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

Ahmetaj and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4662 (8 December 2022)
Division:GENERAL DIVISION
File Number: 2022/7641
Re:Sadri Ahmetaj
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member R Bellamy
Date: 8 December 2022
Date of Written reasons 16 January 2023
Place:Brisbane

The decision under review is affirmed
................................[SGD].............................
Senior Member R Bellamy
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class BS Subclass 801 Partner visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – drug trafficking – decision under review affirmed
Legislation
Drugs Misuse Act 1986 (Qld)
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Home Affairs v Buadromo [2018] FCAFC 151
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member R Bellamy
16 January 2023

The Applicant was born in January 1970. He came to Australia from the former Yugoslavia on a tourist visa in 1997 when he was 27 years old. The most recent visa held by him was a Class BS Subclass 801 Partner visa (“visa”). The visa was recently cancelled due to his criminal offending, and he has asked the Tribunal to revoke that cancellation.
Section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) relevantly provides that the Minister must cancel a visa that has been granted to a person if:
·the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a), on the basis of paragraph (7)(a), (b) or (c); and
·the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Under s 501(6)(a) of the Act, a person will not pass the character test if they have “a substantial criminal record”. Section 501(7)(c) of the Act relevantly provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. On 18 September 2014 the Applicant was sentenced to imprisonment for 10 years.
On 5 June 2019 a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa because he did not pass the character test (see above) and he was serving a full time custodial sentence.
On 1 July 2019 the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”). Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which provides:
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.
On 15 September 2022 the Respondent decided not to revoke the cancellation. On 16 September 2022 the Applicant lodged an application in this Tribunal for review of that decision. The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(ba) of the Act.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act and that he does not pass the character test. Thus, the issue is whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa. If there is, I should set aside the original decision.[1]
[1] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
The hearing of this application took place on 22 and 23 November 2022. The Applicant, his wife and his step-daughter gave evidence via video conference. The Applicant has suffered two strokes recently and he said his memory was affected as a result. I accept that, although I also found him to be deliberately evasive in some parts of his evidence, sometimes seeking to deflect or deny before eventually conceding a matter.
The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
Following the hearing, I was provided with a transcript of the sound recording of the hearing. The transcript contains some errors. The sound recording, and these written reasons, provide a more accurate record of what was said and who said it.
Determination of Whether There is Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In applying s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.
For the purposes of deciding 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 guide a decision maker’s application of Part 2 of the Direction.
Those principles 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 measurable 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. However, Australia may 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.
(5)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 8.4(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 measurable risk of causing physical harm to the Australian community.
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.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account. They are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. They are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
I should also consider other matters that are relevant to whether there is another reason to revoke the cancellation of the Applicant’s visa, such as the prospect of prolonged or indefinite detention.
Paragraph 7(2) provides that the Primary Considerations should generally be given greater weight than the Other Considerations, and paragraph 7(3) provides that one or more Primary Considerations may outweigh other Primary Considerations.
BACKGROUND and offending
Set out below are my findings of fact. Where any of the findings are controversial I have given reasons.
The Applicant is an ethnic Albanian who was born in Ivangrad in the former Yugoslavia. His family moved to Pristina in Kosovo when he was very young and he spent his life there until, in December 1990 at the age of 20, he travelled to Slovenia. He then spent some time in the Netherlands before travelling to Australia in 1997.
Departmental records indicate that the Applicant entered Australia on a tourist visa in March 1997, left in May 1997, and returned, again on a tourist visa, in June 1997. He used a false German passport to enter Australia. He now concedes that he knew it was wrong to come to Australia using a false passport, on a tourist visa when he intended to live here permanently, but he did that because he wanted a better life and a safe life.[2]
[2] Transcript, page 71, lines 5 to 8.
The Applicant was taken into immigration detention and on 9 February 1998, he lodged an application for a protection visa which was refused on 26 February 1998. He lodged a second application for a protection visa on 17 March 1998. After nine months in detention the Applicant was sponsored out of the centre by the local Albanian community on a bridging visa with conditions applying. He was not entitled to Centrelink or Medicare benefits and he did not have the right to work. In September 1999, the Applicant’s second protection visa application was refused. He applied for review by the former Refugee Review Tribunal. In January 2000, the refusal was affirmed.
The Applicant initially lived in Sydney. While he was not legally allowed to work, he relied on assistance from the Albanian community.[3] He did not have to pay rent because he was sharing a house with four or five other immigrants. People gave him money and food. He worked for a while in a club at the Flemington Market where people came to gamble. He made coffee and got tips. He was also given building jobs for cash by members of the Albanian community.[4] In 2014, he told a psychologist, Dr Yoxall, that he was very grateful that the Albanian community in Sydney took him in and supported him.
[3] Exhibit G2, pages 107 to 109.
[4] Transcript, page 62.
New South Wales police records indicate that the Applicant was associated with some criminals when he lived in Sydney and there are allegations that he was involved in serious crime[5] although in the hearing he denied that, and it does not appear that he was ever convicted of an offence in New South Wales.
[5] Exhibit R2, pages 34 to 39.
In 2000, the Applicant met the woman who would later become his wife. She was a widow who had moved to Australia from Bosnia as a child.
In 2001, the Applicant was dealt with for driving unlicensed and not wearing his seatbelt.[6]
[6] Exhibit G2, page 39.
In September 2003, the Applicant got married and shortly afterwards he and his wife moved to the Gold Coast.[7] Mrs Ahmetaj’s two adult sons have been estranged from her since she remarried. They have never met the Applicant and they have no contact with her. She has an adult daughter, “Ms E” with whom she has a close relationship, and her brother and elderly parents remain alive and in good health. The Applicant has siblings in the United States and Germany and that is the extent of the information that was provided about them.
[7] Exhibit G2, page 146 to 171.
The Applicant still did not have the right to work, so his wife and her parents supported him. According to Mrs Ahmetaj, the Applicant applied for a partner visa because he wanted to work and establish himself and support the family. Not having working rights, the Applicant gradually started to change his behaviour. He told her that he started using marijuana and other illicit drugs to forget about everyday difficulties he was facing without knowledge of the English language and without the ability to work and support his family.[8]
[8] Exhibit A1, Attachment A.
On 1 January 2004, the first of three documented episodes of domestic violence took place. Computerised police file notes indicate that Mrs Ahmetaj called 000 after the Applicant hit her in the mouth, causing bleeding. She told the attending police that she and the Applicant had earlier attended a party and he had hit her numerous times on the drive home causing bruising and swelling under her left eye. The police took the Applicant to the police watchhouse and made an application for a Domestic Violence order (“DVO”). The DVO was granted and served upon the Applicant.[9] Its two conditions were explained to him. Those conditions are not included in the police file notes but presumably one of them prohibited further acts of violence.
[9] Exhibit R3.
On 27 January 2004, a psychiatrist, Dr Ziukelis, assessed the Applicant and provided a report. The report indicates that the Applicant described symptoms such as preoccupation with thoughts about the brutality he witnessed and experienced in Kosovo, insomnia, constant anxiety and episodes of panic. Mrs Ahmetaj said the Applicant had continual bouts of irritability. Dr Ziukelis noted in his subsequent report that for the seven years the Applicant had been in Australia he had been dependent on sponsors and subsequently his wife and her family. Dr Ziukelis opined that the Applicant presented as nervous and hypervigilant with a depressed mood, despondency and a sense of futility. He diagnosed the Applicant with post-traumatic stress disorder (“PTSD”) with accompanying major depression.[10] There is nothing in this report or subsequent reports from Dr Ziukelis that suggests that the Applicant or his wife ever disclosed the domestic violence or sought his help regarding the Applicant’s anger and violence.
[10] Exhibit G1, G2, pages 107 to 109.
The Applicant started using prescription medication included but not been limited to antidepressant, antipsychotic and anxiolytic medication.[11]
[11] Exhibit G1, G2, pages 146 to 171.
The police file notes indicate that the Applicant breached the DVO on 2 December 2004. Mrs Ahmetaj called the police and told them the Applicant had slapped her. When they attended and questioned the Applicant, he admitted to having pushed her in the chest with open hands, grabbed her by the hair and shaken her from side to side, and slapped her face with an open hand. Mrs Ahmetaj told the police she had been outside watering the garden when the Applicant accused her of having an affair with the neighbour. He grabbed her by the hair and around the neck, then began hitting her on the head. She put up her hands to shield herself and was struck on the left hand and sustained injury to two of her fingers. He pushed her into the garden and continued punching her in the back causing red marks and grazing. He later went back inside and continued to socialise with a friend. Mrs Ahmetaj ran upstairs and called the police. The Applicant later apologised.[12] In February 2005, the Applicant was fined $800 for breaching the DVO.
[12] Exhibit R3.
According to the Applicant he started using heroin in 2006 to relieve distress and he became addicted. On 25 October 2006 the Applicant was charged with possess property suspected of having been used in connection with a drug offence, possess dangerous drugs x 2 and possess tainted property x 2. There are no details of those offences before me.
Police notes indicate that on 3 December 2006, while the Applicant was on bail in relation to that offending, he assaulted Mrs Ahmetaj again. He had telephoned her and asked her to take money to him at the casino. She refused. He returned home angry state and verbally abused her before punching her numerous times in the head. She suffered cuts and pain to the top and back of her head. The punching aggravated a previous ear problem causing her ears to bleed. She had visible bruises to her forehead, left eye and right arm. She had blood on her face and neck from cuts on her head caused by the Applicant’s rings. No assault complaint was made however the police explained the previous DVO and issued a summons for a new DVO to be served on the Applicant.[13]
[13] Exhibit R3.
I will come back to the domestic violence later in these reasons. It is not the index offending.
In November 2007, the Applicant was dealt with for the offending in October 2006. He was sentenced to 80 hours of community service and two years of probation. He was required to see a psychologist, Mr Coucill, as part of a diversion course. He continued to see Mr Coucill voluntarily after the course finished.[14] There is no evidence in Mr Coucill’s letters that the Applicant disclosed any domestic violence to him or sought help with anger, violence or his marriage. The Applicant stopped taking drugs as a result of this diversion,[15] however he told Dr Yoxall that he relapsed to cannabis use in about 2009 after his father died.[16]
[14]    Exhibit G1, G2, pages 113 to 116.
[15]    Transcript, page 39, lines 25 to 30.
[16]    Exhibit G1, G2, pages 146 to 171.
In 2008 the Applicant was given permission to work.[17] Prior to that he had been buying and selling cars for profit to make some money.[18] He and his wife opened car yard where they would buy repairable write-offs, work on them and on-sell the vehicles.[19] They operated this business until the Applicant’s arrest in May 2012.
[17]    Exhibit G1, G2, page 105.
[18]    Transcript, page 63, lines 15 to 25.
[19]    Exhibit G1, G2, pages 146 to 171.
On the night of 28 February 2010, while investigating the supply of heroin, the police observed the Applicant parked in a vehicle. A second vehicle had pulled up but drove off upon seeing the police. The police activated LED lights to intercept the Applicant and he sped off, accelerating to 70 km/hr in a 50 km/hr zone. He continued to evade police including speeding through several suburban streets, going through red traffic light and accelerating out of a corner so fast that his wheels spun, he fish-tailed and he nearly collided with oncoming traffic. He threw a small package containing heroin from the car which the police later retrieved. The quantity suggested it was intended for supply rather than personal consumption, although in the hearing the Applicant claimed it was for his personal use. The Applicant continued to evade police, travelling through some densely populated areas, and he almost collided with some parked cars. He eventually pulled to the side of the road, and his car rolled into the side of the police vehicle that has pulled up beside him, causing damage to both vehicles. When police approached the Applicant, he refused to exit his vehicle and had to be forcibly removed. There were two small plastic clip seal bags of heroin in his jeans pocket and wallet.[20] The Applicant’s comment on this was that the police always hurt you when they arrest you, so he said something like “Hey, you idiot… take it easy, because I’m here; don’t hurt me”.[21]
[20] Exhibit R2, page 15.
[21] Transcript, page 36, lines 20 to 25.

