declaration from Tania Marie Ahkeni regarding the Applicant’s Sister’s Citizenship application Precision Employment Offer letter	Various	13 Oct 2023

Respondent’s Material
Exhibit No.	Description	Date of Material	Date Lodged
4	Statement of Facts, Issues and Contentions	29 Sep 2023	29 Sep 2023
5	Respondent’s Tender Bundle: Material Produced under summons by NSW Police Force (pp. 1 – 68) Material produced under summons by NSW Corrective Services (pp. 69 – 179) International Health and Medical Services Clinical Records (pp. 180-316) Villawood Immigration Detention Centre Client Incident Report (pp. 317-331) Ah-Keni v R [2020] NSWCCA 122 (pp. 332-349)	Various	29 Sep 2023

6. G-documents filed 23 August 2023