As a result of that offending, the police searched the Applicant’s home. They found a taser and charged him with unlawful possession of weapons. The Applicant told the Tribunal that he knew it was illegal to have a taser. He was asked if he would have used it and gave an answer that did not rule that out. He said:
“…if they tortured my family or they do wrong to my family. I don’t know. You can’t - the things happen, you don’t know. You just keep it there for protection…[Mrs Ahmetaj] was by herself. Many - most of the time. Because is like I said, I was a gambler, I was in drugs, I was more out than home, you know?”[22]
[22] Transcript, page 71, lines 17 to 45.
On 20 July 2010, the Applicant was convicted and sentenced for fail to stop motor vehicle, dangerous operation of a vehicle, assault or obstruct police officer and unlawful possession of weapons. He was disqualified from driving for six months and fined $3,000. He remained on bail for the drug possession charge which was still outstanding. The drug offence led to the police taking an interest in the Applicant.
According to computerised police notes, Operation STORM commenced in April 2011 with the purpose of gaining evidence to support the prosecution of persons who were suspected of being part of an established criminal network centred on the Applicant. The Applicant was suspected of trafficking large quantities of illegal substances, primarily heroin, between the Gold and Sunshine Coasts in Queensland and laundering the proceeds through a car dealership. He was believed to have effective control of several businesses and residential properties which were in the names of members of his family including his wife and his brother-in-law.
The police noted that the network had a demonstrated capability to adapt and refine methodology to suit circumstances and that during the course of the investigation, the Applicant’s Modus Operandi had evolved. The operation involved transporting drugs from New South Wales to Queensland. The Applicant sometimes used a Bentley vehicle registered to his car yard business to do this.
On 25 May 2012, the Applicant travelled to a hotel in New South Wales with a female travel companion. (It is not alleged that this was Mrs Ahmetaj). Police followed and later intercepted him the following day when he got to Southport, Queensland.
Upon seeing a drug detection dog deployed, the Applicant declared that he may have a small amount of drugs in the vehicle, possibly “ice” (methamphetamine), “ecstasy” (MDMA) and cannabis for his personal use. However, police believed the drugs were samples of drugs he intended to purchase. The police found methamphetamine, MDMA tablets and white powder suspected of being heroin in the vehicle.
On 27 May 2012, the Applicant was remanded in custody. The Crime and Misconduct Commission took action to seize the Applicant’s assets. During the period when the Applicant was offending, he was presenting himself to the community as a successful businessman (and a report subsequently provided by Dr Yoxall gives some insight into that). The Court of Appeal later referred to the Applicant enjoying looking like a successful person and meeting successful, important people. The Applicant told the Tribunal that these people were “engineers, doctors, lawyers”, who were not involved in drugs, who socialised with him at his home.[23]
[23] Transcript, page 17, lines 19 to 31.
There are some records from the Department of Corrective Services (“DCS”) that record instances of poor behaviour by the Applicant while he was on remand.
A record dated 21 September 2012, states that the Applicant “can be very demanding treating people like a slave, it appears he is used to getting what he wants.”[24] In the hearing the Applicant denied having treated fellow inmates like his slaves. He said he would joke with the officers, explaining that:
“In my culture woman clean the house and woman - I say come and clean my bed, too…but they take it in different way.”[25]
[24] Exhibit R2, page 1.
[25] Transcript, page 49, lines 15 to 40.
On 23 July 2013 the Applicant was granted bail. He and Mrs Ahmetaj lived with Ms E’s family on the Gold Coast for around six months, then they moved in with her parents on the Sunshine Coast.[26]
[26] Transcript, page 115, lines 5 to 15.
On 18 September 2014, the Applicant was sentenced, after entering a guilty plea, to 10 years imprisonment for trafficking in dangerous drugs, being heroin and methamphetamine between 1 January 2010 and 27 May 2012.[27] The learned Judge made a serious violent offence declaration, meaning the Applicant would not be eligible for parole until he had served at least eight years of his sentence (with time served on remand counting towards that). He was also convicted of:
·possession of dangerous drugs, namely methylamphetamine and 3,4-methylenedioxymethamphetamine (MDMA);
·possessing a quantity of mobile phones and two motor vehicles for use in the trafficking; and
·possession of dangerous drugs, namely methylamphetamine and cannabis.
and not further punished.
[27] Exhibit G1, G2, page 38; note the charge period starts at 1 January 2010 although the Court of Appeal decision indicates the trafficking started in February 2010.
The Applicant subsequently appealed against his sentence. The appeal was heard in June 2015 and dismissed in December 2015. The appeal judgment contains the details of the offending and other relevant information. The following extracts are particularly salient:
“An agreed schedule of facts set out the circumstances of the offending. Mr Ahmetaj was the principal target of a police trafficking operation. The drug trafficking business employed person called [Mr S], and various tasks in that business were performed by Mrs Ahmetaj, at the direction of Mr Ahmetaj. The trafficking had commenced by February 2010. Mr Ahmetaj sourced large quantities of heroin and methylamphetamine from Sydney. Between March 2010 and May 2012, he travelled to Sydney (or a midway location) 17 times. He sourced drugs through a person called [Mr P], who was based on the Gold Coast and travelled to Sydney many times to buy drugs for Mr Ahmetaj. Mr Ahmetaj was also buying drugs from two Sydney based suppliers, [Mr X and Mr N].
Between May 2011 and June 2011 Mr Ahmetaj was provided a heroin sample and later ordered six (6) ounces of heroin from another Sydney based supplier. That supply did not take place.
The trafficking business run by Mr Ahmetaj was “sophisticated and profitable”. Mobile telephones in false names were used, and changed very regularly. Communications were carried out in code and in foreign languages, including Albanian and Serbian. Mr Ahmetaj provided covert mobile phones to customers in order to promote dedicated communication.
During the 27 month trafficking period, Mr Ahmetaj was supplying wholesale quantities of heroin, up to two to three ounces at a time, to street level dealers. The price was up to $8,000 per ounce. The purchasers included [three people, two of whom] were long term heroin users, and sold to street level users who came to their house. They had in excess of 30 persons as regular purchasers, some visiting their house daily.
There was frequent telephone contact, between Mr Ahmetaj and [Mr S] and [the three others]. Physical meetings were organised to supply the drugs, collect money or give samples of the drug to be supplied. That happened, for example, when Mr Ahmetaj was considering purchasing heroin and a sample was provided for quality testing. Mr Ahmetaj utilised [Mr S] to minimise his own exposure to risk.
On 28 February 2010 Mr Ahmetaj was in his car, in possession of heroin that he intended to sell. When police approached his car he threw a package out of his window, and then attempted to evade them in a pursuit. He had to be forcibly removed from his car. The package was retrieved and found to contain 85.227 grams (about three ounces) of heroin, with a purity level of 17.32 per cent. The pure weight of the heroin was 14.659 grams, which had an estimated value of $34,000.
Mr Ahmetaj was arrested that day and later released on bail. A search of his house revealed he had a taser. He continued trafficking, distributing wholesale quantities of heroin and methamphetamine to at least six customers, who were all detected having regular discussions with Mr Ahmetaj by phone about drug sales. The calls used codes to refer to drugs. Mr Ahmetaj then arranged for buyers to meet either near his house, in pre-arranged locations such as petrol stations or parks, or at the buyer’s house.
The trafficking continued until Mr Ahmetaj’s arrest on 26 May 2012. At that time he was found in possession of small amounts of drugs. Mr Ahmetaj’s trafficking was profit driven rather than to support his own habit. However in various telephone intercepts Mr Ahmetaj referred to his own use of methylamphetamine and cannabis, reflected by the small amounts of those drugs found at his house.
[Mr S] acted as Mr Ahmetaj's right hand man, not just in relation to the drug trafficking, but also in Mr Ahmetaj’s legitimate businesses, including car sales and attempting to establish a security business. The phone records revealed many frequent calls between [Mr S] and Mr Ahmetaj. Some calls related to legitimate business matters, but many were in code or to arrange a face to face meeting.
Mr Ahmetaj and [Mr S] had various methods to prevent detection. Each had multiple mobile telephones registered in false names. When Mr Ahmetaj was arrested he had six mobile phones and multiple sim cards. During the investigation period Mr Ahmetaj used more than 19 phone numbers, registered in false names and addresses. He also supplied mobile phones to [two dealers to whom he sold], registered in false names, for them to use when contacting him.
Mr Ahmetaj was a hands-on operator of the trafficking business, arranging meeting times and places, giving directions about samples, arranging testing of the quality of samples, specifying how the drugs should be mixed, directing someone to make contact with another to supply, asking that he be put in touch with suppliers in New South Wales, providing phones in false names or sim cards so that contact could be made, checking on the whereabouts of buyers, protecting the anonymity of customers, and giving instructions to one buyer to “just ask and play dumb” when being sent to check on another buyer who had been intercepted by police.
On some occasions Mr Ahmetaj used his car sale business to launder money from his drug trafficking business. Records showed an inflated sale price for cars sold privately after auction, over the price that had actually been paid by the customer.
The agreed schedule of facts, arrived at after factual negotiations, recorded “[t]he profit [made] from the trafficking business was large, in the order of [hundreds] of thousands of dollars”. That was the only fact to which there was some qualification. Senior counsel for Mr Ahmetaj said that his instructions were that “the profit from the trafficking was at least $100,000, so a six-figure amount”.
Mr Ahmetaj lived an expensive lifestyle: in addition to his house he owned a luxury unit; in his house there were a number of Versace items, including Versace etched glass around the swimming pool; he was wearing valuable jewellery at the time he was arrested; four receipts from Versace were found in his house, including one for a Versace coat worth over $1,800. The receipts showed that all purchases were paid for in cash. He owned substantial real estate, drove expensive cars including a Bentley Continental, and owned a Bayliner Mercruiser vessel.
On 28 February 2010 Mr Ahmetaj was arrested and charged with possession of three ounces of heroin…[and] he was intending to supply that heroin to others… He remained on bail for that charge…Therefore, for the entire period of trafficking Mr Ahmetaj was on bail for the heroin possession charge. That was a serious aggravating factor.
Antecedents
Mr Ahmetaj was born on 6 January 1970…Some of his history is revealed in reports from Dr Ziukelis and Dr Yoxall:
(a) he is Albanian or Montenegran, and raised from childhood in Kosovo; he experienced constant pressure and blatant discrimination throughout his life because of his Albanian background; lived with the need to be constantly vigilant about what he said; the father was harsh and instilled in him a sense of fear and need to be hyper-vigilant;
(b) his mother was chronically ill with a congenital cardiac condition; she died when he was 19;
(c) he completed secondary education but could not get work because of the displacement of Albanians; he and his family feared for their lives when the war in Kosovo was taking place;
(d) he fled Kosovo when he was 20, and went to Slovenia; the journey was in December and he walked for weeks through deep snow; he then did not have contact with his family for about four years;
(e) he went to the Netherlands when he was 27; the rest of the family ended up in the USA or Germany; he came to Australia in 1997 on a false passport, and spent nine months in detention at Villawood; that was a terrifying experience as attempted suicides and self-harm were a common sight; he found it an extremely depressing and hopeless environment;
(f) he met his wife in 2000, and married in 2003; up to 2003 he was totally dependent on sponsors, then on his wife and her family, because under the bridging visa he had, there was no entitlement to work, and he was not entitled to Centrelink or Medicare assistance; he felt an absolute powerlessness to progress his life; being reliant on charity was a matter of shame to him; he also lived in fear of deportation;
(g) in 2004 he started to use prescription medication for depression, and then more recently for diabetes;
(h) in 2006 he started to use heroin to relieve distress, and he became addicted; he successfully underwent rehabilitation; he developed diabetes around 2007;
(i) in 2007 he applied for permanent residency;
(j) he was granted permanent residency which allowed him to be able to work and start to build a life; by that time he was in his late thirties, had little to no English proficiency and few job skills; he was also under treatment for severe and chronic Post-traumatic Stress Disorder and Major Depressive Disorder;
(k) he and his wife opened a car sales yard in 2009, which included doing work on repairable write-offs and then on-selling vehicles; once they had an income they started to invest in property, and they completed a couple of small residential development projects.
Evidence as to medical conditions.
In 2004 Dr Ziukelis diagnosed Mr Ahmetaj as suffering from chronic Post Traumatic Stress Disorder (PTSD) with accompanying Major Depression. The source of that condition lay in the psychological injury sustained from before he arrived in Australia, and the shame and humiliation he felt over his predicament. As described by Dr Ziukelis: he was constantly preoccupied with thoughts about the brutality seen and experienced in Kosovo; he suffered insomnia, getting up nightly after an hour or two and pacing the floor; he was constantly anxious, had episodes of panic and felt a constant sensation of pressure on his chest.
The prognosis in 2004 for his PTSD was that it would take further years to abate even with treatment. Dr Ziukelis said the major depression appeared to be a gradual outcome of prolonged fear, uncertainty and enforced dependency.
Dr Ziukelis reported again in 2012. The diagnosis of PTSD remained, though it had “somewhat abated over the years since he was first seen in 2004”. The medication level had diminished, from major tranquillizers and antidepressants, to “5mgm” of diazepam, as needed to counter panic attacks.
A psychologist, Mr Coucill, provided a report dated 28 August 2014…Mr Coucill reported on the course of treatment:
“During the time I have been his psychologist he has focused on addressing his grief, understanding his triggers surrounding his previous drug use behaviour and instilling relapse prevention strategies. This includes self esteem training, psychoeducation and awareness skills, motivation tasks and self control theory. Mr. Ahmetaj has demonstrated active positive change and adapted these new understandings into his daily functioning, which has increased his self esteem and hope for the future.”
Then he gave his recommendation for the continuation of treatment, saying that Mr Ahmetaj had benefited from the treatment and “continually shown improvement in presentation, initiative and mood state”. Further, he had attended scheduled appointments and demonstrated a desire to continue the treatment, attaining “motivation in addressing his past illicit drug abuse”.
Dr Yoxall, a psychologist, gave a report dated 17 September 2014, for use at the sentencing hearing...
Dr Yoxall reviewed the assessment she conducted which included detailed information gathering from Mr Ahmetaj and his wife, a clinical review, and an assessment of his psychological functioning. Her view was expressed as:
“Mr Ahmetaj presents with chronic and complex Posttraumatic Stress Disorder and associated Major Depressive Disorder and Panic Disorder. His currently (sic) level of overall function is very low…In my opinion Mr Ahmetaj requires ongoing psychiatric and psychological treatment. Given the chronicity of his psychological difficulties, it could be beneficial for him to engage in an intensive inpatient program tailored to treat the chronic and complex Posttraumatic Stress Disorder and to address the related substance misuse, depression and anxiety. Such an intervention would not be expected to resolve his current symptoms, (and would only be conducted with approval and support of his treating psychiatrist and psychologist) but may assist in moderation of some current symptoms and allow Mr Ahmetaj and his wife to gain more in-depth education about his complex mental health problems and develop more strategies to enhance day to day function.
Overall, even with such recommended intensive treatment and ongoing management with his current treatment team, Mr Ahmetaj’s prognosis is limited. It is likely that this man will live with a level of symptomatology for the foreseeable future and the goal of treatment is to manage his difficulties and achieve optimal function.”
In her summary of conclusions Dr Yoxall also expressed the view that:
“Information provided by Mr Ahmetaj on assessment, together with clinical observation and supporting documentation suggests that his psychological dysfunction has escalated in the period since his arrest. He currently presents with a complex clinical picture of chronic and complex Posttraumatic Stress Disorder, Major Depressive Disorder, Recurrent and Panic Disorder with Agoraphobia. His currently (sic) level of daily function is very low and he is heavily reliant upon his wife for support in activities of daily living. His amphetamine and cannabis drug dependence has now resolved but he reportedly has chronic and complex medical conditions including Diabetes Mellitus Type II for which he is now insulin dependent.”
Finally, as to the way in which Mr Ahmetaj would cope with imprisonment, Dr Yoxall offered this assessment:
“In my opinion Mr Ahmetaj’s physical and mental health concerns would render him an extremely vulnerable individual in a prison setting. His history of trauma, and psychological difficulties, combined with his poor physical health would likely place him at risk of exploitation by others and psychological decompensation. Mr Ahmetaj requires a comprehensive and highly structured treatment regime to address his mental illness which would not be available to him in a prison environment.”
Mr Ahmetaj was granted bail on 23 July 2013. Thus about 14 months elapsed between then and when he was sentenced. There is no evidence to suggest that while on bail Mr Ahmetaj reoffended. During that time he continued his counselling sessions with his psychologist.
Discussion
…It was put that the difficulties experienced by Mr Ahmetaj in his upbringing, escape from Kosovo, and attempts to form a life in Australia led to his post traumatic disorder and major depressive disorder, which in turn led to his drug use to alleviate the symptoms, and that resulted in his offending. In that regard the court was directed to various parts of the reports of Dr (sic) Ziukleis and Yoxall, and the counsellor, Mr Coucill.
Further, senior counsel also conceded that the learned sentencing judge was alive to the issue and took it into account. However, it was submitted that none of the comparable cases involved anything like Mr Ahmetaj’s background or condition.
Before discussing the contention some additional matters need to be noted.
Mr Ahmetaj’s history is that he arrived in Australia in 1997, met his wife in 2000 and they married in 2003. From what he told Dr Ziukelis and Dr Yoxall, he experienced significant symptoms of psychological injury from well before he arrived in Australia. In January 2004 he was diagnosed with PTSD and Major Depression. Soon after, in June 2004, Dr Ziukelis started treatment on a semiregular basis. The treatment continued throughout the period of trafficking.
According to Dr Ziukelis the diagnosis of PTSD “had somewhat abated over the years since he was first seen in 2004”. In 2006 he started using heroin or cannabis to relieve his stress. When he was permitted to apply for permanent residence the symptoms changed and “[r]elief and evidence of cautious optimism were evident”.
According to what he told Dr Yoxall, after being in rehabilitation he started using cannabis again after his father died in 2009. He also started using heroin, which gave him “a temporary break from the anguish that he felt”. Then Dr Yoxall records this from Mr Ahmetaj:
“Mr Ahmetaj said that when he was charged in 2010 he was using a mix of cannabis, heroin and ecstasy, along with prescription medication. He said that he tried again, to resolve his drug use. He said that he was able to abstain from all drugs for a period of time. However Mr Ahmetaj said that when he relapsed again, he was introduced to methylamphetamine. He said that this drug gave him energy, and again, allowed him to disconnect from his emotional difficulties. He said that he initially felt powerful, happy and motivated on the drug. He said that through using the drug he became acquainted with others who used. He said that much of this occurred at elaborate and expensive parties and he said that he knew various high status professionals on the Gold Coast who used drugs with him.
Mr Ahmetaj said whilst his drug use escalated he found he was living two lives. He said that when he wasn't using drugs he spent time with his wife and socialised and assisted various important people within the Albanian community and he said that he derived great satisfaction from being perceived as successful and generous. He said that he felt as though after so many years of being worthless (when he had to rely on the charity of others), he had finally been able to prove himself.”
Dr Yoxall’s conclusions were expressed in a way that touched on the issue. She reported that Mr Ahmetaj’s said his previous personal drug use “initially arose as a form of self-medication against his posttraumatic stress symptoms”. She went on:
“On assessment Mr Ahmetaj acknowledges that his offending was initially precipitated and perpetuated by a need to fund his own drug dependence. However he acknowledges that offending was also motivated by a desire to achieve some financial success after had spent (sic) most of his life in poverty, reliant upon charity.”
…
First, the condition of Mr Ahmetaj falls well short of that which could be said to reduce moral culpability. Indeed, it was not put that way in the submissions before this Court.
Secondly, given the nature of the offending here, the condition has no real bearing on the kind of sentence to be imposed or the conditions in which it should be served. As was accepted at sentencing and in this Court, a custodial sentence of some length was inevitable.
Thirdly, the nature and severity of the symptoms exhibited by Mr Ahmetaj do not call for any softening of the factors of general or personal deterrence. Notwithstanding his ongoing treatment, Mr Ahmetaj started and then continued trafficking, motivated (at least in part) by the desire for profit. Nor is there any suggestion of the condition impacting on Mr Ahmetaj’s mental capacity.
On the evidence, Mr Ahmetaj certainly had knowledge of what he was doing, and of the gravity of it.
Fifthly, whatever the condition, and however it arose, it did not seem to hinder Mr Ahmetaj in progressing his business or social interests, or prevent him from engaging in complex business transactions. Once he and his wife moved to the Gold Coast (by early 2004) they obtained car dealer licences and commenced a legitimate car sale business in 2005, which, it seems, was successful. In addition they commenced to invest in property, carrying out a couple of small residential development projects, and they (or at least, he) engaged in society at “elaborate and expensive parties … [with] high status professionals”. The property investments were successful as the agreed statement of facts described him as owning “substantial real estate”.
None of that suggests that the psychiatric condition impacted in a way that was disabling, or truly drove him to trafficking. Mr Ahmetaj was operating his personal and business life at a high level of competency. He was under the assistance of Dr Ziukelis from 2004, and had seen him on 25 occasions from 2004 to 2006, prior to the first serious drug offences in 2006. Then he saw him another 15 times before the trafficking period started in 2010. None of that bespeaks a condition that should reduce the sentence given the obvious criminality of the trafficking.
Sixthly, Dr Yoxall referred to what Mr Ahmetaj said was the motivation for the trafficking, namely that it was in part “motivated by a desire to achieve some financial success” and “became a means to achieve some level of financial stability that he could not otherwise achieve”. In my view, once the trafficking is motivated, even in part, by financial desire, the psychiatric condition ceases to be of such significance to the exercise of the sentencing discretion. In fact, Mr Ahmetaj seems to have gone well beyond mere financial stability, given the agreed facts about his substantial property and expensive lifestyle and possessions.
Even then the profit was quite substantial. It recorded that “[t]he profit made from the trafficking business was large, in the order of hundreds of thousands of dollars”. The qualification was that “the profit from the trafficking was at least $100,000, so a six figure amount”.
The condition from which Mr Ahmetaj suffers did not impede his pursuit of financial rewards by trafficking in heroin and methylamphetamine over an extended period and in defiance of police intervention, and while on bail.”[28]
(Underlining added, some names concealed)
[28] Exhibit G1, G2, pages 41 to 62.

The appeal decision does not go into detail about what tasks Mrs Ahmetaj’s performed at the Applicant’s direction. Nor do the computerised police notes. I do not have the agreed facts or the original sentencing remarks before me. Mrs Ahmetaj denied having any knowledge of the drug operation until the Applicant was prosecuted and it does not appear that she was prosecuted for her role in it. I therefore proceed on the basis that she did not realise she was assisting in the drug trafficking operation.
The Applicant gave evidence that Mr S was only minimally involved in the drug operation.[29] However, that evidence is contrary to the findings of the court so I reject it.
[29] Transcript, page 22, lines 4 to 26.
In 2013, when the Applicant applied for bail, the Courier Mail reported that he was granted bail despite strong opposition from prosecutors who claimed he had a “propensity to interfere with witnesses”. In the hearing the Applicant passed that off as the Crown always having to make such claims to persuade the court not to grant bail. He denied contacting or threatening witnesses.[30] I do not accept that the Crown routinely makes such claims whether legitimate or not. I think this testimony from the Applicant is one of many indicators of an antagonistic attitude towards the administration of justice.
[30] Transcript, page 77, lines 15 to 28.
That publication also reported that prosecutors attacked some of the Applicant’s affidavit evidence as implausible, including his evidence that Versace items found at his house were “copies” when police claimed they found four receipts from the luxury retailer, including one for an $1810 coat. I do not have a copy of the affidavit before me. I asked the Applicant about this part of the article and he initially claimed that there were a lot of copies purchased in China and that the receipts were made in China, that his wife got some presents for her birthday, and they did not hide anything. He said there was jewellery that was Versace but it was handmade, not bought in Versace. He said the clothing “was mixed”, some of his clothes were Versace, and the police found a jacket with the price in the pocket.[31] He said he could not recall if he had said in his affidavit that all the Versace items were copies.[32] I note that inside the Applicant’s home was a spa enclosed by Versace etched glass.[33] The Applicant’s explanation was opaque in parts and implausible in others. I am satisfied that the Applicant sought to give the impression in sworn (or affirmed) evidence to the court that genuine Versace items were fakes. That the Applicant sought to deceive the court speaks to his character at the time.
[31]    Transcript, page 77, line 32 to page 78, line 3.
[32]    Transcript, page 77, line 33 to page 78, line 3.
[33]    This was described as a pool by the Court of Appeal.
The Courier Mail reported that the Applicant had denied having any unlawful dealings with alleged suppliers in Sydney and dealers in Brisbane, who he said were “acquaintances” to whom he had sold cars and enjoyed social visits with. I asked him about this report and the following exchange occurred:
TRIBUNAL: Now, another thing the article says is that in your bail application you denied any unlawful dealings with alleged suppliers in Sydney and with dealers in Brisbane. You said they were acquaintances that you had sold cars to and had had social visits with. So, was that untrue?
APPLICANT: (Indistinct) I don’t know.
TRIBUNAL: So, did you tell a lie in your bail application? Did you say that these people who - were there people you were involved with drugs and you said that they weren’t?
APPLICANT: There were some people was involved, it was only with cars. And some people, they ask me, they was meet from casino and I sell cars. Is in a record was they saw I sold the car, a couple of cars to them. He bought it for mum, for his, I think, for his sister in law. One of the is a Cambodian. I meet him in casino. And he become - after, they told me he’s a drug dealer. You know what I mean. But, you know, you don’t know who you meet and the way you meet. But the person, they ask me, 100 per cent I was not involved in drugs.
TRIBUNAL: So, did you say in your bail application that you weren’t involved in drugs?
APPLICANT: No, I didn’t say I didn’t involved in drugs. I was involved in drugs, but not involved with this person.
TRIBUNAL: Well, they’re saying, “Suppliers in Sydney and dealers in Brisbane,” plural. So many - more than one supplier in Sydney, more than one dealer in Brisbane. So, are you saying that there were multiple suppliers in Sydney and - that you knew, but you weren’t having any drug dealings with them? And the same in Brisbane ‑ ‑ ‑
APPLICANT: Like I say, most of the time I get the drugs in Gold Coast. They ask me, (indistinct) suspicion. They ask me about people. And then after I point out they was involved in some crimes, but me, no, they - I didn’t deal with them personally.
TRIBUNAL: But do you see how that is hard for me to believe - that you just happened to know suppliers in Sydney and dealers in Brisbane and you were operating a drug trafficking network, but these people ‑ ‑ ‑?
APPLICANT: Let’s say it like this ‑ ‑ ‑
TRIBUNAL:- - - you didn’t have anything to do with drugs with them?
APPLICANT: Let’s say like this, okay, I understand where you’re coming from. To make it for you to understand that this was too not to give up no one, to get the blame, and not to look behind my shoulders all my life. I done the time for that and I didn’t, you know, blaming the people, you know. Now, I think you should get what I mean.
TRIBUNAL: What I’m stuck on here is that you’ve said - see, that you’ve said - it looks like there was some drug dealers in Brisbane and you’ve said you didn’t have anything to do with them in terms of drugs, they were acquaintances that you sold cars to and visited socially. That just seems very strange that you’re trafficking drugs, they’re dealing drugs, but you didn’t know them through drugs. You sold cars to them, or you just happened to socially visit them. It doesn’t sound plausible; it doesn’t sound believable?
APPLICANT: Yes, but some of them, I done it.
TRIBUNAL: Some of the dealers, you were dealing with, you had a drug relationship with?
APPLICANT: Yes. Yes. Normal. But don’t me ask the names, please. Because ‑ ‑ ‑
TRIBUNAL: Ok. Well, I’m not asking for names?
APPLICANT: Yes. But, yes.
TRIBUNAL: Okay?
APPLICANT: And some of them - some of them, you asking me, they turn against me as a crown witness, anyway. Let’s say, how you going to deny that? But I tried to explain, is some people are accusing me I done dealing with them, which I never did. And like you say, it’s hard to believe. Is believe, because over some drug dealer, I was doing business. I meet his friend. But I never done business with his friend. And we become friends too and we done business - a business. We lend money to each other, and with interest. Lot of things. You know, happen in life. You know what I mean, I’ve been open with you. I’ve been open with you as much as I can.
TRIBUNAL: So, just to get it clear in my head. In your bail application, was some of that untrue? When you denied unlawful dealings, some of it was untrue and some of it was true?
APPLICANT: Yes.[34]
[34] Transcript, pages 78 to 79.
As well as being reluctant to admit that he had lied in his affidavit about the nature of his dealings with other drug suppliers/dealers, the Applicant was very reluctant to acknowledge that he had used his car yard to launder the proceeds of his offending. When asked about it, he said “I pled guilty, yes”. When asked specifically whether he recorded that cars were sold for more than the real sale amount, he claimed not to remember. Later, he said he tried as much as he could to keep the business clean. He said his wife was in charge and he used the cars for short periods, or “delivery” (presumably delivering drugs) but nothing more.[35] I do not accept this: I accept the facts that were accepted by the court and upon which the sentence was based.
[35] Transcript, page 64, lines 33 to 44.
The Applicant admitted that his drug trafficking was not born of financial need. He said he made good money from the car yard and properly dealings. He was a successful businessman.[36] This is consistent with the Court of Appeal’s findings.
[36] Transcript, page 73, line 39 to page 74, line 37.
I now return to the reports of domestic violence. A letter describing the contents of the reports was sent to the Applicant, and he was invited to comment on it, prior to the non-revocation decision being made. His lawyer provided a response on his behalf to the effect that:
·at the relevant times the Applicant was without working rights and waiting for the final decision on his spouse Visa application. His life was in turmoil, he was dependent on his wife to feed him and support him and it was a humiliating position for him. He was a laughing stock among Australians of Albanian background;
·he started using a mix of cannabis, heroin and other illicit drugs to disconnect himself from his emotional difficulties. When he was under the influence of drugs he would argue with his wife and sometimes a heated exchange of words and pushing between them would occur but nothing of a serious nature;
·the Applicant’s wife said she would normally call police to calm the situation and “and preventing any further damage to his Visa application due to the potential bad character issues”;
·the Applicant’s wife advised that she would never live with a domestic violence perpetrator let alone continue to visit and care for him during his time in gaol and immigration detention; and
·according to the Applicant, the incidents were more “skirmishes” in nature. [37]
[37] Exhibit G1, G2, pages 1029 to 1030.
In a nutshell, this letter indicated that the incidents were mere heated words and pushing, nothing more than skirmishes, and not serious. Mrs Ahmetaj’s continued cohabitation with the Applicant and support of him while in custody was put forward as evidence that he had not perpetrated domestic violence upon her. As shall become apparent, this was all untrue. Further, the claim that the Applicant was a laughing stock among Albanian Australians seems inconsistent with his own evidence that the Albanian community was kind and supportive, and that he did do some work for money. Without corroboration of that claim, I reject it. Having said this, I do not intend any criticism of the Applicant’s lawyer who was presumably acting on instructions and did not have access to the police records of the domestic violence at that time.
In the hearing both the Applicant and his wife were asked about the reports of domestic violence. The Applicant initially denied most of it although he admitted to more than he had admitted to through the letter from his lawyer. He said:
“I was different culture, different mentality you know what I mean. Monkey see, monkey do… once was violence because she done something I believe - she done something that I don’t like it and there was a bit of drink and, you know, party, and was a bit - I admit it was a bit of violence, but not that bad how the, you know, people think. I go to court, I remember I plead guilty. I show remorse in that and I show remorse to [her] and I show remorse to you guys.”[38]
(errors in original)
[38] Transcript, page 11, lines 7 to 20.
When the Applicant was pressed on the issue by the Respondent’s lawyer, he represented that there was only one episode, saying
“…once - we, we had some argument. I don’t - I don’t remember, did I hit her or not, or what’s happened. The police come, they - they just put a restriction order, and still they let me to go there to see my wife. In a court, the fine was $800 or something, because I said - say “Yes, okay”, you know?”[39]
[39] Transcript, page 44, lines 37 to 43.
He added that the police “make it big deal. It was a - was a - more than argument, you know?”[40]
[40] Transcript, page 45, lines 1 to 5.
When asked if it was more than an argument, and if he recalled hitting his wife, he said “I don’t remember - I don’t know. I think - I don’t know, I’m not sure. Being honest, I’m not sure. I think yes, but I’m not sure.”[41]
[41] Transcript, page 45, lines 7 to 15.
When the details of the first alleged incident, on 1 January 2004, were put to the Applicant, he said he could not remember it.
With respect to the second alleged incident, on 2 December 2004, the Applicant said he did recall that and that “I think I - I - I hit her”. When some of the details were put to him – he grabbed his wife’s hair, struck her, she put her hand up to shield herself – he said:
“Yes, happened, I done that. I say to her sorry. I remember the fine, $800 in a court. …yes, I done it. I abuse her more with the screaming and calling her names, and these things, you know what I mean? But, you know, I hit her maybe couple times. I remember - I remember something. She tried to say, “You push me in the stairs” or something. I don’t know. I don’t remember after that, which I don’t remember. I was a bit drunk, too. I was high, too. I done it. You know, I even plead guilty for that. I’m sorry, you know, I say to her “I’m sorry, forgive me”, and we continue life together till today.”[42]
[42] Transcript, page 46, lines 30 to 38.
When the details of the third alleged incident, on 3 December 2006, were put to the Applicant, including that he was on bail at the time, he said he got emotional because he lost at the casino and that he screamed at his wife, called her names and threatened her. He said he did not recall hitting his wife on that occasion[43], however he also seemed to say that this is what husbands and wives do. He said:
“…sometimes the woman goes too far with - or the man goes too far too…I’m not trying to excuse myself, because it’s not fair to abuse someone or hit someone, but happen in life, you know? And I’m sorry about that, I should not do it. But husband and wife, you know what I mean? Always is argument, is not a - not everyone got a sweet life like they - they acting or something. You know what I mean?”[44]
[43] Transcript, page 47.
[44] Transcript, page 84, line 42 to page 85, line 8.
The Applicant did not seek any help to prevent any further domestic violence. He indicated that he was not aware such help was available at that time. I can accept that he did not know about targeted domestic violence intervention programs. However, he was under the treatment of a psychiatrist at that time and it is telling that he did not identify the domestic violence as one of the problems he wanted to address. I asked him about talking to his Imam or another person he trusted in his community and he said:
“I don’t tell people, “I have a trouble with my missus.” You know, I keep it to myself because I am proud of myself, you know. Like Albanian. I don’t want everyone to know we have argument with my missus...Is a culture.”[45]
[45] Transcript, page 84, lines 40 to 48.
Mrs Ahmetaj was asked about the reports of domestic violence. Her evidence was unsatisfactory and very concerning in that she sought to deny, minimise and excuse the Applicant’s offending against her. She referred to the pressure and stress on the Applicant due to the fact that she was the only provider at the time, given his cultural background. She never once referred to the pressure on her of being the sole breadwinner.[46]
[46] Transcript, page 100, lines 1 to 8.
Mrs Ahmetaj said when arguments started occurring she called the police so it would not escalate and to let the Applicant know that swearing at someone is not acceptable here. She said when he swore at her it was the drugs, not him, talking.
She was asked directly whether the Applicant ever hit her when he was using that language, and she said “Not that I can remember, maybe a bit of pushing and shoving. But, nothing violent that I felt threatened to.” She claimed, in relation to the first report of her calling the police that she did it because the Applicant was very loud and she did not want the neighbours to start complaining. When the details of that report were put to her, she became more forthcoming: she admitted that the Applicant slapped her, causing bruising and swelling under her left eye. She then recalled some details of a subsequent attack, being the December 2006 attack, although she mistakenly thought it was the December 2004 attack. She recalled a scuffle, being slapped across the face, and sustaining a cut lip and a bruise under her eye from the Applicant’s rings. She called the police and they insisted on taking an AVO out because she told them he was using drugs. She claimed that, after that, she and the Applicant both underwent counselling and that he had never done it (attacked her) again, “never ever”.[47]
[47] Transcript, page 106, line 42 to page 107, line 3.
Mrs Ahmetaj admitted that that none of the counselling was specifically targeted at the way the Applicant treated her. She claimed the change in the Applicant occurred within months of first seeing Dr Ziukelis. I note that the Applicant started seeing Dr Ziukelis in January 2004, some weeks after the first reported episode of domestic violence, and that attack was followed by an attack a year later and another three years later.
Mrs Ahmetaj was asked why she previously gave evidence that the Applicant was not violent towards her. She rather unconvincingly said she did not class it as danger where the Applicant has a “weapon or something, that he was going to kill me or anything like that, he was no threat”. She said it was mainly pushing and shoving and yelling, and when she said she was going to call the police, that is when he slapped her. She then appeared to backtrack on her evidence, claiming she could not recall the Applicant hitting her on more than one occasion, adding that she did not feel she was in danger on any of the occasions as she did not think there was a threat to her life.
When the details of the 3 December 2006 incident were put to Mrs Ahmetaj, she recalled it and added that the following day, the Applicant swore on his father’s grave he would not do it again. Her exact words were:
“he said, ‘My parents are dead. I swear on their grave I’ll never be like this ever again towards you’ and we continued going back to see Dr Ziukelis and he never did it after that, never did it after that”.[48]
(Underlining added)
[48] Transcript, page 109, lines 43 to 45.
The Applicant’s father was still alive in 2006. Mrs Ahmetaj tried to repair that discrepancy by claiming that in Bosnia when a person says “I swear on my family, I swear on my parents I will never, ever, do that again to you”, it is like a blood oath. Even if that is so, it does not explain the Applicant’s apparent promise referring to his parents being dead and to their graves. I reject Mrs Ahmetaj’s explanation for the discrepancy and I find it implausible that the Applicant made her the promise she claimed he made.
Mrs Ahmetaj said she does not recall any further incidents of domestic violence since 2006. She did not definitively say there had not been any. She had previously claimed to have a poor memory due to her medication.
Mrs Ahmetaj’s daughter gave evidence that to her knowledge the Applicant has never been violent towards Mrs Ahmetaj.
The reports of domestic violence were made contemporaneously by police officers who did not have any apparent motive to make anything up. On the other hand, the evidence of the Applicant and his wife is not contemporaneous and they both have reason to downplay or deny the allegation in the context of his application to get his visa back. Where there is an inconsistency between the police records and the evidence of the Applicant and/or his wife I prefer those records. I am satisfied that that the three reports are accurate. I am further satisfied that the Applicant knowingly breached a DVO. The Respondent submitted that the Tribunal should be sceptical about Mrs Ahmetaj’s evidence that there was no further domestic violence after the December 2006 incident. In fact, her evidence was merely that she did not recall any further incidents. That, and her apparent reluctance to recall the reported incidents, certainly leaves open the possibility that there were further unreported episodes of domestic violence.

According to DCS records, on 21 May 2015, the Applicant was placed in the detention unit for fighting.[49] In the hearing he admitted to having been in a couple of fights but he could not recall the dates. He initially represented that he would merely defend himself. He then admitted he hit an inmate who was trying to be in charge of the unit and who had accused him of being a snitch. He said he hit him to gain respect and protect himself from having that reputation. He agreed that he overreacted.[50]
[49] Exhibit R2, page 2.
[50] Transcript, pages 55 to 56.
A DCS records dated 13 Dec 2015 state that the Applicant was offered an employment form that he declined. A note dated the following day records that he refused to commence work, claiming he was not well enough to work. It was put to the Applicant that this note stated that he had refused to work, not that he was medically unfit to work. He was asked if he was medically unfit or whether he had refused to work, and he said he could not remember.[51]
[51] Transcript, pages 50, lines 1 to 20.
DCS record dated three months later, on 13 March 2016, noted that after the Applicant had lent his cap to another inmate and that he became abusive towards an officer and raised his voice stating “You listen to me, you are sitting in that chair, you get paid to find my hat.”[52] The Applicant claimed to recall that incident 100%. His explanation was essentially that he thought the officer should have taken certain action requested by him and that she had not done so and treated him poorly.[53]
[52] Exhibit R2, page 5.
[53] Transcript, page 50, line 40 to page 51, line 10.
DCS records describe verbally abusive behaviour engaged in by the Applicant over several days while he was in the prison medical unit within the residential complex. The notes dated 10 May 2018 indicate that:
·The Applicant was informed that he was required to quieten down his behaviour and stop making demands to officers, and that he may be required to move out of the medical unit at any time should another prisoner be deemed medically fit for that unit. He became highly agitated and stated “I am not moving out of there, I am a “someone” on the outside… I’ve got money, you c-nts will be f-cked”;
·When spoken to about his “mannerisms towards officers and his demanding dispositions” he spoke in a derogatory manner to two officers in the officer’s station and throughout the interview he spoke in a very loud and aggressive manner;
·When informed that he might be required to move units at a later date, the Applicant said “it’s all about that old c-nt”, and that ‘piece of shit’ and he is “playing us and everyone”, making reference to another prisoner;
·When speaking to the supervisor, the Applicant said “I can ruin your career and your reputation”, and referred to officers as “dogs”. He spoke in an abusive and aggressive manner and used derogatory terms such as “c-ck suckers”, “sluts” and “dogs”;
·When the Applicant returned to apologise to the officers, he said “yes, I apologise to her, I would smack her as though she was my own daughter”.[54]
[54] Exhibit R2, page 6.
The Applicant claimed to have a poor recollection of the incident but that a couple of times he threatened to sue because the officers would threaten him with violence and to make his life hell. He said they called the prisoners names too such as “Albanian piece of shit”. He could not recall that but when asked if he thought it was appropriate to smack grown females he said:
“Maybe I say it, she’s my daughter, I smack her, or something like that, yes, you know, because you use, like - because maybe she was young, and I’m 53 - okay, I say it like a father and daughter…if it’s my kid and she do the behaviour, I smack her”.[55]
[55] Transcript, page 53, lines 5 to 15.
With respect to the offensive names, he said officers and prisoners do it and it is part of gaol.
DCS records indicate that four days later, on 14 May 2018, the Applicant was spoken to about his abusive behaviour. During the interview he interrupted and told stories about having been a soldier in the Army and that he does not let anyone threaten him. On several occasions he referred to female staff in a derogatory manner.[56] The Applicant claimed he could not recall this but he indicated that sometimes the officers would think he was speaking abusively “Like a lot of times happen, I say, you know, leave me alone or eff - “F-ck off” or something…”.[57]
[56] Exhibit R2, page 7.
[57] Transcript, page 57, lines 1 to 10.
On 16 April 2020, the Applicant was caught with Subutex in his possession. Subutex is a prescription medication generally used to treat opioid addiction. The Applicant claimed he was used as a drug mule, having been asked by a prisoner to give it to his friend. The Applicant knew it was against the prison rules but he said “they got their own rules, too. If you don’t do something you really - you’re the bad - the weak person. The bad person. You have to cop its - the - the blame. You are piece of shit”.[58] He also admitted to having transferred Tramadol on another occasion. The Applicant had earlier said he had moved on from drugs since going to prison. When that earlier evidence was put to him in the context of this incident with Subutex, he said it was not drugs, but medication.
[58] Transcript, page 57, line 44 to page 58, line 2.
On 7 April 2021, the Applicant had a stroke and was admitted to the Ipswich hospital. The stroke resulted in right-sided weakness of the arm and leg, and he underwent a period of inpatient rehabilitation. DCS records describe more abusive behaviour in the fortnight that followed.
On 14 April 2021, when the Applicant was told he was able to make one phone call that day he was unhappy and started speaking aggressively. He called a male officer a “dog”, “rapist” and “c-nt”. When it was confirmed that he would only receive one phone call he continued to be aggressive and abusive with his tone and words throughout the day. He kept on at a male officer, calling him a dog, saying “The dog requires dog biscuits, can you get him some”.[59] The Applicant’s explanation was, again, that the officers were mistreating him and he gave an example of one watching a movie on his laptop while he was trying to sleep.[60]
[59] Exhibit R2, page 8.
[60] Transcript, page 54, lines 10 to 20.
The following day, the Applicant was abusive to an officer. After being told he would not get a phone call at night he began a tirade of abuse, calling the officer a “kiddy f-cker” and a “dog” for an hour and a half.[61] He threatened to sue for being denied his phone call. In the hearing he said he was sorry.
[61] Exhibit R2, page 9.
There is another report of verbally abusive behaviour on 25 April 2021.[62] This was not put to the Applicant but it is so similar to the other incidents that I accept that it happened.
[62] Exhibit R2, page 10.
The Applicant asked the Tribunal to consider how many incidents occurred in the context of how long he was in custody. I do take that into account and acknowledge that, and I also acknowledge that there are lengthy periods of time when there are no reports of poor custodial behaviour.
According to a letter from a rehabilitation medicine physician in the Brain Injury Rehabilitation Unit (“BIRU”) of the Princess Alexandra Hospital, on 13 May 2021, the Applicant felt nauseous, went to the toilet and fell and hit his head. It later transpired that he had suffered an acute subdural haematoma (also referred to in some of the evidence as a second stroke). He had post-traumatic amnesia for 12 days which ended on 25 May 2021. He spent a short period in the BIRU where he attended the gym for therapy sessions, returning to the secure unit outside those times. The Applicant was in the secure unit from 16 to 25 June 2021, and he was reviewed on 22 June 2021. It was noted that he continued to demonstrate improvements and over the coming days his mobility progressed and he was able to safely walk 200m independently with a single point stick and an AFO (Ankle-Foot Orthosis, a brace). He was able to safely climb stairs using a rail for support and he was provided with a compression garment for right arm swelling. He declined to participate in cognitive screening with an interpreter and visual screening. The speech pathologist thought his communication was functional and almost back to baseline.
The author of the report assessed that the Applicant was safe to return to custody and he was discharged on 25 June 2021. He was provided with physiotherapy and occupational therapy exercise programs. Options for outpatient physiotherapy and occupational therapy were provided to nursing staff within the gaol. The author considered the Applicant had demonstrated very positive neurological recovery following his two “brain insults” but that he would remain at risk of further stroke due to his vascular risk factors, the management of which had been medically optimised. He would also remain at risk of further falls due his impaired balance and peripheral neuropathology. These risks would remain regardless of his physical environment. Given his recovery to date the author did not believe his time in custody would be more onerous owing to his present health complications.[63]
[63] Exhibit G1, G2, pages 1026 to 1027.
In March 2022, the parole board approved the Applicant’s release on parole to the custody of the Australian Border Force in May 2022.[64] The parole conditions are quite comprehensive and include conditions relating to domestic violence and conditions prohibiting him from contacting Mr S and others.[65]
[64] Exhibit G1, G2, page 1021.
[65] Exhibit G1, G2, pages 1022 to 1023.
In a mental health consultation in immigration detention in May 2022, it was recorded that the Applicant had said he could not get good medical or mental health care in gaol and that “Young chicks come in who were in training. Young chicks who moved their arses to make the boys look at them”.[66]
[66] Exhibit G1, G2, page 1060.
Explaining that comment to the Tribunal, the Applicant said sometimes the nurses and doctors in gaol act like they do not care much, and they come and “show off or move their arses, or to attract the boys”. They do not do a good job whereas in detention he is treated like a human. When the Applicant was asked if he thought he has some cultural attitudes about women that are not appropriate in Australia, he said he did not think so. He said there is a lot of sexism in Albania, that men dominate, and he was like that when he came to Australia. He said he grew up where there was a lot of roughness against women, and that maybe when you grow up like that there is a bit left in the back of your mind and you do not realise. It was then that he was asked why he did not seek help after the domestic violence against his wife and he gave the answer that he is too proud to disclose trouble with his wife. He was then asked if he would now get some counselling in relation to that, and he said if it was recommended, he would.
The Applicant remains in immigration detention. His parole ends on 22 July 2023.[67]
[67] Exhibit A1, Attachment E.
PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they 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.
In determining the weight applicable to this Primary Consideration, paragraph 8.1(2) of the Direction requires me to give consideration to:
a)The nature and seriousness of the Applicant’s conduct to date; and
b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to the following relevant matters:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)…
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)…;
(g)...
The Applicant’s index offending is extremely serious. He played a high-level, integral role in circulating two of the most harmful, addictive illicit drugs available in Australia for over two years. He only stopped after being incarcerated. He did it for financial gain: he lived a lavish lifestyle, profiting from the misery of the users of those drugs and others who were inevitably affected such as their families and victims of drug related crime. The seriousness of the offending is reflected in the maximum penalty of 25 years imprisonment, the penalty that was imposed being 10 years imprisonment, and in the serious violent offence declaration made by the court.
The Applicant’s possession of a taser is also serious. First, he knew it was a weapon, indeed that is why he had it, and that it was illegal to possess it. Second, he chose to have the taser in his home for “protection” because he was involved in drugs and often left his wife at home alone. That is, rather than refraining from doing anti-social things that carried risk to himself and his wife, he chose to do those things and have an illegal weapon in the house that could have caused serious harm if deployed.
The driving offence carried a real risk of harm to other road users. That risk was magnified by the fact that the Applicant drove dangerously at night, through several streets including at least one densely populated area.
The three episodes of domestic violence perpetrated against the Applicant’s wife in their home were not prosecuted as assaults although one led to a conviction for breaching a DVO. They are relevant as “other serious conduct”, and they are very serious. They involved hitting, slapping, shaking, hair pulling, and inflicting cuts and bruises. The Applicant slapped his wife after she said she was going to call the police. He spoke in an abusive and demeaning manner to her during some or all of these assaults.
In addition to the family violence, the Applicant committed 15 offences between 2001 and 2012. Drug trafficking is defined in the relevant legislation[68] as carrying on the business of unlawfully trafficking in a dangerous drug. In carrying on his drug trafficking business, the Applicant committed many smaller offences, such as drug supply and drug possession that were all captured by the trafficking charge. Therefore, that single offence represents many criminal acts. His offending is frequent and there was an escalation in its seriousness including that fact that even after being caught with drugs intended for supply and granted bail, he continued to traffick in drugs. His repeated drug offending meant that more and more drugs were circulated within the community.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
[68] Section 5 of the Drugs Misuse Act 1986 (Qld)
According to paragraph 8.1.2(1) of the Direction, in considering the risk to the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
In accordance with paragraph 8.1.2(2), I must have regard to the following relevant 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 available information and evidence on the risk of the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.
I will first address the nature of harm from further domestic violence. The harm so far has included physical injury to the Applicant’s wife and if they are together any further offending would cause her physical injury. The Applicant’s wife is ten years older than him and she has some health problems. It is conceivable that at some point he could end up in a relationship with another woman, and that that woman would sustain psychological harm in addition to physical harm should the Applicant assault her.
Further trafficking in dangerous drugs, such as heroin and methamphetamine, on the scale of the Applicant’s previous operation is liable to cause the following impacts among members of the following groups:
·     Users of those drugs who become addicted - poor physical health, damage to mental health, alienation from family, loss of employment, homelessness, accidental death by overdose or misadventure, and degeneration into a life of crime;
·     Children of users of those drugs - parental neglect and abuse, domestic instability, exposure to others who would abuse them, the normalisation of anti-social behaviour, and the emotional and psychological harm associated with those things;
·     Other family members of addicts - an array of impacts associated with seeing their loved one deteriorate, trying in vain to help them, and possibly becoming the victim of manipulation, exploitation or crime perpetrated by their loved one;
·     Police and other first responders - physical and psychological injury (including career ending injury) from drug induced violence, and psychological harm from dealing with drug related deaths and other traumatic incidents; and
·     The community at large - physical, psychological and financial harm from drug related crime, and strain on the health system and allied services that deal with the problems of drug abuse.
Given the seriousness of the harm that would be wrought on the community by further drug offending of the kind previously engaged in, any material risk of further offending, is unacceptable.
In addition to the offending and the family violence, the Applicant was engaging in other anti-social behaviour. He gambled a lot and abused drugs. He said he used amphetamines up to three times per week especially if he was staying up for nights in a row gambling. For a period when he was trafficking drugs he rented a unit where he had parties, took drugs and was involved with other women. He said he did not want to engage in this behaviour at home because he had a wife and grandchildren (although, in fact, he had only one grandchild at that time). He did not separate from his wife, but he spent days at a time at this apartment.
I do not have the benefit of current expert evidence about the risk of the Applicant committing further offences should he be released to the wider community. Before the Applicant was sentenced, Mr Coucill indicated that the Applicant engaged well in therapy. Dr Yoxall thought his risk of reoffending was low but that was contingent on his capacity to abstain from illicit drug use and engage in some form of legitimate work where he could re-establish a sense of pride and purpose in his life.

In 2004, Dr Ziukelis said the Applicant was raised from childhood in Kosovo. The Applicant, in a written statement, said he was raised in Kosovo in a traditional Albanian family.[97] Ipswich Hospital progress notes dated in April 2021, following the Applicant’s first stroke, state that the Applicant was born and raised in Albania then moved around between Kosovo and Montenegro.[98] The Applicant told Dr Yoxall that his father travelled to Australia to visit from Kosovo in 2008, but died shortly thereafter,[99] indicating that his father retained the right to live in Kosovo. He told an IHMS psychiatrist that his father had owned a building company and worked for Kosovo transport.[100]
[97]    Exhibit G1, G2, page 84.
[98]    Exhibit G1, G2, page 355.
[99]    Exhibit G1, G2, page 153.
[100] Exhibit R2, page 1059.
The Respondent pointed out that the Applicant’s revocation request and subsequent submissions assume that he would be returned to Kosovo if his visa remains cancelled.
According to an article entitled “Country Report on Citizenship Law: Kosovo”,[101] before the Balkans war, the inhabitants of Kosovo were citizens of both Yugoslavia and Serbia. The Applicant was an inhabitant of Kosovo. During the war, the Republic of Serbia and the Republic of Montenegro, where the Applicant was born, established the Federal Republic of Yugoslavia (“FRY”) with Kosovo as an integral part of Serbia. A new Law on Citizenship of the FRY entered into force on 1 January 1997. It provided that both Serb and Montenegrin citizens were considered FRY citizens by operation of law regardless of their place of residence. This appears to cover the Applicant as he would have had Serbian citizenship as he had been living in Kosovo.
[101] Exhibit T1, Country Report on Citizenship Law: Kosovo, Revised and Updated January 2015, Gëzim Krasniqi, EUDO Citizenship Observatory, Robert Schuman Centre for Advanced Studies in collaboration with Edinburgh University Law School, Country Report, 2015/3. Neither party objected to this evidence.
The FRY engaged in widespread destruction of civil registers and the identity documents of Albanian Kosovars who they had deported. The United Nations Mission in Kosovo created a civil register (Central Civil Register of Kosovo) for Kosovo residents. One category who could register were persons who could prove that they had resided in Kosovo for a continuous period of at least five years. Because of the destruction of personal documents, applications for habitual residency in Kosovo could be supported by a range of material including documents issued by educational, health, political and religious institutions, public utilities and other quasi-official bodies, and oral and written statements. The Applicant has a birth certificate and school certificate that he produced to the Department when he applied for a protection visa. His father owned a business and held employment in Kosovo, and lived there until 2008, which would presumably be evident in some government records.
The current Kosovar Law on Citizenship contains transitional provisions that enable all pre-war residents of Kosovo who were citizens of the FRY and their direct descendants to be considered as citizens of Kosovo. This appears to apply to the Applicant’s circumstances. Further, individuals who on 1 January 1998 were citizens of the FRY and were habitually residing in Kosovo, and the first generation of their descendants, will be registered in the register of citizens upon application. It is likely that the Applicant’s father was a citizen of the FRY and it is known that he habitually resided in Kosovo until his death. The Applicant is a first generation descendant of his.
A citizen of Kosovo can only have their citizenship taken away when they are engaged in activities that pose a threat to the national security of Kosovo.
The Applicant contended that he is stateless, neither holding nor being entitled to hold citizenship of any of the former Yugoslavian republics. It was submitted that most of the pre-1999 civil registration books were destroyed or confiscated and many people had their personal documents destroyed (as stated above), and that the Applicant was not registered by the United Nations Mission in Kosovo (“UNMIK”) because he was not there at the time. Accordingly, he cannot obtain Kosovo citizenship under the transitional provision nor under present Kosovo citizenship law.
However, I did not interpret the article to mean that registration by the UNMIK is necessary for registration under the current law. I am satisfied that the Applicant meets the criteria for citizenship of Kosovo and that he likely has sufficient evidence to be entered in the register of citizens.
I accept that there would be an administrative process involved in establishing the Applicant’s eligibility to register as a citizen of Kosovo and that this could take some time. That could result in a waiting period in detention if his visa is not returned to him and he is to be deported. He said he is well taken care of in detention, he likes his unit, the other detainees are very friendly and he feels very cared for by them. He does not wish to go to Kosovo. I do not think the possibility of spending a period of time in immigration detention rather than in Kosovo while his citizenship is established warrants the allocation of any weight in favour of revocation of the cancellation of the Applicant’s visa.
Extent of Impediments if Removed
As a guide for exercising the discretion, 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.
The Applicant is a 53 year old man who speaks English, Bosnian/Serbian[102] and Albanian. Given the large Albanian population in Kosovo, I do not accept that the Applicant would encounter any substantial language barriers there. Nor would he encounter substantial cultural barriers, having lived in Kosovo from the early 1970s to 1990 and having mixed with the Albanian community in Australia since then.
[102] The Applicant told the Tribunal that he speaks Bosnian. Patient notes from Ipswich Hospital record that the Applicant said he speaks Albanian and Serbian (see Exhibit G1, G2, page 298). Bosnian and Serbian are nearly identical in vocabulary and grammar but use different alphabets.
The Applicant’s wife would not move to Kosovo with him. She is in poor health, does not speak Albanian and the Applicant does not want her living in difficult conditions.
The Applicant suffers from the medical and psychological conditions that are set out earlier in these reasons. He requires various medications including for his diabetes, heart, blood pressure, anxiety tablets and pain, as well as a wheelchair or walking stick/walker. He was previously recorded as suffering from mixed disorder of mood and anxiety, cluster B personality traits and, when he was awaiting sentencing for the index offending, a recurrent panic disorder with agoraphobia. The psychiatric assessment in May 2022 did not indicate the presence of any of these conditions. In 2014, Dr Yoxall opined that the Applicant required ongoing psychiatric and psychological treatment. However, he has had minimal treatment since then and is not currently presenting with mental health problems apart from situational stress/distress.
The Applicant expects that, if released to the wider community, he would be heavily reliant on his wife for support in day to day living, e.g. to help him in the shower. He would not have that support from her in Kosovo.
The Applicant claims that there is nowhere in Kosovo where he could get treatment for his psychological problems, depression and stroke. He, his wife and his step-daughter described sending him back to Kosovo as a virtual death sentence given his health problems. However, I think that is unduly pessimistic. In 2014, the Applicant told Dr Yoxall that he did not know how he could survive in prison with his health being so compromised by his diabetes, saying “Look at me... I have thin arms like a girl...I have no fitness...I cannot defend myself”. Yet he did survive prison. He also told Dr Yoxall that he was often non-compliant with treatment recommendations for his diabetes and he ended up being prescribed insulin. He has not been compliant with his recommended physical rehabilitation since the strokes either. It is difficult to accept the Applicant thinks he will die in Kosovo due to lack of treatment when he chooses not to engage in treatment that is available here.
It was submitted that, relevantly:
·Kosovo is the second poorest country in Europe. The healthcare system is improving but faces significant challenges;
·The ratio of doctors per thousand inhabitants in Kosovo is 0.94% which compares unfavourably to other Balkan countries;
·Different national and international reports have shown that Kosovo inhabitants are very unsatisfied with healthcare services offered and corruption is prevalent;
·Patients have to incur substantial transportation costs just to see doctors.
The example given of the last point related to rural inhabitants, and there is no suggestion that the Applicant would live in a rural area, having grown up in the capital city. The Applicant claimed to have learned from social media, Google and Facebook friends who live in Kosovo that there are not any adequate public hospitals in Kosovo - you need money to go to a private clinic and money for someone to drive you there.
The Applicant did not indicate where he would live, or where he might avoid living, if returned to Kosovo. He grew up in Pristina so he has some familiarity with that city.
A Wikipedia page entitled “Healthcare in Kosovo”[103] was put forward on the Applicant’s behalf. While Wikipedia.com is not normally the best source of country information, this article is reasonable detailed, balanced and informative so I take it into account along with other country information sources that I mention below. According to this article, at the primary level, Kosovo has Family Medicine Centres and Ambulatory Care Centres where health care services are provided to the community, normally by nurses and general practitioners. At the secondary level it has seven regional hospitals. At the tertiary level it has the University Clinical Centre (“UCC”), University Dentistry Clinical Centre and the National Institute of Public Health. Pristina does not have a regional hospital but it uses the UCC health care services. The UCC provides health care services in 12 clinics. At a lower level, home services are provided to vulnerable groups who are not able to reach a health care premises. These services appear to be public health services which are available to everyone including those on a low income.
[103] Exhibit A1, Attachment C.
The article states that there are not enough doctors providing primary health care. One of the services provided by secondary health services, which provide more specialised treatments, is screening asymptomatic patients for diseases. The expenditure of resources on preventative measures like this – and the fact that there are resources to do that – suggests that the secondary health system is in reasonably good shape.
According to the article, different national and international reports have shown that Kosovo inhabitants are very dissatisfied with health care services and that corruption is prevalent – although such conclusions were reached without in-depth analysis. It then refers to a United Nations Development Plan Public Pulse report that showed that of 1,334 patients who were treated in public health care systems in Kosovo 70% said they were either satisfied or highly satisfied with the services offered. Corruption was shown to be less prevalent than reported in other studies with 4% of participants claiming to have been asked for a bribe during their most recent visit. The Public Pulse Report indicated that participants were generally satisfied with health care in Family Medicine Centres, regional hospitals, and the UCC. Further, patients who visited pharmacies expressed high satisfaction with their services. I take into account that the sample of participants seems reasonably small and it is not apparent how they were selected. However, as it was conducted by or for the United Nations Development Plan it seems reasonable to assume that it was not deliberately skewed.
An article entitled Kosovo – Health Industry,[104] the provenance of which is not apparent, was put forward on the Applicant’s behalf. Essentially it indicates that Kosovo inherited a weak healthcare system from Yugoslavia and it faces significant challenges.
[104] Exhibit A1, Attachment C.
A 2021 article put forward by the Respondent[105] indicates that despite improvements, the quality of healthcare in Kosovo remains of concern. It has yet to introduce a universal health coverage scheme, and around one fifth of the population have very limited access to healthcare. Access to basic healthcare is free but the cost of diagnostic services and medications is not reimbursed. Only 65% of annual public health needs are covered by public spending. Mental health services function as integrated services. In March 2021 primary health care providers in Pristina started providing e-health services, enabling virtual communication between users/patients and their general practitioners and provide counselling services whenever possible.
[105] Exhibit R1, Attachment A. European Commission "Commission Staff Working Document Kosovo 2018 Report" (2018). SWD(2021) 292 final/2.
The Applicant’s wife and step-daughter both referred to a document on the United States Central Intelligence Agency website[106] that they said indicates that the healthcare situation in Kosovo is very poor. This document really says nothing meaningful about the healthcare situation in Kosovo. Against “public healthcare expenditure” it says “not applicable” without there being any indication of what “not applicable” signifies in that context. I give no weight to this information.
[106] Exhibit A1,referring to
The Applicant’s step-daughter gave evidence that was apparently intended to demonstrate that the health system in Kosovo is inadequate. She claimed that during a trip to the Balkans in 2010 she had an allergic reaction and the source (a pesticide used on vegetables) was only discovered when she went to Turkey despite having seen a doctor in Bosnia. She said her grandparents told her healthcare is pretty much the same everywhere in that region. I do not accept that failure to diagnose an allergy to a pesticide in Bosnia, that may or may not be used in Kosovo, demonstrates that the Kosovan healthcare system is deficient. Nor is the second-hand opinion of Ms E’s grandparents something I am prepared to rely on.[107]
[107] Transcript, page 131, line 30 to page 132, line 21.
I accept that the Applicant would not have access to the same level of free or subsidised medical, mental health and pharmaceutical care in Kosovo as he would in Australia. Nor would he have family to take him to medical appointments and the like. However, I do not accept that the medical system is as inadequate as claimed by him and on his behalf. Further, if he chose to live in Pristina he would probably have access to virtual communication with health providers and to some counselling through e-health services.
I accept that the Applicant would not be able entitled to government income support in Kosovo. I also accept that he no longer has any close relatives or friends there. He does have Facebook friends in Kosovo, and he is still friendly with members of the Albanian community here who have links to people in Kosovo, but he does not think any of these people could help him and he would not know how to approach them for help. He said it is a hard life there, and it is hard for them to survive, let alone look after him. I asked the Applicant:
“Yes, but do you think that they would at least talk to you, introduce you to their place of worship, you know, where you could join a community, perhaps let you sleep on their couch for a little while? Do you think that they would help you in some way, in any way they could?”
The Applicant replied:
“What - you’re going to send me in Kosovo to sleep in some dirty couch in Kosovo? Sick like a dog? You know what I mean? That’s a bit cruel to me.…for me, is disaster. For me, is death sentence because I don’t have a country, this - I am not a citizen there. No one going to help me. I have to rely always on asking people, like a - like a - like a beggar…”[108]
[108] Transcript, page 88, lines 40 to 45.
I accept that the Applicant would find it demeaning to ask for help from people in Kosovo and that he probably could not expect much help.
The Applicant thinks he is not fit for employment in Kosovo either. However, he has skills in business and those skills do not involve manual labour. I think he has some prospects of using his intelligence, business acumen and social skills to make a living even if his mental health is not good.
In terms of relying on wealth the Applicant accumulated in Australia, the Applicant claims he lost most of that following his arrest. He said he now has around $10,000 - $15,000 in the bank. He also owns an unmortgaged townhouse (in his brother-in-law’s name) that Ms E’s family currently live in. He and his wife also have a car. He claimed that the police “seize[d] everything” and “froze everything”, which I take to mean they seized assets and froze bank accounts. He had to sell property to pay debts. The police gave everything back in 2022.[109]
[109] Transcript, page 16, lines 25 to 27; page 80, lines 24 to 46.
I find it hard to accept that the Applicant’s financial position is as he represented it to be, given his wealth at the time of his arrest, but without any evidence to the contrary I will accept his evidence.
The Applicant’s wife is reliant on Disability Support Pension and her parents are on the Age Pension. They all share a home with her brother who is employed with no dependents. The home is not mortgaged. Her daughter pays $300 per week to cover expenses of the townhouse she lives in. Mrs Ahmetaj said she would want to provide financial support to the Applicant if were deported but she thinks it would be very hard for her family to do that.
Ms E has an ongoing, full-time, senior position at a large insurance company where she manages over 300 staff. Her husband runs a successful pastry business from their home. As Mr E works from home, he does not incur expenses associated with owning or leasing a commercial kitchen. Mr and Mrs E do not pay a mortgage. Nor do they pay rates or utilities, but they pay $300 per week to cover those sort of expenses. That is, they pay $300 per week for their accommodation, in a townhouse, on the Gold Coast. Ms E claimed that they had spent money their own money on improvements like solar panels.[110] They receive assistance from the NDIS for Child B’s treatment.
[110] Transcript, page 134, lines 16 to 20.
Ms E initially described their financial position as “reasonably strong”, “ok” and “comfortable”.[111] However, when asked if her family could provide financial support to the Applicant if he needed it, she said it would be “really difficult” because she and her husband already provide support to her husband’s family back in Turkey who are “not so well-off”. She said “I am so thinly spread that it would be difficult to provide support further”.[112] She had not said she was thinly spread before she was asked this question. Rather, she had said she was in a reasonably strong financial position and “comfortable”.
[111] Transcript, page 133, lines 30 to 38.
[112] Transcript, page 133, line 42 to page 134, line 2.

Ms E was asked:
“So would it be fair to say that if you’re providing that sort of support to your husband’s family members, then it would be something that you would want to do for your stepfather if he was in that position if he needed food or he needed accommodation?”
She replied that she would want to but “whether I could would be a big issue”.[113] She said she has her immediate family to consider, and she indicated she wanted to buy her own home and referred to inflation.[114]
[113] Transcript, page 134, lines 5 to 14.
[114] Transcript, page 134, lines 15 to 33.
The Respondent contended that the evidence to the effect that the Applicant’s family would not be in a position to assist financially if he were deported did not quite add up, and I respectfully agree. I note further that when discussing the impact deportation would have on her children, without equivocation, she referred to occasional visits overseas, which indicates that she expected to have sufficient spare funds to pay for international airfares and accommodation.
Ms E and her husband went to the effort of providing statements in support of the Applicant. Ms E gave evidence in the hearing. The Applicant had sponsored Mr E to come to Australia. Ms E’s family is living cheaply in the Applicant’s home. They consider that he is a good influence on their children. It is not plausible that they would not be willing and able to provide financial support to him if he needed financial help to access the basic necessities of life.
Life will certainly be much more difficult for the Applicant in Kosovo than in Australia. He will most probably have difficulty accessing the care he needs for his medical conditions and mental health. He will not have his wife and her family close by to provide care and companionship. His mental and physical health could well deteriorate. He will have to find accommodation and a means of earning a living. He mat well have to rely on financial support from his family or possibly from others, which has previously had a detrimental impact on him psychologically. Establishing himself and maintaining basic living standards will be more difficult for him than it would be for citizens who already have accommodation, family, a social network and knowledge of where and how to access health services.
I allocate very heavy weight to this Other Consideration in favour of revocation of the cancellation of the Applicant’s visa.
Impact on victims
There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration is therefore not relevant.
Links to the Australian Community
In consideration of this Other Consideration, paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant came to Australia at the age of 27 and has lived in Australia for 25 years, nearly 10 of which he has spent in custody. He commenced offending four years after moving to Australia. The Applicant said he considers Australia to be his home country.
I accept that before he was arrested for drug trafficking, the Applicant was involved in the Albanian and Bosnian communities, and he continues to have some support in those communities. He did voluntary work, especially helping refugees coming from the former Yugoslavia to settle into their new environment. He helped to resurrect and manage a soccer club for a period. He encouraged youth from the former Yugoslavia to play soccer rather than get involved in antisocial behaviour. There is a letter before me from a person who used to play in the soccer club as a youth that speaks positively of the Applicant.[115] The Applicant donated money to various community groups, not only in the Albanian and Bosnian communities. He did some good deeds through his car yard, selling a car at cost price to a struggling single mother and providing interest free finance to some customers.
[115] Exhibit A1, Attachment E page 32.
It is apparent that the Applicant used his connection to the Albanian and Bosnian community for nefarious purposes too: the fact that some of the intercepted conversations were conducted in Albanian and Serbian indicate that he was working with people from backgrounds where those languages are spoken.
The Applicant’s family in Australia consist of his wife, her parents, her two children and Ms E’s children. He also has some uncles who he does not see much. There is no other information about his uncles before me.
The Applicant’s wife is in poor health. Her ailments include left rotator cuff tendonitis, ischaemic heart disease, breast cancer (in remission), chronic diverticulitis and L5/S1 disc protrusion causing referred pain, asthma, carpel tunnel problems, GORD, and she is borderline diabetic. She cannot do anything involving heavy lifting or rapid work. Her use of her left arm is limited. She needs painkillers but when she takes them she cannot drive. She is currently on Panadeine Forte, and doing physiotherapy, hydrotherapy, acupuncture and having pain block injections. Her parents and brother currently help her by doing tasks like cooking, taking the washing out, or vacuuming. On days when she feels a little better she can do those tasks herself.
Mrs Ahmetaj is obviously coping without the Applicant around, however she said she needs his support in every sense of the word.[116] When asked how he could help her, she said if she is not feeling well she can ask him to pass the medication over or call her parents. This level of help seems minimal. She said she and her family will look after the Applicant: they, as a family unit, are prepared to stand by him and help him in every way. It appears that having the Applicant back would place quite a burden on Mrs Ahmetaj and to a lesser extent and her parents and brother, but it is a burden she wants if it means having him back with her. She thinks it would put the family’s hearts at ease to have him back. If he is deported she will lose him for good and she would be devastated. She loves him and she has waited nearly ten years to have him back. I accept that she would experience significant emotional hardship if he is deported. She may or may not be able to keep in contact with him if he is in Kosovo. I also take into account that if the Applicant is removed, that would remove the risk that of him committing domestic violence against Mrs Ahmetaj, although she does not agree that there is any risk.
[116] Exhibit A1, Attachment A.
In a letter written by Mr E in January 2021, he referred to Ms E continuing her battles with “RA” (presumably rheumatoid arthritis) and a brain tumour although none of these conditions were mentioned in the hearing in November 2022 and Ms E is currently working full-time, so it appears that these conditions are not debilitating. He said that with that, Mrs Ahmetaj’s breast cancer diagnosis, Child B’s autism diagnosis, the death of a close family member[117], the repercussions of the Applicant’s actions in the past have pushed the family to breaking point. Deporting the Applicant would have a knock-on effect of mental well-being of all the family members.[118] It appears the family has managed over the 22 months since the letter was written but I accept that the Applicant’s deportation would cause further stress.
[117] The Applicant’s parents-in-law refer to the death of their daughter-in-law in a letter at Exhibit A1, Attachment E page 35.
[118] Exhibit A1, Attachment E page 35.
The Applicant’s parents-in-law wrote that he is a valued member of their family. They worry for the mental health of their family and whether they can provide enough support emotionally and physically to Mrs Ahmetaj.[119]
[119] Exhibit A1, Attachment E page 34.
Ms E claimed to have a very close relationship with the Applicant and said he did his best to support her in a parental role. She thinks her mother needs the Applicant around to care for her in the event that her grandparents pass away.
Mrs Ahmetaj’s parents are currently in good health, and her brother, who is able-bodied and in good health, lives with her and helps her. It is well known that some people use paid carers to assist them and the cost might be subsidised depending on their circumstances. I am not prepared to speculate that, without the Applicant around, Mrs Ahmetaj will be without adequate physical care in the future.
The no evidence before the Tribunal about the Applicant’s relationship with his wife’s brother or any impact on him of the visa cancellation.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Conclusion: Other Consideration (d)
Overall, I am satisfied that, mostly on the strength of the Applicant’s wife’s emotional attachment to the Applicant and his positive involvement in the community, this Other Consideration weighs moderately in favour of revocation. (I have already allocated weight in relation to his connection to his step-grandchildren per Primary Consideration 3)
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction. Primary Considerations 1 and 4 each weigh very heavily, and Primary Consideration 2 weighs heavily, against revoking the visa cancellation. Primary Consideration 3 and Other Considerations (b) and (d) cannot, even when combined, tip the balance in favour of revocation of the visa cancellation.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa. Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
Decision
The decision under review is affirmed.

I certify that the preceding 239 (two hundred and thirty nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

...........................[SGD]........................................
Associate
Dated: 16 January 2023

Date of hearing: 22 and 23 November 2022

Solicitor for the Applicant:

Mr Esef Mirascija

Solicitor for the Respondent
Ms Lauren Hargrave

Clayton Utz

EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED

G1 Section 501 G-Documents (G1 to G5 paged 1 to 1201) R - 29 September 2022

A1
Applicant's Statement of Facts, Issues and Contentions (8 pages) attaching Attachments A to F:

·   Attachment A: Statement of Mrs Ahmetaj

·   Attachment B: Statement of Ms E

·   Attachment C: Articles re Healthcare in Kosovo

·   Attachment D: Tax Returns and Statement of attainment

·   Attachment E: Character references

·   Attachment F: Letter from the Parole Board and Parole Order

·   Attachment F: Clinical Report for Applicant
A - 21 October 2022

A2 Applicant’s First Post Hearing submission (2 pages) A 5 December 2022
5 December 2022

A3 Applicant’s Second Post Hearing submission (2 pages) A 7 December 2022 7 December 2022

R1 Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 26) and Attachment A R 9 November 2022 9 November 2022

R2 Respondent’s Selected Summons Material (SM1 to SM4, paged 1 to 39) R - 16 November 2022

R3 Respondent’s Further Material regarding Domestic Violence R - 1 December 2022

R4 Respondent’s First Post Hearing submission (2 pages) R 1 December 2022 1 December 2022

R5 Respondent’s Second Post Hearing submission (1 page) R 6 December 2022 6 December 2022

T1 Country Report on Citizenship Law: Kosovo, Revised and Updated January 2015, Gëzim Krasniqi, EUDO Citizenship Observatory, Robert Schuman Centre for Advanced Studies in collaboration with Edinburgh University Law School, Country Report, 2015/3. T January 2015 5 December 2022

[2022] AATA 4662

8 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G5 paged 1 to 1201)	R	-	29 September 2022
A1	Applicant's Statement of Facts, Issues and Contentions (8 pages) attaching Attachments A to F: · Attachment A: Statement of Mrs Ahmetaj · Attachment B: Statement of Ms E · Attachment C: Articles re Healthcare in Kosovo · Attachment D: Tax Returns and Statement of attainment · Attachment E: Character references · Attachment F: Letter from the Parole Board and Parole Order · Attachment F: Clinical Report for Applicant	A	-	21 October 2022
A2	Applicant’s First Post Hearing submission (2 pages)	A	5 December 2022	5 December 2022
A3	Applicant’s Second Post Hearing submission (2 pages)	A	7 December 2022	7 December 2022
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 26) and Attachment A	R	9 November 2022	9 November 2022
R2	Respondent’s Selected Summons Material (SM1 to SM4, paged 1 to 39)	R	-	16 November 2022
R3	Respondent’s Further Material regarding Domestic Violence	R	-	1 December 2022
R4	Respondent’s First Post Hearing submission (2 pages)	R	1 December 2022	1 December 2022
R5	Respondent’s Second Post Hearing submission (1 page)	R	6 December 2022	6 December 2022
T1	Country Report on Citizenship Law: Kosovo, Revised and Updated January 2015, Gëzim Krasniqi, EUDO Citizenship Observatory, Robert Schuman Centre for Advanced Studies in collaboration with Edinburgh University Law School, Country Report, 2015/3.	T	January 2015	5 December 2022